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

This is a true story.

Diane is a bright, well organized and the type of person you ask when it’s critical to get something done. You know the type, always busy, yet never too busy to help. Diane has both a business and a paralegal background and is a go-to person when problems arise.

One day Harvey who is a neighbor approaches Diane seeking her help. Harvey’s business, which was given to him by his father who retired, is in serious trouble and he is unable to stop its free fall into bankruptcy. Harvey’s old approach was to borrow and throw money at the problem. This economy today is not so forgiving and this time Harvey has run out of economic rope.

Diane agrees to see if she can spot the problem and fashion a plan to put this business back on track. Taking into account that the company has been around for many years there was hope that with the right medicine it could be saved.

Diane found that there was a serious lack of financial discipline and the company needed a good dose of belt tightening and record keeping. When she took on this project no one could tell her what was actually in inventory and even if it held of the right mix of items.

Diane worked on this for about three months only asking that Harvey keep her credit card payments current which was a very modest monthly amount as this project was requiring more than a full time commitment and it was running longer than expected.

After the initial three month period Harvey asked her to stay on and promised to bring her in as a part owner if she would continue working full time. Harvey promised to pay her the same amount as he would draw from the company. And like all such promises made in desperate circumstances they tend to be unreliable, but Diane is honest and trusting by nature.

Six more months goes by and Diane is working extremely long hours. She receives only modest payments with the excuse that there is not enough money to pay her what was promised. Again Harvey promised that she will receive what is owed when things turn around. At about the eighth month Diane accidentally finds out that Harvey has been taking substantial payments from the company even though everyone else had to take a pay cut. In response to this discovery Diane tells Harvey she is quitting. Harvey then promises to pay Diane but because funds were tight it would be paid over time and she is to receive part payment right away.

With these new assurances Diane continues working and the company begins making substantial progress with Diane receiving only some payments over the next six months.

Then Harvey drops the bomb; he fires Diane because he figures he is out of the woods. This occurs after Diane dedicated over a year helping Harvey rescue his company. Although there were numerous discussions and agreement about what she is entitled to, nothing was put in writing.

Diane calls on an old friend who is a lawyer and tells her story, feeling like a fool. She knows that these promises should have been memorialized but she was leading with her heart and not her head.

California Labor Law which has evolved from the early 1900’s recognizes the key elements inherent in the relationship between employers and employees. That is, employers have both greater economic strength and bargaining power. And in recognizing this reality labor law has been carefully designed to level the playing field. By design, California Labor Law provides that no one shall work for less than minimum wage and equally important the burden shall be on the employer to keep those records compute the wages owed to their employees.

No law is worth its salt unless it has teeth and under the California Labor Law there is an array of penalties for violating a workers’ right along with the right for that worker to recover his legal fees and interest.

In this case Diane has a very substantial collection of emails which shows that she regularly worked nights and weekends over and above working at the office five days a week. Using this information she was able to reconstruct a reasonable estimate of the time worked. When all her time was added up along with statutory penalties for failing to pay her timely and for violating the California Labor Law for minimum wage (which provides for a penalty equal to 100% of unpaid minimum wage) plus interest, plus legal expenses incurred, Diane’s claim is well in excess of $150,000. When her claim is computed using the wages promised she will be entitled to over $250,000.

Now is that a happy ending or what!

It is important to seek legal advice with a California Labor Law Attorney if you have any questions regarding your rights, don’t guess and don’t assume. Sometimes you have to put embarrassment aside and you will be surprised how powerful California Labor Law is and it is on your side. It’s time to level the playing field.
 

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As they say, knowledge is power. Unfortunately, we are not all California labor attorneys and the laws are ever changing. For this reason, I have written a simple blog on tell tale signs that your employer may be violating labor laws. This is obviously not an all encompassing article as they are numerous ways an employer can violate the law which many times are hard for even the most savvy and experienced labor attorney to find.

