Employment Law: FAQs

1.    What is the difference between an “employee" and "independent contractor."

An employee is under the control of an employer, conforming to the employer's set time and venue for the job and how the job will be performed. He/she is also compensated based on the hours he/she does his/her job and reports to the employer. Some employees handle sales in which compensation is based on commission. Meanwhile, an independent contractor is an individual who is compensated based on hourly or salary basis upon completing a job. He/she owns his/her own business striving to satisfy all his/her clients to acquire income for him/herself and his company. By law, an employer must withhold taxes from an employee's salary. An employee's advantage is that he has a right to acquire unemployment compensation and worker’s compensation.

2.    Who can experience wrongful termination? Who can file against it?

An employee may experience wrongful termination from its employer. Therefore, an employed individual who is terminated illegally can have a legal cause of action for "wrongful termination"

3.    What are the types of wage claims?

If an employee was not well compensated after taking filed overtime, unused vacation time, etc., then he or she can file a wage claim. Types of wage claims include the following:

  • Claim for being unpaid after filing for overtime. Hourly employees are entitled to be paid overtime by his employer. This overtime compensation is added to the regular salary of the employee.

  • Claim for being unpaid of his/her unused vacation time.

  • Claim for unpaid bonuses which an employee had earned for a period of time.

  • Claim for unpaid commissions where the employee has substantially performed all the required work to earn the commissions.

4.    What is discrimination?

Discrimination is an act in which an individual is singled out from a group because of his or her race, color, national origin, age, sex, religion, disability, etc. In the realm of employment, discrimination happens in all practices related to the employer-employee relationship, from hiring to termination.

5.    What is severance pay?

Contrary to the some belief, severance pay is not a form of employment benefit given to a discharged employee. It is rather given as either an incentive or as compensation for certain employment circumstances such as  layoffs, job elimination, and as mutual agreement to part ways, for whatever reason. Generally, a severance pay is often equivalent to a week or two of pay for each year the employee served the company.

6.    What is “At-will” employment?

It is an employment relationship wherein either employer or worker may break relationship without liability provided there is no express contract that will define terms between both parties and that the employer does not belong to a collective bargaining agreement. Under “at will” employment, an employer may discharge or terminate an employee for any cause or without any cause at all while, on the other hand, an employee is free to quit, strike or cease to work. However, there are exceptions to this doctrine such as when an employee is terminated because of unlawful discrimination.