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

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

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

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

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

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

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

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

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

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

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

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

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California Labor Law regarding overtime exemplifies that the State of California is one of the best employee friendly places in the country to work. California has placed a high premium on the protection of its citizens in the workplace. Minimum wage employees who live paycheck to paycheck cannot afford to risk losing their jobs, so they are forced to adapt to a harsh work environment created by over demanding employers who expect them to work uncompensated overtime.

California Labor Law for overtime takes the basic requirements found in the FLSA (Fair Labor Standards Act) legislation and builds more protection for these employees who often find themselves at the mercy of their employers.

Overtime is accurately defined for non-exempt employees as: any work done in excess of an 8 hour workday or a 40 hour workweek. Under California labor laws daily overtime pay (time and a half) is earned whenever an employee works more than 8 hours in one day. Any hours worked in excess of 12 hours in one day must be compensated at 2 times the employees usual hourly pay rate.

Two of the most common California overtime abuses are (1) employee misclassification; treating the employee as exempt from the right to be paid overtime and requiring that employees work (2) “off the clock.”

Under California law for overtime, all employees must be paid for the time they actually work whether before or after clocking in or out. For example, employees who are required to change into and out of uniforms off the clock are entitled to be reimbursed for the time spent changing cloths. Another example is assistant managers who are paid a salary. If they work overtime but spend a majority of their time performing the same tasks as an hourly employee they must be paid overtime.

If you believe that you have either been misclassified as an exempt employee in California or haven’t been paid overtime that you have earned, you should contact a California Labor Law attorney to review your situation.

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Have you worked in California for Wells Fargo any time after August 20, 2008 as a “telephone banker” or in a similar position at a Wells Fargo call center?

Our investigation reveals that call center personnel described as Telephone Bankers were not fully paid for work performed on their shifts.

We believe there are substantial unpaid wages and penalties due to this group of California employees and we would like to speak with you regarding your employment with Wells Fargo in this capacity for any time you may have worked after August 20, 2008.

The class action lawsuit that we are pursuing is entitled Mists Herrick, et al. v. Wells Fargo Bank, N.A.
U.S. District Court, Central District of CA, Case No. CV11-1646 GAF (Ex).

You can help, so please contact us immediately either by phone at (888) 474-7242, email at info@uelglaw.com , or contact us through our website at www.collectmyovertime.com.

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The Myth of Salary

There are myths regarding California overtime that suggest employees that are compensated with a salary are not entitled to overtime. This myth comes from the requirement of certain California overtime exemptions that the employee be paid a salary. That requirement is just one of many -- and it is the easiest to meet. The fact remains that there are many people who are paid a salary that are entitled to overtime, and there are many people who are paid hourly that don’t get any overtime. Suffice to say that if someone told you that you are not entitled to overtime just because you are paid a salary, that is just plain wrong.

If you are paid a salary, you are still entitled to overtime unless you meet all of the requirements for one of the California overtime exemptions. These added requirements are not easy to meet and many people simply do not meet them. If you have questions about whether your particular job would be entitled to overtime, you can contact a California labor law attorney to assist you in evaluating your claim.

The “Supervise Two People” Myth

Another California overtime myth is that if you supervise two or more people, you are exempt. This one has a little more factual basis than the one above, but is still far from accurate. One of the requirements for the Executive Exemption is that you must supervise at least 2 people. However, this requirement is only one of many. In addition, the law has regularly been interpreted to find that supervising only 2 people would rarely require sufficient supervisory time to satisfy the exemption since you must spend over one half of your time performing supervisory duties. As you can read in the Executive Exemption section, the exemption is very hard to meet and only true executives of the company will qualify for it.

If you are a “team lead”, “project manager”, or “development manager,” you can still be entitled to overtime. Of course, job titles do not control whether or not you are entitled to overtime, and your actual right to overtime will depend on what actually do for your job.

California also has history of requiring overtime for managers who spend more than 50% of their time doing the same work as their subordinates.

Comp Time Given For Overtime Hours Worked

A common practice for some employers is to give “comp time” in exchange for overtime hours worked. That is, if you work 48 hours one week, you can take a day off the next week. There are many problems with such a policy. An important one is that if you worked 48 hours in one week, then 8 hours would be paid at the overtime rate of 1.5x. Thus, you really have 12 hours of pay at the regular rate and giving you 8 hours as “comp time” shorts you 4 hours. In any case, California labor code 204.3 requires that employers are not allowed to use any “comp time” programs that take overtime from one week and give time off in another week.

If you have experienced any of these issues you should immediately seek counsel from an experience California labor law attorney.

