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

Pepsi Bottling Group recently paid out $3.13 million in racial discrimination case for its practice of criminal background checks. Pepsi was simply not hiring anyone with a criminal record, or anyone that currently had a criminal case pending, regardless of conviction. While having a criminal record is not a protected class and cannot be considered discrimination in and of its self. The EEOC did find that the incidence of African American applicants and some other minorities with criminal records was much higher than Caucasians, therefore finding this hiring policy to be racially disproportionate.

When the company applied across-the-board criminal background checks, the EEOC found that over 300 African-American people were adversely affected. "Under Pepsi's former policy, job applicants who had been arrested pending prosecution were not hired for a permanent job even if they had never been convicted of any offense," according to the EEOC. In a press release the EEOC reported that the policy violated Title VII of the Civil Rights Act of 1964.

Acting Director of the EEOC's Minneapolis Area Office, Julie Schmid said, “When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position. Such exclusions can create an adverse impact based on race in violation of Title VII." Schmid also stated, "We hope that employers with unnecessarily broad criminal background check policies take note of this agreement and reassess their policies to ensure compliance with Title VII."

Later a Pepsi spokesperson, announced a new policy that takes a more "individualized approach" in considering an applicant's criminal history relative to the job being sought in an effort to "...create a workplace that is as diverse and inclusive as possible." The Pepsi has also decided to provide the EEOC with regular reports on its hiring practices and to provide nondiscrimination training to its hiring personnel and managers.

Labor law is complex and if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or information on 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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Typically, arbitration agreements are given to employees to sign when they are hired. These agreements usually state that both parties, employee and employer, agree to resolve their issues out of court should legal issues arise. Often time an arbitration agreement can require that this process take place in a specific jurisdiction/ particular geographic area and can also redefine or restrict some statutory issues.
 

However, there has been much debate over if these statutory restrictions are legal in California. One provision some companies have tried to include in their arbitration agreements was to take away the right for employees to be able to file a class action for any employment issues that might affect them and all of their similarly situated colleagues. This waiver is also commonly referred to as a class action waiver.

A recent ruling by The National Labor Relations Board (NLRB), In D.R. Horton, Inc. and Michael Cuda, concluded that as a condition of employment employers cannot require that employees sign arbitration agreements that give up their right to file a class action in any forum.
The NLRB did not apply the United States' Supreme Court's holding in AT&T Mobility v. Concepcion. This case had previously set president that class action waivers could be included in consumer arbitration agreements then to workplace arbitration agreements.
 

The NLRB held that: "employers may not compel employees to waive their [National Labor Relations Act (NLRA)] right to collectively pursue litigation of employment claims in all forums, arbital and judicial." The NLRB also stated that "[s]o long as the employer leaves open a judicial forum for class and collective claims, employee's NLRA rights are preserved without requiring the availability of classwide arbitration." Therefore, "[e]mployers remain free to insist that arbitral proceedings be conducted on an individual basis.”
 

Because this topic is being contested by both employees and employers it’s important to seek legal advice from an experienced California class action attorney. Labor law is complex and if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or information on 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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A non-compete agreement is a contract between the employer and an employee whereby the employee agrees not to compete with his ex-employer when he leaves the employ of that company. In other words, the employee may not contact customers of his old employer and solicit their business. The purpose is to protect the employer from the employee using confidential knowledge acquired during his employment which the employee wants to use to compete against the old employer.

In most cases non-compete agreement are not enforceable in California. Business and Professions Code § 16600 provides that:

"every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void." Section 16600
invalidates agreements to preclude employment in a certain line of work. The section has also been construed by California courts as invalidating agreements that seek to prevent former employees from accepting work from any of the former employer's clients. (Morris v. Harris (1954) 127 Cal.App.2d 476.) A former employee may also solicit employees from his or her former employer if unlawful means or acts of unfair competition are not used. (Diodes, Inc. v. Franzen (1968) 260 Cal.App.2d 244.)

Even though non-compete agreements are generally not legal many companies require their employees to sign non-compete agreements to deter an employee from competing or using his/her knowledge after leaving. If you have been asked to sign a non-compete it most likely is non-enforceable or at least much more limited than it appears.

There are a few exceptions where non-compete agreement may be enforceable.

• Business ownership exception: It applies when a shareholder "sells" their stock to another for valuable consideration. (Hilb, Royal & Hamilton Ins. Services v. Robb (1995) 33 Cal.App.4th 1812, 1824-1825.)

• Partnership Exception: Business & Professions Code § 16602. However, not every agreement restricting competition between partners is valid. A "rule of reason" applies. (Howard v. Babcock (1993) 6 Cal.4th 409.) For example, a partnership agreement may validly restrict competition by precluding withdrawing partners from practicing in a limited geographic area. (Id.) Unlike business sales and section 16601, there is no requirement pursuant to section 16602 that compensation for goodwill in the partnership be transferred. South Bay Radiology Medical Associates v. Asher (1990) 220 Cal.App.3d1074, 1083.

Labor law is complex and if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or information on 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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With our current economic state, companies, employees and new graduates are equally concerned with employment. College students or new graduates are facing the age old issue of having a degree without experience while companies are looking to save money on payroll and keep a knowledgeable staff. Often time companies will offer unpaid internships a seemingly mutually beneficial relationship. College students are able to add experience to their resumes while companies get free labor.

But at a closer look, this might not be a fair shake. What if the student is studying to be in marketing and the company places he/she in the accounting department to do data entry all summer?

Federal Department of Labor (DOL) has set forth a few ground rules on who should be considered and intern versus who will be an employee.

1. The training is similar to that which would be given in a vocational school.
2. The training is for the benefit of the trainee.
3. The trainee does not displace a regular employee and works under close observation.
4. The training provider derives no immediate benefit from the trainee; in fact, its operations may be impeded.
5. The trainee is not entitled to a job at the completion of the training.
6. The employer and the trainee understand that the trainee is not entitled to wages; however, a stipend may be permitted. (Employment Relationship/ Trainees, U.S. Dep't of Labor Op. Ltr. Wage and Hour Adm. WH-229.)

California Department of Industrial Relations took it a step further and added a few criteria of its own:

7. The training should be part of an educational curriculum.
8. The students should not be treated as employees for such purposes as receiving benefits.
9. The training should be general in nature, so as to qualify the students for work for any employer, rather than designed specifically as preparation for work at the employer offering the program.
10. The screening process for the program should not be the same as for employment.
11. Advertisements for the program should be couched in terms of education rather than employment. (See generally Cal. Div. of Labor Standards Enforcement, Opn. Ltrs. 1998.11.12 and 1996.121.30, available at www.dir.ca.gov/dlse/ DLSE_OpinionLetters.htm.)

It’s important to be able to distinguish who will be considered an intern and who should be considered an employee not only for payment purposes but also for workers compensation insurance and for benefits entitled to employees such as medical insurance and paid time off.
Labor law is complex if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

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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Starting January 1st all employers must comply with the California new wage theft protection act, Labor Code Section 2810.5. . Theft protection act sets out to clearly define how, when, and what employees shall be paid. The idea is alleviate any confusion or misunderstandings about the type of employment and benefits the employee will receive. Effective immediately all California employers regardless of company size and industry are required to give the following information to all of their employees regardless of full time part time or seasonal status.

1. Classification: exempt, non-exempt, commission, piece rate. In other words, how the employee will be paid, hourly, salary, commission only, days wage, piece rate. It’s important to note that if the employer is claiming that employee is exempt from overtime they must also cite the exemption that they feel the employee falls under.
2. How much the employee will earn: by the hour, overtime rates, annual salary, piece rate day rate.
3. When the employee will be paid: weekly, biweekly, bimonthly, monthly etc.
4. If applicable, allowances claimed as part of the wage, meals, housing etc.
5. Name of the employer or the DBA (doing business as) or any other names the employer uses to conduct business.
6. Mailing and Physical address of the employer main place of business.
7. Phone number to the main office
8. Workers compensation information: Name of insurance carrier, phone number, address

Moving forward Employers must give written notice to all newly hired employees as well. Also if any of the information above changes the employer has 7 days to furnish notice of change in writing to the employee, California Labor Code §226. Notice need not be provided to non-exempt employees who are both covered by a collective bargaining agreement and who earn at least 30% more than the California minimum wage per hour.

The Labor Commissioner will be publishing a notice template later this month for employers to use.

With new laws come new penalties, the Wage Theft Protection Act adds or increases existing civil and criminal penalties, in some instances allowing liquidated damages and attorneys' fees, and extends the applicable statute of limitation to three years.

Labor law is complex if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

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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Does sexual harassment really still exist? Who would dare? It’s unfortunate that it does still occur in the work place but luckily California labor laws aim to offer protection. There are basically two different ways one can be sexually harassed: quid pro quo or to the point of hostile work environment.

Quid pro quo sexual harassment
“This for that” is the direct translation of quid pro quo. This type of sexual harassment is when the harasser offers something in return for the harassed to accept these unwanted advances. For example, if your supervisor or manager offers a promotion or a raise or rather threatens with a write up or termination in exchange for the harassed to bare or accept the harassment.
Under California labor law, the employer is absolutely liable for the sexual advances of a supervisor and has no legal defenses available to it. A victorious plaintiff can recuperate lost wages and compensation of other economic losses, emotional distress damages, interest and attorney fees, and in cases where the employer’s officers, directors or managing agents knew of the harassment, punitive damages intended to punish or deter the employer.

Sexual Harassment to the Point of Hostile Work Environment

Subordinates, co-workers, supervisors, and even managers can all participate in sexual harassment to the point of creating a hostile work environment. Often times this harassment can come in the form of slurs, intimidation, taunting, groping, grabbing and ridicule.
It’s important to note that a single severe act of sexual harassment can create a hostile work environment as well as many subtle acts, by one person or many. Also the person being harassed does not have to be the one that files a claim. Someone else that has witnessed and had to deal with watching another person being harassed is also a victim of hostile work environment.
Recently, the California Supreme Court held that employer actions, such as termination, demotion, etc., could also constitute hostile work environment harassing conduct. See Roby v. McKesson HBOC (2009) 146 Cal.App.4th 63.

Who is liable?

If the Harasser is a supervisor or manager then the company is certainly held liable for their actions. If the harasser is a coworker or subordinate then company will be held liable if you are able to show that a supervisors or manager was aware of this persons inappropriate behavior.
Under Title VII of the Civil Rights Act of 1964

When a supervisor engages in hostile work environment harassment that does not involve tangible employer actions (e.g., termination, demotion), the employer can escape liability for HWE if the employer can show

1) employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and
2) the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer, or to avoid harm otherwise.

See Burlington Industries, Inc. v. Ellerth (1998) 524 US 742, 764–765;Faragher v. City of Boca Raton (1998) 524 US 775, 806. This is unfortunate in that many victims of sexual harassment do not immediately report it to their employers for fear of retaliation. Under federal law, these employees may be out of luck. This is one of the reasons why filing a sexual harassment claim under California rather than Federal law is usually the better course.

Labor law is complex if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

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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While the law can’t prevent employers from retaliating against their employees, it can offer restitution should you fall victim to retaliation. Retaliation can come in many forms and can be a result of several different types of issues reported.

Often times the employee will report issues such as sexual harassment, unsafe working conditions, workers compensation claims, another employee breaking company policy or even broken laws, also known as Whistleblower. Most commonly discrimination is reported; such as: age, race, gender, sexual orientation, religion, and disability.

As unfortunate as retaliation is, it can be in administered in many different ways. Employers have been known to cut hours or pay, pass employees over for promotions, place people on unpaid administrative leave and even terminate employment. Termination in retaliation for reporting any of the previously mentioned issues would likely be considered a wrongful termination.

It’s also interesting to note that even though there might only one person, perhaps your manager, giving you a hard time or retaliating against you, under the law the company is still liable for that person’s actions. In 1998, the California Supreme Court ruled that individual managers and supervisors can’t be held personally liable for retaliation. However, the California Fair Employment and Housing Act says that it is unlawful for "any employer, labor organization, employment agency or person'' to engage in retaliation.

If you have recently reported some type of illegal or improper activity within the company and your working environment or conditions have been adversely effected you should seek counsel of an experienced California labor law attorney. An experienced attorney can help you understand the legal aspects of your situation as well as offer guidance in seeking recompense.

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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Does your employer offer a 401k, profit sharing, or a money market account? Were you given specific details about this plan prior to signing up; such as past performance, fees and expenses? Do you get monthly or quarterly statements on your investment?

Until recently none of this was required by law. The US Dept of Labor (DOL) has better defined what is required to be shared with participants and beneficiaries prior to investing and throughout the term of the investment. In general all of these new requirements will go into effect as early as May 31, 2012.

Under the Employee Retirement Income Security Act (ERISA) the following information must be shared with potential employee investors and existing employee investors as well as their beneficiaries.

