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

The Department of Labor recently released a Smartphone application called DOL-Timesheet to help employees hold their employers accountable for proper payment of overtime wages. This app allows employees calculate regular work hours, break time and overtime pay to generate their own wage records. Department officials say the information could prove valuable in a dispute over pay or during a government investigation when an employer has not kept an accurate account of hours worked. The Labor Department is already planning future updates for the app that will include support for other smartphone platforms, such as Android and BlackBerry. New features being considered for future versions will have the ability to input forms of pay other than hourly, such as tips, commissions, bonuses, and holiday pay.

Labor Secretary Hilda Solis said."This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay,"

According to the Department of Labor, suits filed by employees have increased dramatically. About 6,800 such suits were filed in 2010, about 700 more than the previous year. Most were collective or class actions. Totaling $176 million in back pay and in the last five years, they gave 1.2 million employees more than $925 million in back pay and overtime.

The Wage and Hour Division of the Department of Labor receives more than 35,000 inquires a year for assistance and is not always able to handle every claim. For those they are unable help, they now refer them to the toll-free hot line, where they can get a referral to an attorney who specializes in wage and hour disputes.

Nancy Leppink, acting Wage and Hour Administrator, says the department is just doing what it is supposed to do, which is going after employers who take advantage of employees by shorting them of their hard-earned wages. Leppink said."To the extent we have employers who are not complying with the law, we have an obligation to look for all of the opportunities we can to change that behavior,"

If you are experiencing issues with your employer regarding overtime pay, improper time keeping, reimbursable expenses you should contact a California labor law attorney to seek assistance in claiming all of your back pay and any other penalties you may be entitled to.
 

• Email This
• Print
• Comments
• Trackbacks

California Labor Law regarding overtime exemplifies that the State of California is one of the best employee friendly places in the country to work. California has placed a high premium on the protection of its citizens in the workplace. Minimum wage employees who live paycheck to paycheck cannot afford to risk losing their jobs, so they are forced to adapt to a harsh work environment created by over demanding employers who expect them to work uncompensated overtime.

California Labor Law for overtime takes the basic requirements found in the FLSA (Fair Labor Standards Act) legislation and builds more protection for these employees who often find themselves at the mercy of their employers.

Overtime is accurately defined for non-exempt employees as: any work done in excess of an 8 hour workday or a 40 hour workweek. Under California labor laws daily overtime pay (time and a half) is earned whenever an employee works more than 8 hours in one day. Any hours worked in excess of 12 hours in one day must be compensated at 2 times the employees usual hourly pay rate.

Two of the most common California overtime abuses are (1) employee misclassification; treating the employee as exempt from the right to be paid overtime and requiring that employees work (2) “off the clock.”

Under California law for overtime, all employees must be paid for the time they actually work whether before or after clocking in or out. For example, employees who are required to change into and out of uniforms off the clock are entitled to be reimbursed for the time spent changing cloths. Another example is assistant managers who are paid a salary. If they work overtime but spend a majority of their time performing the same tasks as an hourly employee they must be paid overtime.

If you believe that you have either been misclassified as an exempt employee in California or haven’t been paid overtime that you have earned, you should contact a California Labor Law attorney to review your situation.

• Email This
• Print
• Comments
• Trackbacks

California labor law attorneys have been noticing a trend in terminations during medical leaves of absence. Often times the cause for termination is the employee’s failure to return to work within the time period allowed by the company. Employers usually set a policy that specifies that employment will terminate if an employee fails to come back from a medical leave of absence within a given period of time. Usually, those periods appear to be munificent, sometimes as long as a year. Companies reason that the employee took advantage of the full FMLA benefits and thus the employee lacks statutory job protection. By the time the leave has expired, the employee may have exhausted workers' compensation leave benefits. Employers sometime set the time limit to correspond with the commencement of long-term disability benefits, if they are available. Despite the seemingly long period of time, the employer must still recon with the ADA and its state and local equivalents.

California labor law attorneys and the EEOC has been insistently pursuing companies that implement rigid medical leave policies, despite of the length of the leave or whether medical leaves are treated in the same manner as other non-medical leaves.

California labor law attorneys and the EEOC have taken the position that the ADA requires companies to offer a reasonable accommodation to employees with disabilities and reasonable accommodation must be determined on a case-by-case basis. Because the courts have recognized that granting a leave of absence could be a reasonable accommodation, the company must engage in the interactive process, including taking into account requests for an extension of the leave or returning to work with an accommodation. The employer may then evaluate whether the requested accommodation imposes an undue hardship. The EEOC contends that inflexible leave policies ignore the obligation to make reasonable accommodations on a case-by-case basis.

