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

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

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

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

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

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

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

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

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

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

• 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

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.
 

• Email This
• Print
• Comments
• Trackbacks

If you are one of the over 200,000 computer software professionals in California, your employer may be short changing you when it comes to overtime pay.  Employers and employees generally assume that salaried professionals are exempt from receiving overtime pay, but this is far from true.  Computer programmers and software developers are generally entitled to overtime pay unless they fall within one of the California exemptions which allow employers to not pay overtime.

To qualify for the “computer professional” exemption, an employee must meet the following requirements under California Labor Code, Section 515.5:

   (1) The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment, and the employee is primarily engaged in duties that consist of one or more of the following:
 

(A) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications.
(B) The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to, user or system design specifications.
(C) The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems.
  

(2) The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering.  A job title shall not be determinative of the applicability of this exemption.

In addition, the employee’s rate of pay must be equal to or greater than $37.94 per hour or $79,050 per year and this must be paid in amounts not less than $6,587.50 per month.  On November 3, 2009, the California Division of Labor Standards Enforcement (DLSE) confirmed that these rates remain in effect for 2010. 

It is the employer’s legal burden to prove that ALL of the aforementioned qualifications are met, and that the employee does not fall under another exemption ie. Administrative,

Executive or Professional, then the employee must be paid all overtime.  It is not uncommon for employers to misclassify employees or alter their pay structure in order to avoid legally required overtime compensation.  There are a substantial number of Class Action Cases that have prevailed on this point against the largest Fortune Five Hundred Companies.  This practice typically goes unchecked, because employees rely on their companies to know and follow the law and it is not uncommon that companies do not adequately police themselves.

The best way to counteract attempts by employers to avoid payment of overtime is for employees to know their rights.  If you are a computer professional and believe you may be entitled to overtime, take the time to contact an experienced California labor attorney.  An attorney can provide you with an unbiased evaluation of your situation and may be able to help you collect several years of back overtime pay.  

• Email This
• Print
• Comments
• Trackbacks