California Employee Rights Advocate : California Labor Attorney & Lawyer : Southern CA Employment Law : Los Angeles, Orange County : United Employees Law Group

The federal government has been focusing a lot of their attention and resources on cracking down on the misclassification of independent contractors (IC). The Department of labor (DOL) has put a big effort into this in conjunction with the IRS. While they have never blatantly said so the obvious reason for this crack down would result in more taxes.

If you are an independent contractor you are considered a business owner for tax purposes, workers compensation payments, social security, Medicare and basically any programs or benefits afforded to actual employees. So for every person that is not actually an employee the government could be missing out on money from those wages as well as from the company paying the person for their work.

Businesses like to hire independent contractors because generally they cost less than an actual employee. Independent Contractors are not entitled to overtime payments, meal and rest breaks, nor are they given any of the same employee benefits like paid time off or medical or dental coverage unless specified in their IC contract. Employers don’t have to pay into that IC’s social security, they don’t have file worker comp insurance for them and they don’t have to worry about unemployment benefits either. Most importantly the term “wrongful termination” would rarely apply regardless of circumstances as they were never actually employed by the company. This could be a breach of contract situation but that all depends on what was written in the contract.

How to know if you are improperly classified as an Independent Contractor

Typically in order to be an independent contractor you must have a lot of independence over your job, you are after all your own business. Here are some red flags:

• If you have a boss or supervisor that you have to check in with on a regular basis
• If you are using their tools and equipment including their vehicle
• If you are wearing a uniform for their company
• If you are given a daily or weekly schedule
• If you must report to their facility even though the work you are performing could in theory be done elsewhere
• If you are not able to decide HOW to complete your work; if you are micro managed.

If you have had any of the above issues you should consult with a labor law attorney because all of the overtime, missed meal breaks and benefits may be owed to you.

Labor law is complex; if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242

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California labor code section 2802, requires that all employment related expenses be covered by the employer. This means that any tools, equipment, supplies and uniforms that the employee purchases which are necessary in order complete their work must be paid for by the employer. Labor Code Section 2802:

a) An employer shall indemnify his or her employee for all
necessary expenditures or losses incurred by the employee in direct
consequence of the discharge of his or her duties, or of his or her
obedience to the directions of the employer, even though unlawful,
unless the employee, at the time of obeying the directions, believed
them to be unlawful.
(b) All awards made by a court or by the Division of Labor
Standards Enforcement for reimbursement of necessary expenditures
under this section shall carry interest at the same rate as judgments
in civil actions. Interest shall accrue from the date on which the
employee incurred the necessary expenditure or loss.
(c) For purposes of this section, the term "necessary expenditures
or losses" shall include all reasonable costs, including, but not
limited to, attorney's fees incurred by the employee enforcing the
rights granted by this section.

The most commonly overlooked expense is mileage. If your employer requires you to use your own vehicle for company uses they should be reimbursing you for those miles. Currently, the IRS recommends a rate of .55 cents per mile. Keep in mind this is guideline and if your employer is not reimbursing the entire .55 cents per mile you may be able to collect the difference with the help of an employment attorney or with the help of a tax professional during tax time.

Be wary of an employer that tells you it is part of your job and your regular pay covers the expenses or an employer that makes you feel like as it is expected now that you are a manager or any other job title. You may be told it’s not very far so you should just be a team player. However, 5 miles every single day to go to the bank or to another company location can add up quickly.

Another reimbursable expense that is often done incorrectly is for uniforms. The company should provide to you any special items that they require. If these items have any of the following characteristics it’s likely that you should be reimbursed if you have paid out of your own pocket:

• If you are required to buy the item directly from your employer.
• If the item must be a specific brand name or have a company logo on it.
• If the item is a specialized garment designed specifically for your industry ex. Bullet proof vest

Labor law is complex; if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242

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Federal Overtime laws only require that overtime rate be paid after 40 worked in a week. Whereas, California requires that overtime is paid after 8 hours a day and after 40 hours a week. Overtime is really only owed to hourly employees, also known as non-exempt. Over time should be paid at 1.5 times your regular rate of pay. For instance, if you make $10.00 an hour your overtime rate will be 1.5 times, making your rate $15.00 an hour for all hours worked past 8 in a day or 40 in a week.

Double Time

California law also has a provision that gives double time to non-exempt employees, if they work more than 12 hours in a day. Using the same example, you would now be paid twice your regular rate of pay of $10.00 and would now be receiving $20.00 an hour for daily hours past 12.

Meal and Rest Breaks

Non-exempt or hourly employees are also entitled to meal and rest breaks. Rest breaks are 10 minute paid breaks given to employees who work at least 3.5 hours and for every 4 hour period of their shift. Lunch breaks are at least 30 minutes and they are unpaid. Lunch breaks must given within the first 5 hours if the employee is working at least a 6 hour shift. A second lunch break is required if the employee works 10 hours or more in a day.

