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

California labor law attorneys fought to prove that it should be illegal to change the beginning and end days of the work week in order to evade 7th day payment of overtime. The California Supreme Court upheld this reasoning and the court also found that all on-call time where employees were required to sleep aboard the employment vessel will be paid as hours worked.

In Seymore v. Metson Marine, Inc., the employees were scheduled to work 14days on then 14 days off. Their primary job function was to attend to marine oil spills. However the Metson Marine designed the work week to begin and end in such a way that they would not have to pay the 7th day overtime pay on the second week (day 14). In other words the employees would be paid for overtime on the 7th consecutive day of work but they would not get paid for the last day of their 14 days. While the court recognized that employers do have the ability to choose the work week for payroll purposes the court noted that Metson Marine designed their work week simply to avoid payment of overtime on the 14th day, due to Metson’s lack of evidence proving anything to the contrary.

California labor law attorneys for the plaintiff were also successful in proving that the employees were not properly compensated for being on call or off duty stand by. Metson Marine would allow the employees to sometimes leave the ship, unpaid, for personal reasons however they required that the employees carry a phone, be within 45 minutes of the ship and they were not to drink alcohol. The court found that Metson Marine should have paid the employees during the on-call times as hours worked because of the restrictions that were placed on the employees during this time.

The California labor law attorneys for the plaintiff asked for payment of the 8 hours during which the employees were sleeping on the ship. Metson Marine did have one victory in this suit; the court held that the sleep time of the employees was subject to payment as time worked.
If you are concerned that you have not been paid properly for being placed on call or standby and or overtime, please contact an experienced California labor law attorney to review your situation.

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Have you worked in California for Wells Fargo any time after August 20, 2008 as a “telephone banker” or in a similar position at a Wells Fargo call center?

Our investigation reveals that call center personnel described as Telephone Bankers were not fully paid for work performed on their shifts.

We believe there are substantial unpaid wages and penalties due to this group of California employees and we would like to speak with you regarding your employment with Wells Fargo in this capacity for any time you may have worked after August 20, 2008.

The class action lawsuit that we are pursuing is entitled Mists Herrick, et al. v. Wells Fargo Bank, N.A.
U.S. District Court, Central District of CA, Case No. CV11-1646 GAF (Ex).

You can help, so please contact us immediately either by phone at (888) 474-7242, email at info@uelglaw.com , or contact us through our website at www.collectmyovertime.com.

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Proving age discrimination has never been an easy thing to do, let alone proving age discrimination. There is a common misconception that being terminated at the age of 40 or above is grounds to file a wrongful termination based on age discrimination. However if this were all that is need to prove the age case, every person over 40 who was terminated would have had a discrimination claim. This would of course be ridiculous.

So what is needed to prosecute a lawsuit for age discrimination? In Stephens v. Coldwell Banker Commercial Group, Inc. the First Appellate District offers useful direction. The court analyzed the jury's verdict by noting that in most employment discrimination cases, lack solid evidence of the employer's intent to discriminate or it is difficult to disprove, and so an indirect method of proof is necessary. Thus, in order to initiate a claim for age discrimination the employee has responsibility to prove that not only was he/she over 40 but also, that he/she was performing adequately, and was fired or demoted due discrimination. After the initial case is presented, the employer has to prove that the plaintiff was terminated or demoted for valid, non-discriminatory reasons. At which point the plaintiff will then be given the opportunity to prove that the employer was motivated by discrimination or that the employer's explanation for termination or demotion is no more than a smoke screen for discrimination. It is now the employer turn to do its best to show that they have a reasonable explanation for taking action against the employee. The employer can claim the reasons for their actions are: performance related, misconduct, insubordination or even reduction in force. Often time’s employers try to justify the termination by stating poor performance due to its subjective nature; law allows the employer discretion when determining if they are satisfied with the employee's performance. Although employer argues that the employee wasn’t a good employee it doesn't mean the employer wins the case.

There are few things the employee can present to the court to show that the employers claims of poor performance are refutable.

1. Length of employment will be a big determining factor in showing that the employee was likely not terminated because of poor performance. The augment is “Why did you keep this employee for so long if they were performing poorly?”
2. Documentation of good performance, such as promotions, awards, bonuses, positive performance reviews etc.
3. The most beneficial information you could present would be proof that a younger person was given your position or promotion.

