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

Good news is on the forefront. According to Reuters, the U.S. House of Representatives voted on September 22 to extend jobless benefits for those who risk exhausting them.

Idled workers are typically eligible for up to 26 weeks of payments to cover expenses as they look for another job. Some workers are now eligible for up to 79 weeks of unemployment benefits.

The extension of benefits bill, if passed, would extend benefits by 13 weeks in states where the unemployment rate is above 8.5 percent. This extension would include California’s unemployed, where the unemployment rate was 12.2 as of August 2009.

In California, unemployment benefits are granted in the event of layoff or downsizing, or other limited circumstances. If an employee simply quits a job, and there are no extenuating circumstances, i.e. documented harassment, documented violence in the workplace, it is likely that the employee will not be awarded unemployment benefits.

California Unemployment Insurance Code 1256, reads, inpart:

An individual is disqualified for unemployment compensation benefits if the director finds that he or she left his or her most recent work voluntarily without good cause or that he or she has been discharged for misconduct connected with his or her most recentwork.
 

In addition, if an employee is terminated for willful misconduct, that employee may also be ineligible for unemployment benefits. I have seen on more than one occasion, an employer “blackball” an employee they wish to terminate in order to possibly avoid a potential wrongful termination lawsuit and unemployment insurance. 

Strategy:

1. If you are an employee, and believe you are being “railroaded” and on the way to being terminated or were terminated for what your employer deems “misconduct,” it is important to gather witness statements and other evidence to refute the employer’s contentions.   
2. You should have these witness statements and other evidence readily available for your hearing with the Employment Development Department.
3. Should you not win your unemployment insurance hearing, you do have the right to appeal, however appeals are difficult, and must be filed timely.

If you feel that you have experienced wrongful termination or feel you are the victim of discrimination, it is important to talk to a California labor law attorney  to find out what your options are. Keep in mind that there is a statute of limitations to file your claim and protect your rights.

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 It is not uncommon for employees to become discouraged or even hopeless when it comes to proving that overtime pay is due. Since in many cases, employers do not keep time records or the employee is misclassified; i.e. told they are salaried (exempt) and not entitled to overtime pay.

First, the employee must understand that pursuant to Nordquist v. McGraw-Hill Broadcasting Company (1995) 32 Cal.App.4th 555, 562, EVERY EMPLOYEE  IS ENTITLED TO CALIFORNIA OVERTIME PAY unless they fall under an exemption; ie. administrative exemption, executive exemption, professional exemption, salesperson exemption,  or computer software exemption, or another wage order preventing them from receiving overtime pay. The employer bears the burden of proof and it is the employer’s responsibility to prove the employee is not entitled to overtime pay.

The second important principle to understand is that California employers, not employees, must carry the burden of time keeping for all non exempt (employees entitled to overtime pay). For example, Anderson v. Mt. Clemens Pottery Co., (1945) 328 U.S. 680,  supports this assertion. In the event the employer did not keep time records, the courts will rely on the reasonable testimony of the employee.

 That said, should the employer produce a witness or other documentation that refutes the employee’s testimony, the burden of proving overtime, reverts back to the employee. This is where execution of the “Smoking Gun” strategy below is critical.

STRATEGY:

It is critical to immediately begin gathering information if you have an overtime pay claim.

1. Witnesses. Gather witnesses that can testify to the duties you performed and the hours you worked. Your California labor law attorney may wish to get them to sign a declaration if possible.

2. Electronic footprints. Time clock punch ins and outs, if accurate are the easiest to show time worked. When unavailable, obtain computer logins that show work start and stop times.  Also, a garage pass, suite key, register key, on site security camera tape may show time worked. Your California labor law attorney can subpoena all of this information.

3. Phone and electronic communications. Your phone bill, cell phone bill, home computer, pda or office computer, are invaluable sources of showing time worked outside of normal working hours.

4. Vendors and outside associates. When all else fails, get declarations from security personnel, and vendors who witnessed you working early or staying late.

5. Memos, handbooks and performance evaluations. Assemble memos or check in the employee handbook to see if it reveals an employer's attitude towards overtime work; i.e. Memos that make statements such as: "Stay until all work is done" or "do whatever it takes." While this may not be enough to prove your overtime case, this information can help paint a picture of the employer's attitude towards overtime to a judge or jury. Also, performance evaluations sometimes praise an employee for working excessive hours.

In addition to proving your case in court, if necessary, in many instances the gathering of these “smoking guns” may help to bring your case to a faster settlement without going to trial.

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It seems more and more commonplace these days that employees are being terminated for what their employers deem “cause.”

In interviewing several of our clients over the past several months, one bank employee stated he was terminated in June of 2009 for a pornographic email that bank management discovered he received in 2004. The bank indicated he followed policy in deleting the email, but failed to report that he received it. The result? The bank terminated him and is now disputing his unemployment insurance claim and taking the position that they fired him for cause.

