Words, even those that have familiar meanings, can have specialized legal definitions. Not knowing or understanding these very exact legal meanings can lead to unforeseen and sometimes serious difficulties when litigation is threatened.
Bowles Law has assembled this glossary of some of the most commonly misunderstood or unfamiliar legal terms encountered in the field of employment law.
Agreement: a contract, an exchange arrangement with specific terms between two or more consenting parties. A properly formed agreement is enforceable by law.
Alternative Dispute Resolution: any method of settling a dispute other than by litigation, such as arbitration or mediation.
Answer: in civil cases, a defendant’s formal written statement in response to a plaintiff’s complaint.
Arbitration: a method of alternate dispute resolution where a neutral third party (“arbitrator”) is selected and authorized by those concerned to receive the evidence and decide the outcome of the dispute. An arbitrator is sometimes referred to as a “rent-a-judge.”
Attorney: a lawyer, an individual trained in the law and authorized by the courts to evaluate and advise individuals and groups on legal matters and represent them and their interests in litigation. “Attorn” comes from an Old French term meaning “to turn over to.”
At-will: an employment doctrine in which either employer or employee can terminate the employment relationship for any reason or for no reason, at any time, with or without notice. Compare with “term employment,” below.
Bar: the legal profession. The term derives from the railing or bar which traditionally separates judge and attorneys in the front of a courtroom from the witnesses, parties and spectators behind.
Bonus, discretionary: extra pay not linked to any stated incentive, contract, policy or promise. A holiday bonus is commonly considered discretionary and is not factored into overtime pay calculations.
Bonus, non-discretionary: any bonus promised to the employee which is: (a) a stated incentive to increase productivity, quality of work or attendance; or (b) paid under a contract, policy or promise that entitles the employee to the bonus in exchange for specified actions or performance. Non-discretionary bonuses must be taken into account when calculating overtime pay.
Bullying: hurting, frightening or tyrannizing others that are weaker or smaller. Relative to a company manager or executive, a rank-and-file employee is regarded the weaker party in an employment relationship.
Civil Rights Act of 1964: the principal U.S. law banning segregation in public places and banning employment discrimination on the basis of so-called “protected classifications,” including race, color, religion, sex (gender), national origin and others. It is also known by its nickname “Title VII.”
Civil case: a lawsuit involving the private rights of individuals or organizations and recovery of money damages from a wrongdoer and/or other relief, as opposed to criminal matters that involve potential jail time or fines. For example, a suit by a person to recover damages from his or her employer for alleged injuries allegedly suffered from workplace harassment is a civil case. A prosecution by the state or federal government to imprison an individual for his having physically assaulted a co-worker is a criminal case.
Class action: a lawsuit in which the court has ruled it is more efficient for a group of persons (a “class”) to have their common complaints decided together. Class actions are regularly alleged in the employment realm, typically in cases involving alleged underpayment of wages or other benefits.
Class action certification: in a class action lawsuit, the judge’s decision to approve the proposed group of individuals as a valid “class.”
Commission: payment for selling an employer’s goods or services, based on a percentage of sales or other formula stemming from the employee’s quantity or quality of production over a specified unit of time.
Complaint: in civil cases, a plaintiff’s (or plaintiffs’) formal written claim for money damages or other remedy against the defendant(s).
Contract: an agreement, an exchange arrangement with specific terms between two or more consenting parties. A properly formed contract is enforceable by law.
Copyright: the exclusive right to reproduce, publicly display, distribute, or create derivative works from an original creative work. A derivative work is a work derived from another work, such as a translation or a musical composition using themes from various songs.
Copyright infringement: a violation of copyright law, such as unauthorized reproduction of an original work.
Defendant: in civil cases, an individual or organization against whom or which the plaintiff(s) is/are seeking damages and/or other remedy for the defendant’s alleged wrongful actions.
Deposition: an individual’s formal testimony in a civil case, given outside of a courtroom and usually in preparation for a trial. Depositions can be used as evidence in a trial or other formal court proceeding.
