California Labor Law Attorney

Archive for the ‘california labor law’ Category

How about these right… I think you’ll find the following nuggets of wisdom particularly insightful. Leave your comments below. Check out the second one in particular…

Senate GOP: Border troops could lead to immigration compromise

… brought upon America by greed of corporate opportunists who hire foreign labor. The majority of citizens are against any path to citizenship Read the rest of this entry »

Is there a FL labor law that says if your boss is 30 min late to open the business can you can go home?

No; but if he required you to be present, and you receive and hourly wage, he must pay you for being there.

Does this go against New York State Labor laws?

I work at a rest stop on the thru-way. I usually work 8 hour shifts with one 30 minute unpaid break. Everyone else I talk to tells me that in an 8 hour shift, I'm supposed to get two 15 minute breaks and a 30 min break, all paid. I looked up NYS labor laws, but its all in legal jargon…help?

Significance Of Right To Work Law

The Right to Work law provides employees with the option to join or not join a union. Employees who are employed in airlines, railways, and federal enclaves are not entitled to such option. The Right to work law also gives the employees the choice to financially support a union.

Right to work employees can have equal representation Read the rest of this entry »

When people call me about employment issues they don’t realize one important law- in almost every state you are terminable at will. That means that your employer can fire you anytime and for no reason at all. The only way you are protected from being fired on the spot without notice is if you have a contract of employment. A contract of employment must be in writing and should specify your length of employment, salary, terms of employment, vacation, bonus calculations, the basis of termination and any warnings to be given (make it at least 3 warnings if you can) prior to termination and must be signed by your employer, among other things.

Now, most people never get employment contracts because their employers do not want to lose the right to terminate you with or without cause. But there is a saving grace–if your employer wrote an intial offer of employment letter and you commenced employment based on that letter, you can use the terms in that letter as your contract of employment. Hopefully the letter spells out your salary and length of employment because there are cases where if your fired before the end of the term in that letter than you can be due the balance of your salary for that term. So, if your salary was $40,000 for the year and the offer of employment letter states your term is 1 year then if your fired in the first 2 months, your due the balance of 10 months salary. And if your employer has an Employee Handbook with rules and regulations therein (usually terms of termination, warnings, vacation pay) then that Handbook is also a binding “contract” of employment. Read the terms of your Handbook because it may spell out how and when you can be terminated which may or may not be good for you depending on whether or not it limits the employer’s liability for terminating you. On the other hand, if the Handbook has terms regarding certain pre-warning procedures before terminating you an dthose procedures were not followed , then you can enforce those procedures as terms of your contract. If your employer breached those terms he most likely must re-instate your employment and follow those procedures before terminating you.

The most important part of your employment is getting paid, so if your employer fires you and refuses to pay you what you understand to be due you, then use your Offer Letter and the Employee Handbook as your “contract” of employment. The employer must follow any terms in those documents. There are also labor laws in each state that require payment for overtime, limited hours of work for certain jobs and notice of your termination date and your health insurance termination dates and proper notice is required as to how to extend your health benefits (“COBRA”). Also, law specify that an employer must pay you at least every two weeks, so if your fired and the employer doesn’t send your last check to you on time an dholds it back-he violated labor laws and can be held liable to you for extra money you pay to recover your wages.

For instance, in New York the Labor Law mandates proper notice of employee termination and benefits termination. An employer failing to follow the Labor Laws is penalized under Labor Law 198, in addition to ordinary costs lost by the employee he must pay a reasonable sum for expenses which may be taxed as costs are allowed by the court. Furthermore, in any action instituted upon a wage claim by an employee which the employee prevails, the court is required to allow such employee reasonable attorneys’ fees, Labor Law 198(1-a), and upon finding that the employer’s failure to pay the wage specified by statute was willful, an additional amount as liquidated damages equal to twenty-five percent of the total amount of wages due is also paid to the employee. Labor Law 198(1-a). Case law holds an award of liquidated damages to employees proper where the employer knowingly, deliberately and voluntarily disregarded its obligation under the Labor Law to pay the employees’ commissions, which would be deemed “willful” failure to pay wages. P & L Group, Inc. v Garfinkel (1989, 2d Dept) 150 AD2d 663, 541 NYS2d 535.

