Employment Advice

Most of the employment litigation TencerSherman defends against traces back to something fixable months or years before the claim was filed: a handbook provision that created rights the employer didn't mean to create, a misclassified worker, a termination that wasn't documented the way it needed to be. Employment advice work is the cheaper half of employment law, and it's where TencerSherman spends a meaningful share of its time with employer clients who'd rather not meet the firm through a lawsuit.

Handbooks, agreements, and policy documents

TencerSherman drafts and reviews the documents that define the employer-employee relationship: employee handbooks, offer letters, employment agreements, separation agreements, commission and bonus plan agreements, and confidentiality agreements. A recurring issue on review: handbook language that unintentionally converts an at-will relationship into something closer to a for-cause arrangement, through progressive discipline policies written as binding commitments rather than guidelines, or through language that implies job security the employer never meant to promise.

Confidentiality agreements, not non-competes. California voids non-compete agreements outside a narrow sale-of-business exception, under Business and Professions Code section 16600, and 2024 amendments added a notice requirement and a private right of action against employers who use them anyway. If your employment agreements still include non-compete language, or restrictive covenants that function like one, that's worth fixing before it becomes a claim rather than after. See the trade secret disputes page for what actually does protect proprietary information in California, since it isn't a non-compete.

Worker classification audits

California's ABC test, codified in Labor Code sections 2775 through 2787, presumes every worker is an employee. To classify someone as an independent contractor instead, a business has to prove all three of: the worker is free from the business's control, both by contract and in practice; the work is outside the business's usual course of business; and the worker is customarily engaged in an independently established trade doing the same kind of work for others. Missing any one of the three means the worker is legally an employee, regardless of what the contract calls them.

A classification audit looks at each contractor relationship against those three prongs, industry by industry, since several sectors have their own statutory exemptions and carve-outs layered on top of the general test. Getting this wrong doesn't just mean back wages for the misclassified workers; it exposes the business to penalties, unpaid payroll taxes, and PAGA liability across everyone classified the same way, which is often a larger number than the business initially assumes.

Wage and hour compliance

The most commonly litigated wage and hour issues, and not coincidentally the violations most frequently underlying PAGA claims, are:

• Meal and rest periods. Employees working more than five hours are entitled to an unpaid 30-minute meal period under Labor Code section 512, and rest periods at a rate of ten minutes for every four hours worked. A missed, late, or interrupted period triggers a premium of one additional hour of pay at the employee's regular rate under Labor Code section 226.7. The employer's obligation is to provide the opportunity to take the break, not to police whether the employee actually takes it, but "provide" still requires actually relieving the employee of duty, not just leaving the policy on paper.
• Overtime miscalculation. Errors here often come from how the "regular rate of pay" is calculated when an employee also receives bonuses or shift differentials, not from a failure to pay overtime at all.
• Wage statement compliance. Labor Code section 226 requires nine specific categories of information on every wage statement, including all applicable hourly rates and the corresponding hours worked at each rate. Missing even one category is a violation, and wage statement claims are common precisely because they're easy to spot in a records request.

Using PAGA's cure provisions proactively

The 2024 PAGA reforms (AB 2288 and SB 92) expanded which violations can be cured, to include Labor Code sections 226 (wage statements), 226.7 (meal and rest premiums), 510 (overtime), and 2802 (expense reimbursement). That expansion is as useful as a compliance tool as it is a litigation defense: an audit that identifies and fixes these violations before a PAGA notice ever arrives puts a business in a materially better position than fixing the same issues reactively after litigation starts, since a documented, voluntary correction reads very differently to an agency or a court than a correction made only once a lawsuit forced the issue. See the employment litigation page for how the same cure provisions function once a claim has already been filed.

Termination and reduction-in-force review

A termination decision is one of the highest-risk moments in the employment relationship, and it's usually the moment TencerSherman gets called in with the least advance notice. Before a termination goes forward, that review typically covers: whether the stated reason is documented and consistent with how similar situations were handled before, whether the employee recently engaged in any activity that could look like retaliation if the termination follows it closely, and whether final wages will be paid on the timeline California law requires, since a late final paycheck can trigger its own separate penalty independent of anything else about the termination's legality.

For layoffs affecting multiple employees, the review also covers whether the reduction in force disproportionately affects employees in a protected category in a way that could support a disparate impact claim, even where no individual termination decision was itself discriminatory.

Frequently asked questions