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Employment And Labor Law

Many employees have wage claims they never knew that they had. They come to our office to talk about discrimination or retaliation and then find out they also have a substantial overtime or break claim. Don’t presume that you don’t qualify for overtime pay or that you are simply salaried and don’t deserve to receive premium compensation for your extra hours. Being salaried is only of the normal requirements for being exempt from overtime rules, but it’s not the only one. There are many other conditions to being exempt from overtime pay and it’s the employer’s burden to prove all of them. Wage claims can result in sizable recoveries. There are many other claims that can be asserted, including commission, bonus, severance, expenses, vacation, travel time, waiting time/ standby, uniforms, tools and breaks as well. It is particularly advantageous when you have a variety of claims, not only those based in discrimination or harassment, but also wrongful termination and wages as well, each one standing on its own.

 


Minimum Wage: Federal and state laws require that your employer pay you minimum wages and, in most instances, overtime wages. The federal minimum wage law requires your employer to pay you at least $7.25 per hour; however, California law requires a minimum of $8.00 per hour. In many instances, you must be paid for “standing” and/or “travel time.” Your employer is prohibited from fining or docking your wages below the minimum wage. It is also illegal to withhold your final paycheck. If you have not been paid at least at a minimum wage per hour, or if you have not been paid for all the hours you worked, then your employer may have violated these laws and you may be entitled to damages. We can explain the laws more clearly and assist you in making a claim. Keep in mind that if you were not paid the California Minimum Wage during these years: 2006 = $6.75hr; 2007 = $7.50hr; 2008-2010 = $8.00hr, you are entitled to recoveries.


Overtime: Federal and state laws also require that certain “non-exempt employees” be paid overtime wages which is time-and-a-half wages for each hour worked over eight (8) hour per day and forty (40) in individual workweeks. Even if you are paid a salary instead of an hourly wage, you may still be entitled to overtime wages. Your job duties and responsibilities determine if you must be paid overtime, not your salaried status or job title. If you have not been paid overtime wages in an individual workweek, your employer may have violated these laws and you may be entitled to damages. We can help you determine what you are entitled to and assist you in making claims.

If you are an hourly (“nonexempt”) worker, the Fair Labor Standards Act (FLSA) requires that you be paid at one and a half times your regular hourly rate if you work more than 8 hours per day or 40 hours in a five-day workweek. Several classifications of salaried employees are exempt from the minimum wage and overtime requirements of the FLSA: outside salespersons, independent contractors, employees of certain retail establishments, amusement and recreation park employees, and others who meet various statutory tests, such as persons who hold bona fide executive, administrative, or professional jobs. The rules governing whether you are considered an exempt executive, administrative, or professional worker are complex. Call us for more details where applicable.

In addition to claims of employee entitlement and problems regarding the computation of overtime, other disputes that sometimes arise include whether an employee can waive the right to overtime pay, what rights employers have in requiring people to work overtime, whether employers can equalize overtime on a day-to-day basis, and problems with unauthorized overtime.

Employers who fail to pay required overtime are liable for any unpaid overtime compensation and an equal amount as liquidated damages, plus attorney fees and costs. For willful violations, damages sometimes include earned overtime up to four years back, plus punitive damages. We can determine the violations and help you seek your compensation.

If you are an hourly worker, you may be entitled to overtime pay under the following conditions:

  • If you arrive to work earlier than your starting time and do light work at the request of the employer
  • If you typically work through lunch breaks at the employer’s request
  • If you take work home with the knowledge and permission of the employer
  • When at home you are required to be “on call” and ready to report to work within an hour
  • If you work several hours of overtime on a Friday and the employer states that you can leave work several hours earlier the following week
  • If the job requires you to stay overnight for out-of-state assignments or travel extensively while on company business (but not for normal commuting travel to and from your home)
  • If you are required to travel on to various locations on behalf of your employer (travel time)
  • If you spent time waiting for work (waiting time/ standby)  and you were engaged to wait.

However, employers are generally required to give nonexempt workers as much advance notice as possible when they are expected to stay late. They should also rotate overtime, maintain a roster recording each worker’s overtime, and establish rules as to how the roster system will work. Federal law requires employers who offer overtime to post signs outlining the federal minimum wage and overtime regulations conspicuously in places where workers enter and exit.