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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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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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What does the CALIFORNIA LABOR LAW require IF AN EMPLOYEE IS ON-CALL AND MUST RESPOND QUICKLY TO WORK ASSIGNMENTS; IS THE EMPLOYEE ENTITLED TO BE PAID DURING THE PERIOD HE IS ON STANDBY?

HISTORY:

ALARMCO is engaged in the business of providing security alarm services to retail businesses throughout California. Specifically, ALARMCO provides equipment, installation, repairs and maintenance services.

In order to provide these services, ALARMCO maintains operating agreements with its customers to provide repair and response services. To provide these services, ALARMCO employs a fleet of technicians.

When a service call is requested ALARMCO requires that the technician immediately report in an ALARMCO vehicle to the repair site in uniform.

The practical effect of this on-call schedule and the on-call requirements is that the technicians are effectively under the control of ALARMCO while on standby during the entire on-call week. As a practical matter, the response time and the additional restrictions on the use of the company vehicle and the clothing requirement, means that the on-call technicians must remain at home next to their phone and within five minutes of their ALARMCO vehicle. The technicians are severely limited in the engagement of personal pursuits during the on-call time because of the specified time requirements.

Because they must respond immediately to all calls means that the technicians cannot go to dinner or a movie, attend a concert, travel for a weekend getaway, or have a beer while they are on call wherein they are subject to receiving a call that requires driving in an ALARMCO vehicle to perform on site repair services.

On-call status places technicians in a state of constant readiness 24/7 outside of their regular 40 hour work schedule during the standby week. ALARMCO technicians are expected to respond day or night, dropping all other activities including sleep and meals, and remain on the job until it is completed.

The work required of the technicians while on standby is so regularly scheduled and frequent that the time spent waiting for call requests should be compensable as the technicians are not able to engage in personal pursuits during these standby periods.

ANALYSIS:

On-call time for the technicians constitutes employer “controlled standby” which must be compensated. The legal test as to whether standby time is compensable work time was established by the California Supreme Court in Madera Police Officers Association v. City of Madera, 36 Cal. 3d 403 (1984)

In reaching this conclusion we adopt a two-step analysis. We first examine whether the restrictions on off-duty time are primarily directed toward the fulfillment of the employer’s requirements and policies. Second, we analyze whether the employees’ off-duty time is so substantially restricted that they are unable to engage in private pursuits.

Madera, supra, 36 Cal. 3d at 409.

The on-call schedule, coupled with the strict requirements for response time, arrival time and resolution time substantially restricts the technicians’ off-duty time, rendering ALARMCO liable for all the waiting time spent by the technicians during the standby periods.

Applying the two step process under Madera to ALARMCO’s policies and practices we find that ALARMCO requires that service calls be responded to immediately. The on-call and response time requirements are all directed towards the fulfillment of ALARMCO’s uniform contractual obligations to its customers and in accordance therewith technicians are graded not only on “response” time but also on the time spent actually resolving the call. As a result, the de facto requirement is that technicians drop everything when a call is received, drive to the destination and resolve the service request. These requirements substantially restrict a technician’s personal time while on standby, that he is effectively unable to engage in private pursuits.

SUMMARY:

Simply being on-call is not enough under Madera for standby time to be compensable. The Madera Court affirms that “on-call status, coupled with other factors is required to entitle an employee to compensation.” Madera, supra, at 411. In this situation technicians are not only on-call but are required to immediately respond and resolve the equipment malfunction and do so by reporting in an ALARMCO vehicle while in uniform. Given the high frequency of service calls along with the factors stated above the technicians are effectively subject to the “control” of ALARMCO while on-call.

In reviewing situations such as this whereby various factors must be weighed and considered it should be noted that the wage and hour laws of California are remedial enactments for the “protection and benefit of employees” and therefore the “statutory provisions are to be liberally construed with an eye to promoting such protection.” Ramirez v. Yosemite Water Co., 20 Cal.4th 785, 794_795 (1999). Any doubts should be resolved in favor of the employee.

If you have any questions regarding your entitlement or rights under the California Labor Code consult with a California Labor Attorney who specializes in labor law. In many instances your questions may be handled without charge based on the policies of each law firm.

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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.
 

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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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Once you are on the job and under the control of your employer your workday starts and at days end when you leave your workday stops. Does your workday actually start and stop when you clock in or out? Not necessarily.

This is a story that shows there is more to this issue than one might think.

An employee arrives at work in the morning, has a quick meeting with her supervisor and then she starts up her computer. The employee then logs onto the computer by typing her user ID and password and hitting "Enter". Once that process is complete, the employee logs into the System. She then opens any programs or applications she needs to perform her job. At the end of the day, the employees are required to follow the process in reverse logging off and closing down her computer.