1.     Initial & Annual Notice
Before the investor begins making contributions and every year after the investor should be notified of the following information.

a. Investment-Related Information
Investment related information can be complex and very detailed so the employer is required to provide the following: performance data, benchmark information, fee and expense information, Internet website address to obtain more specific or current information, and a glossary of terms. As well as a side by side comparison of each of the plans that are offered.

b. Plan-Related Information.

i. General Plan Information
Information regarding the operation of the investment including when and how to invest, if there are any limitation to the times amounts that can be invested, a description of “brokerage windows”, reference to any applicable voting rights and identification of investment managers.
ii. Administrative Expenses Information.
Administrative expenses are expenses that are typically related to cost of managing the fund such as monthly, quarterly or annual record keeping. If multiple accounts exist this information must be provided for each individual account and be specific that account.
iii. Individual Expenses Information
These are expenses that may be charged against a participant's or beneficiary's individual account for services provided on an individual basis (e.g., fees to process loans or qualified domestic relations orders (QDROs), or sales charges).

2.     Updating Notice
Any changes to the plan information previously disclosed must but updated and disclosed within at least 30 days but not more than 90 days prior to the effective date of the change. It’s important to note that updating notices do not apply to investment related information
3.     Quarterly Notice
Quarterly notices occur every 3 months and usually align with the fiscal year. Investor and beneficiaries must receive notice of the dollar amount of the plan related fees and expenses, both administrative and individual and description of services for all fees and expenses. It’s important to note that if notices of the account were made and outside of the regularly scheduled notices then those notices do not need to be reiterated at the regularly scheduled time.
4.     Disclosures Subsequent to Investment.
Not only do potential employee investors and beneficiaries need to be informed of the above mentioned investment-related information and the plan-related information prior to investing but they also need to be informed of the final regulations. Final regulations should provide information such as: voting rights, management rights and how these rights will and can be passed or shared with the beneficiaries.
5.     Information Provided Upon Request
Investors and beneficiaries can are any time request copies of any plan or investment related information including: financial statements, prospectus, reports, non-registered investment alternatives, share value information, dividend disbursement, list of assets comprising the portfolio.

Labor law is complex if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

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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With the end of the year quickly approaching some people will be working on holidays others will be taking time off from work and we will all be hopeful for a little extra cash. California labor laws are pretty clear about how employers must treat these situations and what employees should expect.

Holiday Pay

California labor law does not require employers to pay employees extra for working on holidays. However, there are quite a few companies out there that offer their employees 1.5 times their regular rate or even double time. If this is a company policy then the employer must adhere to it. The best way to make sure you know what the company policies are regarding holiday pay would be to review your employee handbook or contact your human resource department. If these policies are not in writing it would be a good idea to request a written copy.

Vacation Pay

Vacation pay, sometimes referred to as paid time off (PTO). California labor laws do not require employers to offer PTO or vacation pay but if it is offered by the employer then the employee is either entitled to use it or be paid for its monetary value. It is important to note that the employer cannot take it away. “Use it or lose it” policies are not legal in the state of California. With that being said, the employee must understand that the employer does not have to give you the time off that you request. If your request for time off is denied you could lose your job if you leave anyway. You may decide to ask for your vacation pay on your next pay check instead of actually taking the paid time off.

Bonuses

Again, bonuses not required by California labor law but still common practice by most employers. Other common practices during the holidays are gift giving either in the form of actual tangible gifts or in the form of gift cards. In either instance you will notice that the monetary value of these gifts or bonuses will be taxed on your pay check. This often confusing to read on your paystub, but more than likely you will see the value on the gift added to your wages, then taxes will be taken out of your pay, then you will see the original amount of the gift deducted. This practice is required by law nationwide, all gifts and bonuses must be counted as wages according to the IRS.

Labor law is complex if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

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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People call in everyday with various employment issues or concerns but what is interesting to me is that the majority of the time they have one of these 5 issues and they didn’t even know it. I have had clients tell me that they just assumed that they were being paid and treated properly because the company that they work for is so big and well known:”they must know what they are doing, right?!” The truth is that labor violations occur in any size business and that it’s the employee who needs to arm themselves with knowledge of their rights or at least contact a California labor law attorney with any questions or concerns.

1. Misclassified as an Exempt Employee (salary)
….when in fact they should be Non-Exempt (hourly). Companies are not allowed to arbitrarily classify their employees as exempt from overtime. California labor laws have set strict guidelines regarding who will be considered exempt. The most important thing to remember is that your exemption status is based on your actual job duties, not on your job title or on the job descriptions given to you by the company.

2. Working Off the Clock
Non-Exempt employees are often pressured to work while they are not clocked in. This could mean coming in early to work to prepare for the day or clocking out and remaining to finish work at the end of the day. Often times employers will not come right out and tell their employees that they must work off the clock, but the employer might pressure the employees by threatening with write-ups or termination if all of the work is not completed before the end of the day and in the same breath make it known that overtime is not allowed. Other times it’s more systematic, for example: an employee must spend 10 minutes in the morning booting up the computer system and logon to their computer before they are granted access to use the time keeping system. Or route drivers often have to load their trucks but their time clock doesn’t start until their first stop.

3. Misclassifying Employees as Independent Contractors
Often time employers will classify employees as independent contractors in order to avoid paying overtime, additional taxes and insurance. Again California Labor law has set guidelines regarding who can be classified as an Independent contractor. In order to be an independent contractor you should be responsible for the following:
• Make your own schedule
• Use your own equipment, vehicle, tools etc
• Not have to wear a uniform for the other company
• Not have a supervisor or manager directing you on a regular basis

4. Not Providing Suitable Seating for Employees
Private Attorneys General Act ("PAGA") states "nature of the work reasonably permits the use of seats." Recently large companies like Home Depot, Whole Foods, Costco and Nordstrom have all been in the courts for this violation. Typically for not providing seating to cashiers or other positions where the employee is somewhat stationary.

5. Failing to pay Reporting Pay
Reporting pay is owed when an employer has an employee come to work but the decides that person is not needed for the day and sends them home or works less than half of the shift they were scheduled to work. At this point an employer is required by California labor law to pay this employee for half of the usual or scheduled day's work. This amount should be no less than two hours or more than four hours at the employee's regular rate. The exception is that employee was unable to work due to acts of God, threats to employee or property, etc.

Labor law is complex if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

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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Wage Theft Prevention Act of 2011

According to Section 2810.5 of AB 469, at the time of hire all employer must now inform, in writing, employees of rate of pay and the of how wages will be calculated. In other words: hourly, daily, piece rate, salary, commission or by some other method. If applicable the employees must also be informed of their overtime rate, allowances, the regular pay date, the name of the business or any other names the business operates under as well as the physical mailing address for the business. AB 469 also requires that any changes made to this information be given to the employees in writing within 7 days of the change. Not only does the existing law require employers to pay penalties and back wages for violating minimum wages laws it now criminalizes certain wage violations by providing that any employer who willfully violates specified wage orders, willfully fails to pay wages due, if convicted is guilty of a misdemeanor. It important to note that, the statute of limitation for collecting penalties under the Division of Labor Standards Enforcement ("DLSE") has increased from one to three years.

Commission Contracts will be required by 2013

By January 1, 2013 AB1396 will amend the labor code to require employers to have written contracts with all employees who will receive wages from commissions. This contract must also define how these commissions will be calculated and when they will be paid. This does not include bonuses or short term incentives. This should alleviate the guess work and should allow the employees the ability to track and determine, in advance, what their commission pay will be. AB1396 will be particularly helpful to employees that are classified as inside sales or outside sales people.

Wage Garnishment : Medical Debts are now Exempt

Currently the law requires employers to garnish employee’s wages up to the portion of the earnings the debtor proves is necessary to support himself or his family, for things like Child support payments, back taxes, credit card debt, and other debts can all be subjected to wage garnishment. AB 1388 adds an exemption for debt that is incurred "for the common necessaries of life furnished to the judgment debtor" or his or her family, including, e.g., hospital services and other medical debts.

Even though most of these new laws will take effect January of 2012 it is recommended you speak with an experience California labor law attorney as soon as possible if you have any questions or concerns about your employment situation.

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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Recently Governor Brown has signed over 20 new bills effecting California labor laws. Employers and employees alike will see several changes in the coming months, some changes will be beneficial and or costly and some help to better define existing a laws. Here is an over view of a few notable changes.

Gender Discrimination: Identity and Expression

Bill 887 redefines or better defines the term gender to aid in how gender discrimination cases will be assessed, specifically in regards to the terms gender identity and gender expression. The idea is that a person should not be discriminated against based on their gender. Previously this was described as one’s sex, male or female. Now it will include how one perceives themselves or chooses to express their self; often displayed through appearances such as clothing, hair styles, makeup and even behavior. Assembly bill 887 instructs employers that they must to allow employees to appear or express themselves as whichever gender they choose to identify with.

Discrimination: Domestic Partners

Bill 757 relates specifically to medical insurance offered by employers. the Knox-Keene Health Care Service Plan Act of 1975 does not allow discrimination in coverage between spouses or domestic partners of a different sex and those of the same-sex marriages. Senate Bill 757 takes it a step further and makes it a crime to willfully violate the Knox-Keene Health Care Service Plan Act. There is an exception for a policy issued outside of California to an employer with a majority of its business and employees located outside of California.

Discrimination based on your Credit Report

…Sounds ridiculous to begin with and with our countries current economic issues even more so. Assembly Bill No. 22 says what we are all thinking. Previously Employers were allowed to access an employee or potential employees credit report (with the employee’s permission) regardless of the employee's position or the position the applicant is seeking to fill. Bill 22 recognizes that there are some instances when a credit report is necessary to the employer and has restricted access to the following types of employment positions:

• person is or would be named signatory on the employer's bank or credit card account, or authorized to transfer money or enter into financial contracts on the employer's behalf
• person will have access to confidential or proprietary information
• person will have regular access to $10,000 or more
• a position in the state Department of Justice, that of a sworn peace officer or other law enforcement position
• a managerial position as defined by the stringent exempt status definition
• a position for which the information contained the report is required by law to be disclosed or obtained;
• a position that involves regular access to specified personal information for any purpose other than the that the routine solicitation and processing of credit card applications in a retail establishment;

Labor law id complex if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

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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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
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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
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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
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Due to the expanded definition of the term “disability” under the Americans with Disabilities Act Amendments Act of 2008 employers have been receiving an increasing number of requests for reasonable accommodations under the ADA. Most commonly of these requests are leaves of absence or changes to the employees schedule. The Equal Employment Opportunity Commission ("EEOC") and courts recognize that use of accrued paid leave or additional, unpaid time off from work may be a reasonable accommodation under the ADA.

Employers have several ways to accommodate employee requests for time away from work. For example, they can allow the employee to use accrued paid-time-off benefits like paid vacation or sick time. The employee can use the unpaid Family and Medical Leave Act during while also using accrued paid-time-off benefits or receive payments to a disability or workers' compensation benefits plan at the same time. Or the employer can also provide paid or unpaid leave according to company policy. All of these efforts are usually viewed as a form of reasonable accommodation under the ADA.

Often, employers mistakenly believe that their accommodation obligation ends once these efforts have been exhausted. Recently, this mistaken belief has been challenged by the EEOC, and at a very high cost to employers.

In 2009 a retailer settled for $6.2 million after the EEOC challenged the company policy to terminate all employees that had not returned to work after 12 months of being out on disability due to workers compensation claims.

A national communications company also settled for $20million after the EEOC alleged they had violated the ADA by holding the employees accountable for all their absences due to their disabilities. The company would fire the employees for excessive absences even though those absences were directly related to their disability.

Recently a Grocery Store Chain also settled at $3.2million after the EEOC disputed the employer's policy to terminating employees at the end of a fixed medical leave period instead of allowing the employees to return to work with reasonable accommodations.

Lastly, the EEOC Challenged a national airline company regarding it's company policy to not issue reduced work schedules for any of the employees. Instead the company required employees to either take a leave of absence or to take early retirement. The company eventually settled as well.

In short, regardless of what your company policy is you may be entitled to further accommodation of your disability. If you have been terminated or being asked to resign due to your disability you should contact an experienced labor law attorney to examine 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
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After the decision for Wal-Mart v Dukes was announced many believed that it was significantly change class action litigation, specifically what was needed to certify a class action. The case also alleged Sexual Discrimination and much of the language seemed to apply to other kinds of class actions, those outside of the employment context entirely.

Particularly; will Dukes apply to collective actions under FLSA section 16(b)? 16(b) is what allows wage and hour claims to be filed collectively if the class members are “similarly situated”. In the past, most courts find this to mean that the class members must be able to show that they were subject to "a common policy or plan that violated the law." The best example of this was written by district court judge Sonia Sotomayor , Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 367-68 (S.D.N.Y.1967).  However the Dukes Decision was related specifically to Rule 23(a)(2), which necessitates a commonality. In other words: Are the facts of the case common to the class?