So, don’t despair if your employer gives you a hard time when your fired–there are laws requiring him to pay your wages and your Employee Handbook and Offer of Employment Letter also can be used as valid contracts to support your position for wages.

This article is certainly not all inclusive and is intended only as a brief explanation of the legal issue presented. Not all cases are alike and it is strongly recommended that you consult an attorney if you have any questions with respect to any legal matters.

by: Susan Chana Lask, Esq.

Are you paying attention to employment law requirements? If you aren’t, you should be. Not only are you required to follow specific regulations concerning employment law, but you are also required to notify your employees of their employment law rights by placing an employment law poster in a conspicuous place in your business where your employees will be likely to see it, such as an employee break room. There are eight basic Federal employment laws that you should be aware of and understand.

The first of these is Title VII of the Civil Rights Act of 1964. This employment law prohibits discrimination on the basis of race, color, religion, national origin and sex. In addition, sex discrimination on the basis of pregnancy and sexual harassment is also prohibited under this employment law.

Next, there is the Civil Rights Act of 1966. This employment discrimination law prohibits based on race or ethnic origin.

The Equal Pay Act of 1963 prohibits employers from paying different wages to men and women that perform essentially the same work under similar working conditions.

Most employers have heard of the Americans with Disabilities Act, but do not understand how this employment law can impact them. This law prohibits discrimination against persons with disabilities.

The Immigration Reform and Control Act of 1986 prohibits discrimination on the basis of national origin or citizenship of persons who are authorized to work in the United States.

The Age Discrimination in Employment Act, also known as ADEA, prohibits discrimination against individuals who are age 40 or above.

The Equal Employment Opportunity Act prohibits discrimination against minorities based on poor credit ratings.

The Bankruptcy Act prohibits discrimination against anyone who has declared bankruptcy.

In addition to these employment laws, you are also subject to the following employment laws.

The Occupational Safety and Health Act provides specific regulations regarding the safety and health conditions of employers and employees in all 50 states as well as the District of Columbia, Puerto Rico and other U.S. territories

FMLA, the Family Medical Leave Act, allows employees to take unpaid leave from their jobs under specific conditions.

Under the Employee Polygraph Protection Act Labor Law, private employers are not allowed to use lie detector tests for either pre-employment screenings or during the course of employment.

FLSA, the Fair Labor Standards Act, provides for minimum wage and overtime pay standards as well as recordkeeping and child labor standards in private as well as public employment.

Beyond the major Federal employment laws, you will also need to make sure that you are in compliance with state employment law as well. Each state may provide for employment laws in addition to the federal employment laws mentioned above. For example, California employment law covers several areas such as unemployment labor law insurance, temporary services or leasing labor law and state disability labor law.

by: Matt Bacak

Every worker should know what rights he or she is entitled to as an employee. Individuals working in the United States are subject to a wide range of labor laws. It is a good idea to familiarize yourself with the basics of some common types of labor laws to ensure that you are being treated fairly as a worker.

While each state has its own individual labor laws, there are certain Federal mandates that affect all workers. For instance, the Family and Medical Leave Act gives all workers the right to take up to 12 weeks off of work without losing their jobs. Employees may use this time for their own illness, to take care of a family member, or as part of their maternity or paternity leave. It is important to note, however, that this provision does not require the employer to pay the employee during this time. The Act only ensures that the employee cannot be terminated from his or her position as a result of taking time off for medical or family reasons.

Another common type of labor law involves unemployment compensation. Unemployment benefits vary greatly from state to state, but all states require employers to provide some type of unemployment compensation in the event that they terminate an employee. There are various eligibility requirements, however, for the employee to receive these unemployment benefits. For example, the person often needs to have been working for the company where he or she was terminated for a certain length of time before the unemployed individual is eligible to collect compensation benefits. Moreover, the amount of compensation that the former employee receives will vary greatly depending on the amount earned during his or her time with the company.