He is not alone. With the massive layoffs occurring in this economy, employers fear California wrongful termination lawsuits, California discrimination lawsuits as well as an increase cost in unemployment insurance premiums.

STRATEGY:  Document, document, document.

If an employee fears unjust retaliation, trumped up charges of misconduct or other hostile activities from an employer, it is important to expose these and other potentially illegal activities to management IN WRITING and contact a California labor law attorney at once.

California is an at will employment state and unless there is an employment contract that guarantees tenure, or the employee is in a protected class (i.e. gender, sexual orientation, disabled, pregnant, etc) there is little protection to a firing or layoff.

This is why prompt reporting of any illegal activities i.e. failure to pay overtime, falsifying time cards, or other fraudulent conduct to law enforcement or the appropriate government agency may offer protection under California Labor Code 1102.5  and related regulations under California Whistleblower laws.

In addition, it is often wise for an employee to make management aware of claims under the California whistleblower statutes. This reporting may be the difference between retaining employment and a wrongful termination; as the employer may be exposed to liability once made aware of the claim. Speak to a California labor law lawyer prior to acting, however.

In accordance with California Labor Code 98.6, an employer may be required to re-instate employment benefits and wages as well as correct wrongdoing should retaliation be proven.
 

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If an employee is pursuing a small to medium company for overtime wages and insolvency or ability to pay a claim is in question, it is imperative to determine if there is individual liability. In addition, even if the employer is large, the exposure to individual liability with a manager or officer, may also pressure the employer into a settlement.

The relevant California Labor Code provisions which establish individual liability are §§18, 558, 1197.1 and 1199. These sections provide as follows:

• California Labor Code §18:  "’Person’ means any person, association, organization, partnership, business trust, limited liability company or corporation."
• California Labor Code §558: (a)  “Any employer or other person acting on behalf of an employer who violates, or causes to be violated, a section of this chapter or any provision regulating hours and days of work in any order of the Industrial Welfare Commission shall be subject to a civil penalty as follows: (1) For any initial violation, fifty dollars ($50) for each
  underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages.(2) For each subsequent violation, one hundred dollars ($100) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages. (3) Wages recovered pursuant to this section shall be paid to the affected employee.
• California Labor Code §1199, 1197.1 :  "Every employer or other person acting either individually or as an officer, agent, or employee of another person is guilty of a misdemeanor and is punishable by a fine of not less that one hundred dollars ($100) or by imprisonment for not less than 30 days, or both, who does any of the following: (a) requires or causes to be paid to any employee a wage less than the minimum fixed by an order of the commission; (b) Pays or causes to be paid to any employee a wage less that the minimum fixed by an order of the commission or (c) Violates or refuses, or neglects to comply with any provision of this chapter of any order or ruling of the commission.”

In addition to the above California Labor Code sections, provisions of the California Industrial Welfare Commission, (IWC) orders,  have a bearing on individual liability. IWC Orders 4-2001 § 2(H) provide the following definition:

"Employer" means any person as defined in Section 18 of the California Labor Code, who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person."

If an employee is seeking overtime wages, it is wise to have as many “arrows in the quiver” i.e. name as many relevant defendants as possible, to perhaps get a higher and sometimes faster settlement.
 

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Under California labor law what determines whether a worker is an independent contractor or an employee depends on several different things, all of which must be well thought-out, but none of which is a sole determinant.

Among many factors are these three important considerations:

• Does the employer have direct control or the power to control the manner and means used by the worker to carry out his/ her work?
• Does the employer supply the worker with the tools and place to implement the work?
• Does the worker have a set schedule or is he/ she at liberty to establish his own schedule?

Generally, California labor law dictates that the more control an employer has over a worker's day-to-day responsibilities, the more likely the worker is an employee. The less control an employer has over a worker's day-to-day responsibilities, the more likely the worker is an independent contractor.

What is the impact of a misclassification of workers?

Whether the misclassification of workers by employers is deliberate or not deliberate, the consequence to the employer is the same. California labor law imposes costly penalties on employers who have improperly classified an employee as an independent contractor. Depending on the circumstances, an employer may also be liable for other damages under applicable laws, such as a judgment for wages owed, payroll taxes or medical expenses for a worker who has been injured on the job. California labor laws as well as federal labor laws are strict when it comes to allowing for independent contractor status.

Misclassification of independent contractors prevents workers from enjoying the benefits and protections afforded employees under many of today's California labor laws, including minimum wage and overtime, meal and rest periods, workers' compensation, unemployment and disability insurance benefits and anti-discrimination laws. Talk to a California labor law attorney when deciding on classification- it is an “ounce of prevention.”

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