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

The recent  BP Global oil spill has brought havoc and despair to the residents of the Gulf, most especially to those families of killed or injured workers. Their story has been felt around the nation and California is no exception. Many California employees are questioning the safety of their workplace and what they can do to correct hazardous conditions.

California has long been a leader in establishing and enforcing workplace safety regulations. Before the federal Occupational Safety and Health Administration (OSHA) was created in 1970, California had already established its own version known as Cal/OSHA. Cal/OSHA lays out specific regulations governing conditions in the workplace and provides stiff penalities for violations.  California has spread its commitment to workplace safety to the federal level. The nation’s labor secretary, Hilda Solis, is the daughter of  California blue collar union plant and factory  workers and thus champions the rights of workers. Most notably, after BP failed to correct safety problems after a 2005 explosion in a Texas City refinery, she issued the largest fine in history against now infamous BP Global. 

Under Cal/OSHA, every employer must be aware of any hazardous conditions in the workplace and insure that employees are properly trained. All hazardous conditions that pose the threat of serious injury to employees must be corrected. Furthermore, all incidents of serious injury or death must be immediately reported. Employees have numerous rights under Cal/OSHA including, but not limited to:

1. The right to file a complaint and request an inspection of unsafe working conditions,

2. The right to refuse to perform work that would violate Cal/OSHA standards

3.  The right not to be punished in any way for filing a complaint or using any under right provided by Cal/ OSHA. 

Unlike violations under federal OSHA, Cal/OSHA evaluates every safety violation with an aim toward issuing stiff panalties or pursuing vigorous prosecution. Depending on the severity, a citation penalty may range from $7,000 to $25,000. Additional penalties may be applied for each day the employer fails to correct the violation. A willful violaton carries a penalty of not less than $5,000 and no more than $70,000. Finally, a willful violation resulting in death or serious personal injury may carry a sentence of up to three years in prison and a $1.5 million fine. 

Despite these strong penalties, California still has its problems with worker safety. Most prosecutions occur in big cities such as Los Angeles and San Francisco where lawyers have adequate resouces and political sway. Yet, many safety violations occur in rural areas composed of migrant workers and illegal immigrants who are often overlooked by the system. 

Strategy:

1. Always obey state safety and health laws. Immediately report any hazardous or dangerous conditions to your employer.

2. If your employer does not take action to correct the condition, file a complaint and request an inspection from Cal/OSHA.

3. If you have been injured on the job, be sure the incident is reported to Cal/OSHA.

4. If you have questions or concerns about your situation, contact an experienced California labor law attorney who can advise you on your rights.

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On May 20, 2010, the Department of Labor (DOL) revised its rules regarding the employment of children in non-agricultural jobs. According to the DOL, the changes are designed to “give employers clear notice that there are certain jobs children are simply not allowed to perform. They also expand opportunities for young workers to gain safe, positive work experience in fields such as advertising, teaching, banking, and information technology, as well as through school-supervised work-study programs.”  The new regulations provide for the following:

• Work permitted for workers under the age of 18

Workers under the age of 18 were previously prohibited from performing tasks that were deemed particularly hazardous. The new regulations expand the list of prohibited activities to include forest fire fighting, operating power-driven hoist equipment, poultry slaughtering, the operation and loading of balers and compactors, and the operation of chain saws, reciprocating saws, wood chippers, and abrasive cutting discs. 

• Work permitted for minors ages 14 – 15

Under the Fair Labor Standards Act (FLSA), individuals under the age of 16 are not permitted to perform any form of work not specifically authorized by the U.S. Secretary of Labor. The former regulations authorized work in the areas of retail, food-service, and gasoline-service. This list has now been expanded to include office work, errand and delivery work, lifeguarding, banking, computer programming, advertising, teaching, and work of a creative nature such as drawing. The new regulations also prohibit certain activities, particularly door-to-door sales and sign waving with some exceptions.

Minors between the ages of 14 and 15 are not permitted to work more than 3 hours of work per day or 18 hours per week while school is in session. The DOL has clarified three major points: (1) the three hour limit applies to Fridays, (2) “school hours” are defined by the local school district, and (3) employers are required to use the 168 hour week to determine compliance with child labor laws.

Finally, the new regulations expand the work-study program available to 14 and 15 year-old workers. Students enrolled in a college-preparatory program may work during school hours so they may gain work experience and earn money they may use toward their college education. 

Employers must comply with the new regulations by July 19, 2010. While the new law only effects non-agricultural employment, the DOL has indicated that it will next address child-labor laws for agricultural employment. If you have any questions or concerns regarding child-labor law, you should contact an experienced California labor law attorney.

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When an employee is terminated or resigns from their job Federal COBRA law requires most employers to continue to make the current group health insurance available to workers. All employees who are discharged as a result of voluntary or involuntary termination, such as for: negligence, poor performance, or inefficiency (with the exception of those who are terminated for gross misconduct), may opt to continue plan benefits currently in effect at their own cost, provided the employee or beneficiary makes the first payment within 30 days of notification and is not covered under Medicare or any other group health plan. The law also applies to qualified beneficiaries who were covered by the employer's group health plan the day before the discharge. For example, if the employee decides not to continue coverage, her spouse and dependent children can elect continued coverage at their own expense.

