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

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

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

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

S.B. 459 creates two new unlawful practices

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

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

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

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

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

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

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

• Email This
• Print
• Comments
• Trackbacks

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

• Email This
• Print
• Comments
• Trackbacks

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

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

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

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

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

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

• Email This
• Print
• Comments
• Trackbacks

The Department of Labor recently released a Smartphone application called DOL-Timesheet to help employees hold their employers accountable for proper payment of overtime wages. This app allows employees calculate regular work hours, break time and overtime pay to generate their own wage records. Department officials say the information could prove valuable in a dispute over pay or during a government investigation when an employer has not kept an accurate account of hours worked. The Labor Department is already planning future updates for the app that will include support for other smartphone platforms, such as Android and BlackBerry. New features being considered for future versions will have the ability to input forms of pay other than hourly, such as tips, commissions, bonuses, and holiday pay.

Labor Secretary Hilda Solis said."This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay,"

According to the Department of Labor, suits filed by employees have increased dramatically. About 6,800 such suits were filed in 2010, about 700 more than the previous year. Most were collective or class actions. Totaling $176 million in back pay and in the last five years, they gave 1.2 million employees more than $925 million in back pay and overtime.

The Wage and Hour Division of the Department of Labor receives more than 35,000 inquires a year for assistance and is not always able to handle every claim. For those they are unable help, they now refer them to the toll-free hot line, where they can get a referral to an attorney who specializes in wage and hour disputes.

Nancy Leppink, acting Wage and Hour Administrator, says the department is just doing what it is supposed to do, which is going after employers who take advantage of employees by shorting them of their hard-earned wages. Leppink said."To the extent we have employers who are not complying with the law, we have an obligation to look for all of the opportunities we can to change that behavior,"

If you are experiencing issues with your employer regarding overtime pay, improper time keeping, reimbursable expenses you should contact a California labor law attorney to seek assistance in claiming all of your back pay and any other penalties you may be entitled to.
 

• Email This
• Print
• Comments
• Trackbacks

You have just made a major decision in your life by selecting a California Labor Attorney to represent you in your claim for unpaid wages.  A substantial amount of money is at stake and you hope that you made the right decision. You find yourself being bombarded with questions to answer and forms to fill out. The process takes on a somewhat mysterious quality and you are trying to steer a successful course. You begin to ask yourself, how can I help to achieve the best outcome and the answer to that question is not all that clear to you.

As in any major undertaking it is important to establish a clear idea of what you hope to achieve. In order to realistically evaluate an answer to that question you must first take into account that you are engaged in a situation that is complex with many moving parts. So let's take a look at the various things that come into play in effecting the outcome of your claim.

• An initial calculation of the claim, interest, penalties and legal fees.
• Review of the evidence provided by the client.
• A determination of who is legally responsible for payment of any unpaid wages.
• An initial evaluation of the financial strength of the company or individuals.
• A discovery plan to secure evidence from the defendants and witnesses.
• An evaluation of the clients’ ability to handle the legal process.
• An estimate of the legal resources and funds necessary to prosecute the case.
• A strategy to prosecute the case taking into account all the elements of the case.

Both the client and the attorney are now bound together by a partnership in which the attorney has the duty to advise his client as to what can realistically be achieved and the steps necessary. In the initial stages it is more difficult to evaluate the outcome that one may expect. As the case progresses and the evidential documents have been obtained, this evaluation process becomes more accurate, although the outcome is never a sure thing.

Through a dialogue between the client and the attorney it is important for the client to share his or her expectations. At first this may seem rather straightforward but in fact there are many elements that need to be weighed which can and does change one's expectations.

It has been my experience in representing clients that they normally take a very realistic approach with regard to what can reasonably be achieved and they work closely with the attorney throughout the process.

Eventually there will be a point in time or possibly various points in time, when a decision will need to be made as to whether or not a proposed settlement should be accepted or rejected. The main factor that will affect the decision to accept or reject an offer can be stated in one word "Predictability". In other words, does it make more sense to accept the offer that is on the table and know the outcome of your case, or is the value of an offer below the amount that you believe makes the risk of going forward the better choice?