For those who are looking for work, it is important to be familiar with equal employment opportunity laws. These labor laws make it illegal for an employer to discriminate against a job candidate on the basis of sex, religion, race, age, disability, pregnancy, or national origin. These laws also forbid sexual harassment in the workplace and have established guidelines for equal pay.

All workers in the United States should be familiar with labor laws in order to know their rights as employees.

The Fair Labor Standards Act has been amended numerous times since 1938 when it was first enacted and still provides protection and defines the law in reference to minimum wages, overtime pay, child labor and the record keeping required by all employers doing a volume of not less than $500,000 annually. There are, of course, exceptions to this rule. Hospitals and institutions that take care of the sick, aged, disabled and mentally ill with inpatient care are covered by this act. Schools, including all elementary and secondary schools and those catering to the mentally or physically disabled and to the gifted are also covered, as well as local, state and federal governmental agencies. The act also covers domestic service workers if they receive at least $1700 (this number changes every year) in cash wages from any single employer in a calendar year or if they work more than eight hours in any one week for one or more employers. Domestic service workers are full-time babysitters, nannies, housekeepers, cooks and chauffeurs.

There are a number of exemptions to both the minimum wage requirements and to the overtime pay requirements, based on your profession. Your local Wage and Hour Division office should be able to tell you if you are eligible for protection under this act.

The basic provisions, unless an employee is exempt, is that as of July 24, 2009, the minimum wage requirement is $7.25 an hour. Youth under the age of 20 may be paid less during the first 90 consecutive calendar days of employment discrimination, which is usually considered a trial or training period, and that amount cannot be less than $4.25 an hour. Employers also cannot just fire an older employee in order to hire a youth at the lower pay rate. Questions about this area of the law are available on the Wage and Hour Division Fact Sheet #32: Youth Minimum Wage-FLSA (Fair Labor Standards Act).

The laws regarding piece-work or tipped employees are pretty complicated and allow for paying less per hour as long as the remainder is earned in the way of commissions paid on piece-work or in the way of tips. Fact Sheet #15: Tipped Employees, under the FLSA can answer any questions or concerns you may have as either an employer or employee.

Also be aware that certain individuals can be employed at wages below the statutory minimum wage under certificates issued by the DOL (Department of Labor). Vocational student learners, full time students in service or retail establishments or working in the field of agriculture of in institutions of higher learning are also exempt from the act and are not protected under the minimum wage laws. This is also true of work being performed by the disabled, either physically or mentally, and even those who are disabled due to injury or age.

The following Fact Sheets are the most common under the FSLA:

• #1: The Construction Industry
• #2A: Employing Youth in Restaurants
• #3: Professional Offices
• #4: Security Guard/ Maintenance Service Industry
• #5: Real Estate and Rental Agencies
• #6: The Retail Industry
• #7: State and Local Governments
• #8: Police and Firefighters
• #9: Manufacturing Establishments
• #10 Wholesale and Warehouse Industries
• #11: Automobile Dealers
• #12: Agricultural Employers
• #16: Deductions from Wages for Uniforms and Other Facilities
• #21: Recordkeeping Requirements
• #23: Overtime Pay Requirements
• #24: Homeworkers
• #25: The Home Health Care Industry
• #27: New Businesses
• #28: The Family and Medical Leave Act of 1993
• #31: Nursing Care Facilities
• #33: Residential Care Facilities (Group Homes)
• #35: Joint Employment and Independent Contractors Under the Migrant and Seasonal Agricultural
• #39: The Employment of Workers with Disabilities at Special Minimum Wages
• #45: Hotel and Motel Establishments
• #46: Daycare Centers and Preschools
• #58: Cooking and Baking
• #61: Day Laborers
• #64: Call Centers
• #66: The Davis Bacon and Related Acts (DBRA)
• #71: Internship Programs

As you can see, the FSLA can be complicated, at best, though the Wage and Hour Division (WHD) does a much better job of explaining and teaching than do some governmental agencies. Kudos to them for making a hard subject easier to understand!