Exempt Employees

We have covered everything pertaining to non exempt employees but what about exempt or salary employees? Salary employees are not required to receive any of the above provisions under California law. However, a common mistake by employers is to improperly classify employees as exempt or salary when they should actually be paid an hourly wage. If this is happening to you then you are likely owed back pay for your overtime and missed meal and rest breaks. You can only be classified as an exempt employee if you meet certain criteria in your job duties. It’s important to remember your job title has nothing to do with whether or not you are exempt from overtime, the only thing that really matters is what job duties you perform.

Labor law is complex; if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193
 

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What is Compensatory Time?

Comp time is when an employee works overtime and instead of getting paid overtime rate of 1.5 times their regular rate of pay on their next pay check, they will receive 1.5 hours of paid time off of work.

Comp time is currently against the law in California. When companies were allowed to offer comp time most were not offing it correctly. The issues that would arise were usually that the time was given at 1 hour of overtime worked only equaled 1 hour of time off paid instead of 1.5 hours. Or in some situation this time was granted off but still unpaid. Sadly other companies would not effectively track the time and so it was never given to employees correctly, if at all.

Working Families Flexibility Act

The Democratic House Committee on Education and the Workforce proposed the Working Families Flexibility Act stating that it would give employees more flexibility. Basically this bill allows Comp Time as it was intended, 1 hour of overtime worked equals either 1.5 hours of paid time off or the option to take the 1.5 times the regular rate of pay in your paycheck, or cash out balances at any time. This bill will not affect the “use or lose it law”. In California your paid time off can never be lost or disappear, the employer must either let you take time off or cash out its value to you. This bill makes no changes to that, so your time or money is never lost. In fact it goes a step further requiring that employers cash out your Comp Time balance at the end of every year instead of allowing you to roll those hours over into the next year. thus ensuring that even if your time off requests are denied all year long you will still be able to receive the monetary equivalent in a timely manner.

Congressional representative Robert Andrews expressed concern that employees would be pressured into taking comp time instead of their preferred overtime pay and thus allowing employers to use their employees earned wages as a loan. Stay tuned to hear how the house will vote on this bill, as there are mixed reactions.

Labor law is complex if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193 

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California is what is called an “at will” state. This means that either party, employer or employee, can terminate the relationship at any moment, without warning, without a reason in fact without a good reason.

Q. So what makes a termination wrongful?
A. Typically, the presence of discrimination or retaliation.

Discrimination

According to the Equal Employment Opportunity Commission (EEOC), a federal agency that enforces discrimination laws, there are 10 protected classes:

1. Age
2. Disability
3. Equal Pay/Compensation
4. Genetic Information
5. National Origin
6. Pregnancy
7. Race/Color
8. Religion
9. Sex
10. Sexual Harassment

If you have been terminated or laid off due to one of these categories your termination may be wrongful. Because there is a small statute of limitations on wrongful terminations in comparison to other labor law issues, you should consult an experienced employment attorney as soon as possible.

Retaliation

This is sometimes referred to as Whistleblowers protection. Basically, the law prohibits retaliation against employees that have reported the company or someone within the company has broken the law, violated someone’s rights, or other regulatory guidelines set forth by governing agencies. The Department of Labor (DOL) offers the information for whistle blowers protections and guidelines. It’s also important to note that an employer cannot do any of the following to someone that has reported their employer for not following the law and/or industry regulations:

• Blacklisting
• Demoting
• Denying overtime or promotion
• Disciplining
• Denial of benefits
• Failure to hire or rehire
• Intimidation
• Making threats
• Reassignment affecting prospects for promotion
• Reducing pay or hours

Labor law is complex if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193
 

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During our President's first term he signed the Lilly Ledbetter Fair Pay Act of 2009, which changed the statute of limitations for equal-pay gender discrimination lawsuits, in favor of employees. As expected many more pro-employee changes took place over the years, addressing issues such as gender-based income disparities, sexual orientation discrimination and easier union representation voting. Interestingly enough most of these changes did not take place through written and passed bills like one would think. Instead the Obama administration pushed change directly through agencies such as the Department of Labor, National Labor Relations Board and the Equal Employment Opportunity Commission. During the second term we can look to similar agencies for change, here are a few areas to keep an eye on.

The Equal Employment Opportunity Commission (EEOC)

The EEOC's has been and will continue to focus its efforts on discrimination regarding hiring and recruiting practices and retaliation against employees that pursue legal rights, under the Equal Pay Act and Americans with Disabilities Act, systematic harassment and human trafficking.
Based on this plan and the EEOC's recent cases, disability and recruitment discrimination claims will likely be the primary focus during President Obama's second term.

The Department of Labor (DOL) Wage & Hour Division (DOL)

DOL is expected to continue to enforce the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA) by eradicating unpaid working time due to alleged misclassification of employees as independent contractors or as overtime-exempt. What is slightly different is that they will focus more on collective suits that which is similar to a class action suit, whereby they would represent a large number of employees having similar issues with one employer.
This enforcement scheme substantially increases an employer's exposure by aggregating nominal individual claims actions seeking millions of dollars in overtime or minimum wage compensation. Targeted industries like construction and transportation may see more such lawsuits during the next four years.

