California Labor Law Attorney

Archive for the ‘General’ Category

The California Labor Law  covers a wide range of topics and statutes that aim to protect the welfare of the employees without displeasing the various rights and privileges of the businesses. These law provisions intend to make a balance between the labor and the business sectors. However, because of the many discriminative acts done by some employers, this balance has yet to be achieved.

One of the discriminative performances of employers that have been causing disputes in the workplaces involves racial prejudice. Although the prevailing labor laws forbid pointing out employees just because they belong to a different race, many companies still make it difficult for some individuals to be treated fairly in various aspects of employment. These include:

• hiring process
• task assignment and workloads
• salaries
• use of company facilities and equipment
• benefits
• promotions
• seminars and skills training
• dispute resolution
• employment termination

Types of Workplace Discrimination

There are two possible ways an employee may be discriminated in his job. These are:

• Disparate Treatment – this pertains to the simple acts of discrimination done by employers. It involves unfair treatment to the employees who belong to different law protected classes such as race, gender, religion, nationality and even age. Usually, this happens when an employer or a fellow worker uses insults or offensive comments or acts, directly or indirectly, to humiliate an employee creating him a hostile work environment that may also affect his job performance.

• Disparate Impact – this pertains to the implementation of company rules and policies, which exclude particular classes regarding job applications, promotions and wage increases. For an instance, a company has implemented a rule limiting a writer position to white Americans. They may be liable for an offense since an individual’s color or race may not considered as an important factor as regards to his ability and skills in writing.

Legal Remedies

The Racial Discrimination Laws guarantees protection to those employees who may have been unlawfully harassed or discharged from their work due to their race distinct from the majority. If they were able to prove a discriminative act of their employers, they will be entitled of the following reimbursements and damages:

• payment for their past and future loss of wages and other benefits
• general damages that may include pain and suffering, emotional anguish and loss of enjoyment
• punitive damages as may be determined by the court
• reimbursement for their attorney’s service fees

Discriminated employees indeed have all the rights given to them by the law. Yet, due to the probable limitations of their knowledge about their rights, it is necessary for them to appoint an experienced labor attorney to handle their cases. This will certainly increase their possibility of obtaining justice and acquiring damages from their misbehaved employers.

by Rainier Policarpio

A California Labor Law Attorney: Just What You Need In Times Of Trouble!

In a time where California labor law is constantly changing and employers are playing it “fast and loose” in order to make ends meet, a California labor law attorney may be just what the doctor ordered to explain the complex California overtime laws.

With a weakening economy, and jobs being shipped overseas, it is not uncommon to see rampant abuse of the California overtime laws. Employers routinely offer comp time instead of overtime – that is allowing an employee to stay late, pay no overtime, but come in late the following day as compensation. This practice directly violates California overtime laws unbeknownst to many employees. Another method is for employers to only pay overtime when an employee works over 40 hours in a week, but not when the employee works over 8 hours in a day. Again, a common practice, but nevertheless, illegal under California overtime laws.

Another form of abuse when it comes to violation of the California labor law is when the employer forces employees to work “off the clock”. This means that after punching out or even before punching in to start the work day, an employee works without any record of payment. Clearly, this practice violates the California labor law as well as California overtime laws. Many employers if left unchecked continue this practice until they are brought to justice either by a claim through the California Labor Board or a private action brought by a California labor law attorney.

Another area of abuse when it comes to California overtime laws is when an employer fails to permit their employees to take a 30 minute uninterrupted lunch after 5 hours of work. This violation of the California labor law has been a hot topic and a recent case has now viewed this violation as a wage violation and not a penalty. This distinction is important since wages in California can be claimed going as far back as 4 years while penalties can only be claimed for one year.

A final area of violation of California overtime laws is the misclassification of employees. This has been an area in which employees suffer the greatest abuse. Under this violation of California labor law, employees who are truly entitled to overtime pay based upon the duties they actually perform are mis1000classified as exempt from overtime pay. Exempt employees are typically salaried and not paid hourly. Employers traditionally “label” such employees as supervisors or managers, yet in many cases they perform many of the same or similar duties as the rank and file employees or their own subordinates. If a violation of this type of California labor law occurs it can be an expensive lesson for an employer. Employees typically will be entitled to up to four years of back overtime, interest, penalties and their attorney’s fees if they prevail. California overtime laws are meant to be upheld and some employers have learned the hard way.