Many wage disputes are the result of unpaid wages, improperly calculated overtime, and minimum wage violations. If you have a wage dispute claim, contact our office today to set up a consultation. Our lawyers give clients information about what to do if they are not receiving the correct pay. We have successfully litigated hundreds of wage claims.


Travel / Commute/ Time: Under California law, if the travel time is subject to and under the employer’s control, it is the time for which the employee should be compensated at his regular rate of pay or at overtime rate of pay if applicable. Further, the Industrial Welfare Commission Orders specifically define 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 he or she is required to do so. Therefore, if you travel from one work site to another serving the needs of your employer’s customers or you are traveling all day from one office to another to repair or provide other on-site services, you may be entitled for compensation for the time you commute from one job site to another.  Of course, the commute in the beginning of the workday to the first job site and the commute at the end of the day – from the last job site back home – is not a compensable time, as it essentially the same kind of time as any other employee would spend who travels to and from one work site (his office) every day. It should also be noted that the above rules apply to “employees” and not independent contractors.

If you believe you are not being fairly compensated for the travel/ commute time, contact us today for an evaluation of you situation.


Waiting / On-Call / Standby Time: The Division of Labor Standard Enforcement (DLSE) takes the view that, on-call or standby time at the work site is considered hours worked for which the employee must be compensated even if the employee does nothing but wait for something to happen. “[A]n employer, if he chooses, may hire a man to do nothing or to do nothing but wait for something to happen. Refraining from other activities often is a factor of instant readiness to serve, and idleness plays a part in all employment in a stand-by capacity”.

On the other hand, whether on-call or standby time off the work site is considered compensable must be determined by looking at the restrictions placed on the employee. A variety of factors are considered in determining whether the employer-imposed restrictions turn the on-call time into compensable “hours worked.” These factors are as follows: a) whether there are excessive geographic restrictions on the employee’s movements; b) whether the frequency of calls is unduly restrictive; c) whether a fixed time limit for response is unduly restrictive; d) whether the on-call employee can easily trade his or her on-call responsibilities with another employee; and e) whether and to what extent the employee engages in personal activities during on-call periods.

If you believe you are not being fairly compensated for the on-call/ standby time on and off work site, contact us today for an evaluation of your situation.


Split Shift: According to the California Industrial Welfare Commission (IWO) a split shift is defined as “a work schedule, which is uninterrupted 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 you believe you are working a split shift and not being fairly compensated, contact us for an evaluation of your situation.


Meal Breaks: In California, an employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than thirty minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.

A second meal period of not less than thirty minutes if required if an employee works more than ten hours per day, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and employee only if the first period was not waived. Labor Code Section 512.

Unless the employee is relieved of all duty during his or her thirty minute meal period, the meal period shall be considered an “on duty” meal period that is counted as hours worked. An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the employer and employee an on-the-job paid meal period is agreed to. The written agreement must state that the employee may, in writing, revoke the agreement at any time. IWC Orders 1-15, Section 11, Order 16, Section 10. An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties. Some examples of jobs that fit this category are a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and a security guard stationed alone at a remote site.

If the employer requires the employee to remain at the work site or facility during the meal period, the meal period must be paid. This is true even where the employee is relieved of all work duties during the meal period.

If you feel that your employer is not following the law regarding proper meal breaks for you in the company, you can contact us for a free case evaluation.

Rest Breaks: in California, the Industrial Welfare Commission Wage (IWC) Orders require that employees get rest breaks if they work over three and a half hours a day. These mandatory breaks must be in the middle of each work period and must be 10 minutes for every four hours worked or fraction thereof. The Division of Labor Standards Enforcement (DLSE) considers anything more than two hours to be a “major fraction” of four.

A rest period is not required for employees whose total daily work time is less than three and one-half hours. The rest period is counted as time worked and therefore, the employer must pay for such periods. Since employees are paid for their rest periods, they can be required to remain on the employer’s premises during such periods. With respect to the taking of rest periods, an exception exists for certain employees of 24-hour residential care facilities, swimmers, dancers, skaters, and other performers engaged in strenuous physical activities, in certain on-site occupations in the construction, drilling, logging and mining industries. However, under such circumstances, the employer must make-up the missed rest period within the same workday or compensate the employee for the missed ten minutes of rest time.

