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

Effective Jan. 1, 2012 The bills – A.B. 592 and S.B. 299, signed by California Gov. Jerry Brown will attempt fill coverage and enforcement gaps between the state and federal leave laws. SB 299 and AB 592, as well as SB 222 and AB 210, propose pregnant employees will maintain their insurance benefits while on pregnancy-related leaves. These new laws will have a significant financial impact on employers big and small, but will also give pregnant employees a little piece of mind.

The federal Family Medical Leave Act only required the same level insurance coverage to pregnant employees as they had previous to going out on leave. But it only applied to employees who were employed at a company with 50+ employees and if they had worked there over 1 year or more than 1,250 hours. Often pregnant employees working for companies with less than 50 people were unprotected

The California Family Rights Act (CFRA) allows leave for bonding with an employee’s newborn, newly-adopted or foster child. But again only applies to employee with a company of 50 or more employees. However, pregnancy itself is not a condition covered under CFRA. Pregnancy and related medical complications are covered under the PDL law.

California Pregnancy Disability Leave, (PDL); under the California Fair Employment and Housing Act, employers with 5 or more employees must give up to 4 months of unpaid disability leave to women facing time off work because of pregnancy, childbirth, or a related illness. Prior to Jan. 1, 2012 employers with less than 50 employees have right to discontinue health insurance or other benefits if this is their policy for disability leave.

A.B. 592 and S.B. 299 will change how medical insurance coverage will be maintained during PDL. Not only must the employer with 5 or more employees maintain medical insurance for their employees while out on leave. California Insurance Code mandates that all individual health insurance policies must provide coverage for maternity services for all insured’s covered under the policy. Under existing law, if a health insurer provides maternity coverage, it may not restrict inpatient hospital benefits. The change in law, however, actually mandates that the maternity coverage be provided.

If you are going out on maternity leave and your employer has put restrictions on your time off or has not given you the option of selecting maternity medical coverage it is recommended that you contact a California employment law attorney to fully understand your rights and options. Many labor law attorneys offer free or low cost preliminary consultations and in certain cases may represent you on a contingency fee basis.

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

We have placed some of the most common concerns in an easy to follow question and answer format.

Question: How does an employee qualify for unemployment insurance?

Answer: The main criteria is you have to be unemployed. You are not allowed to claim unemployment insurance for the same period of time you are working. This is illegal and can land you in a lot of trouble.

Additionally, you have to have been laid off or fired (not for willful misconduct). If you simply quit in most instances you will not qualify for unemployment insurance. You should understand that even if you do initially qualify for unemployment benefits, your employer is able to appeal such ruling and that ruling could be reversed. Some employers do this for good reason and others because they are vindictive.

Question: Can I file my claim online or do I need to go the unemployment office of EDD?

Answer: Conveniently, you may now file for your unemployment benefits online. No more embarrassing visits to the unemployment office.

Question: Can I be disqualified for unemployment benefits if my employer fires me for being late to work or failing to meet my performance goals?

Answer: To be disqualified for benefits your conduct must rise to the level of willful misconduct as interpreted by EED or ultimately a judge. One example of this might be carrying weapon to work another may be driving a company vehicle while intoxicated.

It is not uncommon for an employer to attempt to challenge unemployment benefits if an employee has another labor case pending against the employer. The reason for this is they will have a chance to question and gather evidence at this hearing that may enable them to have an advantage in the other labor matter. For this reason, it is wise to have a California labor lawyer represent you in the unemployment hearing if you have another labor case pending against the employer in order to keep the questioning on point with the unemployment issues only.

If you have questions related to unemployment insurance and cannot resolve them through communications with EED it is important that you speak to a California labor lawyer?

This is especially necessary if you believe that you have other labor claims aside from unemployment insurance as a California California employment lawyer?

can advise you as to how to protect your interests prior to the hearing with EED?

