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

The involuntary termination of employment by the employer is controlled by specific rules which if violated entitles an employee to recover damages.

Employment in California is presumed to be “at will.” This means either party may terminate the relationship for a good reason or no reason at all. Nevertheless, as with most such general rules, there are exceptions.

If you have suffered retaliation in the form of being fired, demoted, suspended, or denied an employment benefit because you complained about what you reasonably perceived as a violation of law, such as late or non-payment of wages, failure to receive overtime pay, filing a worker’s compensation claim, or workplace safety issues, or suffered discrimination on the basis of age, race, religion, sex, nationality, medical condition, disability, sexual orientation, or marital status you have a right to recover damages for wrongful termination.

There are exceptions to the “at will” provisions. These include a situation where your employer promises long term employment. Such a promise may be set forth in a written contract, an employee handbook or it may simply be implied through an employer’s actions such as continued promotions, raises, or positive performance reviews.

Furthermore, an employer may not take an adverse employment action against an employee for complaining about or generally opposing discrimination or harassment directed against themselves or another employee. Employers are also prohibited from retaliating against an employee for reporting information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal law. 

The two main remedies for wrongful termination are reinstatement and monetary compensation. Juries are generally sympathetic to someone wrongly treated and therfore employers are exposed to substantial awards for economic damages as well as penalties.  In addition to an action for wrongful termination, you may also have a claim against your employer for damages for defamation or invasion of privacy as well as for final payment of wages, accrued vacation time, and overtime. 

Wrongful termination cases are fact-specific; therefore, documentation is critical. If you believe you have been or about to be wrongfully terminated first seek counsel from a labor law attorney especially if your employer wants you to sign a release or other agreement. Many labor attorneys will offer an initial meeting without charge and in many instances may take your case on contingency. So finding out your rights costs you nothing. Not finding out your rights could cost you dearly.

You should also take time to compile the following evidence:

• Request a copy of your personnel file from the human resources department. This file will include vital information such as rate of pay, promotions, performance reviews, awards, and recommendations. Remember that you are entitled to any and all documents you have signed in relation to your employment.
• Collect all correspondence with your employer including letters, emails, and text messages.
• Obtain a copy of your employee handbook and any other written company policies.
• Create a list of individuals who witnessed your termination or the circumstances leading up to your termination. Be sure to obtain their personal contact information so you can reach them after you leave your job.
• Record all instances of comments or behavior you believe constituted discrimination or other illegal activity.
 

Once you have collected the above documentation, contact an experienced California labor attorney for an evaluation of your situation.
 

• Email This
• Print
• Comments
• Trackbacks

IMPORTANT – Do not sign any agreement in which you may be settling any rights you may have without first checking with an attorney that experienced in Labor Law.

On termination you may be offered a severance package in exchange for giving up your rights to back overtime pay. These rights could actually be worth well over $100,000 and you may lose them.

Many Labor Law attorneys will take a look at your situation without charge and give you piece of mind that you interests are protected.

One word can be used to best describe the California information technology (IT) industry this past year: layoffs. Although the technology industry grew overall, layoffs dominated as major companies continued to trim their workforce. The companies with the some of the most drastic cuts included IBM, Novell, Microsoft, Cisco, and Sun Microsystems.  As a result many technology workers are starting off the New Year without a job or, perhaps even more disheartening, training their foreign replacements. An increasing number of tech companies are using L-1 and H1-B workers to reap the benefits of highly skilled professionals for a much lower cost than their American counterparts. This leaves California workers to train these new employees for little compensation, usually the promise of a few weeks of additional pay or a severance package.  However, employees on their way out the door have rights and should not hesitate to milk the benefits due to them from their employers. Federal and state laws mandate that employers make a final payment of wages, overtime pay, and accrued vacation time at the time of a layoff or face stiff penalties.

Of particular concern for IT professionals is employers’ frequent denial of overtime pay. Despite popular belief, all employees in California are entitled to overtime pay unless they fall within a particular exemption or wage order. IT jobs encompass a wide range of duties and usually require long hours, working from home, and the ability to be “on call.” Unfortunately, many workers never see a check for their earned overtime, because their employers misclassify them as exempt from overtime pay. The determination of whether an IT employee is exempt requires a careful analysis of the employee’s duties and how they relate to the company’s overall operation.