In California Cruz v Dollar Tree, Case No. 3:07-04012-SC (N.D. Cal. July 8, 2011), demonstrates that Dukes will apply to wage and hour suits as well. Cruz represented all current and former Store managers of the Dollar Tree Stores in California. Cruz filled in Northern California courts alleging that they were misclassified as exempt from overtime but were in fact entitled to overtime pay as well as meal and rest breaks. The court certified the class in 2009.

In both of these cases the plaintiff won the first round, but this did not last. After the cases were certified the Ninth Circuit render it’s decision in Wells Fargo Home Mortgage Overtime Pay Litigation, 571 F.3d 953 (9th Cir. 2009), and Vinole v. Countrywide Home Loans, Inc.,571 F.3d 935 (9th Cir 2009), rendering the class partially decertified. Then later The Ninth Circuit decertified a class of truck loading dock supervisors it had previously certified in Marlo v UPS, Case No. 09-56196 (9th Cir. 2011).

After Cruz v Dollar tree and Marlo v UPS were decertified the court felt obligated to reexamine Dukes v Wal-Mart, stating, "a forceful affirmation of a class action plaintiff's obligation to produce common proof of class-wide liability in order to justify class certification." The court’s interpretation of this requirement was "common proof to serve as the 'glue' that would allow a class-wide determination of how class members spent their time on a weekly basis." The end result, decertification of the class.

The bottom line is that no matter what you think the current labor law says about your employment rights, the laws are always changing. It can never hurt to reach out to an experienced California labor law attorney to evaluate your current situation.

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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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.
 

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California Labor law requires that employees be reimbursed for their work related expenses, such as mileage, supplies, training, tools and equipment and even legal expenses. Alternatively, employers usually have policies and procedures that create deadlines, in order to request and receive reimbursement.

In Stuart v. RadioShack, an employee is suing for reimbursement and RadioShack argues that his claim has no merit because Stuart did not make a proper request under its policies and procedures. So the question is: Do the requirements of the statute override policies and procedures for reimbursement set by the employer?

California Labor Code section 2802 states:
"An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties."
"Any contract or agreement, express or implied, made by any employee to waive the benefits of this article or any part thereof, is null and void."

California employers are required to reimburse employee expenses and employers cannot allow the employees to surrender or limit these rights for any reason. According to the Northern District Court: the employer's responsibility to reimburse expenses should be triggered by the same standard that applies in cases of "off-the-clock" work:
“The Court concludes that a fair interpretation of [Labor Code] §§ 2802 and 2804 which produces “practical and workable results,” consistent with the public policy underlying those sections, focuses not on whether an employee makes a request for reimbursement but rather on whether the employer either knows or has reason to know that the employee has incurred a reimbursable expense. If it does, it must exercise due diligence to ensure that each employee is reimbursed.”

Basically, employers can continue to use their policies and procedures but if they learn about reimbursable expenses that are owed to the employee, the employer should make every effort to reimburse the employee.

If you are concerned that you are owed reimbursable expenses please contact a California labor law attorney to help you claim the money that is owed to you.

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California labor law defines a discretionary bonus as follows:

“Discretionary bonuses or sums paid as gifts at a holiday or other special occasions, such as a reward for good service, which are not measured by or dependent upon hours worked, production or efficiency, are not included for purposes of determining the regular rate of pay.”

This seems pretty straight forward; right? However, the term discretionary is misleading because neither party ever truly has absolute discretion due to "implied covenant of good faith and fair dealing". All California employment situations are subject to "implied covenant of good faith and fair dealing", whether you have an actual employment contract outlining the terms of your employment or if you are an at will employee. This doctrine monitors parties in contracts where one party has the right to exercise broad discretion that affects the other party's rights. California labor law states when that party exercises their discretion it generally must be done "fairly".

For instance, let’s say that there is an investment banker that is usually paid an annual bonus of around $100,000. Then one year the employer decides to give the employee a bonus of only $20,000 even though the employee had one of his most productive years and was out performing his peers. Come to find out, the employer was going to lay off this employee in a few weeks and had decided to distribute the remainder of his bonus to the other employees.

This is a perfect example of where the implied covenant applies to California employment law cases. If an employee performs satisfactory work during the year with the anticipation that he would be given a bonus similar to his coworkers and to what he traditionally received in previous years, the employer does not exercise discretion in "good faith" by paying him thousands of dollars less than they do to similar employees.

This might be an extreme case for most employees, but the same concepts can be applied to any bonus and even Christmas bonuses in certain circumstances. If you feel you have not received a fair bonus please contact a California labor law attorney to review your case.
 

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The cat's paw theory for proving employment discrimination was solidified in a recent ruling by the United States Supreme Court. Under this theory a plaintiff will be allowed to demonstrate discrimination even though there is no evidence that the acting offender had any discriminatory intentions. The theory hinges on whether there is proof that another employee’s (other than the acting offender) discriminatory intentions influenced the "innocent" “acting offender)” thereby causing the unfavorable employment action to occur.

In Staub v. Proctor, the plaintiff was a medical technician for Proctor while in the Army Reserves. He was required to be present at weekend drill meeting once a month as well as trainings two or three weeks a year. Proctor fired the plaintiff in accordance with a decision by Human Resources. The plaintiff filed a discrimination suit under the USERRA, which forbids discrimination based on military service. Although the plaintiff did not have any proof that Human Resources had a motive to discriminate, the evidence showed that the decision to terminate was not made based on discriminatory reasons. However, Plaintiff disputes that his immediate supervisors were motivated by discriminatory intentions which eventually resulted in Staub’s termination. The basis for the court’s finding was based on the fact that the company had given Staub a false written warning that carried weight in the decision to terminate his employment. The lower courts had originally granted the defendant's summary judgment. The Seventh Circuit held that Proctor was granted summary judgment based on the evidence presented, that the final termination conclusion was made by someone with no discriminatory animus who autonomously examined the facts and that the choice wasn't entirely dependent on the write up issued by Plaintiff's supervisor.

The decision was reversed by the United States Supreme Court, stating the evidence was adequate to uphold a finding that the choice for termination was proximately caused by the write up, and that there was some substantiation that the written warning was discriminatorily motivated. In addition, the Court held that an employer cannot protect itself from liability simply by suggesting that the ultimate decision maker or acting offender did not discriminate. If there is evidence that the definitive decision maker or acting offender was predisposed by other supervisors who had a discriminatory motive, a plaintiff can demonstrate discrimination based on such a theory.

The Staub judgment is a USERRA case and its interpretation will relate similarly to discrimination suits brought on under cat's paw theory, Title VII, and alike federal and state statutes prohibiting employment discrimination. Summary judgment in discrimination cases will be much more difficult for employers to obtain since the Staub judgment.

If you believe you may have been discriminated against, inadvertently or otherwise, it’s advisable to consult with a California labor law attorney for review of your situation.
 

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The Warn Act was bolstered by a recent case in the Ninth District Collins v. Gee West Seattle.  In this case, the court addressed voluntary resigning of employees after such employees learn that operations of the employer are to cease and whether or not such resignation should be considered an “employment loss” under the Warn Act. The court decided in favor of the employees, thereby entitling them to 60 days of wages under the Warn Act. The court noted the employer only gave a few weeks notice under the faltering business provision of the Warn Act which typically allow 60 days notice to employees. Once the employer notified the employees that it was seeking a buyer for the business, many employees resigned and began seeking employment elsewhere. These same employees sued the employer for violations of the Warn Act arguing that they are entitled to wages under the Warn Act. The employer disputed the claim and took the position that since the employees quit, they are not entitled to monies under the Warn Act.  Initially, a district court agreed with the employee, however the Ninth Circuit Court reversed this decision. The court opined that once the employer reasonably foresees a significant employment loss, this triggers protection of the Warn Act.  In this instance, although the employer had such foresight, it failed to provide less than the 60 days required under the Act.  The fact, that the employees resigned, did not release the employer from its obligations under the Warn Act.

If you have been faced with layoff contact a California labor law attorney to examine your rights.

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A unanimous Supreme Court decision in Thompson v. North American Stainless Inc: Justice Scalia writes that employees may claim retaliation when they are associated with someone ELSE who engaged in protected activity.

Eric Thompson was engaged to Miriam Regalado. They both worked for North American Stainless. So, Regalado filed a charge with the EEOC alleging sex discrimination. North American Stainless fired Thompson three weeks later.

Thompson then filed a retaliation charge. But Thompson did not actually engage in protected activity. Regalado was the one who filed with the EEOC.

Was it retaliation under Title VII to fire Thompson? The Supreme Court said yes. Relying on the Court's expansive definition of retaliation set forth in Burlington N. & S. F. R. Co. v. White, 548 U. S. 53 (2006),the court said:

“the anti retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.” Id., at 64. Rather, Title VII’s anti retaliation provision prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id., at 68 (internal quotation marks omitted).

Supreme Court found that firing a fiancé "well might have dissuaded" the complainant from making or supporting a charge: NAS argued, where do you draw the line? Trusted co-worker? Girlfriend? What third parties are close enough to the complainant? The Court could not find any language in Title VII to support setting down a blanket rule.

“We must also decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.”

Additionally, the court decided that Thompson had standing to sue under Title VII because he was a "person aggrieved." The Court knew it was opening a can of worms to let third parties sue. So, it limited Title VII standing to those covered by the "zone of interests" Title VII seeks to protect. Thompson was an employee at the same company as his fiancé, and, most importantly, according to the complaint, the company fired him for the purpose of hiring the fiancé who filed the charge.

If you are concerned that you have been a victim of retaliation please contact a California labor law attorney for help evaluate your case.

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California labor laws are rather specific in regards to how employers should pay employees on a “piece rate” basis; employers are obligated to pay overtime when the employees work over 40 hours in a workweek. A recently filed class action overtime suit illustrates the dangers of making the assumption that overtime is not owed to piece rate workers. The suit, Case No. 6:10-cv-00346, N.D. New York, alleges that Wave Comm, an Arizona-based cable company, failed to pay overtime to its cable installation technicians.

Piece rate or piecework is defined as work paid for according to a set rate per unit. Webster’s Collegiate Dictionary. A piece rate must be based upon an ascertainable figure paid for completing a particular task or making a particular piece of goods. The piece rate earned must equal or exceed the State’s minimum wage rate for all hours worked. (See appropriate IWC Order and Minimum Wage Order and DEPARTMENT OF INDUSTRIAL RELATIONS DIVISION OF LABOR STANDARDS ENFORCEMENT document DLSE-2005-W-1 Revised 6/2005)

The technicians were paid a fixed amount of money for different types of installation-related tasks, but did not receive overtime compensation for the numerous weeks in which they worked overtime hours.This is not the first suit such filed by these types of technicians against the cable industry.

Even though paying employees on a piece rate basis is permissible under both the FLSA and state law, employees should be aware not only of their entitlement to be paid overtime, but the specific formula for used to calculate the amount of overtime pay. In general, when an employee is paid solely on a piece rate basis and works overtime hours, the employer determines the employee’s regular rate by dividing the employee’s total weekly earnings by the amount of hours worked in that workweek. The employee is then entitled to one-half of the regular rate for each hour worked above 40, in addition to their regular piece rate compensation.

For instance, if an employee paid on a piece rate basis works 45 hours and earns $360.00 in that workweek, the employee’s regular rate for that workweek would be $8.00 per hour. The employee would then be entitled to an additional $20.00 in overtime (half the regular rate, or $4.00, multiplied by five overtime hours). In that workweek, the employee would receive $380.00 in total compensation.

It is also acceptable to pay piece rate employees one and a half times the piece rate for each “piece” produced during the overtime hours, provided that this is agreed to in advance and that the piece rate exceeds minimum wage and is paid for all hours worked up to 40 in the workweek.

If you believe that you may have received your all amounts you earned as a piece rate employee it is recommended that contact a California Employment Attorney to make sure your rights are protected.
 

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The battle lines have been drawn over the question of how the term "EMPLOYER" should be defined. Should the term "EMPLOYER" simply mean only the company that hired the employee which is the old common law definition or should the term "EMPLOYER" take into account broader principles of California Labor Law.

A major case was just decided by the California Supreme Court that established who can be held liable for failure to pay wages. A number of cases were previously herd in which only the company who was the direct employer could be held responsible for any unpaid wages.

There were a number of cases including Reynolds v. Bement (2005) 36 Cal.4th 1075, in which the Court “looked to the common law rather than the applicable wage order to define employment in an action under section 1194 seeking to hold a corporation's directors and officers personally liable for its employees' unpaid overtime compensation.” Labor Code section 1194 gives employees the right to recover “the legal minimum wage or the legal overtime compensation.”

