Employment Attorney in Del Mar, CA

Unpaid wages, overtime, and breaks

California pays overtime by the day as well as by the week, and unpaid time adds penalties on top of the wages themselves.

• Time and a half after 8 hours in a workday and after 40 in a workweek, double time after 12 hours in a day, under Cal. Lab. Code § 510. Federal overtime after 40 hours is separately owed under 29 U.S.C. § 207(a).
• A 30-minute off-duty meal period is required before the end of the fifth hour under Cal. Lab. Code § 512, and each missed or interrupted meal or rest period costs one extra hour of pay under Cal. Lab. Code § 226.7. Rest breaks must be genuinely off duty, Augustus v. ABM Security Services, Inc., 2 Cal. 5th 257 (2016).
• Small increments of off-the-clock work still count: California rejects the federal de minimis defense for regularly occurring minutes, Troester v. Starbucks Corp., 5 Cal. 5th 829 (2018), and time under employer control, including bag checks, is hours worked, Frlekin v. Apple Inc., 8 Cal. 5th 1038 (2020).
• Overtime is calculated on the regular rate, which includes most non-discretionary bonuses, Alvarado v. Dart Container Corp., 4 Cal. 5th 542 (2018).
• Late final pay carries waiting-time penalties of up to 30 days of wages under Cal. Lab. Code § 203, defective pay stubs carry penalties under Cal. Lab. Code § 226, and work expenses such as personal phone and vehicle use must be reimbursed under Cal. Lab. Code § 2802.
• If you were paid on a 1099 but worked like an employee, the ABC test in Cal. Lab. Code § 2775 presumes employee status, and misclassification carries employer penalties of $5,000 to $25,000 per violation under Cal. Lab. Code § 226.8.

Wrongful termination and retaliation

California is an at-will state, but firing someone for an unlawful reason is still actionable.

• An employer may not fire or punish you for reporting what you reasonably believe is a violation of law, Cal. Lab. Code § 1102.5, and the employer carries a clear-and-convincing burden under Cal. Lab. Code § 1102.6 once you show retaliation was a contributing factor, Lawson v. PPG Architectural Finishes, Inc., 12 Cal. 5th 703 (2022).
• Retaliation for complaining about wages or filing a wage claim is separately unlawful under Cal. Lab. Code § 98.6, and for federal wage complaints under 29 U.S.C. § 215(a)(3).
• Raising a workplace health or safety concern is protected under Cal. Lab. Code § 6310.
• Termination that violates a fundamental public policy supports a common-law claim, Tameny v. Atlantic Richfield Co., 27 Cal. 3d 167 (1980).
• Discipline, schedule cuts, or a sudden negative review after a complaint can be adverse action, not just firing, Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028 (2005).

Discrimination and harassment

FEHA covers California employers with five or more employees, and harassment claims reach employers of any size.

• It is unlawful to discriminate based on race, national origin, religion, sex, pregnancy, gender identity, sexual orientation, age (40 and over), disability, or medical condition under Cal. Gov. Code § 12940(a); federal claims arise under 42 U.S.C. § 2000e-2.
• Harassment does not have to be severe to be actionable: a single incident can suffice if it unreasonably interferes with work, and the legislature rejected the 'stray remarks' approach in Cal. Gov. Code § 12923.
• Harassment liability under FEHA applies to employers regardless of employee count, and to individual harassers, under Cal. Gov. Code § 12940(j).
• A complaint must generally be filed with the Civil Rights Department within three years of the last violation under Cal. Gov. Code § 12960(e); the federal EEOC deadline in California is 300 days under 42 U.S.C. § 2000e-5(e)(1).
• Mixed-motive cases still allow relief where a protected trait was a substantial motivating factor, Harris v. City of Santa Monica, 56 Cal. 4th 203 (2013).

Leave, disability, and accommodation

Getting hurt, getting sick, or having a baby is not a lawful reason to lose your job.

• Employers must provide reasonable accommodation for a disability and engage in a good-faith interactive process under Cal. Gov. Code § 12940(m)–(n).
• California Family Rights Act leave of up to 12 weeks applies to employers with five or more employees under Cal. Gov. Code § 12945.2; federal FMLA leave applies at 50 or more employees under 29 U.S.C. § 2612.
• Pregnancy disability leave of up to four months is separate from CFRA leave under Cal. Gov. Code § 12945.
• Paid sick leave accrues and may be used without retaliation under Cal. Lab. Code §§ 246 and 246.5.
• Work injuries are covered by workers' compensation, and retaliating against a worker for filing a claim is unlawful under Cal. Lab. Code § 132a.

Common questions

Where would my San Diego case be filed?

Civil claims are filed in San Diego Superior Court — the Hall of Justice downtown, or the regional centers in Vista, El Cajon, and Chula Vista. Federal claims, including FLSA overtime under 29 U.S.C. § 207, are filed in the U.S. District Court for the Southern District of California.

How long do I have to act?

Deadlines differ by claim. Statutory wage claims generally run three years under Cal. Civ. Proc. Code § 338, FEHA discrimination and harassment complaints generally must reach the Civil Rights Department within three years of the last violation under Cal. Gov. Code § 12960(e), and federal overtime claims run two years, or three if willful, under 29 U.S.C. § 255(a).

Do I have to pay upfront?

Employment cases here are handled on a contingency-fee basis. You may still be responsible for costs and expenses regardless of the outcome, and the fee arrangement is set out in a written agreement.

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