Many California labor law attorneys who work to enforce the California overtime laws work on a contingency basis. In other words, there is typically no fee up front and the California labor law attorneys only get paid if and when they prevail on the case. This method of payment removes the obstacles from abused employees claiming what is due to them under the many California overtime laws.

In closing, employees should arm themselves with knowledge of California labor law both in straight forward situations that are not particularly complicated as well as complex situations. Employees should consider consulting with a California labor law attorney for legal advice when necessary.

By: mansi gupta

One of the most common and often expensive mistakes an employer can make is to misclassify their employees as being exempt from overtime, if they are, in fact, non exempt employees by law. Exempt employees are often referred to as salaried employees and in very basic terms it means that the employee is therefore is not eligible for overtime. California labor law addresses what criteria are necessary in order to classify employees properly. This law relates specifically to the California administrative exemption, the California professional exemption, the California executive exemption, and the California outside sales exemption. “California” is stressed because the federal labor laws are slightly different than those of the state of California. As an employer or employee it is wise to educate yourself on your state’s employment laws or the consequences could be costly.

It’s also important to note that in California, whenever a labor law dispute is brought to court, the burden of proof is on the employer. This means it is the employer’s responsibility to prove that they are not guilty of the violations they are accused of committing. Lastly, and most importantly, for the most part, the actual job duties that an employee performs determine whether or not they are exempt, not the job title given to them.

The California administrative exemption statute states that in order for an employee to be classified as exempt the employee must perform office work or non manual work that is directly related to policy shaping or business operations. This means that the employee must have the power to issue and enforce company policy. It does not necessarily apply to workers that are allowed to exercise discretion in their daily job function, within the parameters or guidelines of existing company policy. This can be confusing, but a very generic example of California administrative exemption may be helpful. A non exempt employee does not have the authority to create new rules that other company employees must follow, but an exempt employee would have this authority.

The California professional exemption most commonly refers to professional occupations that require a California state license, such as dentistry, engineering, optometry, law, medicine, architecture, teaching, or accounting. However, nurses and pharmacists are1000rarely included as exempt under the California professional exemption law. The most common mistake among employers is to misclassify employees that have not yet received their licensing from the state.

The most frequently used defense by employers is that their employee can be classified exempt under the California executive exemption. Although, it is actually the hardest exemption to qualify for because it requires that the employee perform ALL of a long list of criteria named in the labor law, not just some. To be more specific, the California executive exemption requires that the exempt employee have the ability to hire or fire other employees or at least have a highly valued opinion in this matter. It also requires that the employee directly manages the work of two or more employees or the equivalent of 80 hours a week. This exempt employee must be in charge of the entire department or unit they are managing and regularly exercise discretion and independent judgment on the job. This employee must also be paid a salary of twice the California minimum wage.

The California outside sales exemption differs slightly from federal law in that California does not regard “exempt work” duties incidental to the employee’s sales or solicitations, including incidental deliveries and collections. This difference in law is significant for route salespeople and others who perform many other functions in an average day, such as delivery, repair, and maintenance. California outside sales exemption applies to an adult worker that spends over half his or her time away from the employer’s place of business selling or taking orders for an actual product or service. The final area that is different about the California outside sales exemption from the other California exemption laws is that is does not require that the salary be “twice the minimum wage amount”. Often times these jobs have opportunity for commissions or bonuses.

With such specific regulations to comply with, it is extremely important that as an employer or as an employee you are well aware of how to classify yourself or others. Under California law, the employee has up to four years to file a lawsuit to claim any wages that were not paid as a result of being misclassified as exempt from overtime. Additionally, if the court finds that the employer knowingly and intentionally misclassified the employee, the financial ramifications can be exceedingly detrimental. As an employee if you suspect you have been misclassified, you may want to contact the California Labor Board Laws or a California labor law attorney to help you claim the money that is owed to you.

By: mansi gupta

Being an employer is a daunting task. Hundreds of employment regulations, insurance guidelines, Senate bills and Federal Acts (such as FMLA, FLSA, HIPAA, TEFRA and FEHA, to name a few) distract business owners from focusing on their core operations and profitability. In particular, California employers need to be aware that California Labor Law differs from federal law in significant ways that can make life even more difficult, if not downright treacherous, for businesses with limited human resources expertise.

Although the Fair Labor Standards Act sets a minimum standard of protection for employees working in the USA, individual states are permitted to extend the Act to provide a higher degree of protection to employees in that state. California has taken full advantage of that facility, and there are many aspects of this act that California has applied more liberally than practically any other state.

