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

Cisco Systems has plans on the drawing board to cut 15 percent of its workforce and place for sale a factory as part of its strategy reduce expenses by $1 billion as an attempt to improve its bottom line.

The numbers to be laid off shake out like this. It appears that 11,500 jobs, will be cut in contrast to just several thousand that analysts had surmised.

Many Cisco employees may come to realize that they were wrongly classified as exempt from California overtime pay laws. If this is the case, such employees are entitled to go back and collect up to four years of overtime pay under California labor laws.

“It is not unusual for employees to realize in the most desperate of times, that they were in fact, entitled to overtime pay all along due to the misclassification error made by their employer. Many employees do not realize that it is the job duties you perform and the amount of independent discretion you have that determines whether you are entitled to overtime pay- not your job title or the amount of salary you earn,” says Walter Haines, class action attorney. Attorney Haines has successfully litigated Cisco Systems in the past for similar violations.

Another areas of abuse in recent months among corporate giants, has been pension fraud. When long term employees are laid off or retire, in many instances they realize that their pension balance is not what they thought it would be. In many cases, changes to the pension plan were not properly disclosed to employees and as such, these same employees incurred significant losses. Pension fraud is becoming more and more common in the corporate arena. Employees who are curious as to whether the proper disclosures were made in regard to their pension should compile their pension documents and speak to a labor attorney as soon as possible.

In addition, if you work or have worked for Cisco Systems and were deprived of your overtime pay it is important to talk to a California labor law attorney at once to investigate your options.

If it is determined that you have been misclassified and are entitled to California overtime pay, you may also be entitled payment of penalties and interest as well as your attorney fees. It is as simple as putting together your job description and any performance evaluations you might have and submitting them for attorney review.

In difficult times of lay offs and downsizing, employees must become informed as to what their rights are and investigating your employer for possible misclassification of your job and pension wrongdoing is a prudent step in protecting your rights.
 

• Email This
• Print
• Comments
• Trackbacks

Since 2009 companies that were classifying all unlicensed accountants and engineers have been hit hard with lawsuits challenging the “Learned Professional Exemption” because a federal District court had ruled that these unlicensed professionals did not fall under any exemption. See Campbell v. PricewaterhouseCoopers, LLP, 602 F. Supp. 2d 1163, 1185 (E.D. Cal. 2009).

Just last month, the Ninth Circuit reversed, in part, and remanded the lower court’s controversial decision. See Campbell v. PricewaterhouseCoopers LLP, 9th Cir., No. 09-16370, 6/15/11. PricewaterhouseCoopers LLP employs thousands of unlicensed accountants and in this reversal the court found that they were not all banned from being classified as part of the Learned Professional Exemption. In this particular case the court allowed the defendants, PricewaterhouseCoopers LLP, to present evidence to a jury in order to prove the exemption.

A second question regarding Administrative Exemption was remanded to the jury. The jury was instructed to review if the audit work performed by the unlicensed accountants could be classified as of “substantial importance” to the management of the clients’ operations. This was important because under the Administrative exemption if an employee demonstrates they are of “substantial importance” to the management of the clients’ operations, then it could be induced that they are managing or shaping the operations of the company. For clarification purposes the court noted:

While we recognize Plaintiffs are on the low end of PwC’s hierarchy, we see no authority that would bar their audit work from meeting this test as a matter of law. The former federal regulations incorporated by the administrative exemption include several examples of administratively exempt white collar employees, including tax consultants, wage-rate analysts, analytical statisticians, claim agents, and “many others.” Id. § 541.205(c)(3), (5). In contrast, the examples of nonexempt employees are predominately clerical—bookkeepers, secretaries, messengers, and other “clerks of various kinds.” Id. § 541.205(c)(1)-(2). Whether Plaintiffs are more comparable to the former category or the latter will depend on how the jury resolves the numerous factual disputes discussed above . . .