The California Supreme Court has ruled on one of the most important wage and hour cases and that is Martinez v. Combs 49 Cal.4th 35 (2010). This case explains who is and who is not an "EMPLOYER" under California wage law and it includes a number of important rulings that will shape California wage and hour practice for years to come as well as California Labor Law in general.

By way of background, the question of who must pay minimum wage or overtime under section 1194 has been addressed only once since 1913, when California passed its minimum wage law. That one decision was Reynolds v. Bement (2005) 36 Cal.4th 1075, in which the Court “looked to the common law rather than the applicable wage order to define employment in an action under section 1194 seeking to hold a corporation's directors and officers personally liable for its employees' unpaid overtime compensation.”

The main argument that was put forth in Martinez v. Combs was that the history of section 1194 showed that the legislature intended to give the Industrial Welfare Commission (IWC) the power to define various terms used in the regulations that the IWC had the power promulgate. Within the definition of employer the regulation under Wage Order No. 14, Cal. Code Regs., tit. 8, § 11140, subd. 2(C) use the term defining employer as one who “suffered or permitted an individual to work”. Wage Order No. 14, Cal. Code Regs., tit. 8, § 11140, subd. 2(F) describes employer as one who “exercises control over wages, hours, or working conditions”.

The power of the Industrial Welfare Commission (IWC) to define employment is not expressly granted in the act creating the IWC but merely implied, and thus extends only so far as necessary to permit the IWC effectively to exercise its expressly granted powers to regulate wages, hours, and working conditions. West's Ann.Cal.Labor Code § 1173 et seq. Therefore regulations issued by an administrative agency such as the Industrial Welfare Commission (IWC) under a delegation of legislative power must be reasonably necessary to effectuate the purposes of the statute. West's Ann.Cal.Labor Code § 1173 et seq. and therefore has the force and effect of law.

The California Supreme Court stated that in actions under section 1194 to recover unpaid minimum wages, the IWC’s wage orders do generally define the employment relationship, and thus who may be liable. An examination of the wage orders’ language, history and place in the context of California wage law, moreover, makes clear that those orders do not incorporate the federal definition of employment. Applying these conclusions to the facts of the case, the Supreme Court affirmed the Court of Appeal’s judgment.

As set forth in the Supreme Court’s ruling it stated that the Wage Orders set forth a multi-pronged, disjunctive definition of employment: an employer is one who, directly or indirectly, or through an agent or any other person, engages, suffers, or permits any person to work, or exercises control over the wages, hours, or working conditions of any person. The “engage, suffer, or permit” component of the definition does not require a common law “master and servant” relationship, but is broad enough to cover “irregular working arrangements the proprietor of a business might otherwise disavow with impunity.” Phrased as it is in the alternative (i.e., “wages, hours, or working conditions”), the language of the IWC's 'employer' definition has the obvious utility of reaching situations in which multiple entities control different aspects of the employment relationship, as when one entity, which hires and pays workers, places them with other entities that supervise the work. Finally, the IWC’s “employer” definition is intended to distinguish state law from the federal FLSA and is therefore controlling.

This case becomes extraordinarily significant in light of the fact that individual company owners cannot hide behind their corporations to shield them from personal liability. The law clearly states that anyone who directly or indirectly permits a person to work or exercises control over that person's wages, hours or working conditions shall be held personally responsible for the payment of all wages due. This helps to stop those who abuse the labor laws and attempt to deny wages that have been earned. The California Supreme Court has spoken and has upheld the rulings By the California Industrial Welfare Commission which broadly defines who shall be treated as the employer.

If you have any questions with regard to your rights is important that you seek the help of a California Labor Law Attorney so that your rights will be fully protected.

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United Employees Law Group through this blog, its website and direct discussions by phone, provides information on a multitude of employment issues to those seeking help with California Labor Law issues.

The laws and rules dealing with employment are extensive and complicated. Although there maybe "quick answers" those answers may only scratch the surface and may not provide adequate guidance without a more thorough review. In many instances there is substantial money at stake not to mention other important rights that should be protected.

When someone calls us looking for help, we understand that they are trying to navigate an unfamiliar area where the stakes are high.

This firm has prosecuted well over 1000 cases. Some of which include class action cases against some of the largest Fortune 500 companies. Each of these cases requires an investment of substantial economic resources. This requires that we selectively choose those cases we believe have the greatest chance of success.

To better understand the process the following is an overview of how we proceed when someone seeking help contacts us.

POTENTIAL CLIENTS ARE SCREENED

United Employees Law Group prescreens all clients before their case is accepted. Potential clients are taken through an in-depth analysis to determine the strength and value of their claim.

ANALYSIS OF PRELIMINARY DOCUMENTS

Potential clients are required to send in initial documents for preliminary review. Documents may include pay stubs, job descriptions, along with an employee handbook and evaluations.

FINAL REVIEW

All information provided by the potential client then goes through a final review to determine if the case can be accepted.

CLIENT FEE AGREEMENT

If the case is accepted, a fee agreement is sent to the client, this agreement sets out the scope of services, the clients’ responsibilities and the fees charged. All expenses are advanced by the law firm. No fee or costs advanced are collected, except out of monies recovered by the client. In other words, all work is done and expenses are incurred at the sole risk of the law firm.

INITIAL SCHEDULING OF ALL ACTIONS ON CASE

The first step is to record all information in a specialized computer program that coordinates calendared deadlines, phone calls, meetings and to do's. This information is continually being updated as the case progresses. This same program cross-references all documents and contact information of all parties. For example, the initial steps scheduled include the preparation of various letters along with the entry of a follow-up date.

INITIAL COMMUNICATIONS AND ANALYSIS

A notice is sent to the California Labor and Workforce Development Agency as well as a letter to the employer explaining the nature of the claim and an offer of early resolution.

An investigation of the employer is conducted and a detailed computation is made of unpaid wages, interest and penalties.

DISCUSSIONS WITH CLIENT

Numerous contacts and discussions are made with client in order to refine the information necessary to evaluate the value of the claim and to answer questions that the client may have and to discuss the client’s settlement objectives.

PREPARING FOR LITIGATION

An old and true military motto from Flavius Vegetius, Renatus circa 375 AD: says “If you want peace, prepare for war.” 

This is also good advice when it comes to fighting for the rights of our clients. It is for this reason that we prepare for the possibility that our resolve will be tested and we therefore work closely with our clients to gather facts, documents and witnesses. Although this requires work from both our client and our firm the results are well worth the effort.

SETTLEMENT OR TRIAL

Because this is an unfamiliar process most clients are naturally apprehensive about the prospect that this matter may go all the way to trial. Although a substantial amount of work is done in anticipation of a possible trial, it is much more likely that a settlement will be reached and a trial will not be required. As a matter of fact over 95% of all cases are successfully resolved by settlement between the parties.

INFORMATION IS POWER

Because California Labor Law is complex and could involve substantial sums of money it is important that you seek advice from a California Labor Law Attorney. In most instances this service is provided without charge so you have nothing to lose and everything to gain.

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A simple yet common question in the regard to California Sexual Harassment has to do with whocan sue. The simple answer is that any employee who works for a company can sue for sexual harassment. Furthermore, sexual harassment does not have to be perpetrated by a member of the opposite sex. California sexual harassment laws protect victims of same sex harassment whether or not the perpetrator is homosexual or not. If you feel that you have been the victim of sexual harassment, it is important that you contact a California Labor Law Attorney immediately.

A second common area of question is the myth that there must be touching to be sexual harassment. Nothing could be farther from the truth. California sexual harassment can include a large range of inappropriate behaviors that include but are not limited to not only touching, but promotion of retaining of employment in exchange for sexual favors, unwanted sexual comments, leering or other visual harassment, offensive materials, posters and jokes.

A third misconception is that sexual harassment must occur only in the workplace. In actuality, sexual harassment may occur in a wide variety of business, professional or service relationships. Employees should become familiar with California Civil Code of Procedure 51.9 to be clear on which relationships are covered.

A fourth misconception is that an employee must be the direct victim of sexual harassment in California in order to potentially file a claim. This is incorrect. If the sexual harassment permeates the work place of the employee even if the harassment is not directed at the employee, but rather happens in the presence of the employee. An important point, however, is that the harassment must be severe and happened to interfere with the employees work performance. This “severe” standard is typically upheld if there is sexual touching.

A final misconception is that an employee cannot win a sexual harassment case without witnesses or hard evidence. This is untrue. While, witnesses and evidence help a case, “he said, she said” cases have been decided in favor of the plaintiff if the court feels the plaintiff is more credible than the defendant.

If you feel that you have been the victim of sexual harassment, it is important that you contact a California labor law attorney immediately. The statute of limitations is strict in this area of labor law, so it is imperative to talk to a California labor lawyer at the earliest possible time so that your case can be assessed.

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California vacation pay rules are among the most stringent in the United States. California labor law provides that both vacation pay, once earned, cannot be taken away. In other words, it is illegal for employers to institute a “use it or lose it” policy. It is not required that your employer have a vacation policy, however, if they do have one it must comply with California labor law.

A prominent case in California labor law is Wal-Mart Stores Inc. Wage and Hour Litigation, filed in the U.S. District Court in the Northern District of California. This particular case is separate from Walmart's 2008 payment of $640 million  to settle 63 federal and state class-action lawsuits which also alleged numerous wage and hour violations. 

Below is the pertinent part of California labor law that applies to vacations:

California Labor Code Section 227.3:

Unless otherwise provided by a collective-bargaining agreement, whenever a contract of employment or employer policy provides for paid vacations, and an employee is terminated without having taken off his vested vacation time, all vested vacation shall be paid to him as wages at his final rate in accordance with such contract of employment or employer policy respecting eligibility or time served; provided, however, that an employment contract or employer policy shall not provide for forfeiture of vested vacation time upon termination. The Labor Commissioner or a designated representative, in the resolution of any dispute with regard to vested vacation time, shall apply the principles of equity and fairness. The full statute can be found here

Probation Periods and Caps

It is permissible for your employer to implement a probationary period for which employees do not earn any vacation time. The employer can select the length of time that employees must wait to begin to earn vacation time. It can be one month, three months, or 1 year or actually any period of time the employer selects. This law applies to the employee’s vacation once it begins to be earned.

Your employer may also place a cap on the amount of vacation you can earn without taking it. For example, an employer can allow you to earn three weeks of vacation without taking it, but not allow you to accrue anymore with using some of your accrued vacation.  This policy is legal since it is not a  “use it or lose it” policy. In other words, an employer can place a cap on vacation that is earned, but they cannot take away vacation that is already earned if you do not use it. Another legal policy, is if an employer requires that the vacation pay be “cashed out” or paid out after, for example, one year.

Other Vacation Policy Issues

Once an employee leaves employment all vacation pay that has accrued must be paid out at the time of separation of employment. Many employees call vacation time by many names. Floating holidays, gift days, PTO (paid time off) are some common names. However, regardless of the name placed on vacation time, if the employee can use this time for personal reasons, at the convenience and without restriction, this time is actually vacation time.

What is and What is not Vacation Time?

Holidays and sick pay are not vacation time. The main reason this type of leave is not considered vacation time is that they are subject to restrictions i.e. Taking a sick day only when you are actually sick. Sick days not used in a specified period of time according to company policy, are not required to be carried over by an employer. This practice is legal. If, however, the employer groups vacation and sick days together into some sort of PTO policy or general leave plan, all of this time is considered vacation time and cannot be forfeited

A very important distinction that is commonly missed by both employers and employees is that vacation time is accrued in a pro-rata fashion.  For example if an employer provides 6 vacation days per year, this means that each month an employee would accrue ½ of a vacation day and each week 1/8 of a vacation day. Any policy whereby an employee earns a lump sum of vacation at the end of a year, for example, would be illegal. Each pay period that you work, would allow you to accrue a pro-rata share of vacation.

If you feel that you have not been paid the proper amount of vacation upon separation of employment or if your employer is currently depriving you of the correct amount of California vacation pay, it is important to talk to a California employment lawyer at once.

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California unemployment has not subsided as many companies continue to still struggle to recover from the downturn of the economy. The current unemployment rate in California is over 12%.  A recent survey held that 63% of small businesses will not be hiring new employees.

If you are facing a possible layoff or downsizing consider taking the following important three steps.

1.  Secure all performance evaluations, letters of reference, and letters of commendation mentioning landmark projects you worked on, expense reductions you have achieved for your company, or revenue goals you have met or exceeded. In other words, “toot your own horn.” Gathering this information will help you in three ways. First, it will remind you of your own achievements and value, second if you work with your manager to gather this information, it will remind your manager of the value you bring to the organization, and last, this information will be invaluable in interview should the need arise, should you be laid off.

