Berman Hearing. In 1976, California passed, at the urging of Assemblyman Howard Berman, a bill establishing an enforcement mechanism for employees to claim, and quickly recover, unpaid wages. A Berman hearing is administered through the Division of Labor Standards Enforcement (DLSE). The Labor Commissioner’s office will notify a defendant of an employee’s claim with a Notice of Conference (settlement conference) or Notice of Hearing (trial).

Initially, claims asserted before the Labor Commissioner amounted to a few hundred or a few thousands of dollars. In fact, some offices of the Labor Commissioner refused to process claims over a certain amount and referred employees to an attorney. However, for the past 20 plus years, I have often handled wage claims before the Labor Commissioner for many thousands of dollars. There is no limit to the amount an employee can claim.

Yet, a hearing is typically set for only one or two hours and without the formalities found in a court of law, such as rules of evidence. Employees can, and often do, introduce evidence which would not be permitted in a court ofl aw. The hearing is a short, informal hearing for matters involving so much at stake!

Labor Commissioner Decision. After a hearing, the Labor Commissioner issues an Order, Decision or Award, commonly known as an ODA. An employer who receives an ODA ordering it to pay money has very limited options. The employer may attempt to negotiate a settlement with the employee for something less than the amount of the ODA. This is not
often a successful strategy unless the employer is insolvent, and a settlement is the only way for the employee to recover against the employer.

Appealing an ODA. An employer has 15 days from the date on the Certification of Service by mail in which to appeal. (If the ODA is served personally, the employer has 10 days to appeal.) It the employer does not timely appeal the ODA, it will become final and enforceable as a court judgment to appeal, an employer must first post a bond or undertaking with the Court in the amount
of the ODA. The employer will not have its day in court unless it first posts that bond. This way, it the employer loses, the employee will be made whole.

A Notice ofAppeal must be filed with the Superior Court in the County where the ODA was issued and serve a cop of the Notice on the DLSE. Atrial “de novo” will then be scheduled. De novo means that the case will be heard by the judge without any regard or review of the ODA.

Can You Get Fired Without a Written Warning in California?

There are many laws in place to protect california employees, and as an employer, you may be considering firing an employee from their job and want to be sure you are within your rights to do so. keep in mind that there are legal and illegal reasons for suddenly being fired. You may alsob e wondering, Can you get fired without a written warning in California?”

The short answer is, yes, an employee can be tired suddenly without any written warning in California. This is because California is considered an at-will employment state. At-will employers are legally allowed to let go or terminate their employees for any reason and without any notice.

However, the employer still must comply with federal and state laws that protect an employee from being fired due to their gender, ethnicity, sexual orientation, religion, or if m disabling.

Employers should note that different labor requirements exist for those who are non-exempt and exempt employees. Usually, exempt employees continually perform the same tasks more than half of the hours they work and are paid a salary and are not required to be paid overtime. Non-exempt employees are usually paid on hourly wage and eligible for overtime pay.

California law does not require that employers notify their employees before letting them go or terminating them, unless there is a written contract between employer and employee that states otherwise.

Termination and Wrongtul Termination

While employers have the freedom to fire for whatever reason, they still must keep in mind the state and federal laws surrounding wrongtul termination and the employees rights.

If an employer terminates an employee due to their race, sexual orientation, gender, religious views, political bellets, or any other protected right, this is considered wrongful termination. Additionally, if an employee is fired due to notitying the authorities about illegal activity that the company is participating in, or if they are terminated for whistleblowing, that is also considered wrongful termination.

If an employee believes that they have been terminated as a means ofretaliation or discrimination, then they have the right to take legal action against their employer. If you have an employee claiming you fired them due tothese reasons, you should consult with a Fresno employment law attorney as soon as possible.

Advantages and Disadvantages ofAt-Will Employment

In many cases, at-will employment benefits both the employer and the employee. Some advantages ofat-will employment include:

  • Allowing the company to reach certain goals by hiring more employees
  • creating a dynamic culture for thecompany
  • Discovering new employees based on their skillset
  • Being flexible for gaining new employees after another decides to move to another position

A major benefit for employees also includes the ability to leave a position for whatever reason, such as wanting to find a better job or if the work environment is toxic. If an employee feels that they are not suitable for the job, or it isnot a good fit, then they can leave the position at an y time.

The major disadvantage for employees is the potential to lose their job at any time for any reason, giving them a reason to question their job security. fI an employee is constantly worried about their job and whether or not they will be terminated, that can create a lot of stress. Most people rely strongly on the income made to pay their bills and provide for their families, and worrying about job security can be stressful.

FAQs

Q: How Should an Employer Legally Terminate an Employee in California?

A: An employer must pay a terminated employee all wages due including unused vacation. The employer must do so at the time of termination. In situations where a large number of employees are terminated, written notice may be given.

Q: Can An Employee Be Fired Due to Their Appearance in California?

A: Yes, an employee can be fired due to their appearance in California. As California is an at-will employment state, an employee can be fired for any reason, including their appearance. However, the employee should be fired due to their appearance because they have gone against the company’s dress code policy. If the employee is fired based on a protected right, then the employee has a right to file a wrongful termination claim.

Q: Does an Employer Have to Pay an Employee After Being Terminated in California?

A: Yes, an employer must pay an employee on the day of termination sepcifically, they must give the employee their final paycheck very soon after the individual has been fired. If an employer fails to give the employee their final paycheck in a timely manner, the employee can seek waiting time penalties calculated at the employee’s daily wage for up to 30 days.

Q: What Evidence Does an Employee Need for a Discrimination Case in California?

A: An employee can file a lawsuit alleging unlawful termeination on minimal allegations. the employee can rebel the claim with a dod-discriminatory justification for the decision. At that point, the employee must present. That proof of discrimination could be found in emails, voice recording, forms used for disciplinary purposes, document of the termination or witness statements.

Discrimination is illegal, and illegal reason to fire an employee. This is why the employee has the right to take action against their employer.

Consult with a California Employment Lawyer

You may be concerned about whether or not your company is protected sufficiently from potential employment disputes regarding wrongful termination. Our skilled and highly experienced team of legal professionals can help you create employment agreements that will make clear to your employees what the appropriate reasons for termination are within your company, keeping you sheltered from a wrongful termination claim.

Contact Fishman, Larsen & Callister for assistance today and peaceofmind that your company is safe from anemployment dispute.