California Labor Law News
Golf Course Company Facing California Labor Lawsuit
Morton Golf - a co-defendant named in the lawsuit - provides management services for the city's four golf courses. At the heart of the lawsuit is the golf course known as Bing Maloney and the manager assigned to that course by Morton Golf, Andrew Wilson.
Wilson, identified as a former Marine and also named in the suit, has been accused of sexual harassment together with various other violations of California labor employment law, including affronts to regulations that govern meal breaks and payment of overtime.
The plaintiffs allege their meal and rest breaks - legislated by California and labor law??"were denied them. It is also alleged that employees working at the Bing Maloney course were instructed to clock out after eight hours, in spite of having additional work to perform, on some days, after they had punched out.
As for the sexual harassment allegations, one of the four plaintiffs described the work environment at the California golf course as "incredibly hostile." Allegations against Morton Golf and Wilson include lewd and inappropriate comments, and sexual touching. Two of the plaintiffs are female, while two are male. One of the male plaintiffs was dating a female plaintiff at the time, and was thus caught up in what was described in the lawsuit as sexual harassment on a daily basis.
The other male plaintiff alleged violations to California state labor laws.
Three of the plaintiffs no longer work for Morton Golf, while a fourth has moved from Bing Maloney to the pro shop at Bartley Cavanaugh, another of Sacramento's four golf courses. It is not clear if the plaintiff is still employed directly by Morton Golf, even though she is working at a city course managed by one of the two defendants. Pro shops often have different management and ownership structures.
The California employee labor lawsuit comes at a particularly sensitive time for Sacramento City governance. In May, Sacramento City Council voted to increase the city's stake in the management services of Morton Golf on the city's behalf, by contracting out course maintenance services to Morton as well. The move, as reported by The Bee, would save the City of Sacramento $500,000 per year - but would also result in the layoff of 38 unionized employees.
Summertime and Many Unpaid Interns Misclassified, according to the California Labor Law
Contrary to what some employers believe, an internship does not mean free labor; many people are exploited and misclassified, and therefore owed wages and possibly overtime pay.
Brittany wants to become a dog groomer. She couldn't afford to attend school so she searched Craigslist and accepted on-the-job training at a "doggie daycare" with a promise that she would learn the trade within a few months. Instead, she spends most of the day "cleaning up the premises, feeding the dogs and getting coffee for the owner." According to California labor law, if you are an unpaid intern, no work can be performed that is of any benefit at all to the company.
In other words, Brittany should only be grooming dogs. No coffee runs, no mopping the floor. Brittany must be paid at least minimum wage, California overtime (any time over 8 hours in a day and 40 in a week) as well as meal and rest breaks if her employer hasn't met the Department of Labor's (DOL's) six criteria, as follows:
• The training, even though it includes actual operation of the employer's facilities, is similar to that which would be given in a vocational school.
• The training is for the benefit of the trainees or students.
• The trainees or students do not displace regular employees, but work under their close observation.
• The employer derives no immediate advantage from the activities of the trainees or students, and, on occasion, the employer's operations actually may be impeded.
• The trainees or students are not necessarily entitled to a job at the conclusion of the training period.
• The employer and the trainees or students understand that the latter are not entitled to wages for the time spent in training.
Clearly, Brittany's employer is deriving "immediate advantage from the activities of the trainee(s)." In the US, internships are illegal in the "for profit" sector if the intern isn't there strictly to learn. Recently, an Oregon jury awarded two men who installed solar panels for their "internship" $3,350 each in pay, determining they were actually working rather than learning. And California isn't far behind: California labor law officials are now issuing warnings to companies with internship programs.
According to a 2008 survey by the National Association of Colleges and Employers, 50 percent of graduating students had participated in internships. And in 2010, Stanford University's job board had 643 unpaid internships posted by employers, which was more than triple that of two years ago. In 1992, however, a Northwestern University study reported 17 percent had interned. Possibly because of the recession??"employers are trying to keep costs down and jobs are scarce??"unpaid internships would appear to be on the upswing.
Unfortunately, many unpaid interns are not reporting this abuse; they are afraid of retaliation and possibly not getting the job they are promised. But retaliation is also a violation of the California labor code??"ask an experienced California labor law attorney.