2. If the company is laying off employees and you have been selected for layoff, consider approaching management and offering to take a pay reduction or alternatively to move to another department even if a reduction in pay will ensue. While, this may not “feel good” nevertheless, it may behoove you to maintain full time employment and take a pay reduction instead of facing the ominous task of hunting for a job in this marketplace.

3.  If you are facing layoff, ask for a severance package. Have you ever heard the phrase, “ask and you shall receive?” Certainly, the opposite is true. If you do not ask, certainly you will not receive. Now the question is how much to ask for. You do not want to be unreasonable and you should consider the financial condition of the company. Considering factors such as this, will allow you the greatest chance for acceptance. Also, the company may already have a policy on severance pay based on years employed. Check your employee handbook to determine if this is the case.

If your company elects to provide you with severance pay, you should expect to sign a release that may prohibit you from pursing certain types of labor related claims. It is important to have an experienced California labor law attorney review this release before signing it and most of these agreements state that you have been given the chance to “have an attorney review this agreement”.

California labor law can be complex and before you decide to accept the severance pay and sign anything it is very important to understand what you may be giving up. The cost of having an attorney take a look at the paperwork may even be done as a courtesy or at very little cost.

Keep in mind that your employer is not just being kind to you. Your company most likely wants something in return and that something could be worth tens or even hundreds of thousands of dollars. We have seen many uninformed employees sign away very valuable rights for pennies on the dollar.
 

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California Labor Laws have been implemented to protect the employees’ rights against their current or former employers.

I am reminded of the situation in which a wife is abused and instead of walking out on the abuser she will blame herself and return to the same abusive situation until she is thrown into the street.

The only difference is that this is happening to employees every day. These employees are systematically underpaid, overworked and then fired. Why would someone put up with this abuse rather than demand what is rightfully theirs by law? This is probably because they are unaware that the law has powerful protections built in.

 Contrary to what you might think, if someone is at risk of losing their  job they should immediately consult with a Labor Law attorney. If they  have a legitimate claim they should act quickly. If the company then  attempts to retaliate because the employee exercised his or her right  to seek unpaid wages, the company is then at risk for substantial  damages. In order to avoid incurring a loss from a retaliatory claim, the  company usually will choose to act responsibly toward the employee.

 Both State and Federal labor laws have strong protections built in to deal with employers who threaten employees for pursuing their rights.

 A Los Angeles County jury on Nov. 2, 2011 awarded Richard Romney an 18-year veteran Los Angeles police officer, nearly $4 million in his case against the LAPD, concluding the officer was fired in retaliation for testifying against the department in a labor dispute. You can read the full story in the Los Angeles Times at “L.A. County jury awards $4 million to former LAPD officer”.

As far back as the early 1900's the labor code recognized the disparity in power between employee and employer which gave rise to these strong protections built into the law.

California Government Code section 12940(h) provides that it is an unlawful employment practice "[f]or any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part."

The Federal law under the Fair Labor Standards Act’s (FLSA) anti-retaliation provision makes it unlawful “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under [the FLSA] . . . .” 29 U.S.C. §215(a)(3).

Any employee, who is discharged, threatened with discharge, demoted, suspended, or in any manner discriminated and/or retaliated against in the terms and conditions of his or her employment for engaging in a "protected activity" is protected under the law.

Some examples of "protected activity" under the California Labor Code include:
1. Filing or threatening to file a claim or complaint with the Labor Commissioner.
2. Taking time off from work to serve on a jury or appear as a witness in court.
3. Disclosing or discussing your wages.
4. Using or attempting to use sick leave to attend to the illness of a child, parent, spouse, domestic partner, or child of the domestic partner of the employee.
5. Engaging in political activity of your choice.
6. For complaining about safety or health conditions or practices.
The following is a letter taken from an actual case warning an employer that it is at serious risk if it continues to engage in any action against our client that is retaliatory.

"Dear Mr. (Atty for Employer):

We have been advised by our client, JW ("John"), who is one of the named plaintiffs in connection with the above-entitled lawsuit, that he believes that XYZ , Inc. (the "Company") intends to retaliate against him for being involved in this lawsuit.

The concern regarding retaliation first arose shortly after you were served with a copy of the lawsuit and no doubt provided a copy to the Company). John received a telephone call from Human Resources and attempted to obtain information from our client regarding the case, including, most ominously, who "instigated" the lawsuit. John replied that he did not feel comfortable discussing the case until he spoke to his attorney.

On the very next day, John was asked by his supervisor to train another technician. This appeared to John to be a poorly disguised attempt to mask the fact that Mike wanted Steve trained to do John's job because the Company intended to terminate John.

Mr. X telephoned John again, but John was not available to take the phone call and X left a message to call him back. Several hours later, X again telephoned John and left another message that since John had not returned the earlier call and was not communicating with him, he was guilty of "insubordination". After John received these messages, he did telephone X and advised X that his attorneys had advised him not to discuss the matter with him.

Based upon the above, we believe that the Company may be attempting to create "grounds" in order to either terminate John or take other adverse employment action against him, in retaliation for John's participation in the lawsuit. Any such action taken against John on "pretextural" grounds (such as "insubordination") would, of course, be unlawful. If the Company is foolish enough to engage in such conduct, we will immediately institute a lawsuit against it for wrongful termination and/or such other causes of action as may be appropriate. This, of course, will only exacerbate the situation and expose the Company to further damages, costs and expenses.

We request that you advise your client in the strongest possible terms that California law protects employees against retaliation for enforcing their legal rights. In this regard, it would also be helpful for you to advise your client not to discuss the case with any of our clients."

If for any reason you think that you are owed unpaid wages but are concerned about retaliation it is important that you seek legal advice with a California Labor Law Attorney as soon as possible. It just may save your job.

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California Labor Law is an ever changing body of law. It is not uncommon for California employers to accept myth as fact when it comes to dealing with employees and their compensation.

While we have found these violations most common in small to medium employers who do not have the benefit of large HR departments or California labor law attorneys, large employers are surprisingly guilty of some of the same infractions. As such, a slew of California class action cases have been filed in the past 10 years or so making California a hotbed of class action litigation with the extensive protections available to California employees in the workplace.

The four most common mistakes employers make are:

1. Misclassifying an employee as exempt from overtime. This typically means paying the employee a salary and having the employee work in excess of 8 hours in day or 40 hours in a week without paying overtime. Also, it is typical in this scenario to not permit the employee to take a 30 minute uninterrupted lunch break. Both of these examples represent a violation of California labor laws and provide the impetus for a wage claim.

2. Another common scenario is employers having their employees pay some or all of their own expenses related to their employment. It is not uncommon for employees to use their own car for work related errands. In actuality, unless employee related expenses are clearly allocated as part of the compensation of the employee, they must be reimbursed. Use of cell or home phones is another abused area. If an employer is requesting an employee to make calls outside of work hours using their own cell phone or home phone, such charges should be reimbursed.

3. Having a policy of ‘Comp time.” Generally, Comp time means having an employee come in early or stay late, not paying overtime, but instead giving that employee the allowance of coming in late or leaving early on a subsequent day.

4. Vacation Forfeiture is another common problem. When an employee is separated from work, that employee must be paid all accumulated vacation along with their final wages. In addition, a “use it or lose it policy” is also illegal under California labor laws. It is lawful for vacation to be paid out under company policy as wages if not used, however, vacation time does not expire nor can it be taken away once accrued in California.

Our Attorneys have handled over 700 individual cases, and prosecuted over 150 class action cases related to California employment matters.

If you have experienced any of the above violations, it is important to talk to a California labor law attorney immediately.

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This is a true story.

Diane is a bright, well organized and the type of person you ask when it’s critical to get something done. You know the type, always busy, yet never too busy to help. Diane has both a business and a paralegal background and is a go-to person when problems arise.

One day Harvey who is a neighbor approaches Diane seeking her help. Harvey’s business, which was given to him by his father who retired, is in serious trouble and he is unable to stop its free fall into bankruptcy. Harvey’s old approach was to borrow and throw money at the problem. This economy today is not so forgiving and this time Harvey has run out of economic rope.

Diane agrees to see if she can spot the problem and fashion a plan to put this business back on track. Taking into account that the company has been around for many years there was hope that with the right medicine it could be saved.

Diane found that there was a serious lack of financial discipline and the company needed a good dose of belt tightening and record keeping. When she took on this project no one could tell her what was actually in inventory and even if it held of the right mix of items.

Diane worked on this for about three months only asking that Harvey keep her credit card payments current which was a very modest monthly amount as this project was requiring more than a full time commitment and it was running longer than expected.

After the initial three month period Harvey asked her to stay on and promised to bring her in as a part owner if she would continue working full time. Harvey promised to pay her the same amount as he would draw from the company. And like all such promises made in desperate circumstances they tend to be unreliable, but Diane is honest and trusting by nature.

Six more months goes by and Diane is working extremely long hours. She receives only modest payments with the excuse that there is not enough money to pay her what was promised. Again Harvey promised that she will receive what is owed when things turn around. At about the eighth month Diane accidentally finds out that Harvey has been taking substantial payments from the company even though everyone else had to take a pay cut. In response to this discovery Diane tells Harvey she is quitting. Harvey then promises to pay Diane but because funds were tight it would be paid over time and she is to receive part payment right away.

With these new assurances Diane continues working and the company begins making substantial progress with Diane receiving only some payments over the next six months.

Then Harvey drops the bomb; he fires Diane because he figures he is out of the woods. This occurs after Diane dedicated over a year helping Harvey rescue his company. Although there were numerous discussions and agreement about what she is entitled to, nothing was put in writing.

Diane calls on an old friend who is a lawyer and tells her story, feeling like a fool. She knows that these promises should have been memorialized but she was leading with her heart and not her head.

California Labor Law which has evolved from the early 1900’s recognizes the key elements inherent in the relationship between employers and employees. That is, employers have both greater economic strength and bargaining power. And in recognizing this reality labor law has been carefully designed to level the playing field. By design, California Labor Law provides that no one shall work for less than minimum wage and equally important the burden shall be on the employer to keep those records compute the wages owed to their employees.

No law is worth its salt unless it has teeth and under the California Labor Law there is an array of penalties for violating a workers’ right along with the right for that worker to recover his legal fees and interest.

In this case Diane has a very substantial collection of emails which shows that she regularly worked nights and weekends over and above working at the office five days a week. Using this information she was able to reconstruct a reasonable estimate of the time worked. When all her time was added up along with statutory penalties for failing to pay her timely and for violating the California Labor Law for minimum wage (which provides for a penalty equal to 100% of unpaid minimum wage) plus interest, plus legal expenses incurred, Diane’s claim is well in excess of $150,000. When her claim is computed using the wages promised she will be entitled to over $250,000.

Now is that a happy ending or what!

It is important to seek legal advice with a California Labor Law Attorney if you have any questions regarding your rights, don’t guess and don’t assume. Sometimes you have to put embarrassment aside and you will be surprised how powerful California Labor Law is and it is on your side. It’s time to level the playing field.
 

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As they say, knowledge is power. Unfortunately, we are not all California labor attorneys and the laws are ever changing. For this reason, I have written a simple blog on tell tale signs that your employer may be violating labor laws. This is obviously not an all encompassing article as they are numerous ways an employer can violate the law which many times are hard for even the most savvy and experienced labor attorney to find.

1. Employees are asked to work off the clock  without recording time. In many instances, employers in this scenario, will take one of a few approaches to inspire employees to work off the clock. Commonly, employers create a threat of termination whether it is direct or indirect. This is accomplished through comments or memos in the workplace which infer that “you need us, more than we need you.” Employees who are afraid to lose their jobs many times grudgingly agree to then work off the clock without the proper compensation or recording of time to prove the hours they worked. Another common approach is for employers to offer comp time. In other words, the employee is asked to work in excess of 8 hours without overtime pay, in exchange for a vacation day, or coming in late on another day. This is illegal.

2. There are disputes and or lawsuits filed by past employees. Where there is smoke there is fire. In many cases, an employer fails to pay accumulated vacation, or when an employee leaves they fail to pay all final compensation upon separation.  An employer has 3 days to pay the final wages of a resigning employee and must pay final wages immediately upon separation if the employee is terminated. If you are an employee and you notice that your employer is being sued by past employees, there is a reasonable chance you may be next should you separate from your employment. Therefore, it is prudent to document all wages, hours, and conduct of your employer along with witnesses for any perceived wrongdoing.

3. Constant turnover of employees. This is probably the greatest sign of workplace disharmony. Whether employees are being terminated or resigning due to dissatisfaction, a high percentage of turnover is indicative that the operations of the business are not going smoothly. Sometimes a hostile work environment has been created through yelling, swearing, sexual oriented jokes or postings, racist comments or the like. All of these scenarios can lead to employee turnover. When an employee finds themselves in this type of environment, again, it is wise to document all facts and witnesses and consider looking for another job.