Take overtime law for example. California law requires an employer to pay an employee overtime after 8 hours work in one day at 1.5 times the normal rate, and after 12 hours work in any one day at twice the standard rate. However, this does not apply to ‘exempt’ employees, such as those involved in managerial or intellectual work. Federal law only requires time and a half to be paid for any time worked over 40 hours in a week.

The California Fair Employment and Housing Act (FEHA) differs profoundly from the federal law, particularly in employment discrimination law where it is much wider reaching and more rigorous than federal law. A case in point occurred recently, where an employee of a prestigious California hotel filed a discrimination lawsuit against his employer on the basis of sex, and also for retaliation, in violation of the FEHA.

The act forbids discrimination against an employee on the basis of sex, race, color, age, religion and other grounds, and illegalizes retaliation by the employer against an employee carrying out a ‘protected’ activity such as filing a charge of discrimination. There are a number of defined protected activities, and this act is likely beyond the capability of the average human resources department of most companies to handle. This is the sort of case best passed on to a human resources (HR) consulting firm.

The case, Jones v. The Lodge at Torrey Pines Partnership, had originally been heard in front of a jury, and debated whether or not an individual could be held personally responsible for proceedings relating to retaliation against an employee. The jury decided for the plaintiff and awarded compensation against the Lodge and the supervisor accused of the retaliation. However, their verdict was overruled by the judge who stated that there was insufficient evidence to prove the case against the supervisor that an adverse reaction had been carried out for reasons of discrimination or retaliation for the sexual orientation of the plaintiff.

The judge stated that individuals (the supervisor) cannot be held liable for retaliation in the same way that they can be for harassment. The case went to the Court of Appeal, which disagreed with the judge, and stated that individuals can be held responsible for retaliation. The case ultimately reached the California Supreme Court which disagreed, stating that the individual cannot be held responsible..

What chance does company human resource personnel have in correctly interpreting law if even the law courts disagree? It is next to impossible for a company in California to apply company policy when the law itself is so difficult to interpret that judges, Courts of Appeal, and the Supreme Court disagree. The labor laws of California are too difficult to understand for a company to rely on non-specialized personnel to manage their labor relations policies. The consequences of getting it wrong could be catastrophic. Many employers are feeling frustrated with this lack of clarity and constant risk of violating the law, and are turning to experts in the Human Resources Outsourcing industry for help.

While many businesses employ highly educated staff, most do not have the experience to understand the finer points of law. It is not just the understanding that matters here, it is knowing the right course of action to take in such circumstances. Perhaps things could have been done differently in the Jones v. The Lodge case to prevent it from reaching court, or perhaps the supervisor could have been better trained by the company.

Whatever the answer, you are more likely to come to the right solution with the help of professionals who manage these complex issues on a daily basis. California labor law is sufficiently complex for your company to turn to the professionalism and expertise of a Human Resources Outsourcing firm to keep you out of trouble. HR outsourcing is not as expensive as you might believe, especially when you consider the alternative.

By: Ari Rosenstein

Undocumented Worker Legislation – A New Reality For California Employers

When Michael Young* received a “No Match Social Security” letter from the Social Security Administration, he discounted it, as he had always done in the past. As the owner of Growing Expectations*, a small landscape design company in Southern California, he was too busy hiring employees, processing payroll and managing his insurance obligations. “I receive letters like this [from the SSA] all the time. I just don’t have the time to verify the information they need. So, I usually just disregard them.” While this attitude may have sufficed in the past, times have changed.

GROWING CALIFORNIA RISKS

With the firestorm still raging in Congress over the status of illegal immigrant workers, several new regulations have been passed by the Bush Administration to crack down against employers who violate newly enforced laws. As of September 14, 2007, The Department of Homeland Security began increasing enforcement efforts and levying larger fines against employers who employ undocumented workers. The DHS is enforcing its new guidelines for employers who receive “No Match” letters from the Social Security Administration. A No Match letter is issued when tax documents submitted for an employee do not match the information on file at the SSA. In the new guidelines, the DHS states that improper handling of No-Match letters may indicate knowledge by an employer that a worker is illegal, and may lead to civil or criminal enforcement action.

In early July, the Bush administration announced that employers who knowingly employ undocumented workers may be eligible for fines up to $12,500 and a felony prosecution. On the state level, the number of laws against illegal immigrants has more than doubled since 2006, to over 170.