Little-Known California Labor Law in Good Standing with Employees
California labor code is said to be one of the most stringent in the US, governing everything from overtime computation to meal and rest breaks. It's the latter that retail employees, or those who spend an inordinate part of their day on their feet, come to rely on for relief from standing.
However, according to a recent report by the Associated Press (AP) that was carried earlier this month in the Washington Post, many retailers in the state of California - including such national chains as Wal-Mart, Home Depot and Target - are facing lawsuits alleging that plaintiffs are not afforded "suitable seating" for relief from standing.
According to the AP report, the obscure statute is known as the private attorney general provision and lurks in California labor employment law. Long since accustomed to standing for hours at a time, plaintiffs are now demanding the means by which to take a load off while they're at their workstation.
According to AP, a couple of recent appellate decisions have allowed for workers and their legal advisers to employ the private attorney general provision - which apparently opens the door for a complaint to management about lack of proper seating, according to provisions in California and labor law.
Observers have noted that major retailers could be facing millions of dollars in damages. A first violation reportedly carries a fine equaling $100 per employee per pay period. The penalty is said to be doubled for any subsequent violation.
Employees who work as checkout consultants in supermarkets have sometimes required special footwear due to the need to constantly stand while at their workstation. Others have experienced back problems due to the inability to take a load off their feet outside of designated break periods.
The private attorney general provision in California state labor laws apparently provides plaintiffs with a framework to try and effect change.
"Wrongful Termination Claims May Lead to Viable Wage and Hour Claims," Says California Labor Law Attorney
If you have been terminated from your job or if your relationship with your employer is rocky, you may feel wronged and consult with an attorney. Emma actively litigates such cases but also investigates other issues such as wage and hour violations and independent contractor misclassification.
"It is important to consult with an attorney because the law isn't always black and white, and for every rule, there is an exception, says Emma. "Terminations are emotional and almost always seem unfair. However, we can often achieve better results for our clients by also asserting wage and hour violations along with wrongful termination claims."
Many people aren't aware of the kinds of claims they may have and there are a lot of "labor law myths." For example, you may be under the impression that your employer cannot terminate you without cause or without a written explanation. This is not true. In California and most other states, workers do not have a right to continued employment. Employees may be terminated at any time and for any reason or no reason??"so long as the reason is not an illegal one (e.g., based on race, gender, religion, etc.).
"When someone calls in with a potential wrongful termination claim, we investigate the termination and also look into other issues, such as independent contractor misclassification," says Emma. "On the surface, the worker may not appear to be an employee??"she receives an IRS Form 1099, she has entered into an 'independent contractor agreement,' and she pays for her own business expenses. However, she may not fully appreciate the implications of the employer 'classifying' her as an independent contractor instead of an employee." If she is misclassified, she may be owed a lot of money for wage and hour violations such as unpaid overtime, missed meal and rest breaks, and reimbursement of business expenses.
"In California and many other states, it is presumed that workers are employees and not independent contractors," says Emma. "The burden is on the employer to demonstrate that the worker is properly classified as an independent contractor." Ultimately, independent contractor misclassification comes down to one thing??"the degree to which the employer "controls" the employee. The greater the control, the more likely the worker is an employee. "Once a worker demonstrates that she has been improperly classified as an independent contractor, a whole host of labor laws and employee protections are implicated," says Emma.
Perhaps you were hired (and fired) as an independent contractor and haven't been paid overtime. If your employer maintained tight control over you, an experienced employment attorney might determine that you are not really independent. Perhaps you have been missing breaks or working through lunch…
Some employers classify a significant portion of their workforce as independent contractors to reduce overhead and provide greater flexibility. "When independent contractors work alongside employees and do the same work that employee workers do, that raises a red flag," says Emma. "There are many other factors to consider, such as whether the employer provides training and whether the position is temporary or ongoing." It is therefore wise to consult with a lawyer if you think you may be misclassified.
Independent contractor misclassification persists in all industries and courts have found the following workers to be employees: taxi cab drivers, truck drivers, agriculture workers, exotic dancers, cable installers and service industry workers, among many other types of workers. Ultimately, the determination is individualized and rests on the facts of the case.