The extended coverage period is 18 months upon termination of the covered employee; upon the death, divorce, or legal separation of the covered employee, the benefit coverage period is 36 months to spouses and dependents.

The law requires that employers or plan administrators independently notify all employees and covered spouses and dependents of their rights to continued coverage. After receiving such notification, the individual has 60 days to decide to continue coverage. Moreover, employees and dependents whose insurance is protected under COBRA have to be provided with any conversion privilege otherwise offered in the plan (if such coverage exists) within a six-month period prior the date on which coverage would terminate at the end of the continuation period.

A number of employers run afoul of the law in failing to adhere to the rules regarding notification requirements, excluded individuals, conversion privileges and time restrictions. In the event the employer fails to offer such coverage, the law imposes penalties ranging from $100 to $200 per day for each day the employee is not covered and other damages. 

However it’s important to note that you cannot attain benefits if you are fired for gross misconduct. This term is relatively ambiguous; the burden of proof is on the employer to prove that the discharge was for a compelling reason (such as starting a fight or stealing). 

If an employer reduces your working hours to a point that makes you ineligible for group health coverage, refuses to negotiate continued health benefits as part of a severance package, or fails to notify you of the existence of such benefits or if the employer refuses to offer continued COBRA benefits after a discharge for any reason, consult an experienced California labor law attorney immediately.

Tip: Know your COBRA rights before accepting any job and in the event you resign or are fired. This is particularly true if you or a spouse or dependent is sick and needs the insurance benefits to pay necessary medical bills. You are entitled to such protection even if you have worked for the employer for a short period of time. Most short-term employees can generally enjoy COBRA protection for periods exceeding the length of their employment. The only requirement is that you must have been included in the employer's group plan at the time of the firing and that the employer was large enough (i.e., employed 20 or more workers, including part-timers, independent contractors, and agents, during the preceding year) under federal law to qualify.

Strategy:

1. Be sure the company notifies you in a timely fashion so you can make the election properly before the short period of employer-provided coverage expires.
2. Never waive your COBRA rights when accepting severance payments or signing a release after a discharge if you or your dependants need continued insurance.
3. A company's hands may not be tied in the event that a group health plan is modified or eliminated; an employer may be permitted to change or eliminate a current plan provided all qualifying beneficiaries and covered employees are allowed to participate similarly under new plans, if any.
4. Coverage for adopted children, children born out of wedlock, and other dependents has been expanded under the Omnibus Budget Reconciliation Act of 1993 and recent court decisions. 
5. Speak to a California Employment lawyer if you or a dependent is excluded from COBRA protection because of the existence of a secondary health plan or other factors, such as because of an alleged discharge for gross misconduct.

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Tired? Stressed? Need a break? Well, it is your employer’s duty to provide you with one. Many workers assume that they must work consistently during the hours required by their employer. Fortunately, this is not the case. In California, according to the Industrial Welfare Commission Wage Orders, employers are required to provide employees with a rest break of at least 10 consecutive minutes for each 4 hours worked; however, a rest period is not required for employees who work less than three and one-half hours. Generally, rest periods should occur in the middle of each work period. Because rest periods are considered as time worked, an employer must pay for rest breaks. Also for this reason, employers may require employees to take their rest break on the employer’s premises. The employer is mandated to provide a suitable resting place separate from toilet facilities. An employee is not required to take a rest break and may skip a break as long at the employer does not promote it. There are several exceptions to the “rest period” rule, including employees of 24-hour residential care facilities and swimmers, dancers, skaters, and other performers whose job requires strenuous physical activity.

If your employer failed to provide or pay for rest breaks, you are entitled to one additional hour at your regular rate of pay for each day the rest period was not permitted.
According to the holding by the California Supreme Court in the case of Murphy v. Kenneth Cole Productions, 40 Cal.4th 1094 (2007) and Labor Code section 226.7, a claim for violation of rest breaks must typically be filed within three years.  As such, it is wise to take action early. Your first step should be to contact a California labor law attorney to ensure you are able to collect lost wages and penalties as far as 4 years back.

If for some reason you are unable to find a California employment attorney willing to accept your case you can also file a wage claim with the California Division of Labor Standards Enforcement (DLSE). The DLSE will typically only reclaim lost wages as far as 3 years prior and further penalties are at their discretion as well. Your claim will be assigned to a deputy labor commissioner who will determine whether there should be a conference, hearing or dismissal of the claim. If the deputy determines that a hearing is warranted, then the parties will testify under oath and the Labor Commissioner will serve an order, decision, or award. In the event that an order, decision, or award is made in favor of the agrieved employee and the employer does not pay, the DLSE will have a judgment entered against the employer. Another problem may arise if the employer retaliates against you because you object to or have filed a claim against the employer for failing to provide required rest breaks. If this is the situation, you should likewise contact a California Labor lawyer first if your desired results are not reached you can also file a claim with the Labor Commissioner’s Office. 

Key Point:
If you believe you have been wrongfully denied a meal or rest breaks you should contact an experienced California labor law attorney. An attorney can guide you through the process and offer an unbiased evaluation of your particular situation.

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