If you are facing any of these types of conditions, it is wise to seek the advice of an experienced California labor law attorney. California labor law lawyers that have litigated these types of cases can provide the type of insight and advice needed to protect your rights.
 

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As California employment attorneys, we regularly receive calls from concerned employees who have been denied a substantial portion of their hard earned wages. They are very concerned that they will never be able to prove what is genuinely owed to them. What they don’t know is that the law favors their right to be honestly paid.

Beginning in the early 1900’s, when working conditions were deplorable, new laws were enacted to protect the wage earner from the abuses practiced by powerful companies.One extraordinary part of the new law was to place the burden on the employer to pay his employees what they are legally owed. This was accomplished by making the employer responsible for accurately keeping all necessary records in order to make the company accountable for all wages owed.

The Labor code is different from almost every other area of law. Under almost all other statutes the party that is bringing the claim has to prove that his claim is valid, in other words the claimant has the burden of proof. This rule has been turned on its head in the labor statutes.   Only very few areas of law that follows a similar rule. For example, one rare exception is found in the tax law. Under the tax code the taxpayer, as a defendant, must prove his return is correct and the IRS, as the claimant, only has to charge that the taxpayer is in error but does not have to prove its case until the taxpayer has presented proof that his tax return is properly stated.

THE EMPLOYER, NOT THE EMPLOYEE, HAS THE BURDEN OF PROOF

As to all facts in contention, the employer has the burden of proof.

That means the following rules apply:

A) Record keeping - The law mandates that the employer has the burden of timely creating records to establish in detail, ALL hours worked by all employees who are entitled to overtime pay. Where there is a failure by the employer to maintain records of hours worked, then an employee's estimates shall control as a matter of law.

B) Overtime Pay - The law presumes that the employee is entitled to be paid for all overtime hours and the employer has the burden of overcoming these presumptions and provide evidence that the employee is exempt from being entitled to overtime.

C) Right to Recover Attorney's fees, Costs and Penalties. - The statutes provide that an employee is entitled to recover all his costs and attorney fees if he prevails on any part of his claim. In addition, he is entitled to recover interest and penalties.

What does this mean to you?

Do not shy away from demanding what you believe is rightfully yours. Although you may not know exactly what hours you worked over the last four years and what you may be owed you should not conclude that you have forfeited your right to recover your back wages. Legally, it is your employer’s responsibility to know the law and to compensate you in accordance with the law.

There have been too many years that employees were left unprotected and the legislature has mandated that such abuses end, regardless of whether any such underpayments were intentional or a simple error.

In order to level the playing field, you and every other worker has been given the legal tools to provide you an opportunity to recover what you may be owed.

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Our firm has handled close to 1000 labor claims, of which more than 200 were and are class action cases. A large number of these cases were claims we filed against Fortune 500 companies.

The fact is that very few cases ever go to trial. The reason is that each case reaches a point when the facts have been developed to the extent possible; meaning that there will always be some disagreement as to what took place.

The law is reasonably clear with the outcome dependent upon the version of the story that will be believed. Overriding the desire to have one’s day in court is the practical and reasonable desire to achieve a known outcome. In other words, predictability has substantial value and provides the basis for compromise.

MEDIATION PLAYS A MAJOR ROLL IN LITIGATION

Mediation is a confidential and voluntary effort by the parties to resolve disputes. It utilizes a trained neutral mediator to facilitate and lead the settlement discussion and it is favored and promoted by the courts. It is so effective that all judges order the parties to participate in mediation at some point in the litigation.

Mediation can be a very effective and powerful tool to achieving a client’s objective but only if the attorney fully understands how to make it work for his client.

There are critical differences between litigating and mediating and understanding those distinctions are critical.

The most successful attorneys are those that understand the combination of factors that add up to an outcome that everyone can live with and that makes sense to both parties. The skills that an attorney needs to bring together includes a through grasp of the law and his client’s case, his opponent’s strengths and weaknesses, an ability to listen, to be creative and the skill to present his client’s case in a persuasive manner.

Being pushy or arrogant will not win the day. Keep in mind everyone is participating voluntarily.

Although there are variations as to how a mediator will structure the meeting it is not unusual to begin with a joint session wherein he allows each side to briefly present his case without argument from the other attorney. At the completion of each of these presentations the mediator may then summarize what was presented. Through this process the mediator and the parties are able to identify precisely where they agree and where they disagree. This is key in determining where the mediator and the parties must focus their attention.

From that point forward the parties are separated into their own conference rooms and the mediator then meets with each side separately. He will hold multiple confidential discussions with each group articulating what he sees as their strengths and weaknesses. Through these separate confidential meetings he formulates an understanding of the case putting him in a position to guide each side to a fair resolution.

The mediator is not there to judge what the outcome should be. In addition to what everyone already knows he has a more complete understanding of confidential information that that each side shared with him. Given the fact that he has no obligation to achieve an outcome for the benefit of one side or the other his opinion carries a lot of weight and puts him in a position to bring the parties to a voluntary settlement.

A good mediator attempts to help the parties find common ground; he is not there to determine who is right. In this process the mediator will test each side’s position, pointing out weaknesses and risk. It is up to the attorney to effectively counter these arguments and by effectively doing so will send a message back to opposing counsel.

The fact is I have never seen a client who has just reached a voluntary settlement unhappy. Although neither side will get all they wanted or thought they deserved they have reached an acceptable resolution and that takes a load off their shoulders and that does feel good.

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If you are a working family member of a military service member or a member of an airline flight crew, proposed regulations to the Family and Medical Leave Act (FMLA) may provide you with several additional employment benefits. The FMLA was originally designed to help employees take leave from work for family and medical reasons without risk of losing their job or health benefits. The Act applies to public agencies, public and private elementary schools, and companies with 50 or more employees. An employee that has worked for any of the aforementioned employers for at least 12 months or at least 1,250 hours over the course of 12 months is entitled to up to to 12 weeks of unpaid leave per year.  In 2009, President Barack Obama signed into law the National Defense Authorization Act for Fiscal Year 2010 and the Airline Flight Crew Technical Corrections Act. These acts extended FMLA benefits to both military service members and airline flight crews who had previously been disqualified. Now it is expected that the Department of Labor (DOL) will propose amendments to these Acts to further expand their coverage. 

The National Defense Authorization Act provides that certain family members of soldiers on active duty may be allowed to take extended leave from their jobs for reasons including, but not limited to, preparing for deployment, making child care and financial arrangements, attending pre-employment and post-employment activities, and caring for an injured active duty service member or previously injured veteran. On May 28, 2010, the House of Representatives approved a bill that would amend the Act to allow the spouse, children and parents of a deployed service member to take at least two weeks of unpaid leave, even if they are not covered under the FMLA. 

The Airline Flight Crew Technical Corrections Act extends FMLA benefits to pilots, flight attendants, and other flight crew workers. Normally, most flight crew members would not qualify for FMLA benefits because they are paid for only “in-flight” time and not for the hours they are on duty between flights or on layovers. The Act provides that flight employees quality for FLMA if they are paid 60 percent of the airline’s monthly work schedule or for at least 504 hours. 

New regulations to both of the aforementioned Acts are expected to take place before November. There may also be revisions to other aspects of the Act previously enacted by the Bush administration. Although the exact changes have not been specified, the DOL has indicated that it will conduct a study next year to evaluate how families are using the FMLA. 

When applying for FMLA, be sure that you use the most current DOL-issued forms. If you take the proper steps and believe your employer has improperly denied you leave, do not hesitate to contact a knowledgable California labor law attorney for a thorough evaluation of your case.

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On June 17, 2010, the United States Supreme Court issued a unanimous ruling in the case of City of Ontario v. Quon  holding that a California Ontario police department did not violate the Fourth Amendment when it searched an officer’s text messages made on a department-issued pager. The case arose when respondent, Jeff Quon, a police officer with the City of Ontario’s SWAT Team, exceeded his monthly messaging limit on a city-issued pager thereby causing the city to incur overage charges. After at least two other officers exceeded their monthly character allotment, the department audited two months worth of text messages to determine whether the department’s monthly plan was adequate. During the course of the audit, it was discovered that many of the messages sent by Quon were not work-related and some were of a sexual nature. Quon filed suit against the City of Ontario alleging violation of the Fourth Amendment and the Stored Communications Act (SCA). 

The case presented the Court with an opportunity to address the issue of whether employees have a reasonable expectation of privacy in electronic communications made on employer-issued devices. However, the Court refused to make such a broad ruling stating that “the judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” It assumed that the principles governing the search of an employee’s physical office space also apply to the search of electronic communications. As such, a search conducted for a non-investigatory, work-related purpose is reasonable where the search is “justified at its inception” and “not excessively intrusive.” The Court concluded that the city’s search in Quon was reasonable, because the city had legitimate work-related purposes for the search (i.e., to determine whether the monthly messaging limit was sufficient and whether the department was paying for excessive personal messaging). Moreover, the scope of the search was not excessively intrusive, because it was restricted to two months worth of work-hour messages.

Although Quon only applies in a public employment context, there are lessons to be learned for employees in both the public and private sector. Here are a few precautions all employees should consider:

• Request a copy of your employer’s electronic communications policy and become familiar with its terms
• Assume that electronic communications on an employer-issued device are not private and may be reviewed
• Restrict your electronic communications to work-related activities

If you do fall subject to a search, remember that your employer must have a work-related purpose and the search must be limited in scope. Should you have any questions regarding the legality of a search, do not hesitate to contact an experienced California labor law attorney for an unbiased evaluation of your situation.

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The recent  BP Global oil spill has brought havoc and despair to the residents of the Gulf, most especially to those families of killed or injured workers. Their story has been felt around the nation and California is no exception. Many California employees are questioning the safety of their workplace and what they can do to correct hazardous conditions.

California has long been a leader in establishing and enforcing workplace safety regulations. Before the federal Occupational Safety and Health Administration (OSHA) was created in 1970, California had already established its own version known as Cal/OSHA. Cal/OSHA lays out specific regulations governing conditions in the workplace and provides stiff penalities for violations.  California has spread its commitment to workplace safety to the federal level. The nation’s labor secretary, Hilda Solis, is the daughter of  California blue collar union plant and factory  workers and thus champions the rights of workers. Most notably, after BP failed to correct safety problems after a 2005 explosion in a Texas City refinery, she issued the largest fine in history against now infamous BP Global. 

Under Cal/OSHA, every employer must be aware of any hazardous conditions in the workplace and insure that employees are properly trained. All hazardous conditions that pose the threat of serious injury to employees must be corrected. Furthermore, all incidents of serious injury or death must be immediately reported. Employees have numerous rights under Cal/OSHA including, but not limited to:

1. The right to file a complaint and request an inspection of unsafe working conditions,

2. The right to refuse to perform work that would violate Cal/OSHA standards

3.  The right not to be punished in any way for filing a complaint or using any under right provided by Cal/ OSHA. 

Unlike violations under federal OSHA, Cal/OSHA evaluates every safety violation with an aim toward issuing stiff panalties or pursuing vigorous prosecution. Depending on the severity, a citation penalty may range from $7,000 to $25,000. Additional penalties may be applied for each day the employer fails to correct the violation. A willful violaton carries a penalty of not less than $5,000 and no more than $70,000. Finally, a willful violation resulting in death or serious personal injury may carry a sentence of up to three years in prison and a $1.5 million fine. 

Despite these strong penalties, California still has its problems with worker safety. Most prosecutions occur in big cities such as Los Angeles and San Francisco where lawyers have adequate resouces and political sway. Yet, many safety violations occur in rural areas composed of migrant workers and illegal immigrants who are often overlooked by the system. 

Strategy:

1. Always obey state safety and health laws. Immediately report any hazardous or dangerous conditions to your employer.

2. If your employer does not take action to correct the condition, file a complaint and request an inspection from Cal/OSHA.

3. If you have been injured on the job, be sure the incident is reported to Cal/OSHA.

4. If you have questions or concerns about your situation, contact an experienced California labor law attorney who can advise you on your rights.

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On May 20, 2010, the Department of Labor (DOL) revised its rules regarding the employment of children in non-agricultural jobs. According to the DOL, the changes are designed to “give employers clear notice that there are certain jobs children are simply not allowed to perform. They also expand opportunities for young workers to gain safe, positive work experience in fields such as advertising, teaching, banking, and information technology, as well as through school-supervised work-study programs.”  The new regulations provide for the following:

• Work permitted for workers under the age of 18

Workers under the age of 18 were previously prohibited from performing tasks that were deemed particularly hazardous. The new regulations expand the list of prohibited activities to include forest fire fighting, operating power-driven hoist equipment, poultry slaughtering, the operation and loading of balers and compactors, and the operation of chain saws, reciprocating saws, wood chippers, and abrasive cutting discs. 

