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

Labor attorneys fought long and hard over whether or not Fair Labor Standards Act (FLSA) protects oral, as well as written, complaints in Kasten v. Saint-Gobain Performance Plastics Corp. On March 22, 2011, the United States Supreme Court issued its decision; the Court held, in a 6-2 decision, that the anti-retaliation provisions of the Fair Labor Standards Act (FLSA) protect oral, as well as written, complaints.

Labor attorneys had already a won a suit against Saint-Gobain for placing time clocks in a location that did not allow workers the ability clock in prior to getting in and out of their gear, thus forcing them to work off the clock. Kasten filed an anti-retaliation suit against Saint-Gobain, alleging that Saint-Gobain terminated him for orally complaining about the location of the time clocks.

FLSA is probably better known for enforcing wage and hour issues such as overtime, working off the clock and reimbursable expenses, but  It also forbids employers from terminating  "any employee because such employee has filed any complaint alleging a violation of the statute.” The text of the FLSA was insufficient for the Court to interpret whether the term "filed" included oral complaints. Thus, the Court considered other factors, including:

·         A wide interpretation of "filed" would be the same as the understanding of the National Labor Relations Act's anti-retaliation provision

·         A narrow interpretation would weaken the FLSA's basic purpose - prohibiting detrimental labor conditions

·         TheEEOC and Secretary of Labor  have both decided that "filed" includes both oral and written complaints.

·         The FLSA's requirement that an employer receive fair notice of a complaint can be met by oral and written complaints

California labor attorneysdon’t commonly sue under FLSA because California's Labor Code has its own anti-retaliation provision. California Labor Code section 1102.5:

(a) An employer may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.

(b) An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.

(c) An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.

(d) An employer may not retaliate against an employee for having exercised his or her rights under subdivision (a), (b), or (c) in any former employment.

Nevertheless, the FLSA applies to California employers as well. Thus, California labor attorneyscan now rely on Kasten to protect California employees from retaliation for oral complaints about FLSA-protected rights.

If you feel you have been retaliated against after making a complaint at work, be it verbal or written, contact an experience California labor attorney to examine you case.  

• Email This
• Print
• Comments
• Trackbacks

Outside Salesperson Exemption

The Fair Labor Standards Act (or 29 USC § 213(a)(1) and 29 C.F.R. § 541.500.) defines the"Outside Salesperson Exemption." As a person that;

(a) has the primary duty of (a) making “sales” or (b) obtaining orders or contracts for services or facilities usage, and
(b) is customarily and regularly engaged away from the employer’s place of business in performing such primary duty.

It is also important to note that the employee must spend over 50% of their working time actively selling or obtaining new business away from the office and or home office, if applicable. As oppose to delivering product, giving product training or other administrative tasks unrelated to the actual sale of the product or services.

Inside Salesperson Exemption

The other second part of the salesperson exemption applies to primarily commission-based salespeople and is commonly referred to as inside salesperson exemption. Section 7(i) of the Fair Labor Standards Act (29 USC § 207[i]) will exempt a particular employee from overtime compensation if:

(a) the employee is employed in a “retail or service establishment,” and
(b) the employee’s regular rate of pay exceeds one and one-half times the applicable minimum wage, and
(c) more than half the employee’s compensation for a representative period represents commissions on goods or services.

“Regular rate of pay” referenced in the above federal test, applies on a work week basis. This means that the average of compensation for two or more weeks does not satisfy this requirement.

If you feel you are not being compensated properly for your work as a sales person please contact a California labor law attorney to discuss your case.
 

• Email This
• Print
• Comments
• Trackbacks

IMPORTANT – Do not sign any agreement in which you may be settling any rights you may have without first checking with an attorney that experienced in Labor Law.

On termination you may be offered a severance package in exchange for giving up your rights to back overtime pay. These rights could actually be worth well over $100,000 and you may lose them.

Many Labor Law attorneys will take a look at your situation without charge and give you piece of mind that you interests are protected.

One word can be used to best describe the California information technology (IT) industry this past year: layoffs. Although the technology industry grew overall, layoffs dominated as major companies continued to trim their workforce. The companies with the some of the most drastic cuts included IBM, Novell, Microsoft, Cisco, and Sun Microsystems.  As a result many technology workers are starting off the New Year without a job or, perhaps even more disheartening, training their foreign replacements. An increasing number of tech companies are using L-1 and H1-B workers to reap the benefits of highly skilled professionals for a much lower cost than their American counterparts. This leaves California workers to train these new employees for little compensation, usually the promise of a few weeks of additional pay or a severance package.  However, employees on their way out the door have rights and should not hesitate to milk the benefits due to them from their employers. Federal and state laws mandate that employers make a final payment of wages, overtime pay, and accrued vacation time at the time of a layoff or face stiff penalties.

Of particular concern for IT professionals is employers’ frequent denial of overtime pay. Despite popular belief, all employees in California are entitled to overtime pay unless they fall within a particular exemption or wage order. IT jobs encompass a wide range of duties and usually require long hours, working from home, and the ability to be “on call.” Unfortunately, many workers never see a check for their earned overtime, because their employers misclassify them as exempt from overtime pay. The determination of whether an IT employee is exempt requires a careful analysis of the employee’s duties and how they relate to the company’s overall operation.

The Department of Labor has opined that IT specialists whose primary duty “consists of installing, configuring, testing, and troubleshooting computer applications, networks, and hardware” do not qualify for the administrative or computer employee exemptions under the Fair Labor Standards Act.  Many IT employees are also not likely to qualify for the executive exemption. Unless they spend over one half (51%) of their weekly work time engaged in managerial responsibilities, they will likely be non-exempt and therefore entitled to overtime pay. Examples of managerial responsibilities include negotiating on behalf of the employer, influencing company policy, and supervising others. It is important for employees to remember that it is the actual job duties and not the job title that determines whether an exemption applies. Employers often manipulate job titles, pay structures, or management levels to classify employees as exempt so as to avoid paying overtime costs; yet, they do this at the risk of huge penalties.IT workers who have been wrongfully denied overtime pay under federal law are entitled to liquidate damages. This means employees can collect double the amount of their normal overtime rate. 

If you are an IT worker facing a layoff or otherwise suspect that you have been misclassified by your employer, now is the time to take steps to protect yourself against loss of overtime and other valuable benefits.

Strategy:

1. Request a full copy of your payroll records from your employer as soon as possible. Certain documents in your employee file, must be made available to you within 21 days of your request.
2. Gather all documentation establishing your wages and benefits immediately prior to the layoff, including itemized wage statements (pay stubs), W2 forms, a calculation of your overtime pay, proof of your total accrued vacation time, and a copy of your employer’s benefit plan.
3. Compile a list of your job duties and obtain the names of witnesses who can testify regarding your day to day work duties and hours worked, including supervisors, co-workers, industry contacts, etc.
4. Visit the human resources department and request a copy of your personnel file. This file will contain performance reviews, awards, contractual agreements and other items that will be beneficial to you. Remember you have a legal right to any documents that you have signed. It is also wise to copy all company policies, employee manuals, and other data that is non-proprietary and that you would have access to as an employee.
5. Remove all personal items from your place of work, including your computer. If you have created any personal files or installed software, copy and delete them. Be careful not to take anything that may be considered proprietary, such as customer lists, proposals, financial reports, etc.
6. Consult a qualified California labor law attorney to obtain an unbiased analysis of your situation. The above documentation will help to assess you case and obtain money to which you are rightfully entitled.
 

• Email This
• Print
• Comments
• Trackbacks