At some point an assessment is made by the client that the certainty of receiving a given amount outweighs the risk of a trial, which may or may not result in a better outcome, as well as the possibility that everything could be lost notwithstanding the fact that a settlement results in receiving payment now rather than later. This is the same decision that the defendant must weigh in deciding to make an offer of settlement. In making this decision you have to ask yourself should I go to trial and put my fate in the hands of another.

This reminds me of the television show "Deal or No Deal" (©2010 NBC Universal). In this game show the contestant must guess which case holds the main prize of $1 million. There are 26 cases and in each round of the game he or she selects one case and before opening the case the contestant may either accept an offer of cash to terminate the game or continue playing. The amounts held in each case range from 1 penny to $1 million. As the game progresses the contestant is offered an amount of money to stop the game which statistically takes into account the odds of the contestant picking the right case from the remaining group. The contestant has to decide whether or not to continue taking further chances or to take the amount being offered. If the contestant continues to play the game and fails to pick the case with $1 million before using up all of his or her chances he or she can lose everything. That is why the game is called "Deal or No Deal".

The fact is that over 95% of cases are resolved by a negotiated settlement after a substantial amount of work has been put into the matter by both parties. Although it is expensive to bring a case to settlement it is substantially more expensive not to settle because although the outcome may be better, a loss could be devastating and as the old saying goes "A bird in the hand is worth two in the bush".

This is why it is important to have California Labor Attorneys who are experienced and who can guide you to a successful resolution of your claim.
 

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

Tired? Stressed? Need a break? Well, it is your employer’s duty to provide you with one. Many workers assume that they must work consistently during the hours required by their employer. Fortunately, this is not the case. In California, according to the Industrial Welfare Commission Wage Orders, employers are required to provide employees with a rest break of at least 10 consecutive minutes for each 4 hours worked; however, a rest period is not required for employees who work less than three and one-half hours. Generally, rest periods should occur in the middle of each work period. Because rest periods are considered as time worked, an employer must pay for rest breaks. Also for this reason, employers may require employees to take their rest break on the employer’s premises. The employer is mandated to provide a suitable resting place separate from toilet facilities. An employee is not required to take a rest break and may skip a break as long at the employer does not promote it. There are several exceptions to the “rest period” rule, including employees of 24-hour residential care facilities and swimmers, dancers, skaters, and other performers whose job requires strenuous physical activity.

If your employer failed to provide or pay for rest breaks, you are entitled to one additional hour at your regular rate of pay for each day the rest period was not permitted.
According to the holding by the California Supreme Court in the case of Murphy v. Kenneth Cole Productions, 40 Cal.4th 1094 (2007) and Labor Code section 226.7, a claim for violation of rest breaks must typically be filed within three years.  As such, it is wise to take action early. Your first step should be to contact a California labor law attorney to ensure you are able to collect lost wages and penalties as far as 4 years back.

If for some reason you are unable to find a California employment attorney willing to accept your case you can also file a wage claim with the California Division of Labor Standards Enforcement (DLSE). The DLSE will typically only reclaim lost wages as far as 3 years prior and further penalties are at their discretion as well. Your claim will be assigned to a deputy labor commissioner who will determine whether there should be a conference, hearing or dismissal of the claim. If the deputy determines that a hearing is warranted, then the parties will testify under oath and the Labor Commissioner will serve an order, decision, or award. In the event that an order, decision, or award is made in favor of the agrieved employee and the employer does not pay, the DLSE will have a judgment entered against the employer. Another problem may arise if the employer retaliates against you because you object to or have filed a claim against the employer for failing to provide required rest breaks. If this is the situation, you should likewise contact a California Labor lawyer first if your desired results are not reached you can also file a claim with the Labor Commissioner’s Office. 

Key Point:
If you believe you have been wrongfully denied a meal or rest breaks you should contact an experienced California labor law attorney. An attorney can guide you through the process and offer an unbiased evaluation of your particular situation.

• Email This
• Print
• Comments
• Trackbacks

California labor law attorneys have been working “overtime” to assist employees in collecting additional pay for working split shifts. According to the California Industrial Welfare Commission, a split shift is defined as “a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than a bona fide rest or meal period.”  If such a schedule is worked then the employer must pay a “split shift differential,” which is equal to at least all hours worked multiplied by the minimum wage, plus an extra hour of minimum wage (unless the employee resides at the place of employment). The rationale is that an employee should receive a higher wage in exchange for working outside the normal shift period. The split shift differential only applies to non-exempt employees who are compensated at or slightly above the minimum wage. If the employee is paid significantly above the minimum wage, then the compensation minimum is already met and the employer does not need to offer the extra hour of minimum wage. 