1. Employees are asked to work off the clock  without recording time. In many instances, employers in this scenario, will take one of a few approaches to inspire employees to work off the clock. Commonly, employers create a threat of termination whether it is direct or indirect. This is accomplished through comments or memos in the workplace which infer that “you need us, more than we need you.” Employees who are afraid to lose their jobs many times grudgingly agree to then work off the clock without the proper compensation or recording of time to prove the hours they worked. Another common approach is for employers to offer comp time. In other words, the employee is asked to work in excess of 8 hours without overtime pay, in exchange for a vacation day, or coming in late on another day. This is illegal.

2. There are disputes and or lawsuits filed by past employees. Where there is smoke there is fire. In many cases, an employer fails to pay accumulated vacation, or when an employee leaves they fail to pay all final compensation upon separation.  An employer has 3 days to pay the final wages of a resigning employee and must pay final wages immediately upon separation if the employee is terminated. If you are an employee and you notice that your employer is being sued by past employees, there is a reasonable chance you may be next should you separate from your employment. Therefore, it is prudent to document all wages, hours, and conduct of your employer along with witnesses for any perceived wrongdoing.

3. Constant turnover of employees. This is probably the greatest sign of workplace disharmony. Whether employees are being terminated or resigning due to dissatisfaction, a high percentage of turnover is indicative that the operations of the business are not going smoothly. Sometimes a hostile work environment has been created through yelling, swearing, sexual oriented jokes or postings, racist comments or the like. All of these scenarios can lead to employee turnover. When an employee finds themselves in this type of environment, again, it is wise to document all facts and witnesses and consider looking for another job.

If you are facing any of these types of conditions, it is wise to seek the advice of an experienced California labor law attorney. California labor law lawyers that have litigated these types of cases can provide the type of insight and advice needed to protect your rights.
 

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Once you are on the job and under the control of your employer your workday starts and at days end when you leave your workday stops. Does your workday actually start and stop when you clock in or out? Not necessarily.

This is a story that shows there is more to this issue than one might think.

An employee arrives at work in the morning, has a quick meeting with her supervisor and then she starts up her computer. The employee then logs onto the computer by typing her user ID and password and hitting "Enter". Once that process is complete, the employee logs into the System. She then opens any programs or applications she needs to perform her job. At the end of the day, the employees are required to follow the process in reverse logging off and closing down her computer.

Until that employee is logged in and on line she is not able to enter her start time. At the end of the 

day she is required to first sign out and then completes the log off procedure.

This system does not allow an employee to be paid for the time spent at work before she is able to log on by starting up her computer as well as being required to sign out and then closing down her computer. This time adds up to more than 25 minutes each day.

There are other examples of work time that must be compensated for under the law that could be overlooked,

including changing into uniforms or work and safety clothing. Also included is the afterhours preparation of paperwork and the scheduling of appointments for the next day.

Over the years the amount that is owed to an employee could and does add up into the tens of thousands of dollars including penalties and interest.

An example of the penalties that may be relevant and that would add substantially to the amount owed by the employer is as follows:

1) Unpaid Overtime in Violation of California Labor Code Section 510 and Wage Orders No. 4-2001;
2) Unpaid Overtime (Fair Labor Standards Act);
3) Knowing and Intentional Failure to Comply with Itemized Employee Wage Statement 

Provisions (Labor Code § 226(a));
4) Failure to Pay Minimum Wage (Labor Code §§ 1182.12, 1197);
5) Failure to Pay Minimum Wage (Fair Labor Standards Act);
6) Violation of Labor Code § 2699; and
7) Unfair Competition in Violation of et. seq.

All of these claims are premised upon the employee’s right to be paid for the time spent at work.

California law defines the term "hours worked" as "the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so." That does not mean that the mere fact that an employer required an employee to do something renders the time spent doing the activity at issue qualifies as "hours worked". For example, the California Supreme Court has acknowledged that an employee's commute is not compensable simply because "the employees would not commute to work unless the employer required their presence at the work site." The level of the employer's control over its employees, rather than the mere fact that the employer requires the employees' activity, is determinative.

Generally, if you believe you may be owed any back compensation you may make a claim going back up to four years.

It is not difficult to request a free preliminary opinion that helps you understand your rights and if you should consider filing a claim for any unpaid wages.

Being informed could be worth tens of thousands of dollars in your pocket.

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