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

Both houses of the California Legislature recently passed S.B. 459 and sent it on to Governor Brown for signature. S.B. 459 prohibits and punishes the "willful misclassification" of employees as independent contractors; S.B. 459 would impose stiff civil penalties for each violation and even higher penalties if a "pattern" of violations is found.

At the same time the IRS has unveiled an employer forgiveness program, called the Voluntary Classification Settlement Program. Wherein if an employer voluntarily comes forward and reports that they have been misclassifying their employees as independent contractors the IRS would require that they only pay approximately 10 percent of the back taxes. The IRS also promises no audits and no penalties on unpaid taxes.

However the IRS has no control in courts as far as labor laws are concerned so the companies that do come forward will be opening themselves up for lawsuits for overtime back pay. With the new legislation S.B. 459 and its stiff civil penalties for each violation and even higher penalties if a "pattern" of violations is found, this could be very costly to employers.

S.B. 459 creates two new unlawful practices

1. "Willful misclassification" of an individual as an independent contractor.
2. Charging a willfully misclassified worker a fee, or making any deductions from compensation for any purpose that would have violated the law governing deductions from pay — Labor Code §§221 and 224 — had the worker properly been classified as an employee.

It’s important to also note the change in the definition of "Willful misclassification". Previously the definition of "willful" in earlier versions of the legislation was "voluntary and intentional" the new bill redefined “willful” as "avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.” Knowingly being the operative word. "Knowing" is interpreted by the courts as including constructive knowledge, which in turn incorporates what the employer allegedly should have known — an inexact and subjective standard applied post hoc by a finder of fact. In other words, even if the employer believed they were classifying the independent contractors according to law the employer is still expected to know otherwise.

If you are currently classified as an independent contractor you should have control over the following:

- Make your own schedule
- Use your own equipment, tools, vehicle
- Not required to wear a uniform or clothing with company logo
- Use/ purchase your own materials to complete work
- No constant supervision of tasks and performance

If any of these conditions are not met you should contact an experience California labor law attorney to review your situation. You may be entitled to overtime back pay as well as penalties for missed meal and rest breaks.

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

Employers are often concerned with how employees conduct themselves on social networking sites as they are, in a sense, representatives of the company. However employers should be cautious of disciplining employees when it comes to the content of the employee’s posts. More specifically if the post is related to the working conditions the employer should be wary of how they choose to react.

In New York an employee was recently fired from a nonprofit organization for posting a comment about the working conditions. Later an administrative judge ruled this to be a wrongful termination.

Judge Arthur Amchan of the National Labor Relations Board ("NLRB") reviewed statements of five employees of Hispanics United of Buffalo, an entity providing social services to low-income clients. One of the employees created a post on facebook in which she describes the organizations failure to adequately serve their clients. This was followed by other employee’s posts in which they defended their performance. All five employees that participated in this discussion were terminated. According to the employer they were terminated for harassing of the employee of the original post.

Judge Amchan, concluded that these discussions were protected under Section 7 of the National Labor Relations Act, because it was regarding communications among employees about their terms and conditions of employment. As such this ruling set new president for the NLRB. The judge then ordered reinstatement and back pay for the five employees.

There have been other cases in which employers have faced adverse decisions regarding comments made on social media sites. In Connecticut an employee called their supervisor a "scumbag" and derogatory term for male genitalia. The NLRB found a violation of Section 8(a) as the basis of the employee's complaint regarding his supervisor was being denied union representation in connection with filing an incident report. An employee can lose protection under the National Labor Relations Act if they engage in outrageously disgraceful conduct during the course of the protected activity, but the NLRB did not find the employee's conduct to rise to this level.

Employees and employers alike are treading in new waters with regards social media and free speech laws on social media sites. It is important to note the decision in the Hispanics United case and National Labor Relations Act protects both organized and non-organized employees, as well as protects the rights of all employees (unionized or not unionized) to discuss and engage in other concerted activity relating to their working conditions.

If you feel you have been wrongfully terminated due to comments made on a social media Site you should contact an experience labor law attorney to 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

• Email This
• Print
• Comments
• Trackbacks