DFEH (Department of Fair Employment and Housing): The state agency authorized to investigate, mediate and prosecute alleged FEHA violations.
Disability: The federal Americans with Disabilities Act (“ADA”) specifies a disabled individual protected by the law is: (1) a person with a physical or mental impairment that substantially limits one or more major life activities; (2) a person who has a history or record of such impairment; or (3) a person who is perceived by others as having such impairment. California’s FEHA has a similar, but more inclusive, definition for legally protected disability.
Discovery: in a civil case, several pretrial procedures which authorize a party to seek factual information from an opponent and require that opponent to disclose such information.
Discrimination: an adverse workplace decision or action against an employee, applicant or workplace volunteer/intern improperly based on the individual’s protected classification. For example, terminating an employee due to his or her race, religion, gender or national origin is unlawful discrimination.
EEOC: an acronym for the Equal Employment Opportunity Commission, the federal agency primarily responsible for enforcing federal laws banning discrimination against job applicants or employees, including the Civil Rights Act of 1964, the Americans with Disabilities Act, and others.
Employee: a person hired for a wage, salary, fee or other compensation to perform work for and under the right of supervision by an employer. Compare with “independent contractor,” below.
Employer: a person, company or other legal entity that has the right to control and direct an individual to perform work and that is obliged to pay compensation in exchange.
Employment: work for pay.
Exempt (from overtime): a designation for employees who are not required or entitled to receive overtime pay. Eligibility for exemption depends on meeting specific legal requirements, similar but not identical under federal and California law. Exempt employees are entitled to receive salary compensation regardless of the number of hours they work during the employer’s workweek.
Fair Employment and Housing Act (“FEHA”): the principal California law banning employment discrimination based on so-called “protected classifications,” including race, color, gender, religion, national origin or ancestry, medical condition, physical or mental disability, age (40 and over), marital status, sexual orientation, and other personal characteristics or affiliations. The FEHA also prohibits harassment on the basis of any such classification and prohibits retaliation for opposing any practice forbidden by this law or for filing a complaint, testifying, or assisting in proceedings under the FEHA.
Fair Use: a legal doctrine that allows limited use of copyrighted material without the copyright holder’s permission if the use meets certain criteria.
Harassment: The action of troubling, tormenting or worrying someone. Unlawful (discriminatory) harassment under the federal Civil Rights Act of 1964, California’s FEHA, and the anti-discrimination laws of other states is attempted torment of an individual for his/her protected classification, including race, religion, gender, national origin, sexual orientation, and many others. “Harass” derives from an Old French word which meant “to set a dog on.”
Hostile environment: An unwelcome, intolerable work environment created by unlawful, discriminatory harassment.
Independent contractor: a self-employed individual who provides goods or services for or to a hiring, paying company or person without the hiring party’s right of supervision or control over such production or provision. Generally, an individual is an independent contractor if the payer has the right to approve or reject the result of the work as opposed to the right to control or supervise what will be done and how it will be done.
Intellectual property: a creative, original work derived from the mind, such as a manuscript, design, or invention.
Lawyer: an attorney. See above.
Litigation: A proceeding carried on through a court to determine legal rights.
Make-up time: the time a non-exempt, hourly employee voluntarily “makes up” due to missed scheduled time on the job. As long as specific requirements are met, California permits an employer to pay a worker for make-up time at the straight hourly rate even if performed after the 8th working hour in a day.
Meal break: The unpaid, minimum 30 minute break California and federal law requires in the middle of each non-exempt worker’s work day.
Mediation: a method of alternative dispute resolutionwhere a neutral third party assists in settling a dispute between opposing parties. Mediation is “assisted negotiation” generally conducted by a person skilled in facilitating information exchange and resolution in contested situations.
Minimum wage: The minimum hourly compensation employers must pay non-exempt workers as mandated by federal and state law. As of January 1, 2015, California’s minimum wage is $9.00/hour while the federal law standard is $7.25/hour.
