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

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

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

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

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

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

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

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

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The nation has been anxiously awaiting the, the California Supreme Court opinion of California’s employment laws regarding non-resident employees who perform work in California. While the decision will likely force many employers to reevaluate their non exempt payment policies, specifically overtime. Presumably, a large number of lawsuits will follow, including class actions, demanding back pay of overtime.

Sullivan v. Oracle has been settled and appealed several times. The premise of the case was that several Arizona and Colorado residents were employed by Oracle as instructors; they argued that they were entitled to overtime under California law when they had preformed work in California. However, Oracle had classified the instructors as exempt employees and as such they were not paid overtime. This case required the interpretation of two labor laws principals; first whether or not the nonresidents were covered under California labor laws and second if they were classified properly as exempt employees. The federal Ninth Circuit Court of Appeal certified these issues for the California State Supreme Court to decide.

Most companies in California are aware that California law has several striking differences from the federal Fair Labor Standards Act (“FLSA”). Specifically exemptions from overtime under California labor law are examined differently than under the FLSA, specifically focusing on not what an individual’s “primary” duties are, but on the duties in which they are “primarily” engaged. Furthermore, California labor law requires that overtime be paid at time and half for hours 8-12 in a day and for double time for work performed beyond 12 hours in a day. Meal and rest breaks to non-exempt employees are also a requirement under California labor laws.

The California Supreme Court found that California’s overtime laws do apply to non-resident employees who perform work in California. The Court went a step further to conclude that the state overtime laws did not make a distinction between residents and non-residents, and clarified that it would defeat the purpose of those laws if employers could simply “import unprotected workers from other states.”

While the decision is limited to “California-based” employers; the court did not provide a definition for this term. As such, employers based outside California should not ignore Sullivan. There is every reason to believe that non-resident workers of employers based outside California will contend that they, too, should be covered by California’s wage-hour laws when working in the state. And, based on the broad language in Sullivan, there is every reason to believe the California Supreme Court might agree.

What Employee Should Do now when traveling to California to work

• Keep accurate records of your work hours and all breaks.
• Make a list of all the job duties you are expected to perform while in California.
• Keep accurate records of your travel time and all travel expenses, including mileage.

If you are not paid for all hours worked or have been classified as exempt from overtime contact an experienced California labor law attorney to examine your records. You might be owed back pay for your overtime, meal and rest breaks as well as travel time and expenses.

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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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.

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