Until that employee is logged in and on line she is not able to enter her start time. At the end of the 

day she is required to first sign out and then completes the log off procedure.

This system does not allow an employee to be paid for the time spent at work before she is able to log on by starting up her computer as well as being required to sign out and then closing down her computer. This time adds up to more than 25 minutes each day.

There are other examples of work time that must be compensated for under the law that could be overlooked,

including changing into uniforms or work and safety clothing. Also included is the afterhours preparation of paperwork and the scheduling of appointments for the next day.

Over the years the amount that is owed to an employee could and does add up into the tens of thousands of dollars including penalties and interest.

An example of the penalties that may be relevant and that would add substantially to the amount owed by the employer is as follows:

1) Unpaid Overtime in Violation of California Labor Code Section 510 and Wage Orders No. 4-2001;
2) Unpaid Overtime (Fair Labor Standards Act);
3) Knowing and Intentional Failure to Comply with Itemized Employee Wage Statement 

Provisions (Labor Code § 226(a));
4) Failure to Pay Minimum Wage (Labor Code §§ 1182.12, 1197);
5) Failure to Pay Minimum Wage (Fair Labor Standards Act);
6) Violation of Labor Code § 2699; and
7) Unfair Competition in Violation of et. seq.

All of these claims are premised upon the employee’s right to be paid for the time spent at work.

California law defines the term "hours worked" as "the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so." That does not mean that the mere fact that an employer required an employee to do something renders the time spent doing the activity at issue qualifies as "hours worked". For example, the California Supreme Court has acknowledged that an employee's commute is not compensable simply because "the employees would not commute to work unless the employer required their presence at the work site." The level of the employer's control over its employees, rather than the mere fact that the employer requires the employees' activity, is determinative.

Generally, if you believe you may be owed any back compensation you may make a claim going back up to four years.

It is not difficult to request a free preliminary opinion that helps you understand your rights and if you should consider filing a claim for any unpaid wages.

Being informed could be worth tens of thousands of dollars in your pocket.

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California Employment attorneys are at it again- further defining the rights of employees. If you do not enjoy the luxury of working at home, you must spend time traveling to and from your place of employment. Generally, this time is not compensable as “hours worked,” because you are not considered to be under the control of your employer. But what if your employer furnishes you with a company vehicle and requires certain tasks to be completed before and after traveling from home? California Employment attorneys have brought this issue before the Court of Appeals in a class action filed by employees of the Lojack Corporation. See Rutti v. Lojack Corporation, Inc., No. 07-56599, US Court of Appeals (9th Cir.) (March 2, 2010)  The alarm technicians sought payment for time spent driving to and from job sites in company vehicles. In addition, they claimed compensation for certain “off the clock” activities such as logging assignments, mapping routes, and prioritizing jobs.

Upon reviewing the federal Employee Commuting Flexibility Act (ECFA), the Court held that travel time and any de minimus activities were not compensable. While many California employment attorneys representing employees may disagree with this decision, nevertheless at this point this will likely govern compensation in these areas.

First and foremost, the ECFA clearly states that an employer is not required to pay employees for travel time to and from the location of the place where principal job activities are performed. An employer is also not required to pay for any activities that are incidental to the use of the vehicle (i.e. getting gas, having the oil changed, or washing the vehicle). The employer may include mandatory use of a company vehicle and restrictions on the use of the vehicle as a condition of employment. Restrictions are valid as long as they do not constitute additional cognizable work. The Court held that Lojack’s requirement that company vehicles be used only from travel to and from work and that there be no passengers was merely incidental and did not constitute compensable work.

Secondly, “off the clock” activities are not compensable unless they are related to the “principal activities” of the job and not merely “de minimus.” Principal activities are generally those tasks that are performed as part of the regular work of employees in the ordinary course of business. When the tasks are actually performed is irrelevant. On the other hand, de minimus activities consist of additional work that requires a miniscule amount of time and does not take place on a regular basis. The Court in Rutti indicated that the employees’ preliminary activities such as filling out forms appeared to be de minimus and not compensable, but that some postliminary activities such as job dispatches were vital to the business and could be compensable.

In light of Rutti, the important thing for employees to remember is that whether travel and off the clock actvities are compensable is a very fact specific determination. If your job requires the use of a company vehicle or additional work time, you should consider the folllowing:

1. Reach a formal vehicle use agreement with your employer and have it put in writing.
2. Establish regular work hours. If you work more than 40 hours per week, including compensable travel time, you are entitled to overtime.
3. Be aware of any attempts by your employer to turn compensable activities into non-compensable activites.
4. Contact a knowledgable California labor law attorney or other employment attorneys for an unbiased evaluation of your particular situation.
 

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