San Diego Employment Law | Frequently Asked Questions

Employment Law – Frequently Asked Questions

Q.  Must an employer provide employment references? 

A.  Employers are not under any obligation to provide references for former employees. Providing employment references may leave former employers open to legal liability from the former employee and the prospective employer.  Many employers now have policies to only provide basic employment verification information about an employee, such as the duration of employment, position title, salary and other basic information.

Q.  My company only has 35 employees. Am I required to provide sexual harassment prevention training to my employees?

A.  After January 1, 2006, it became mandatory that employers with 50 or more employees provide at least two hours of sexual harassment training to its supervisory employees. Such training must be provided once every two years. The training and education must be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation. Although you only have 35 employees, sexual harassment training is always a good idea.  Proper training teaches the company’s supervisory employees to effectively deal with sexual harassment in the workplace and complaints.  Training may help limit your company’s liability should it ever be sued for sexual harassment.

Q.  What must an employer do if it receives a complaint of harassment?

A.  An employer who receives a complaint of harassment on the basis of sex, race, national origin, age, religion or disability has an obligation under federal and state law to take immediate steps to investigate the complaint and then take prompt, appropriate remedial action. In most cases, this means the employer has a duty to begin investigating the complaint within 24-48 hours.  Even if the employer believes the complaint is unjustified, the employer still has a duty to conduct a reasonable investigation in order to minimize the possibility of legal liability. Likewise, the employer may not fire or take other adverse employment action against the person accused of the harassment without first conducting an investigation. Employers who do so may face claims of wrongful termination, retaliation, defamation and/or reverse discrimination.

If after conducting the investigation the employer determines that some or all of an employee’s complaint is grounded in fact, the employer must take actions reasonably calculated to end the harassment. Such action could include disciplining the harasser and formally noting the discipline in his or her personnel file, requiring him or her to take training or firing the harasser.

Q. Must an employer perform formal performance reviews?

A.  There is no legal requirement that employers perform formal performance reviews of employees, just as there is no general requirement that an employer have just cause to fire an employee. An employer may, however, be required by the terms of an employment contract, employee handbook or collective bargaining (union) agreement to review an employee annually, bi-annually or on some other basis. Even in situations where an employer is not required to conduct performance reviews, it is a good practice for employers to do so. It provides employers a means of evaluating employees, identifying coaching and/or training opportunities and setting uniform criteria for determining promotions and raises.

Q.  We are terminating an employee at the end of the week.  Do we have to pay them on their last day or can we wait until the next pay cycle ends?

A.  Yes, provide the terminated employee with a final check on their last day. Under California law, an employee who is discharged must be paid all of his or her wages, including accrued vacation, immediately at the time of termination.

Q.  My company hired a consultant and classified him as an independent contractor even though we require him to: (1) report for work Monday through Friday 9:00 a.m. to 5:00 p.m. ; (2) work at our office; (3) use the company’s tools, equipment and materials for completion of his work; (4) follow the company’s procedures in order to complete his work; (5) submit reports regarding his work; (6) meet weekly with his supervisor regarding his work; and (7) submit receipts to be reimbursed for expenses. Is this consultant properly classified as an independent contractor?

A.  The actual determination of whether a worker is an employee or independent contractor depends upon a number of factors, all of which must be considered, and none of which is controlling. The most significant factor to be considered is whether the person to whom services are rendered (the employer or principal) has control or the right to control the worker both as to the work done and the manner and means in which it is performed.

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