New Massachusetts Independent Contractor Rules

Employers need to be aware that the state of Massachusetts recently increased the penalties for those who misclassify employees as independent contractors.

Somers v. Converged Access explains that, the Massachusetts Supreme Judicial Court rules that the independent contractor law is a strict liability statute. This means that the employer’s intent in misclassifying a worker is irrelevant. Therefore, if the worker had been correctly classified as an employee, he was entitled to compensation for wages, overtime and benefits that he would have received. Besides, the employee was permitted to keep the $65 per hour that the company paid him as an independent contractor.

The employee could get paid from the Massachusetts company for benefits including vacation and holiday pay. In addition, the company was ordered to pay the employee overtime at a rate of 1.5 times the worker’s 65% per hour wage.

The Massachusetts defines more strictly the independent contractor than federal independent contractor regulations. He is free of any control and direction in connection with work performance, both in fact and under the contract. He performs a service outside the usual course of business of the employer. He is customarily engaged in an independently established trade, occupation or business. If the worker does not meet all these conditions, he or she is not an independent contractor but an employee.

By: Cecilia

California Labor Laws: Asserting Your Employee Rights

Many employees when experiencing a labor violation are confused as to where to turn and typically take one of four paths.

1. A very common path and usually the most treacherous, is doing nothing at all. When an employee is hesitant to hire California overtime lawyers or California labor law attorneys to handle a situation, it usually gets worse before it gets better. Complacency will typically cause labor violations to become more frequent. California labor law attorneys have found that “where there is smoke there is fire” and when one violation is discovered, many others are found.

2. The next course of action frequently taken by employees experiencing a California labor law violation is attempting to handle the problem “through the Employer’s channels or procedures”. This course of action has risks of its own and one of the biggest dangers in filing a formal Employer complaint “though the proper channels” is the risk of retaliation. Employees do not realize that by filing an official complaint they place their employers on guard and exposed to liability if the employer retaliates. Once a complaint is filed for a labor violation, if the employer then retaliates and demotes, harasses, suspends or fires the employee, that employer exposes themselves to additional liability.

3. Another option an employee may exercise is going to the labor board. The California Labor Board does however have limitations, in that they will not purse the 4th years (Unfair Business Practice Claim) as a private attorney would and therefore they may shorten the amount of their claim. Furthermore, the California Labor Board handles very small claims and may not always pursue the employee’s claims as vigorously as California overtime lawyers might. The California Labor Law Board also has a serious limitation in that if either party prevails, the other party has the option to appeal and have the case start all over. Once this occurs, and employee will need to find a California labor law attorney to represent them and also faces the risk that if they lose this appeal the loser must pay the winning parties attorney fees and court costs. On the other hand, if an employee hires California overtime lawyers to handle the claim from the outset and prevails on any part of the claim, the Employer must pay the Employe1000e’s attorney fees. This is a huge advantage. As you can see the California Labor Board has severe limitations and is designed for smaller disputes where the employee does not mind some uncertainty of outcome. While the California Labor Board is free of charge- sometimes you get what you pay for!

4. California overtime lawyers and California labor law attorneys may be the best option when it comes to the enforcement of California labor laws. When an employee hires an attorney who is experienced in California overtime laws, the outcome may be better than testing the waters at the California Labor Board and surely much better than doing nothing at all. Case law and statutes are constantly evolving and knowledgeable California overtime lawyers or California labor law attorneys can in many instances pinpoint the applicable laws and cases that could bring an employee to victory. Even better, if your attorney wins, your employer must pay his or her legal fees!

In closing, an employee has several choices. Hiring a qualified professional to protect your interests is imperative if you want good results. Interview several California labor law attorneys and find out who you feel most comfortable with.

By: mansi gupta