These new guidelines present employers in California with an even greater challenge than employers in the rest of the nation. Consider the following statistics:

o California has the largest unauthorized population of any state—almost 2.5 million, almost a quarter of the nation’s unauthorized immigrant population.

o The percentage of undocumented workers was almost twice as high in California (6.9 percent) as in the rest of the United States (3.6 percent).
o There are about 1 million unauthorized immigrants in the Los Angeles metropolitan area, almost double the number of any other metro area. In 2004, about two-fifths (41 percent) of California’s unauthorized immigrants resided in Los Angeles.

o Almost all unauthorized immigrant men work. The employment rates are substantially higher for undocumented male employees than for legal immigrant or U.S.-born men.

o In California, 94 percent of unauthorized men age 18–64 were in the labor force in 2004, versus 84 percent of legal immigrants and 82 percent of native-born men.

(Source: “The Characteristics of Unauthorized Immigrants in California, Los Angeles County, and the United States”. By: Randolph Capps, Karina Fortuny)

It is clear that the new laws will have a greater impact on California employers than on employers in any other state.

HR OUTSOURCING – A HOPE FOR CALIFORNIA EMPLOYERS

The average small to mid-sized California employer faces the greatest risks posed by the new regulations. While large corporations typically have the infrastructure in place to address No Match letters and make the proper employment decisions, small employers are less equipped to tackle these newfound liabilities. The risk of non-compliance is substantially greater for them than with their larger counterparts.

Over the past decade, a visible trend has been emerging in the small and mid-market business sector in the area of Human Resources Outsourcing. Small employers recognize their limitations when it comes to compliance in the areas of employment liabilities and human resource policies, and the new undocumented worker laws will continue to help this trend gain momentum.

In an HR Outsourcing relationship, the employer engages the services of a professional firm and hands over many aspects relating to the management of their employment responsibilities. These areas can include:

• Labor law compliance
• Employment administration
• Management training and development
• Employee health benefits
• Risk Management
• Insurance services
• Recruiting
• Payroll and Tax services.

In some instances, only specific, select functions are outsourced. In other situations, organizations see the value in outsourcing the entire human resource package and entrust the HR Outsourcing firm with all the functions.

CPEhr – A CALIFORNIA COMPLIANCE EXPERT

One such firm is CPEhr, one of California’s oldest and largest independently owned HR Outsourcing and Professional Employer Organization (PEO) companies. Founded in 1982, CPEhr has over 25 years of experience assisting California-based employers in human resource and labor law compliance. In response to the new undocumented worker regulations, CPEhr has begun offering customized services to help small employers comply with the new laws and avoid non-compliance penalties.

With years of experience dealing with the SSA and the Immigration and Naturalization Service (INS), CPEhr creates and implements aggressive I9 and employment verification policies, responds to No Match Letters and corresponds with the SSA and INS on its clients’ behalf.

Peter Escalante, a Human Resources Consultant with CPEhr, summarizes CPEhr’s compliance process. “First, we check all employee files for valid I9s and confirm they are stored in a separate folder, away from their personnel file,” explains Escalante. “Then, if a client gets a notice from the SSA, they forward them to CPEhr. We check the letter against their information on file, and if the information is incomplete, we request completed documentation. If they didn’t have them we would have recommend terminating the employee if they could not provide the proper documentation in a timely manner.”

CPEhr recommends that all employers have an undocumented employee policy included in their Employee Handbook. In it, the employee acknowledges that if their Soc 1000 ial Security Number is challenged by the SSA, they have 30 days to produce valid documentation, or be fired. This type of involvement by the employer is extremely valuable, says Escalante, when faced with an investigation or fine by a governmental agency.

“If an agency finds the employer to be proactive in any regard, they will be more forgiving and typically reduce the severity of the penalty,” he notes. “The government realizes employees have rights and employers can’t just fire them. They are understanding of employers who have policies in place and show an effort to cooperate.”

Only time will tell precisely how the new legislation and its enforcement will impact the California business climate. However, in the interim, employers must take a proactive role in addressing the new responsibilities. While the process may be complex, it is their good fortune that HR Outsourcing firms such as CPEhr are here to help them through it.

The State of California And Overtime Rules 
 
California is a state in which employers are required to pay employees overtime pay. There are several general overtime rules in California. Employees must not work more than eight hours in one day or more than forty hours in a single week. If an employee works overtime (more than eight hours in a day or forty hours in a week) the employer is obliged to pay that employee overtime pay. The rate of overtime pay in California is one and a half times the employee’s hourly pay. 
 