Pursuant to California Labor Code Section 1030 every employer, including the state and any political subdivision, must provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child. The employer shall make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area, for the employee to express milk in private. The room or location may include the place where the employee normally works if it otherwise meets the requirements of this section.

If you feel that your employer is not following the law regarding proper rest breaks/periods for you in the company, you can contact us for a free case evaluation.


Unlawful Deductions: Some employers deduct the cost of uniforms, tools and other supplies necessary for the job from employees’ paychecks. And some deduct costs to cover shortages in an employee’s cash register or items an employee breaks or damages on the job. Not all of these paycheck deductions are legal.
Uniforms: Ion general, an employer normally has the right to require employees to wear uniforms. California law defines a uniform as any “apparel and accessories of distinctive design and color” which an employer is required to wear, such as shirt, pants, shoes, hat, belt, name tags, etc.

Usually an employer must provide the uniform. However, if the uniform can be used in other workplaces in the same field, the employer does not have to provide the uniform. For instance, if a salesperson is required to wear a normal dress shirt, then the employee can be forced to pay for the shirt. However, if the company logo is printed on the dress shirt or if that shirt has a distinctive style or color, that shirt cannot be used at another workplace and the employer must provide it. An exception exists with respect to exempt employees and waitpersons. Employers do not have to provide uniforms for “exempt” employees and do not have to provide black and white uniforms to “waitpersons.”

Under California law, employers must compensate employees for uniform care. Employees are responsible for normal washing and drying of uniforms; if ironing, dry cleaning, or separate laundering is required, the employer must pay for it.


Tools and Equipment: Under California law, employers usually must supply and take care of all tools and equipment that are required by the employer or necessary to do the job. However, there are two limited exceptions:

#1: If an employee makes at least twice the California minimum wage and that employee works in a recognized trade or craft (e.g., carpentry or plumbing ), the employee may be required to provide and care for all hand (not power) tools and equipment usually necessary for that type of job.

#2: Apprentices and employees of beauty salons, beauty schools that sell beauty products to the public, and barber shops can be required to supply their equipment.

In California, an employer normally has to cover the cost of lost or damaged equipment. In very limited circumstances, an employer may deduct the cost of the missing or broken item from an employee’s paycheck. You can only be charged if your employer can show that you stole equipment or that you intentionally broke company property.

Under California law, responsibility for stolen equipment depends on two factors: a) Whether it was practical for the employee to bring the tools and equipment back and forth from home to the workplace each day, and b) Whether the employer required that the tools and equipment be stored at the workplace.

Generally, if an employer requires that tools be stored at work, or it is too difficult to store them at the employee’s home, then the employer is responsible for the stolen items, even if they belonged to the employee.


Cash Register Shortages, Breakage, or Loss: California does not allow employers to charge their employees for cash register drawer shortage, damaged merchandise or loss at all, unless the employer can show that the employee acted dishonestly, willfully, or in a grossly negligent manner. California considers ordinary losses and shortages to be part of the cost of doing business, which should legally be borne by the employer, not passed on to employees.


Wrongful Termination: Wrongful termination might not mean what you think it does in the legal sense. That’s because, what we, as considerate human beings, think is unfair or unethical treatment in the workplace, is not necessarily illegal for U.S. employers. Just because an employer unfairly fired or forced an employee to quit, does not necessarily mean that the employee suffered wrongful termination, at least not according to law. However unfair, for it to be the illegal act of wrongful termination, an employer must violate a specific state or Federal law, regulation or constitutional provision. To further understand what legally constitutes wrongful termination, it’s important to also note that most states consider employment to be “at will” in legal jargon. In plain English, the Employment at Will Doctrine means that, in the absence of employment contracts stating otherwise, employment is presumed to be voluntary and indefinite for both employees and employers. As an at-will employee, you may quit your job whenever you want, usually without consequence. On the flip side, at-will employers may terminate you whenever they want, usually without consequence.

However, in many states employers must at least show “good cause” for terminating you. But good cause or not is often a matter of interpretation by the courts or arbitrators. We can help you with those interpretations.

If you are a victim of wrongful termination in the workplace, contact our office today to set up a consultation. We help victims of wrongful firings in the workplace.


