Q: I am thinking of filing an overtime claim against my employer because I and my coworkers are doing a lot of off-the-clock work. However, I am concerned about losing my job and not being able to work in this company any more. Should I still file a claim? What should I do?
A: You should still file a claim. There are several laws that protect employees when they assert their legal rights.
First, your employer is prohibited by law from retaliating against you if you engaged in a protected activity. Engaging in “protected activity” means that the employee has complained or opposed a practice which is forbidden by law (e.g. not paying overtime or disability discrimination). The complaint may be internal and made to managers or officers in the company. It can also be external and made to government agencies.
“Protected activity” may also include complaints or opposition to conduct the employee “reasonably” and in “good faith” believes to be unlawful, even if the conduct is not actually prohibited under the law.
When engaging in a protected activity, such as requesting wage payments due or complaining about safety issues, employees should document their complaints or claims. Some may think that anonymity protects them. However, the opposite is true. Presenting complaints in writing, even by email, if expressed in a professional manner, will make it harder for the employer to ignore. More importantly, it creates a record of communications that at a future time will be reviewed to determine the true reasons why any action was taken against the employee.
Now, suppose you filed a claim and the employer decides to settle your claims by agreeing to pay a sum of money. You will likely then be asked to sign a settlement agreement. In the past, these settlement agreements contain a provision where the employee is asked to resign or to agree not to work with the employer again.
Current law in California does not allow any contract that would restrain a person from engaging in a lawful profession, trade, or business. This law was recently expanded by lawmakers to further protect employees who settle employment disputes.
Assembly Bill 749 prohibits an agreement to settle an employment dispute from containing a provision that prohibits, prevents, or restricts an aggrieved employee from working for the employer where the aggrieved employee has filed a claim against the latter.
The new law also clarifies that an employer and an aggrieved employee are free to agree to end a current employment relationship or to prohibit the aggrieved employee from obtaining future employment with the employer, if the employer has made a good faith determination that the employee had engaged in sexual harassment or sexual assault. The employer is not required to continue to employ or rehire a person if there is a legitimate nondiscriminatory or non-retaliatory reason for terminating or refusing to rehire the person. Any agreement entered into on or after January 1, 2020, that violates this prohibition is void as a matter of law and against public policy.