The Department of Labor has opined that IT specialists whose primary duty “consists of installing, configuring, testing, and troubleshooting computer applications, networks, and hardware” do not qualify for the administrative or computer employee exemptions under the Fair Labor Standards Act.  Many IT employees are also not likely to qualify for the executive exemption. Unless they spend over one half (51%) of their weekly work time engaged in managerial responsibilities, they will likely be non-exempt and therefore entitled to overtime pay. Examples of managerial responsibilities include negotiating on behalf of the employer, influencing company policy, and supervising others. It is important for employees to remember that it is the actual job duties and not the job title that determines whether an exemption applies. Employers often manipulate job titles, pay structures, or management levels to classify employees as exempt so as to avoid paying overtime costs; yet, they do this at the risk of huge penalties.IT workers who have been wrongfully denied overtime pay under federal law are entitled to liquidate damages. This means employees can collect double the amount of their normal overtime rate. 

If you are an IT worker facing a layoff or otherwise suspect that you have been misclassified by your employer, now is the time to take steps to protect yourself against loss of overtime and other valuable benefits.

Strategy:

1. Request a full copy of your payroll records from your employer as soon as possible. Certain documents in your employee file, must be made available to you within 21 days of your request.
2. Gather all documentation establishing your wages and benefits immediately prior to the layoff, including itemized wage statements (pay stubs), W2 forms, a calculation of your overtime pay, proof of your total accrued vacation time, and a copy of your employer’s benefit plan.
3. Compile a list of your job duties and obtain the names of witnesses who can testify regarding your day to day work duties and hours worked, including supervisors, co-workers, industry contacts, etc.
4. Visit the human resources department and request a copy of your personnel file. This file will contain performance reviews, awards, contractual agreements and other items that will be beneficial to you. Remember you have a legal right to any documents that you have signed. It is also wise to copy all company policies, employee manuals, and other data that is non-proprietary and that you would have access to as an employee.
5. Remove all personal items from your place of work, including your computer. If you have created any personal files or installed software, copy and delete them. Be careful not to take anything that may be considered proprietary, such as customer lists, proposals, financial reports, etc.
6. Consult a qualified California labor law attorney to obtain an unbiased analysis of your situation. The above documentation will help to assess you case and obtain money to which you are rightfully entitled.
 

• Email This
• Print
• Comments
• Trackbacks

If you are one of the over 200,000 computer software professionals in California, your employer may be short changing you when it comes to overtime pay.  Employers and employees generally assume that salaried professionals are exempt from receiving overtime pay, but this is far from true.  Computer programmers and software developers are generally entitled to overtime pay unless they fall within one of the California exemptions which allow employers to not pay overtime.

To qualify for the “computer professional” exemption, an employee must meet the following requirements under California Labor Code, Section 515.5:

   (1) The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment, and the employee is primarily engaged in duties that consist of one or more of the following:
 

(A) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications.
(B) The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to, user or system design specifications.
(C) The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems.
  

(2) The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering.  A job title shall not be determinative of the applicability of this exemption.

In addition, the employee’s rate of pay must be equal to or greater than $37.94 per hour or $79,050 per year and this must be paid in amounts not less than $6,587.50 per month.  On November 3, 2009, the California Division of Labor Standards Enforcement (DLSE) confirmed that these rates remain in effect for 2010. 

It is the employer’s legal burden to prove that ALL of the aforementioned qualifications are met, and that the employee does not fall under another exemption ie. Administrative,

Executive or Professional, then the employee must be paid all overtime.  It is not uncommon for employers to misclassify employees or alter their pay structure in order to avoid legally required overtime compensation.  There are a substantial number of Class Action Cases that have prevailed on this point against the largest Fortune Five Hundred Companies.  This practice typically goes unchecked, because employees rely on their companies to know and follow the law and it is not uncommon that companies do not adequately police themselves.

The best way to counteract attempts by employers to avoid payment of overtime is for employees to know their rights.  If you are a computer professional and believe you may be entitled to overtime, take the time to contact an experienced California labor attorney.  An attorney can provide you with an unbiased evaluation of your situation and may be able to help you collect several years of back overtime pay.  