Pregnancy Disability Leave and California Family Rights Act (CFRA): An employer must provide up to four months disability leave for a woman who is disabled due to pregnancy, childbirth, or a related medical condition. However, if an employer provides more than four months of leave for other types of temporary disabilities, the same leave must be made available to women who are disabled due to pregnancy, childbirth, or a related medical condition. Leave taken for pregnancy disability does not have to be taken at one time. Leave can be taken before or after birth or at any period of time that the woman is physically unable to work because of the pregnancy or pregnancy-related condition. Periods of leave may be totaled in computing the four months of leave.

A woman who works for a covered employer is eligible for pregnancy disability leave regardless of the length of time she has worked for the employer. Further, an employee does not have to work full-time in order to be eligible.

Pregnancy leave is required only when a woman is actually disabled by her pregnancy, childbirth, or a related medical condition. This includes time off needed for prenatal care, severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth, and any related medical condition. A woman does not have to be completely incapacitated or confined to her bed to qualify as being disabled by pregnancy. However, as a general rule, a woman must be unable to perform one or more essential functions of her job without undue risk to herself or to other persons or without undue risk to successful completion of her pregnancy. It is the medical opinion of the woman’s physician or health care provider that determines whether she is disabled by pregnancy or a related medical condition.

A woman who takes a pregnancy disability leave is also entitled to take a CFRA leave if she meets the eligibility requirements for a CFRA leave. That means that a woman who is eligible for CFRA leave could take up to four months of pregnancy disability leave for her pregnancy disability and could also be entitled to up to 12 weeks of CFRA leave to bond with the baby, or for another CFRA qualifying event such as to bond with an adopted child, or to care for a parent, spouse or child with a serious health condition.

Employers are required to provide reasonable accommodation to a pregnant employee when requested, with the advice of her health care provider, related to her pregnancy, childbirth, or related medical condition.

If you are a victim of pregnancy discrimination in the workplace, contact our office today to set

up a consultation. We help victims of discrimination in the workplace, including pregnancy

discrimination and pregnancy leave discrimination.

 


Discrimination: California laws protect employees from discrimination because of their race, color, national origin, religion, age, disability, pregnancy, sex and sexual orientation. In addition, employers cannot terminate employees for certain public policy reasons. Discrimination takes manifold forms like disparate treatment and disparate impact. The former means discrimination against a person differently because of a protected class, like sex or race. Slurs, offensive “jokes” and comments, or other actions against people in protected classes would constitute unlawful discrimination if such conduct creates an intimidating or offensive working environment, affects the performance levels. “Disparate impact is where a company policy excludes certain individuals from the job or from promotions”. The anti-discrimination law also protects whistle blowers also and an employer cannot dismiss or demote an employee for Whistle blowing.


FEHA Prohibitions and Remedies: California Fair Employment and Housing Act (FEHA) prohibit employers from discriminating. To be stopped from discrimination, a private employer needs to have at least five employees and a public employer needs to have only one employee. Non-profit corporations and associations also come under FEHA prohibitions as long as they employ people. Employees who are subject to unlawful termination and harassment may be able to recover past lost wages and other benefits, future lost wages and benefits, general damages which include emotional distress and pain and suffering, punitive damages and attorney’s fees.


Age Discrimination: Both the federal law as well as the FEHA prohibits age discrimination in the workplace. FEHA makes it illegal for employers to refuse to hire or employ, or to discharge, dismiss, reduce, suspend, or demote, any individual who is at least 40 years old because of age or to harass an employee or applicant for employment because of age. People under forty years old are not protected.

Employers are always cautious of the purse strings. If a relatively junior employee is capable of providing the same quality work done by a highly paid senior employee, the employer might replace the senior with the employee with less experience. However, if wage considerations are not the real motivator and the employer wants to dump a veteran employee under the garb of such replacement, it would be illegal under California law. It is not illegal to replace people who are making high wages with people who will make less because they have less seniority. Here, the employee must prove that it is the age, not the wages, which is motivating the employer to fire the older workers. Thus, it is illegal to replace a person over 40 with a person under 40, if age is the reason.