• Work permitted for minors ages 14 – 15

Under the Fair Labor Standards Act (FLSA), individuals under the age of 16 are not permitted to perform any form of work not specifically authorized by the U.S. Secretary of Labor. The former regulations authorized work in the areas of retail, food-service, and gasoline-service. This list has now been expanded to include office work, errand and delivery work, lifeguarding, banking, computer programming, advertising, teaching, and work of a creative nature such as drawing. The new regulations also prohibit certain activities, particularly door-to-door sales and sign waving with some exceptions.

Minors between the ages of 14 and 15 are not permitted to work more than 3 hours of work per day or 18 hours per week while school is in session. The DOL has clarified three major points: (1) the three hour limit applies to Fridays, (2) “school hours” are defined by the local school district, and (3) employers are required to use the 168 hour week to determine compliance with child labor laws.

Finally, the new regulations expand the work-study program available to 14 and 15 year-old workers. Students enrolled in a college-preparatory program may work during school hours so they may gain work experience and earn money they may use toward their college education. 

Employers must comply with the new regulations by July 19, 2010. While the new law only effects non-agricultural employment, the DOL has indicated that it will next address child-labor laws for agricultural employment. If you have any questions or concerns regarding child-labor law, you should contact an experienced California labor law attorney.

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When an employee is terminated or resigns from their job Federal COBRA law requires most employers to continue to make the current group health insurance available to workers. All employees who are discharged as a result of voluntary or involuntary termination, such as for: negligence, poor performance, or inefficiency (with the exception of those who are terminated for gross misconduct), may opt to continue plan benefits currently in effect at their own cost, provided the employee or beneficiary makes the first payment within 30 days of notification and is not covered under Medicare or any other group health plan. The law also applies to qualified beneficiaries who were covered by the employer's group health plan the day before the discharge. For example, if the employee decides not to continue coverage, her spouse and dependent children can elect continued coverage at their own expense.

The extended coverage period is 18 months upon termination of the covered employee; upon the death, divorce, or legal separation of the covered employee, the benefit coverage period is 36 months to spouses and dependents.

The law requires that employers or plan administrators independently notify all employees and covered spouses and dependents of their rights to continued coverage. After receiving such notification, the individual has 60 days to decide to continue coverage. Moreover, employees and dependents whose insurance is protected under COBRA have to be provided with any conversion privilege otherwise offered in the plan (if such coverage exists) within a six-month period prior the date on which coverage would terminate at the end of the continuation period.

A number of employers run afoul of the law in failing to adhere to the rules regarding notification requirements, excluded individuals, conversion privileges and time restrictions. In the event the employer fails to offer such coverage, the law imposes penalties ranging from $100 to $200 per day for each day the employee is not covered and other damages. 

However it’s important to note that you cannot attain benefits if you are fired for gross misconduct. This term is relatively ambiguous; the burden of proof is on the employer to prove that the discharge was for a compelling reason (such as starting a fight or stealing). 

If an employer reduces your working hours to a point that makes you ineligible for group health coverage, refuses to negotiate continued health benefits as part of a severance package, or fails to notify you of the existence of such benefits or if the employer refuses to offer continued COBRA benefits after a discharge for any reason, consult an experienced California labor law attorney immediately.

Tip: Know your COBRA rights before accepting any job and in the event you resign or are fired. This is particularly true if you or a spouse or dependent is sick and needs the insurance benefits to pay necessary medical bills. You are entitled to such protection even if you have worked for the employer for a short period of time. Most short-term employees can generally enjoy COBRA protection for periods exceeding the length of their employment. The only requirement is that you must have been included in the employer's group plan at the time of the firing and that the employer was large enough (i.e., employed 20 or more workers, including part-timers, independent contractors, and agents, during the preceding year) under federal law to qualify.

Strategy:

1. Be sure the company notifies you in a timely fashion so you can make the election properly before the short period of employer-provided coverage expires.
2. Never waive your COBRA rights when accepting severance payments or signing a release after a discharge if you or your dependants need continued insurance.
3. A company's hands may not be tied in the event that a group health plan is modified or eliminated; an employer may be permitted to change or eliminate a current plan provided all qualifying beneficiaries and covered employees are allowed to participate similarly under new plans, if any.
4. Coverage for adopted children, children born out of wedlock, and other dependents has been expanded under the Omnibus Budget Reconciliation Act of 1993 and recent court decisions. 
5. Speak to a California Employment lawyer if you or a dependent is excluded from COBRA protection because of the existence of a secondary health plan or other factors, such as because of an alleged discharge for gross misconduct.

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 If you are one of the many Californians currently seeking employment, you have probably been met with a request for a criminal background check.  In light of recent terrorist events and heightened concern for security, an increasing number of employers are conducting background checks.  A criminal background check usually involves prior arrest and conviction records, which brings the possibility of discrimination in the hiring process.

Recently, Roberto J. Arroyo brought a class action against his employer for violation of Title VII of the Civil Rights Act of 1964.  Arroyo alleges that his employer discriminated against Latino and African American individuals by denying or terminating employment based on their criminal backgrounds regardless of whether the employees’ prior conduct was job related.  There are both federal and state laws that limit the ability of employers to make criminal inquiries. Title VII prohibits an employer from using an employment practice that has an adverse impact on members of a particular class.  The Equal Employment Opportunity Commission (EEOC) has determined that the use of arrest records in a pre-employment setting can only be justified where the applicant’s arrest involved conduct that is “job related.”  Conviction records can only be used where there is a “justifying business necessity.”  This requires an employer to consider the type of offense, the time that passed since the conviction, and the nature of the job.  The EEOC believes this is a necessary measure as “an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population.”

In addition to Title VII, California had adopted its own legislation to protect against discrimination based on criminal background checks.  Although arrests are public record, they cannot be used by employers unless the arrest resulted in a conviction or the applicant is awaiting trial.  (California Labor Code, Section 432.7)  There is an exception for health care providers who may ask about any sex related arrests.  Additionally, when the job involves access to medication, an employer may ask about drug related arrests. Unlike arrest records, criminal convictions are not public record.  Employers may not inquire into juvenile convictions or marijuana convictions that are more than two years old. The are exceptions for certain types of employers, including public utilities, law enforcement, security guard firm, and child care facilities. (California Penal Code, Sections 11105 and 13300).

If you are seeking employment and worried about past arrests or a criminal record, there are steps you can take to prepare for a background check.  Go to the county where the court hearing took place and request to see a copy of the record.  Review the document carefully and make sure the information is accurate and up to date.  If you have any major driving infractions, such as a DUI or DWI, it is also a good idea to request your driving record from the Department of Motor Vehicles.  Again, review the record for completeness and correct any inaccuracies.  Once your interview with a potential employer is complete, make sure you receive a copy of any background reports concerning you.

If you believe the employer violated the EEOC or other employment law, contact a knowledgeable California labor law attorney as you may have a claim for damages.   

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When a close family member is ill, you most likely want to be able to care for that individual without worrying about the effect on your job. There are two primary protections in California for employees that need time off to care for an ill family member: (1) paid family leave insurance and (2) “kin care” leave.

1. Paid family leave (PFL) is administered by the California Employment Development Department and provides up to six weeks of benefits to employees who must take time off to care for a “seriously ill” child, spouse, parent, or domestic partner. 

2. In general, employers are not required to provide paid sick leave, but if they do, they are required to comply with California’s kin care law found in California Labor Code, Section 233.  “Sick leave” is defined as “accrued increments of compensated leave” for use related to an employee’s medical condition. Section 233 allows employees to take half of their sick leave that would accrue in a calendar year to care for an ill child, parent, spouse, domestic partner, or child of a domestic partner.McCarther v. Pacific Telesis Group,  the California Supreme Court restricted the scope of available kin care leave. Specifically, the Court considered the issue of whether Section 233 applies where an employer’s sick leave policy provides for an uncapped number of compensated days off, but does not provide for accrual of any specific sick leave. In a unanimous decision, the Court held that Section 233 “does not apply to any and all forms of compensated time off for illness.” It reasoned that because the statute defines “sick leave” as "accrued increments of compensated leave," it only applies to "to employers that provide a measurable, banked amount of sick leave." The Court further found that Section 233 does not apply to policies where it would be impossible “to ascertain, with precision, an employee’s kin care leave entitlement.” The statute bases kin care leave entitlement to sick leave accrued during a six month period. With an unlimited leave policy, it would be impossible to determine the amount of time an employee could use for kin care; therefore, Section 233 cannot apply to these types of policies. The overall impact of the McCarther decision on California workers remains to be seen, but it is clear that the Court is increasingly scrutinizing provisions of the California Labor Code.

If you believe your employer has wrongfully denied you kin care leave or taken adverse action against you for taking kin care leave, you can file a complaint with The California Division of Labor Standard Enforcement. It is also advisable to contact an experienced California labor law attorney for an explanation of your rights and an unbiased analysis of your situation.

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Everyone wants to be unique and special and if you are a California worker, you have some very unique and special rights under California labor law. Recently, the Seyfarth Shaw law firm released a new edition of Cal-Pecularities, a publication explaining how California employment law is different from the law in other states. At over 200 pages in length, the book covers a wide range of issues from the common wage and hour disputes to the more rare cases of excessive cell phone use and HIV/drug testing. The book in its entirety can be viewed at www.seyfarth.com/dir_docs/publications/2010CalPec.pdf 

As pointed out by the Seyfarth Shaw, California employment law is in many instances much more expansive than federal law. Some of the more dominant examples include the following:

• California Fair Employment and Housing Act (FEHA): The FEHA prohibits any employer from engaging in discriminatory acts or retaliating against any employee who files a complaint of discrimination.
• Wage and Hour Laws: California has distinct laws regarding misclassification of employees, “off the clock” pay, rest and meal periods, pay for travel time, and bonus pay.
• Employee Privacy Rights: Unlike other states, California privacy provisions apply to both government and private employers. This includes a variety of activities, including background checks, emails, voice mails, and video surveillance.
• California Family Rights Act: California law has a very liberal policy regarding family leave. If you are a pregnant woman, you can take 12 weeks of leave from work under the Family Medial Leave Act, but under California law you can take up to 4 months.

The “novelty” of California labor law perhaps began with the passage of the Private Attorney General Act of 2004. This law allows citizens to pursue civil penalties on behalf of the State of California Labor and Workforce Development Agency as long as there is formal notice and waiting procedures are followed. In essence, the aggrieved employee is allowed to act as an attorney general. Any resulting recovery is split between the parties with the LWDA receiving 75% and the employee receiving 25%.  This law gives employees a great deal of power to bring lawsuits to enforce the more obscure provisions of the California labor code.

If you have any questions regarding your employment rights, you should contact a knowledgeable California labor law attorney.

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Despite a wave of class action lawsuits, California employers continue to find ways to deny their workers overtime pay. Under California law, all employees are entitled to overtime pay unless they are considered “exempt.” Exempt employees are typically professionals, administrators, or executives whose jobs require among other things, a high degree of independent judgment. They must earn at least two times the minimum wage (approximately $28,000 per year) and more than fifty percent of their work must consist of non-exempt duties such as clerical duties, customer service, or working along specialized technical lines. A common strategy for employers is to misclassify employees as managers or assistant managers in order to avoid paying overtime; however, it is the employee’s activity and not their job title that determines whether overtime is due. Unlike federal law that focuses on the “primary duty” an employee is expected to perform, California law is based on what work the employee “engages in” or actually performs. For example, if a “manager” in an automobile company spends more than half of their time working on the line – the same activities performed by non-exempt employees – that manager may be entitled to overtime pay for all time in excess of 8 hours per day or 40 hours per week.

Many times, an effective way to combat such tactics by employers is for an employee to file a class action lawsuit. If one individual files a lawsuit and prevails, the amount the employer pays will likely not be enough to change the employer’s wrongful practices. Most employers conduct a cost-benefit analysis. Typically, it is cheaper for them to account for paying one or two employees in a lawsuit than paying all employees overtime pay. On the other hand, if one worker brings a lawsuit on behalf of all similarly situated workers, the amount potentially owed by the employer will be significantly more substantial and thus give them an incentive to comply with the law. Furthermore, an employee who takes the initiative to file a class action will typically be awarded more money than those workers who sat idly by and did nothing. Many class actions for overtime pay are successful because employers do not keep a record of exempt employees’ hours or the activities they engage in on a daily basis. Even better, in California, a single class representative may initiate a California class action lawsuit.

In addition to “misclassification,” some employers will pay overtime but not at the required one and a half times the employee’s regular rate of pay. Other typical class action lawsuits include claims for missed meal breaks and rest breaks, failure to pay for business miles or travel time to/from different business locations, paying bonuses but not paying overtime, making employees pay for their uniforms, paying employees with a check that requires a fee to cash, and not paying for mandatory company meetings.