Instead of sustaining a rigid medical leave policy, employers should consider:

• Institute a flexible or target end dates for medical leave.
• Inform employees within a reasonable period of time prior to the end date of the leave period that the leave is going to expire.
• Appraise whether the employee's request for accommodation is reasonable and whether it can be granted without an undue burden.
• Questioning if the employee needs additional time off and, if so, how long. The employer may want the employee to provide a statement from a physician supporting the need for additional leave and the amount of additional time off required.

If you have been terminated while out on medical leave or for failure to return according to company policy and you feel it was unreasonable given your circumstances please contact an experience California labor law attorney to examine your case.

• Email This
• Print
• Comments
• Trackbacks

This California class action originating in San Francisco has been in court for over a decade. Labor law attorneys for the plaintiffs assert that Wal-Mart has discriminated against millions of woman in over 170 separate job classifications, in terms of pay and promotions.

This would be the first class actions of its size that sets out to prove discrimination through the broader use of statistical models rather than direct evidence. If the Plaintiffs are successful this could mean a slew of similarly litigated discrimination class actions will flood the courts. Naturally corporations are holding their breath and watching closely to see the outcome as it could mean millions in liability.

There are some concerns with such a wide range of subclasses and situations. Wal-Mart argues that the plaintiff’s discrimination claims are too diverse to be banded together in a single action. They also try to point out that with so many different situations there is bound to be a few rogue managers that might have discriminated against woman in terms of pay or promotions, but that doesn’t necessarily mean that all women were treated similarly.

On the other hand the attorneys for the plaintiffs would argue Wal-Mart provided to its managers unchecked discretion … that was used to pay men more than women. Furthermore, that if there is a pattern of discrimination and Wal-Mart knew about it then shouldn’t they be held responsible.

Because of these concerns the justices could choose to remand the case to the lower court under a revised set of guidelines; rather than a divided court issuing an opinion and setting a precedent in such a case.
 

• Email This
• Print
• Comments
• Trackbacks

Labor attorneys fought long and hard over whether or not Fair Labor Standards Act (FLSA) protects oral, as well as written, complaints in Kasten v. Saint-Gobain Performance Plastics Corp. On March 22, 2011, the United States Supreme Court issued its decision; the Court held, in a 6-2 decision, that the anti-retaliation provisions of the Fair Labor Standards Act (FLSA) protect oral, as well as written, complaints.

Labor attorneys had already a won a suit against Saint-Gobain for placing time clocks in a location that did not allow workers the ability clock in prior to getting in and out of their gear, thus forcing them to work off the clock. Kasten filed an anti-retaliation suit against Saint-Gobain, alleging that Saint-Gobain terminated him for orally complaining about the location of the time clocks.

FLSA is probably better known for enforcing wage and hour issues such as overtime, working off the clock and reimbursable expenses, but  It also forbids employers from terminating  "any employee because such employee has filed any complaint alleging a violation of the statute.” The text of the FLSA was insufficient for the Court to interpret whether the term "filed" included oral complaints. Thus, the Court considered other factors, including:

·         A wide interpretation of "filed" would be the same as the understanding of the National Labor Relations Act's anti-retaliation provision

·         A narrow interpretation would weaken the FLSA's basic purpose - prohibiting detrimental labor conditions

·         TheEEOC and Secretary of Labor  have both decided that "filed" includes both oral and written complaints.

·         The FLSA's requirement that an employer receive fair notice of a complaint can be met by oral and written complaints

California labor attorneysdon’t commonly sue under FLSA because California's Labor Code has its own anti-retaliation provision. California Labor Code section 1102.5:

(a) An employer may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing 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 statute, or a violation or noncompliance with a state or federal rule or regulation.

(b) An employer may not retaliate against an employee for disclosing 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 statute, or a violation or noncompliance with a state or federal rule or regulation.

(c) An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.

(d) An employer may not retaliate against an employee for having exercised his or her rights under subdivision (a), (b), or (c) in any former employment.

Nevertheless, the FLSA applies to California employers as well. Thus, California labor attorneyscan now rely on Kasten to protect California employees from retaliation for oral complaints about FLSA-protected rights.

If you feel you have been retaliated against after making a complaint at work, be it verbal or written, contact an experience California labor attorney to examine you case.  

• Email This
• Print
• Comments
• Trackbacks