However, this practice has to be distinguished from the layoffs as part of downsizing. The employees who agree to take early retirement are offered special packages. Though this is no age discrimination per se, if it is intended to get rid of older workers just because of their age, it is illegal.


Sexual Orientation Discrimination: Recently, individual’s  identities and sexual orientations are becoming a subject matter of workplace rights. The reluctance of the society to absorb people with a different sexual orientation was reflected in the employment sector also and the violation of the rights of gay and lesbian employees received a cold response, as there was little in the law to safeguard their interests. Winds of change have swept over these prejudices and currently thirteen states including California have laws prohibiting sexual orientation discrimination in both private and public jobs. An executive order specifically outlaws discrimination based on sexual orientation in the federal government. There is no federal law that prohibits this type of discrimination in private employment. However, a private employer cannot evade responsibility citing the absence of federal regulation. The employer has to follow the law prohibiting sexual orientation discrimination in the state where his/her business operations are based. A prudent employer needs to be cautious even if there is no express prohibition under the state law. The employee can bring a suit for discrimination on the basis of sexual orientation under myriad theories like intentional or negligent infliction of emotional distress, harassment, assault, battery, invasion of privacy, defamation, interference with employment contract, and termination in violation of public policy.


Racial Discrimination: Employers in California have a duty to prevent racial discrimination in the workplace, and to protect employees from retaliation if they complain about racial harassment or discrimination. If an employer does retaliate, an employee has grounds for a lawsuit. Employees who are subject to racial discrimination may be entitled to remedies like past lost wages and other benefits, future lost wages and benefits, general damages including emotional distress and pain and suffering, punitive damages and attorney’s fees.

If you have faced discrimination, please contact our office today.


Harassment: Workers expect to perform their duties at work in a hostile-free environment.  Sexual harassment as well as verbal and emotional abuse in the workplace, is often prohibited by strict laws intended to guarantee the basic rights and comfort of employees. Victims of emotional and verbal abuse in the workplace often feel similar anxiety. Employees who are exposed to the aggressive behavior of a manager or coworker often feel very vulnerable. They find the emotional abuse in the workplace to be unbearable, or the verbal abuse in the workplace to be especially threatening, yet they are often reluctant to bring legal action because they fear that they may lose their jobs and thus the income they depend on. However, employees should realize that they do not have to endure abusive behavior at their places of work, and furthermore, that certain state and federal statutes may actually protect them. If you need to find a sexual harassment lawyer or a workplace abuse attorney to evaluate the merits of your case, please contact our office today. We are ready to put our years of experience to work for you.


Whistle Blowing: Under United States law, a whistle blower (or whistleblower) is an employee who “tells” on an employer, because he or she reasonably believed that the employer committed an illegal act. Under the laws of most states, whistleblowers are entitled to emotional distress and punitive damages.

Whistle blower protection is provided by Federal acts and related statutes that shield employees from retaliation for reporting illegal acts of employers. An employer cannot rightfully retaliate in any way, such as discharging, demoting, suspending or harassing the whistle blower. If an employer retaliates anyway, whistle blower protection might entitle the employee to file a charge with a government agency, sue the employer, or both.

Typically, to be entitled to whistle blower protection, an employee must report an employer’s alleged illegal act to the proper authority, such as a government or law-enforcement agency. If you have seen an illegal act, we can assist you in contacting the proper authorities.

An employee might not be entitled to whistle blower protection for reporting an illegal act only within the company. However, the employee might be protected from retaliation by public policy or other laws. For example, if an employee reports sexual harassment to the company’s HR department, he or she is protected from retaliation by Title VII of the Civil Rights Act.

Even if it turns out that an employer did not actually break a law, an employee is still entitled to whistle blower protection from retaliation, if he or she reasonably believed that the employer committed an illegal act. However, whistle blower protection typically does not include employer retaliation for employee complaints about personal dislikes. To be protected from employer retaliation, an employee typically must report an alleged violation of a Federal law that has provisions to shield whistle blowers. (Though at the state level, some protect whistle blowers who report alleged violations of any laws, regulations or ordinances.) Collectively, such provisions are called whistle blower protections or whistle blower laws.

If you have seen your employer conduct an illegal act and you are not sure how to handle the situation, contact our office today to set up a consultation. As a California whistleblower, you do have rights and you need to be protected.

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