NDA (non-disclosure agreement): a contract prohibiting unauthorized disclosure of specified information.
Non-exempt (from overtime): a designation for employees who are required to receive hourly wages as well as overtime pay at higher, premium hourly rates.
Overtime: hours worked by a non-exempt employee beyond the 40-hour workweek limit prescribed by federal and California law or the eight hour daily limit applicable to most workers under the California Labor Code. (Several other states also have daily overtime laws.) Non-exempt employees are entitled to higher wage rates for overtime hours.
PAGA (Private Attorney General Act): a California law empowering employees to sue an employer and collect penalties on behalf of California’s Labor and Workforce Development Agency. By fulfilling certain prerequisites, the employee is in effect deputized to act as an “attorney general” (the chief legal officer representing the state in a legal action).
Paystub: the written summary of information supporting the calculation of the recipient worker’s pay check. California has detailed requirements for the information on the paystub, including but not limited to the employee’s full name, listed address, pay period start and end dates, salary or hourly rate, hours worked, gross compensation amount, any deductions from or additions to wages, and net pay.
Penalty wages: California employers who fail to pay wages admittedly owing within the legally prescribed timeframe following termination are subject to “penalty wages.” Example: an employee terminated with no advance notice must receive on that same day all wages owing, including accrued vacation pay and any underpaid compensation from any pay period in the preceding three years. If full payment is not made as required, the employer is liable to additional “penalty wages” at the worker’s closing daily rate for up to 30 days of delay.
Plaintiff: in civil cases, an individual or organization bringing the claim for damages and/or other remedy from another party or parties for the latter’s(s’) alleged wrongful actions.
Pro bono: professional services provided free of charge, usually for charitable organizations or the underprivileged.
Protected classifications: categories of individuals protected by law against discrimination. Protected classifications include race, national origin, religion, gender, physical or mental disability, age (40 or over), sexual orientation, and several others.
Quid pro quo: to give or receive something in exchange for something else. Example: Quid pro quo harassment would be the promise of employment benefits in exchange for sexual favors. Quid pro quo is Latin for “this for that” or “something for something.”
Release: to let go of something, such as a right or claim. It is also the signed legal document which records such a release.
Rest period: A paid work break provided by an employer during a work period. Subject to a potentially complicated set of rules and standards, California requires a minimum 10 minute paid break for each four-hour work period or a major fraction thereof.
Retaliation: An adverse action or decision taken or made by management against an employee for exercising his work-related rights, including that worker’s filing a complaint, testifying or assisting in proceedings against the employer for alleged unlawful working conditions. For example, a California company that terminates an employee for filing a FEHA discrimination claim can also be liable for FEHA retaliation.
Salary: a fixed payment at regular intervals for work performed (usually weekly or monthly), as opposed to payment at an hourly rate.
Severance pay: compensation to a departing employee, in addition to any remaining wages to be paid.
Sick pay: compensation to an employee who is absent due to illness or other medical-related reasons, such as caring for a sick child.
Subpoena: in a civil case, a legally binding written order directing a person to appear in court or in deposition to give testimony and/or to produce records.
Summons: in a civil case, a legally binding written order to formally respond to a complaint.
Term employment: Employment of a specified duration, e.g., for one year. Compare with “at will,” above.
Title VII: “Title” designates a division of a law. The Civil Rights Act of 1964 is published under Title VII of the United States Code, the collection of federal legislation in the United States.
Trademark: a word, symbol, design, etc., used to distinguish a company or its products or services from a competitor’s.
Trade secrets: Information that a business takes reasonable measures to maintain secret and which has economic value because it is not generally known.
Vacation pay: compensation to an employee for vacation time away from work.
Waiver: a legal document in which a person gives up a right or claim.
Workers’ compensation: a system of insurance that covers an employee’s medical expenses and lost wages due to a job-related injury or malady.
Wrongful termination: employment termination for unlawful reasons, such as racial discrimination.