Long Work Days 
 
According to the overtime rules in California, employers are allowed to let their employees work more than eight hours in a day, provided that they pay overtime pay at a rate of one and a half times the normal hourly rate of pay for every hour over eight hours worked. Employees may work up to twelve hours in a day at time and a half pay. If an employee works more than twelve hours in a day, the rate of pay then jumps to twice the normal hourly rate of pay for every hour over twelve hours worked. 
 
Salaried Employees And Overtime Pay 
 
Salaried employees are entitled to overtime pay in accordance with overtime rules in California. The same rule applies to salaried employees as does to hourly employees. The only difference in the rule is how the overtime rate is calculated. A salaried employee’s monthly salary is multiplied by twelve, then divided by fifty two to get the weekly salary amount. That amount is then divided by forty(the number of hours worked in a work week before overtime is paid)to determine the hourly rate. The overtime pay rate can then be established. It should be noted that there are a number of jobs that qualify as exemptions to the California overtime rules which means that those employees may not be paid overtime. Check with your human resources department to see which jobs in your company are exemptions. If you think you should have been paid overtime pay and were not, you may have to file a wage claim against your employer to receive the pay you deserve. Finding an experienced California labor law attorney to assist you will ensure that your claim is filed correctly. 
 
Filing A Wage Claim To Get The Overtime Pay You Are Due 

  It may become necessary for you to file a wage claim if your employer refuses to pay you for overtime that you legitimately worked. If this is the case, you should immediately contact a California labor law attorney. An attorney will make sure that your rights are protected and that you get the overtime pay that you deserve.. Your attorney will also be sure that your wage claim is filed accurately and completely to avoid any delay in receiving the compensation you deserve. If you have any questions or concerns about California overtime rules and overtime pay, don’t hesitate to contact a professional California labor law attorney today. 
 

With a downturn in the economy, many employers are cutting back on payroll. Unfortunately, some employers are reducing payroll costs by violating the California overtime laws. When this occurs, employees have essentially two options to recover their California overtime pay: the California labor board, or hiring California family law attorneys.

Although the California Labor Board is a commonly known option that is a free service to the public, as you will see, in some cases “you get what you pay for.” There are some little known facts about the services provided by the California labor board that will be explained in this article.

• The California labor board, unlike California labor law attorneys, typically handles cases below $7500.

• The California labor board does not attempt to recover the 4th year of California overtime pay under the California Unfair Competition Statute. California labor law attorneys seek to recover up to 4 years of California overtime pay for their clients.

• Certain penalties are not pursued by the California labor board. California labor law attorneys may pursue all penalties under California overtime laws.

• Attorney fees employees incur are not recoverable by the California labor board pursuant to California overtime laws.

• Your employer may appeal any award by the California labor board pursuant to California overtime laws. If this happens you may need to hire California labor law attorneys to assist you. Also under California overtime laws on appeal, the prevailing party may be awarded attorney fees. An important point here is that if you handle your case through California labor law attorneys from the outset, if you prevail your employer may have to pay your attorney fees and costs.

Outlined below are the steps for requesting an employee matter ruling from the California Labor Board:

1) Typically the employee will file a complaint at the California Department of Labor with the California Labor Board and the employer will be notified via mail of the complaint, pursuant to California overtime laws.

2) A non-binding mediation is then scheduled by the California Department of labor at the Californi 1000 a Labor Board and the employer is made aware of the specific claim made by the employee and the amount of monies that are being claimed. The California Labor Department may also add statutory penalties and or interest to this amount on behalf of the employee.

3) If the matter does not settle at this mediation, a formal hearing is set at the California Department of Labor, California labor board, and the employee and employer may have legal counsel present to represent them. The California state department of labor will have an administrative judge conduct the hearing and both sides will have a chance to present their side, any evidence and any witnesses.

4) Upon hearing the matter, the California Department of Labor, California labor board laws will issue a ruling. The California department labor rules provide that all parties may be represented by counsel at the Superior Court hearing and the case is conducted as a civil trial.

If you are faced with a violation of California overtime laws by your employer, it is important to consider both your options on how to best pursue your overtime claim. Hopefully the summaries provided above have equipped you with some basic, yet little known information, about the differences between using the free service provided by the California Labor Board or retaining experienced California labor law attorneys to handle your legal matter.

By: mansi gupta