Lastly, age discrimination can be shown in the form of statements that show the employer making issue of the employee’s age. Or suggesting the employer wanted older employee out, for instance encouraging the employee to retire, by asking about the employees plans for retirement OR calling names such as "old times," "father," "old man," "grandpa" and alike.

If you feel that you have been a victim of age discrimination you should contact an experienced California labor law attorney to discuss your case.  

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California Labor laws give a different set of overtime rules to "ambulance drivers and attendants" who work 24-hours shifts, than the rest of the California work force. Under certain circumstances, the rule allows employers to schedule ambulance drivers to work 24 hours without paying daily overtime pay. The California law states:

"The daily overtime provision of subsection (A) above shall not apply to ambulance drivers and attendants scheduled for 24-hour shifts of duty who have agreed in writing to exclude from daily time worked not more than three (3) meal periods of not more than one (1) hour each and a regularly scheduled uninterrupted sleeping period of not more than eight (8) hours. The employer shall provide adequate dormitory and kitchen facilities for employees on such a schedule.”

In other words, if all the following circumstances are met then the ambulance driver need only be paid for 13 hours:

• Cannot exceed 3 hours of meal periods, of which are not more than 1 hour each
• Not more than 8 hours of regularly scheduled uninterrupted sleep period.
• a written agreement to this effect

It is important to note that this exemption to overtime applies to California daily overtime (for more than 8 hours a work day) but not to California weekly overtime (for more than 40 hours a work week).

In order for the employer to be able to save money by saving overtime hours, the employers must meet the terms of the 24-hour shift rule. For instance, if the sleep time is "on call" instead of scheduled to be uninterrupted, then the employer is not in compliance. If there has not been a written agreement between both parties, then the employer is not in compliance. If the employer is not in compliance then they will be forced to pay its ambulance drivers daily overtime for the entire 24-hour shift.

Aguilar v. Association for Retarded Citizens is a perfect example of what happens when an employer fails to comply with the 24-hour shift rule is. In Aguilar, the ambulance drivers were scheduled to work 24-hour shifts, but the employer would "temporarily released them" for a few hours each day to let them to pursue their personal matters. Basically, they did not work a complete 24-hour shift. The employer had to pay the employees for all hours worked, including overtime pay. To paraphrase, the court reasoned:

The IWC Wage Order outlines the difference between ambulance drivers that work 24-hour shifts and those who work less than 24-hour shifts. The Wage Furthermore wage order affords an exemption from compensation for sleep time only, for ambulance drivers that work 24-hour shifts. It has been made obvious the ambulance drivers here do not work 24-hour shifts.

If you are an ambulance driver, ambulance attendant or EMT and you feel you have not been compensated properly for your 24 hours shifts please contact an experience California Labor Law attorney to review your potential case.

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Outside Salesperson Exemption

The Fair Labor Standards Act (or 29 USC § 213(a)(1) and 29 C.F.R. § 541.500.) defines the"Outside Salesperson Exemption." As a person that;

(a) has the primary duty of (a) making “sales” or (b) obtaining orders or contracts for services or facilities usage, and
(b) is customarily and regularly engaged away from the employer’s place of business in performing such primary duty.

It is also important to note that the employee must spend over 50% of their working time actively selling or obtaining new business away from the office and or home office, if applicable. As oppose to delivering product, giving product training or other administrative tasks unrelated to the actual sale of the product or services.

Inside Salesperson Exemption

The other second part of the salesperson exemption applies to primarily commission-based salespeople and is commonly referred to as inside salesperson exemption. Section 7(i) of the Fair Labor Standards Act (29 USC § 207[i]) will exempt a particular employee from overtime compensation if:

(a) the employee is employed in a “retail or service establishment,” and
(b) the employee’s regular rate of pay exceeds one and one-half times the applicable minimum wage, and
(c) more than half the employee’s compensation for a representative period represents commissions on goods or services.

“Regular rate of pay” referenced in the above federal test, applies on a work week basis. This means that the average of compensation for two or more weeks does not satisfy this requirement.

If you feel you are not being compensated properly for your work as a sales person please contact a California labor law attorney to discuss your case.
 

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