While this case may have reversed the earlier notion that only licensed accountants and engineers can be considered exempt from overtime; it’s important to note that, just because it is possible to now classify unlicensed accountants and engineers as exempt does not mean that any and all unlicensed employees are properly classified. If you are unlicensed it is still a good idea to contact a California labor law attorney to evaluate your exemption status. You could be owed a substantial amount in back pay for overtime and meal and rest break violations.

If you have any questions about this article or our blog, feel free to call us at:
            Long Beach – (562) 256-1047
            Los Angeles – (213) 261-0229
            San Francisco – (415) 200-0012 or (415) 230-2755
            San Diego – (619) 342-1242 or (619) 272-2193
 

• Email This
• Print
• Comments
• Trackbacks

Protection Against Retaliation

This rule sets out to prohibit retaliation and prevent interference with a whistleblower's report, as well as by intimidating to impose a confidentiality agreement. It’s important for whistle blowers to know that these rules still apply even if no compensation is awarded to the whistleblower.  The SEC has noted that these protections to not exempt the whistleblower from ethic responsibility.  If a whistleblower is found to break company or legal policy the anti-retaliation protection will not apply. The SEC also commented that the anti-retaliation protection is designed to strike the "appropriate balance between encouraging individuals to provide us with high-quality tips without fear of retaliation, on the one hand, while not encouraging bad faith or frivolous reports, or permitting abuse of the anti-retaliation protections, on the other." Specifically, "[t]he 'reasonable belief' standard requires that the employee hold a subjectively genuine belief that the information demonstrates a possible violation, and that this belief is one that a similarly situated employee might reasonably possess." 

Related Change at the SEC: The Cooperation Initiative

"The Cooperation Initiative," was presented earlier this year by the SEC as a departure from prior SEC practice in three ways:

1. Individuals are now presented credit for cooperation. Credit is offered to individuals based on a a fairly simple list of factors: "the timeliness of the individual's cooperation, including whether the individual was first to report the misconduct to the Commission or to offer his or her cooperation in the Investigation, and whether the cooperation was provided before he or she had any knowledge of a pending investigation or related action."
2. The 2010 Enforcement Manual does not override the Seaboard Report, but it does list factors signifying an entity has cooperated. Removed is a long list of factors, which some practitioners read as suggesting that cooperation would never be rewarded when the underlying conduct was serious or when some procedural step was skipped. Among the factors considered in assessing an entity's cooperation is "self-reporting of misconduct when it is discovered, including conducting a thorough review of the nature, extent, origins and consequences of the misconduct, and promptly, completely and effectively disclosing the misconduct to the public, to regulatory agencies, and to self-regulatory organizations."
3. January 13, 2010 Enforcement Manual offers a list of rewards available for cooperation. Many of these tools have never been available before; others have been used so infrequently they were considered of limited utility.

These new tools used to compensate companies for their cooperation have only been used twice since the their announcement earlier this year. First was Carter's, Inc; involved the SEC entering into a Non-Prosecution Agreement ("NPA"), related to its restatement of financials in late 2009. In the fall of 2009, Carter's discovered issues with its accounting for sales paid to wholesale customers. The company's audit committee hired a private securities law firm to conduct an internal investigation, and upon learning of issues, the company made a timely and thorough report of the matters to the SEC ahead of any public announcement and the eventual restatement of financials. The SEC rewarded the self report and follow-on extensive cooperation in the SEC's investigation by agreeing in the NPA to refrain from bringing any enforcement action against the company, though the SEC sued a former Carter's EVP for fraud related to the restatement. In the second case, the SEC entered a Deferred Prosecution Agreement ("DPA") with Tenaris related to alleged FCPA violations. Tenaris conducted a worldwide internal evaluation of FCPA matters and found that bribes had been paid in Uzbekistan. The company self reported the violations and cooperated with the SEC and DOJ in their investigations. Under the DPA, the SEC agreed not to file an enforcement action against the company in return for the company agreeing to certain actions related to future due diligence, training and compliance activities, as well as paying almost $10 million to the SEC and DOJ for disgorgement of profits and fines.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755

San Diego – (619) 342-1242 or (619) 272-2193

• Email This
• Print
• Comments
• Trackbacks