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

California Ninth Circuit's courts have issued another recent decision regarding the California Learned Professional Exemption. The appellate court establish a law clerk as exempt from state and federal overtime. This law clerk graduated from law school but had not passed the California Bar Exam. Zelasko-Barrett v. Brayton-Purcell, LLP, 2011 Cal. App. LEXIS 1080 (Cal. App. 1st Dist. Aug. 17, 2011).

On June 15, 2011, the Ninth Circuit revisited the California Learned Professional Exemption when it determined Campbell v. PricewaterhouseCoopers LLP, 9th Cir., No. 09-16370, 6/15/11. See blog entry, "Licensed or Unlicensed? Exempt from Overtime or Not?”

Generally in past cases, the use of the Learned Professional Exemption has typically revolved around employment positions, such as engineering or more recently accounting. More recently, on August 17, 2011, the First Appellate District reviewed and denied the dispute to the use of the California Labor Code’s Learned Professional Exemption in the legal industry. Zelasko-Barrett v. Brayton-Purcell, LLP, 2011 Cal. App. LEXIS 1080 (Cal. App. 1st Dist. Aug. 17, 2011).

In Zelasko, Brayton-Purcell, LLP hired law students and law graduates who had not yet passed the bar exam as “Law Clerk I” and “Law Clerk II”, respectively. The plaintiff had the Law Clerk II position before to his entrance to the bar for roughly 2 years, then was promoted to Associate Attorney. The Marin County Superior Court found that the plaintiff was correctly classified as exempt when he held the position of Law Clerk II.

The court held:
“Federal regulations after which [the California learned professional exemption] was explicitly patterned . . . condition the learned professions exemption under federal law upon completion of an advanced course of education, not upon licensure,”

Ultimately the court ruled that possession of the degree, along with Defendant’s undisputed evidence that a Law Clerk II was required to perform all the same duties as a junior attorney, satisfied the exemption’s requirements.

The Zelasko case may not have been a success for the plaintiff and certainly lends doubt to how similar proceedings will fair. But since there are still California courts now applying the principals set forth in the Ninth Circuit's decision in Campbell v. Pricewaterhouse Coopers LLP, it is likely employers will take a second look at how they classify their employees.

If you have been classified as a salary or exempt employee it can never hurt to have a California Employment Attorney examine your job duties to be certain you have been classified properly. If you haven’t been paid properly you are likely owed a substantial amount in overtime and possibly even meal and rest break violation.

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

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Most people are not paid to drive to work they are paid once they arrive and begin their work. Mike Ritti sued Lojack for his commute time and originally lost. However, Rutti v Lojack, March of 2010, the 9th circuit court of appeal found that Rutti and all other technicians at Lojack were owed their commute time from home to their first stop.

Mike Rutti worked for Lojack as an installation technician. As such he would drive a company vehicle from his home to the client’s location each morning to in install alarm systems. Lojack had several company policies regarding the work vehicle. Rutti was not allowed to: run personal errands in the vehicle, have any passengers other than co workers, use his cell phone while driving and he was required to go directly to the job in the morning and directly home at the end of his last appointment.

Rutti Sued Lojack on behalf of himself and all other technician for his commute time and for the time he spent performing “preliminary” activities, such as, mapping, receiving, prioritizing tasks/jobs, routing before leaving his home every morning. As well as the time he spent at the end of his day when he returned home to wrap up all of the necessary documentation from that day’s work.

Originally the court found that Rutti’s commute time and pre/post work activities were not compensable under the Employee Commuting Flexibility Act (ECFA). Then new case law presented its self: Morillion v Royal Packing Company, where the California Supreme Court found that employees must be compensated during time when an employee is subject to the control of the employer. Rutti filed an appeal and will receive back pay for the time he spend working off the clock during his commute. However, the court determined that the time he spent at home before and after his commute was not compensable based on the language found in the ECFA.

The ECFA states that employers are not required to compensate employees for activities which are preliminary to or postliminary to the employees principal activities. It further designates that even if the activities are related to the employees principal activity the time is still not compensable if it is de minimis.