• Email This
• Print
• Comments
• Trackbacks

Network. Network. Network. That is the advice given by many job placement and career development organizations; therefore, the rise in popularity of networking websites is not surprising. The problem is that as networking has become high-tech, the line between an individual’s personal and professional life has become blurred. Traditional means of networking consisted of targeted letters and telephone calls and participation in appropriate trade organizations. There was no question that the information exchanged between the parties was professional and to be used for employment purposes. Today, more and more individuals are taking advantage of services provided by social networking websites including Facebook , Twitter, MySpace, and YouTube. Although designed for personal and social use, there are few legal safeguards against an employer accessing information on these sites when making employment decisions.

Employers will often screen job applicants by reviewing their profiles for information that may be damaging to the company’s reputation or subject it to future liability.  Some employees will also routinely monitor their current employees’ online activity for not only these reasons, but also for evidence of co-worker harassment or extent of online use during working hours. Despite the availability of privacy controls, information posted on social networking sites is designed to be shared and, therefore, individuals may not have a “reasonable expectation of privacy.”  This is especially true with respect to information created or accessed on a company computer. In general, there is no expectation of privacy on company property, because an employer has a right to view the contents of information contained on its computers. Furthermore, according to intellectual property lawyer, Catrin Turner, “If a social networking site is used to hold any information which relates to your employment, if that information is prepared in the course of your employment, you are dealing with company property.” 

While employers may be able to access personal information, there are some restrictions on the manner in which they obtain and use it in employment decisions. George Lenard has identified the following possible legal violations committed by employers:

1. Anti-Discrimination Laws

Employers are prohibited from making employment decisions on the basis of race, color, religion, sex, or national origin (Title VII of the Civil Rights Act), disability (Americans with Disabilities Act), or age (Age Discrimination in Employment Act). By accessing social networking sites, employers gain suspect classification information not normally obtained via an interview or resume. Thus, if an individual brings a discrimination claim, the employer cannot plead ignorance.
 

2. Invasion of Privacy

An employee may bring a tort claim for violation of privacy, but this is likely to be a weak claim. As previously mentioned, given the public nature of the sites it will be difficult to prove a “reasonable expectation of privacy.” The claim may be stronger if the employer actually hacked into or otherwise bypassed a user’s privacy controls. Facebook’s Terms of Service specify that users must agree to“not solicit login information or access an account belonging to someone else.”  Furthermore, an employer who accesses information on a computer without authorization may be liable under the Federal Computer Fraud and Abuse Act (18 U.S.C. Section 1030).
 

3. Fair Credit Reporting Act

In addition to causes of action against the employer, third parties may also become liable for improperly accessing information on social networking sites. For instance, an employer could hire a third party to gain access to a potential employee’s account and then use that information to make an employment decision. If the employee had a “reasonable expectation of employment” and was not hired, the third party could be liable for tortuous interference of business expectancy. The third party could also be found in violation of the Federal Fair Credit Reporting Act (FCRA) (15 U.S.C. 1831 et.seq. The FCRA requires credit check agencies to disclose that information it obtained was provided to an employer to be used in an employment decision. Lerner suggests that a similar law is needed to specifically cover information gained from networking sites. Facebook has taken some steps to limit the collection of information from its site by amending its Terms of Service to include the following statement: “If you collect information from users, you will: obtain their consent….and post a privacy policy explaining what information you collect and how you will use it.”

The existing laws offer some privacy protection, but if you are working or looking for work, you should take steps to insure that Facebook is your friend and not your foe.

Strategy:

1. Review your privacy settings
 

If you allow friends or networks access to your profile, you essentially waive all privacy rights as to those individuals. Be particularly wary of accepting your current supervisors and co-workers as “friends” as this will certainly bring your personal activities into the workplace.
 

2. Be judicious in your postings
 

Assume that all information you post on Facebook can and will be accessed by employers.Consequently, your goal should be to portray yourself in the best possible light. You can highlight your interest in or knowledge of a particular field by posting information on current issues; but, take care to avoid discriminatory or inflammatory comments.
 

3. Review your employer’s computer use policy

An increasing number of employers are drafting company policies regarding use of social networking sites. Provisions may include (1) restricted or prohibited access to networking sites on company computers, (2) an employer’s right to access sites, if it suspects activity that interferes with work performance, such as harassment of co-workers, and (3) prohibition of posting disparaging information about the employer.  Remember that company policies are considered legally binding contracts and may provide stiff penalties for violations, even termination.

4. Contact a California labor law attorney

If you suspect that you have been denied employment or wrongfully terminated on the basis of personal information, contact a knowledgeable California labor law attorney to discuss your rights.
 

• Email This
• Print
• Comments
• Trackbacks