Legal Question in Employment Law in California

An employer can have language rules in the workplace. They can also have conduct rules, though why an employer would not want a smiling employee is beyond me. As for the other issues, though, he is seriously breaking the law. In an eight hour shift you must be given two paid ten minute breaks and an unpaid half-hour break. He must allow you to use the restroom on your breaks. It is also illegal for him to require you to work after your shift without paying you, and he must pay you overtime for any time after 8.5 hours if he gives you your half-hour break, or over 8 hours if he doesn't give you the break. You should contact the Dept. of Industrial Relations, Division of Labor Standards Enforcement and file a complaint. Once you file, you will also be protected from being fired in retaliation.

Just to add to Mr. McCormick's comments, an employer can have language rules but cannot use these rules for an unlawfully discriminatory purpose. Discrimination can be inferred from the employer's implementation of these rules. For instance, if an employer tells a Hispanic employee not to speak Spanish to a co-worker but does not tell an Italian worker not to speak Italian to some other co-worker, the employer might be discriminating against the Hispanic worker on the basis of ethnicity and/or national origin even though the means of doing so (the language rule) is not itself unlawful.

1. Can an employee get fired for speaking in another language with coworkers? I speak in my mother language with my coworkers since they do not speak good English. And owner told me not to do that. Is this considered discrimination?

�English-Only� policies are generally unlawful and constitute national origin/ancestry discrimination because non-English speakers cannot enjoy the privilege of conversing on the job if conversation is limited to a language they cannot speak. However, such policies are permitted if an employer can show that such a rule is (1) justified by a �business necessity� and (2) employees have adequate notice of the restriction. A �business necessity� for language restrictions is proper where necessary to safe and efficient operation of the business AND no alternative practice would accomplish the business purpose equally as well with less discriminatory impact. Some examples of situations would include work involving high risk of injury or accidents (e.g., during surgery or at a laboratory, oil drilling site, mining site, or construction site); or where necessary for communication with customers, coworkers, and supervisors who speak only English. In these circumstances, the English-only policy should be limited to only those times and occasions when it is actually necessary.

2. Moreover I am a friendly person smiles a lot at work. My employer told me not to smile. Does he have a right to say that??

Unfortunately, it�s not unlawful to be a mean or surly supervisor who doesn�t want employees to smile. While it sounds strange, he is allowed to tell you not to smile.

3. When I work from 2pm-10pm after 6pm I am the only person. So I use the rest room if I wanted during that time. He told me not to. Is this legal??

I am not aware of any laws that require an employer to provide additional breaks, other than those specifically provided for under California law (see next question, below) to an employee to use the bathroom, unless the use of the bathroom is required due to a disability or medical condition.

4. Every day when I work I have to stay 45 minutes without getting paid to close my shift. Balance the money etc. And I do not get any rest or meal breaks even though there are two or more employees at work?

It depends on whether you are an exempt or non-exempt employee. If you are an exempt employee, there is no requirement to pay you overtime or give you rest or meal breaks. However, if you are non-exempt, then your employer is required to provide you two 15 minute breaks and a 30 minute break for every 8 hours of work. Moreover, they are required to pay you overtime for any time worked over 8 hours in a day or 40 hours in a week.

5. If I get fired do I have the right to ask for a reason in writing and for the last pay check?

You are entitled to your final paycheck (including payment for unused vacation) on the day of your termination. Employers are not required to give a reason in writing for your termination, but it is a good idea to ask for one.