In determining if an activity is de minimis the court considered:

• The practical administrative difficulty of recording the additional time
• The aggregate amount of compensable time
• The regularity of the additional work

The court found that Rutti’s pre and post activities were not integral to his principal activities and so they are not compensable.

In conclusion, if you have any restrictions placed on you by your employer during your commute to and from work you should have an experience California employment attorney review your case.

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

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ADT fired two commissioned salespeople because they filed a complaint with the Maryland Department of Labor claiming that they were owed overtime. In Randolph v. ADT Security Services, Inc., Judge Chasanow from the District Court of Maryland granted the plaintiffs and former ADT Security employees’ Motion for Summary Judgment as to liability against their former employer.

The complaint alleged a violation of the Fair Labor Standards Act (FLSA). During the DLLR proceedings the DLLR requested that the ADT employees produce alleged employer and client confidential information. ADT argued that the employees were lawfully terminated because they were not allowed to give out confidential information. And as such, the plaintiffs should not receive protection under the FLSA on the theory that confidential documents were included in the FLSA complaints.

To punish employees for complying with the DLLR’s instructions doesn’t seem fair. The court granted Summary Judgment in favor of the Plaintiffs, stating:

Perversely, ADT’s position would result in a situation wherein employees with the most supporting evidence would also face the greatest risk of dismissal. As a result, enforcement agencies would be less able to undertake early assessments of employees’ claims, as employees could not be expected to provide much evidence on their own (for fear of exposing themselves to termination). Employers would then have to face greater government intrusions into their business while the complaint was investigated; because of the lack of early information, these investigations would likely last longer. Meanwhile, employers would have an incentive to cull through every document attached to an FLSA complaint, looking for any violation of company policy in an effort to forestall expensive litigation.

More problematically, they could simply choose to impair the ability of employees to make claims at all by dubbing all possible supporting documentation “confidential.” Such a situation would grossly undermine enforcement of the FLSA, which hinges upon “information and complaints received from employees” (citation omitted). The FLSA anti-retaliation is about the free sharing of information

The court referred back to the definition of “complaint” and its use in standard civil litigation “embraces attached supporting documentation.” The court further ruled that cases in which the employees participate in an investigation, permits employees to disclose confidential information to investigators even when done unreasonably.

Finally the conclusion of the court:

ADT’s explicit admissions that Plaintiffs lost their jobs because of the filings with the DLLR mandate only one conclusion: ADT retaliated against Plaintiffs because they engaged in a protected activity. Summary judgment must therefore be granted for the Plaintiffs on count one of the complaint on the issue of liability.

There are three things you can take way for this case. One that retaliation laws would likely apply if you are fired for filing a complaint with the labor board or in the courts and two any information you have, proprietary or not may be used to prove your case. It’s important to save information that supports your claim for labor violations you may have suffered. If you are concerned that you may be owed unpaid wages for overtime it is advisable to contact a California labor law attorney to help you evaluate your rights.

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 

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Answer: Department of Labor, the Internal Revenue Service, and Congress

Our budget deficit has all three of these entities working towards a common goal: tax revenue. They are putting pressure on employers, big and small, to make sure they are properly classifying their workers. As an independent contractor you would be responsible for paying your own taxes and you wouldn’t be covered under the company’s worker compensation insurance or unemployment insurance; making it near impossible to get worker compensation if you are hurt or unemployment benefits if you are fired. Essentially all of the financial responsibility is on the independent contractor. The employer is relieved of a substantial amount of taxes and insurance costs by hiring independent contractors. The issue is that companies can’t just decide that you will be an independent contractor. There are specific laws dictating who can and cannot be classified as such. An independent contractor should be independent enough from the company to have control over the following:

• Scheduling; the freedom to create and maintain their own schedule so long as major deadlines are met.
• Equipment; should be able to chose what type of their own equipment they will use to complete the work including vehicles.
• Uniforms; should not be forced to wear the hiring company’s logo/ uniforms as if they are an employee.
• How the task is completed; should not be told in detail how to perform the work. End goals are really all the hiring company should be imposing.