Some employers attempt to avoid paying the split shift premium by forcing an employee to take longer breaks or multiple breaks during the day. This issue is complicated because California law provides that an employer must provide meal and rest breaks. An employer may not employ an employee for more than five hours per day without providing a meal period of at least thirty minutes. However, if the employee works no more than six hours per day, the meal period may be waived by consent of both parties. A second thirty minute meal period must be provided if the employee works more than ten hours per day. If no more than twelve hours are worked per day, then this second meal period may be waived by consent of both parties if the first meal period was not waived.  For example, a work day may look like this:

8:30-1:30 (5 hours)
1:30-2:00 Required meal break
2:00-7:00 (5 hours)
7:00-7:30 Required meal break
Then any additional hours

Although the thirty minute breaks are mandatory, the law does not prohibit an employer from requiring longer breaks. If a longer break or additional breaks are provided, the question then becomes whether the break period is reasonable. If a two or three hour break is required, it is more likely that the schedule would be considered a split shift and the premium must be paid. 

If you believe you are working a split shift and not being fairly compensated, contact an experienced California labor law attorney for an unbiased evaluation of your situation.
 

• Email This
• Print
• Comments
• Trackbacks

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.
 

• Email This
• Print
• Comments
• Trackbacks

The law requires that workers must be given time to rest and eat during the work day.

The question now before the highest court in California is, who is responsible to make sure the law is followed?

Abuse abounds in this area of law. Employers acknowledge that employees are entitled to normal breaks and meals during the day. At the same time some employers create an environment that systematically discourages breaks.

The result is that employees are forced to work through these breaks and many times must eat on the run.

In some lower court cases the employer has been able to persuade the judge that a policy allowing breaks is all that is required. Lawyers that represent workers have demonstrated that this leads to mass violations of the law. It is no secret that if an employee demands his right to rest and eat he is likely to find himself in hot water.

This fight has been taken head on by class action attorneys who are able to represent the entire employee base without putting individual workers at risk. This approach is an effective deterrent to employers who systematically violate the law. Employers are trying to prevent enforcement by taking the position that any violations, even if wide spread, should be handled on an individual and not a class wide basis. To sustain this position employers argue that it is the individual employee who has the power to decide to work thru his breaks. Therefore the employer states that it should not be held responsible on a class wide basis even if it is found to be a systematic problem. Under this view of the law; even if there are intentional violations then each employee must individually enforce his rights through the courts and this is obviously highly impractical.

In order for the law to be meaningful the Supreme Court is being asked to find that the burden is on the employer to prove that these breaks and meal periods are not only policy but also being enforced. The fact is that this does not create any meaningful burden on the employer as he has the ability to control and monitor.

The main cases now under review by the California Supreme Court are two Court of Appeal, court decisions in Brinker Restaurant Corp. v. Superior Court (Hohnbaum), 2008 WL 2806613 (Cal. Ct. App., July 22, 2008), and Brinkley v. Public Storage, 2008 WL 4716800 (Cal. Ct. App., October 28, 2008).

Your employer must make meal breaks available to you if you are a non exempt employee (an employee who is eligible to receive overtime pay). Failure to provide a meal break obligates an employer to pay non exempt employees one hour of pay.

The Law:

An employer must pay a nonexempt employee an hour's pay for failure to provide a meal or rest period.

An employer who falsifies employment records is in serious trouble under a recently enacted California statute, As of January 1, 2009, makes it is a crime for an employer to require an employee sign-off on any record of hours worked that the employer knows to be false.

This provides added protection where managers force employees to sign statements regarding their hours worked knowing at the time it is untrue or where they alter time cards.

Strategy:

The fact is that over time the right to back compensation, interest and penalties add up to big dollars especially if it has occurred over an extended period of time. You are permitted to recover for missed meal and breaks for a period extending back over 4 years from the time you file your claim in court.

It is easy to get sound advice and an estimate of how much you may be owed by contacting a qualified California labor law attorney. Many of these matters are taken on contingency so you do not have to pay for representation unless you recover on your claim.

• Email This
• Print
• Comments
• Trackbacks