Labor Relations

Last January, in Noel Canning v. NLRB, the D.C. Circuit Court of Appeals held that President Obama's three recess appointments to the NLRB in early 2012 were constitutionally invalid.
The court's ruling jeopardizes the enforceability of nearly 1,000 mostly pro-union NLRB decisions issued by the Board since Jan. 3, 2012. On March 12, the National Labor Relations Board decided to ask the Supreme Court to review the Noel Canning decision.
Because the case involves the separation of powers, there is a good chance the Supreme Court will consider its validity during Obama's second term. Meanwhile, the enforceability of the decisions issued after Jan. 3, 2012 remains uncertain.

Labor law is complex if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

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California labor laws are designed to give employees certain assurances. For instance if you are terminated laid off or quit your job your employer must pay you for all of your time worked and cash out all of your unused vacation time within 24-72 hours of your last day. If they do not do this properly California labor laws impose penalties on the employer for every day they are late.

Termination/ Laid off

If you are terminated or laid off your final pay including your vacation pay or PTO is owed to you with 24 hours of termination. If you are owed commissions your employer can pay those out to you on the regularly scheduled date without penalty. Sick time is not required by law to be paid in monetarily .

Quit

If you are quitting and you give your employer 72 hours of notice or more they must follow the same guidelines as above and pay you within 24 hours. If you quit without giving your employer at least 72 hours of notice your employer has 72 hours from the time they are notified of your resignation to give you all of your final wages and any unused vacation/ PTO

The following 3 things will likely not be included in your final pay:

1. Commission that are regularly not due yet. If they usually set to be paid at a later date the company can pay you at that time. I.E. Quarterly payouts, after month end etc.
2. Reimbursable expenses that are regularly not due yet. If they usually set to be paid at a later date the company can pay you at that time. I.E. 30 days from the date the employees turns them in.
3. Sick time- sick time is not required by law to be cashed out to employees only PTO or vacation is due.

Penalties

If your final pay is not received in a timely manner the employer must pay the employee 1 day’s worth of wages for everyday they are late. There are various ways to calculate what 1 days worth of wages are for examples please visit the following DLSE FAQ

Labor law is complex if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

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California labor laws will penalize employers if they do not follow the law. The law requires that all non-exempt or hourly employees are to be given breaks and that penalties will apply if this is not done correctly.

California labor law mandates 30 minute meal breaks be given to hourly employees if they work six hours or more. To be more specific the meal break must occur within the first 5 hours. Also if the shift lasts longer than 10 hours the employee is entitled to a second 30 minute meal break. These meal breaks must be offered and should not be interrupted.

Labor Code section 512:

An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.

10 minute rest breaks are required to be given for every 4 hour period an hourly employee works unless the entire hours worked are less than 3.5 hours. These rest periods are paid, so time should not be missing from your pay for taking these breaks.

IWC Order 12-2001, Section 12 (A)

12.(A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (31/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.  

Penalties for not receiving these breaks are usually awarded at an extra hour of pay for every day that there is an issue with any of the breaks.

IWC Order 12-2001, Section 12 (B)

B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this Order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each work day that the rest period is not provided.

Labor law is complex if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

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California’s labor law differs from federal labor law with respect to overtime pay. Federal labor laws governed by the Fair Labor Standards Act (FLSA) only require that over time of 1.5 times the regular rate of pay, be paid out after 40 hours in a work week. Whereas California labor laws are more strict requiring overtime is paid out after 8 hours in a day and after 40 hours in a work week.

There are only 2 exceptions to this rule.

1. You are properly classified as an exempt employee.
2. You are part of an alternative work week schedule.

What is an Exempt Employee?

Exempt employees are paid a flat salary and are not entitled to an hourly wage or any overtime pay. It’s important to note that employers very often misclassify employees as salary as a way to avoid paying overtime or for the excessive hours the employer puts on these employees. How do you know if you are properly classified? Well to be certain you should contact an experienced California labor law attorney to review your job duties, but you can also review the exemptions on the California Department of Industrial Relations web page. Keep in mind your job title has nothing to do with your exemption, the only thing that matters are the job duties you perform.

What is an Alternative Work Week Schedule?

Alternative work week schedules are schedules for hourly employees that would not pay them for daily overtime. It seems like every employer would like to have an alternative work week schedule to avoid paying for overtime. Here is the catch: the employees have to vote for or against this schedule; in order to pass the vote must be 2/3rds in favor. Usually the employees are deciding if they would like to work 4/10’s i.e. 4 days a week 10 hour days or if they would like to work 3/12’s , 3 days a week 12 hours a day. If they chose to work this type of schedule they agree that they will no longer be entitled to 1.5 times their regular rate of pay for hours 8-12 daily.

The employees don’t give up all their rights though. They are still entitled to double time if they work over 12 hours in a day and they are still entitled to all their breaks including their second 30 minute lunch break if the work more than 10 hours in a day. And of course they will be paid 1.5 their regular rate of pay if they work more than 40 hours in a work week.

Labor law is complex if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

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