If you believe you are owed overtime or other pay, you could be awarded damages in a class action lawsuit. Contact a knowledgeable California labor law attorney to learn about your rights and receive a complete evaluation of your situation.
 

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Given the dismal state of the economy, many California workers are walking around with the possibility of being laid off looming over their heads. Even if they are not laid off, they may see their work schedules and salaries reduced. Many companies are using temporary schedule and salary reductions to cut costs until business conditions improve. The key for affected employees is to know the guidelines for such reductions.

First and foremost is the question of whether affected employees have exempt or non-exempt status. Under California law, all employees are considered to be non-exempt, meaning that they are entitled to overtime pay. The only exception is for those employees that meet all the requirements of an applicable exemption, most commonly the executive, administrative, or professional exemptions. To qualify for these exemptions an employee must pass the salary test and duties test. The salary test requires an employee to earn a monthly salary that is no less than two times the minimum wage for full-time employment. The duties test requires an employee to be primarily engaged in managerial responsibilities.

With respect to non-exempt employees, it has long been established that an employer may temporarily reduce their workers’ schedules and wages. The issue is a bit more complicated for exempt employees. According to the California Department of Labor Standards Enforcement (DLSE), theLabor Code and Industrial Welfare Commission wage order provisions nor federal law prohibits an employer from reducing the work schedules and salaries of exempt employees. Therefore, absent an employment contract or other agreement that states otherwise, an employer can reduce an exempt employee’s salary as long as they continue to earn more than twice the minimum wage and engage in exempt job duties.

One restriction is that the salary reduction cannot be linked to any corresponding change in days and hours worked. For example, an employer could not reduce an employee’s salary by 15% in exchange for giving them Fridays off. According to the California Department of Labor Standards Enforcement (DLSE), this type of salary reduction structure would violate the salary test and destroy the employee’s exempt status and non-exempt labor requirements such as meal and rest breaks would apply. The rationale is that exempt employees are paid for their work product regardless of the amount of time they take to complete their duties. Tying work hours to earnings is not in accord with being a salaried employee. 

Another consideration is that the salary reduction should also apply to all exempt employees or at least everyone with the same job duties. Applying a reduction to only certain exempt employees could violate anti-discrimination laws.

If your employer is attempting to reduce your work hours or salary, contact an experienced California labor law attorney. An attorney can advise you of your rights and evaluate your specific employment situation.
 

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There are many class action lawsuits in the news, including claims against Johnson & Johnson for contaminated children’s shampoo, American Airlines for charging curbside baggage fees, and Nintendo for injuries sustained on the Wii. While these types of lawsuits make headlines, most class actions involve employment-related claims. 

The ability to bring a class action is a great benefit to California workers. Violations of wage and hour laws and unpaid overtime rarely affect one worker. Class actions allow a single worker to bring a lawsuit against an offending employer on behalf of all similarly situated workers. This is especially beneficial to employees whose rights have been violated, but do not have the money to litigate their own case. Class actions also save time and money by allowing one judge to hear the concerns of all employees and arrive at one settlement.

During his State of the State Address, Governor Schwarzenegger announced his attention to “improve California’s legislative climate” by restricting class action lawsuits. In a position paper, he opines that “current litigation laws lead to large settlements…at the expense of California businesses.” In theory, giving big business a break will create more jobs and help curb the state’s $20 billion budget deficit. The plans include (1) allowing defendants, not only plaintiffs, to appeal class certification, (2) requiring plaintiffs, rather than defendants, to pay for notifying other potential class members, and (3) limiting the amount of punitive damages.  These changes may occur as independent legislation or as a budget rider.

Although the governor considers tort reform “a top priority,” he may hit a roadblock when it comes to getting legislation passed by the Democratic Congress. The legislature is swamped with other issues including education reforms, an $11.1 billion water bond, and a measure to privatize the state’s prisons. Moreover, the proposed legal reforms would be devastating to California employees who are out of work or working under abusive conditions. Employee advocate groups are stringently opposed to limiting damages and civil liability. 

If you are an employee in California, you can help prevent damaging changes to class action law by contacting the governor’s office or your state congressman. The most effective means of making a difference is to write a one-page letter, but a call or an email would also be helpful. You can contact the governor’s office at: http://gov.ca.gov/interact#contact

Governor Arnold Schwarzenegger
State Capitol Building
Sacramento, CA 95814
P: 916-445-2841
F: 916-558-3160
 

California also has 2 state senators and 53 representatives. Contact information can be found at http://www.legislature.ca.gov/legislators_and_districts/districts/senatedistricts.html  and http://www.contactingthecongress.org/cgi-bin/newsweek.cgi?site=ctc&state=ca.  
 

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Network. Network. Network. That is the advice given by many job placement and career development organizations; therefore, the rise in popularity of networking websites is not surprising. The problem is that as networking has become high-tech, the line between an individual’s personal and professional life has become blurred. Traditional means of networking consisted of targeted letters and telephone calls and participation in appropriate trade organizations. There was no question that the information exchanged between the parties was professional and to be used for employment purposes. Today, more and more individuals are taking advantage of services provided by social networking websites including Facebook , Twitter, MySpace, and YouTube. Although designed for personal and social use, there are few legal safeguards against an employer accessing information on these sites when making employment decisions.

Employers will often screen job applicants by reviewing their profiles for information that may be damaging to the company’s reputation or subject it to future liability.  Some employees will also routinely monitor their current employees’ online activity for not only these reasons, but also for evidence of co-worker harassment or extent of online use during working hours. Despite the availability of privacy controls, information posted on social networking sites is designed to be shared and, therefore, individuals may not have a “reasonable expectation of privacy.”  This is especially true with respect to information created or accessed on a company computer. In general, there is no expectation of privacy on company property, because an employer has a right to view the contents of information contained on its computers. Furthermore, according to intellectual property lawyer, Catrin Turner, “If a social networking site is used to hold any information which relates to your employment, if that information is prepared in the course of your employment, you are dealing with company property.” 

While employers may be able to access personal information, there are some restrictions on the manner in which they obtain and use it in employment decisions. George Lenard has identified the following possible legal violations committed by employers:

1. Anti-Discrimination Laws

Employers are prohibited from making employment decisions on the basis of race, color, religion, sex, or national origin (Title VII of the Civil Rights Act), disability (Americans with Disabilities Act), or age (Age Discrimination in Employment Act). By accessing social networking sites, employers gain suspect classification information not normally obtained via an interview or resume. Thus, if an individual brings a discrimination claim, the employer cannot plead ignorance.
 

2. Invasion of Privacy

An employee may bring a tort claim for violation of privacy, but this is likely to be a weak claim. As previously mentioned, given the public nature of the sites it will be difficult to prove a “reasonable expectation of privacy.” The claim may be stronger if the employer actually hacked into or otherwise bypassed a user’s privacy controls. Facebook’s Terms of Service specify that users must agree to“not solicit login information or access an account belonging to someone else.”  Furthermore, an employer who accesses information on a computer without authorization may be liable under the Federal Computer Fraud and Abuse Act (18 U.S.C. Section 1030).
 

3. Fair Credit Reporting Act

In addition to causes of action against the employer, third parties may also become liable for improperly accessing information on social networking sites. For instance, an employer could hire a third party to gain access to a potential employee’s account and then use that information to make an employment decision. If the employee had a “reasonable expectation of employment” and was not hired, the third party could be liable for tortuous interference of business expectancy. The third party could also be found in violation of the Federal Fair Credit Reporting Act (FCRA) (15 U.S.C. 1831 et.seq. The FCRA requires credit check agencies to disclose that information it obtained was provided to an employer to be used in an employment decision. Lerner suggests that a similar law is needed to specifically cover information gained from networking sites. Facebook has taken some steps to limit the collection of information from its site by amending its Terms of Service to include the following statement: “If you collect information from users, you will: obtain their consent….and post a privacy policy explaining what information you collect and how you will use it.”

The existing laws offer some privacy protection, but if you are working or looking for work, you should take steps to insure that Facebook is your friend and not your foe.

Strategy:

1. Review your privacy settings
 

If you allow friends or networks access to your profile, you essentially waive all privacy rights as to those individuals. Be particularly wary of accepting your current supervisors and co-workers as “friends” as this will certainly bring your personal activities into the workplace.
 

2. Be judicious in your postings
 

Assume that all information you post on Facebook can and will be accessed by employers.Consequently, your goal should be to portray yourself in the best possible light. You can highlight your interest in or knowledge of a particular field by posting information on current issues; but, take care to avoid discriminatory or inflammatory comments.
 

3. Review your employer’s computer use policy

An increasing number of employers are drafting company policies regarding use of social networking sites. Provisions may include (1) restricted or prohibited access to networking sites on company computers, (2) an employer’s right to access sites, if it suspects activity that interferes with work performance, such as harassment of co-workers, and (3) prohibition of posting disparaging information about the employer.  Remember that company policies are considered legally binding contracts and may provide stiff penalties for violations, even termination.

4. Contact a California labor law attorney

If you suspect that you have been denied employment or wrongfully terminated on the basis of personal information, contact a knowledgeable California labor law attorney to discuss your rights.
 

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Traditionally, employers have been allowed to play the role of private investigator when it comes to monitoring employees’ electronic communications over company provided devices. The rational is that the employer owns the equipment and, therefore, should be allowed to review its contents. Review of employee emails and text messages allows the employer to monitor efficiency, business disclosures, and proper use of company equipment. According to a 2005 survey conducted by the American Management Association, over half of employers review and retain employee emails and 84% have company email policies.  These statistics reflect the fact that employee monitoring is generally accepted and only minimally regulated.

The right to personal privacy is generally considered a liberty protected against government interference by the Constitution’s due process clause. The federal Electronic Communication Privacy Act of 1986 was designed to specifically protect personal electronic communications from interception by government entities without a warrant. Protection of electronic communications from interception by non-government entities is left to the states. Thus, the best protection of an employee’s right to privacy is found in tort law. California is the only state that recognizes a state Constitutional right to privacy. Invasion of privacy occurs when one intentionally intrudes upon the private activities of another and the invasion would be highly offensive to a reasonable person. Additionally, there must be a reasonable expectation of privacy. 

As technology has advanced, the number of lawsuits involving the wrongful interception of employees’ personal electronic communications has increased. In these cases, the courts will weigh the employee’s reasonable expectation of privacy against the employer’s legitimate business interests. In the past, courts almost always ruled in favor of the employer, but recent decisions have begun to shift this trend.

In the case of Stengart v. Loving Care Agency, Inc., et al, No. A-3506-08T1 (S.C.N.J. June 26, 2009), the employer intercepted an email from an employee to her attorney via a personal, password-protected Yahoo account. The Court rejected the notion that the employer could intercept private communications simply because it owned the computer used to make such communications. It stated that“property rights are no less offended when an employer examines documents stored in a computer as when an employer rifles through a folder containing an employee’s private papers.”  The Court further noted that the principles underlying the attorney-client privilege outweighed the employer’s interest in imposing a unilateral regulation.

Following in the footsteps of Stengart, Convertino v. US Department of Justice, No. 2004-CV-0236 (RCL) (D.D.C. Dec. 10, 2009) held that the Department of Justice (DOJ) could not intercept emails sent by an employee to his personal attorney because it violated the attorney-client privilege. The Court, citing In re Asia Global Crossing, Ltd., 322 B.R. 247, 258 (S.D.N.Y. 2005), stated that “the question of privilege comes down to whether the intent to communicate in confidence was objectively reasonable.” The employee in Convertino had a reasonable expectation of privacy because the DOJ policy did not ban personal use of email and employees were unaware that the DOJ regularly accessed and saved personal emails.

In the recent case of City of Ontario v. Quon, the 9th Circuit Court of Appeals considered an employees’ right to privacy when sending text messages. In this case, a police officer complained when the department intercepted text messages sent on a government-provided device. The official policy of the department contained no guarantee of employee privacy to text messages; however, the informal policy indicated that text messages would not be reviewed as long as employees paid for charges over the government allowance. The Court ruled that the informal policy gave the police officer a “reasonable expectation of privacy” and the department violated the officer’s fourth amendment rights. Unlike email that is paid for and stored on company equipment, the text messages were paid for by the employee and stored by the telephone company; therefore, the employee had a right to privacy.  On December 14, 2009, the US Supreme Court agreed to hear the case on appeal. The decision will have a great impact on employees’ privacy rights regarding electronic communications.

Until employee privacy rights become more defined, employees should exercise a high level of discretion when using electronic equipment provided by their employers.

Strategy:

1. Obtain a copy of your employer’s electronic communications policy. Generally, company policies are legally binding and must be adhered to by employees.

2. Do not assume a right to privacy while at work. To the extent possible, use company equipment for work purposes only.

3. If you have discovered that your personal emails, text messages, or other private communications have been reviewed or retained by your employer, contact an experienced California labor law attorney to discuss your rights.
 

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