"We Can Help" - The Department of Labor:

Independent contractors are not protected under the Fair Labor Standards Act protections for issues like minimum wage and overtime or other benefits, so often wrongly classified independent contractors do not receive legal protections they are entitled to. The "We Can Help" campaign encourages employees to seek aid from the DOL if they believe they are not being paid correctly or are misclassified. The DOL intends to further focus on fixing worker-classification issues in 2011 by adding 90 new enforcement personnel and an additional $12 million to the Wage and Hour Division's budget.

Even More "Help"- The Internal Revenue Service:

Employee-classification is a front runner with the IRS because employers are not required to pay social security, Medicaid, unemployment, or other payroll taxes on independent contractors. In an attempt to rectify these improper misclassifications the IRS will be adding 100 new enforcement agents and allocating $25 million to investigating misclassification of employees as independent contractors. IRS audits may also impose penalties and require payment of back pay and taxes for workers previously misclassified. The Treasury Department estimates an increase of by $7 billion over the next ten years.

Congress: Proposed Legislation Affects Even Small Employers

Congress offered up new legislation regarding worker classification; The Fair Playing Field Act of 2010. This bill is intended to amend Section 530 of the Revenue Act of 1978, which currently provides a safe harbor for Companies to treat employees as independent contractors for tax purposes if the company has a logical basis for treating them as independent contractors and has consistently reported their income on Form 1099s. If passed this bill would eliminate that safe harbor and employers would be open to larger penalties for worker misclassification, even good faith mistakes.

Employee Misclassification Prevention Act, is another bill that has recently been proposed. It focuses on classification for purposes of compliance with the Fair Labor Standards Act. That Act was introduced in April 2010 and would create a new FLSA violation: misclassification of an employee as an independent contractor. The Act would also:

• Impose notice and record-keeping requirements on businesses with independent contractors,
• Impose fines on businesses for each employee misclassification,
• Expand FLSA's anti-retaliation provisions to cover independent contractors, and
• Award triple damages for violations of minimum wage or overtime laws for employees wrongfully    classified.

The Fair Playing Field Act and the Employee Misclassification Prevention Act are both intended to correct perceived abuse of the independent contractor label, the acts contain different tests for determining who is an independent contractor and who is an employee, which may lead to even more confusion surrounding the issue.

To be safe you should contact a California labor Law attorney to examine your job duties and work conditions to determine your worker classification status. If you have been improperly classified as an independent contractor a California employment attorney could help you recover back pay for minimum wage, overtime, and benefits.

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 

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If you are an IT or computer worker in California, getting your overtime pay has become harder and harder- yet not impossible, if you know the rules of the game.

As of September of 2008 if you are a computer programer or computer designer, if you make more than $75,000 per year, you may not be entitled to overtime pay in California.

In addition, the the restriction above, computer software companies are becoming more and more savvy by creating hundreds and hundreds of job titles in order to make a possible class action seem very small when it comes to numerosity.   In addition, job descriptions in many cases are not reflective of what the actual worker does, and therefore causes additonal problems in litigating for overtime pay.

What are the solutions and how can a worker navigate these issues?

The first solution is to obtain an experienced California labor law attorney. A strong labor attorney can foresee and navigate through many of these pitfalls. Morever, it should be understood that many other non programming type positions such as installers, help desk, and technicians are likely non exempt and entitled to overtime pay and the $75,000 salary does not exempt such workers. Furthermore, when it comes to job descriptions that do not match duties, in most cases, the labor lawyer can access the performance evaluations which indicate what the worker actually did, versus what the job description states they were “supposed to be doing.” This is important in determining whether an employee is exempt or not and therefore entitled California overtime pay or not.

Many computer companies such as IBM, Sun Microsystems, Cisco and Intel, among others, have successfully been sued by California labor attorneys, netting millions of dollars for workers who were misclassified as not entitled to overtime pay.

It is not uncommon for employees in California who are recently laid off to complain of wrongful termination, or discrimination only to find out that their real claim is improper classification and they are in fact entitled to back overtime pay for up to four years pursuant to California labor law. Also, in investigating such violations it is important to also look at past employers, since again, the statute for recovery of overtime pay is up to four years previous to the date the lawsuit is filed.

If you have been working more than 8 hours in a day or more than 40 hours in a week and feel that you may be misclassified as “exempt” and not entitled to overtime pay, it is critical that you talk to a California labor law attorney to review your possible claims.

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