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

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. The section further prohibits employers from refusing employees to use sick leave to provide kin care or taking adverse actions against an employee who uses sick leave to provide kin care. 

On February 18, 2010, in the case of 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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