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

The Warn Act was bolstered by a recent case in the Ninth District Collins v. Gee West Seattle.  In this case, the court addressed voluntary resigning of employees after such employees learn that operations of the employer are to cease and whether or not such resignation should be considered an “employment loss” under the Warn Act. The court decided in favor of the employees, thereby entitling them to 60 days of wages under the Warn Act. The court noted the employer only gave a few weeks notice under the faltering business provision of the Warn Act which typically allow 60 days notice to employees. Once the employer notified the employees that it was seeking a buyer for the business, many employees resigned and began seeking employment elsewhere. These same employees sued the employer for violations of the Warn Act arguing that they are entitled to wages under the Warn Act. The employer disputed the claim and took the position that since the employees quit, they are not entitled to monies under the Warn Act.  Initially, a district court agreed with the employee, however the Ninth Circuit Court reversed this decision. The court opined that once the employer reasonably foresees a significant employment loss, this triggers protection of the Warn Act.  In this instance, although the employer had such foresight, it failed to provide less than the 60 days required under the Act.  The fact, that the employees resigned, did not release the employer from its obligations under the Warn Act.

If you have been faced with layoff contact a California labor law attorney to examine your rights.

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The Myth of Salary

There are myths regarding California overtime that suggest employees that are compensated with a salary are not entitled to overtime. This myth comes from the requirement of certain California overtime exemptions that the employee be paid a salary. That requirement is just one of many -- and it is the easiest to meet. The fact remains that there are many people who are paid a salary that are entitled to overtime, and there are many people who are paid hourly that don’t get any overtime. Suffice to say that if someone told you that you are not entitled to overtime just because you are paid a salary, that is just plain wrong.

If you are paid a salary, you are still entitled to overtime unless you meet all of the requirements for one of the California overtime exemptions. These added requirements are not easy to meet and many people simply do not meet them. If you have questions about whether your particular job would be entitled to overtime, you can contact a California labor law attorney to assist you in evaluating your claim.

The “Supervise Two People” Myth

Another California overtime myth is that if you supervise two or more people, you are exempt. This one has a little more factual basis than the one above, but is still far from accurate. One of the requirements for the Executive Exemption is that you must supervise at least 2 people. However, this requirement is only one of many. In addition, the law has regularly been interpreted to find that supervising only 2 people would rarely require sufficient supervisory time to satisfy the exemption since you must spend over one half of your time performing supervisory duties. As you can read in the Executive Exemption section, the exemption is very hard to meet and only true executives of the company will qualify for it.

If you are a “team lead”, “project manager”, or “development manager,” you can still be entitled to overtime. Of course, job titles do not control whether or not you are entitled to overtime, and your actual right to overtime will depend on what actually do for your job.

California also has history of requiring overtime for managers who spend more than 50% of their time doing the same work as their subordinates.

Comp Time Given For Overtime Hours Worked

A common practice for some employers is to give “comp time” in exchange for overtime hours worked. That is, if you work 48 hours one week, you can take a day off the next week. There are many problems with such a policy. An important one is that if you worked 48 hours in one week, then 8 hours would be paid at the overtime rate of 1.5x. Thus, you really have 12 hours of pay at the regular rate and giving you 8 hours as “comp time” shorts you 4 hours. In any case, California labor code 204.3 requires that employers are not allowed to use any “comp time” programs that take overtime from one week and give time off in another week.

If you have experienced any of these issues you should immediately seek counsel from an experience California labor law attorney.

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California Labor Laws require that all Non-exempt hourly employees must be compensated at an overtime rate of pay for overtime hours. The overtime rate is determined by applying a multiplier of 1.5 or 2.0 to the employees' "regular rate of pay." The regular rate of pay is often the employees' straight time rate of pay, but not always. Many employers fail to include other types of compensation when calculating the regular rate of pay, which may result in considerable liability for unpaid wages. Recent class action cases highlight the employer’s risk arising out of these miscalculations.

California Labor Laws require that the regular rate of pay must include all types of remuneration earned by the employee. Take for example, restaurant employees whose compensation includes a lunch and dinner provided during their shifts. If their rate of pay is $10 per hour, in an eight hour shift they will be paid $80. However, their regular rate of pay must be calculated by including the value of the meals (figured as the lesser of their actual cost to the employer or the fair market value). If each meal costs the employer $7, that is the equivalent of an extra $14 per day in compensation. The employees are therefore receiving a total of $94 per day in compensation, or a "regular rate of pay" of $11.75 per hour. Accordingly, the employees' overtime rate would be $17.63, not the $15 that might be calculated for a $10 per hour employee.

In this illustration, failure to properly calculate the regular rate of pay would result in a shortfall of $2.63 for every overtime hour worked, leading to potential liability for penalties under PAGA and Labor Code Section 203, liquidated damages under the FLSA, interest, and attorneys' fees. These shortfalls are more common than is often realized and can result from payment of many kinds of bonuses or incentives, mandatory gratuities (such as a mandatory 15% tip for groups of 5 or more at a restaurant), free or subsidized lodging, or winning a free trip or prize for hitting a sales target. If you offer discounts, bonuses, incentives, rewards, or anything of value to your hourly employees beyond their base wages, the labor code requires that these additional forms of compensation be included in an employees regular rate of pay to calculate his or her overtime rate unless an exception applies. Although exceptions do exist for certain categories, the exceptions are limited and highly fact-specific.

If you suspect you have not been paid overtime properly you should consult a California labor law attorney to evaluate your situation.

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A unanimous Supreme Court decision in Thompson v. North American Stainless Inc: Justice Scalia writes that employees may claim retaliation when they are associated with someone ELSE who engaged in protected activity.

Eric Thompson was engaged to Miriam Regalado. They both worked for North American Stainless. So, Regalado filed a charge with the EEOC alleging sex discrimination. North American Stainless fired Thompson three weeks later.

Thompson then filed a retaliation charge. But Thompson did not actually engage in protected activity. Regalado was the one who filed with the EEOC.

Was it retaliation under Title VII to fire Thompson? The Supreme Court said yes. Relying on the Court's expansive definition of retaliation set forth in Burlington N. & S. F. R. Co. v. White, 548 U. S. 53 (2006),the court said:

“the anti retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.” Id., at 64. Rather, Title VII’s anti retaliation provision prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id., at 68 (internal quotation marks omitted).

Supreme Court found that firing a fiancé "well might have dissuaded" the complainant from making or supporting a charge: NAS argued, where do you draw the line? Trusted co-worker? Girlfriend? What third parties are close enough to the complainant? The Court could not find any language in Title VII to support setting down a blanket rule.

“We must also decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.”

Additionally, the court decided that Thompson had standing to sue under Title VII because he was a "person aggrieved." The Court knew it was opening a can of worms to let third parties sue. So, it limited Title VII standing to those covered by the "zone of interests" Title VII seeks to protect. Thompson was an employee at the same company as his fiancé, and, most importantly, according to the complaint, the company fired him for the purpose of hiring the fiancé who filed the charge.

If you are concerned that you have been a victim of retaliation please contact a California labor law attorney for help evaluate your case.

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