"Workers who come into our office are frequently unsatisfied with their wages," adds Emma. "In many cases, they have a document stating they are an independent contractor." By classifying its workers as an independent contractor, the employer avoids minimum wage and overtime requirements, the meal and rest break requirements, prompt payment of wages, and various penalties for violating these laws. "One of the chief complaints from individuals classified as independent contractors is that they are not paid promptly for work performed."
How can independent contractors determine whether they have enough damages to justify going forward with a lawsuit? Do they need to find co-workers with similar issues to form a class action? (Incidentally, Emma says the independent contractor misclassification is the type of case that could make a class action.)
"Don't worry about evaluating your damages or trying to assemble a group of co-workers or witnesses," Emma explains. "The first step is to meet with an experienced employment attorney to discuss your individual situation." In some cases, individual damages are not that great; in other cases they can be substantial. "Your lawyer will help you value your case and determine if it should be filed as a class action." Most lawyers provide a free initial consultation.
Leonard Emma is an employment attorney with The Law Office of Randall Crane in Oakland, California. .
Fees Charged to Background Actors Said to Contravene California Labor Law
The Los Angeles Times revealed on May 19 that a prominent casting enterprise - Central Casting of Burbank - was issued a cease-and-desist order by the Attorney General's Office of the City of Los Angeles in concert with the California state labor commissioner.
A California labor code investigation, launched after some background actors (known popularly as "extras") complained, found that Central Casting had been charging $25 for what was identified as a fee tied to photographic and/or electronic images. The fee, presumably, was to recover the cost of processing in order to produce images necessary to promote a prospective background actor for potential employment.
However, the LA Times notes that according to authorities such a fee is in violation of California labor law, which prohibits any talent services enterprise from charging up-front fees for such things as the processing of images (photographic or electronic) in exchange for finding employment for a prospective "extra."
The Krekorian Talent Scam Prevention Act has been in force since January of last year. Through the Act, criminal charges have been filed against a handful of talent services alleging breaches of California state labor laws.
Labor Commissioner for the state of California Julie Su noted that her office was committed to enforcing California labor employment law in the state, regardless of sector. "This includes ensuring actors are not required to pay a fee which the labor law prohibits," Su said in a statement.
The director, Background Actors Department, of the Screen Actor's Guild, echoed her words. "We're very pleased the city attorney and state labor commissioner have taken this action, and we support them wholly in this effort," said Terri Becherer, in comments published May 19 in the Los Angeles Times.
Central Casting was not the only company targeted. Communiqués noting the violation and the California labor employment law statute to which the violation applies were forwarded to 13 other casting enterprises in Los Angeles. Other entities have been known to charge anywhere from $15 to $80 to background actors for services not within their purview to charge, under California labor law.
Contractor Fined for Violations of California Labor Law
The release states that the violations by TL Pavlich led to a flash fire that caused a welder to suffer severe burns on a public works project last December. Cal/OSHA determined that the violations were serious enough that they posed an immediate danger to workers and, as a result, halted all work until the hazard was properly dealt with.
The agency also said that the contractor continued to send workers into portions of a steel water pipe despite the fact that he had been told to correct the hazard and notify Cal/OSHA before conducting more work on the project.
"We cannot and will not tolerate bad actors who intentionally sacrifice the safety of their workers," said Department of Industrial Relations (DIR) Acting Director Christine Baker. "Employees should never be placed in a work environment that is a known hazard."
The contractor was reportedly performing the work in the city of Montebello, which has a population of more than 62,000.
Federal Initiative Augments California Labor Law
Judy Chu, Representative for the State of California, applauded the olive branch.
"Today's decision by the US Department of Labor is a bold step in addressing our nation's immigration challenge as it relates to unscrupulous employers illegally taking advantage of immigrant workers," Chu said in a statement released April 28 by States News Service. "This practice is far too common and it hurts immigrant workers and it undercuts American workers. No longer will immigrant workers be enslaved out of fear of deportation by abusive employers who refuse to treat them by the standard that the law requires.
"This decision will allow immigrant workers to come out of the shadows, leave cruel working conditions behind and find jobs where they are treated with the dignity and respect every worker in America deserves."
A survey was initiated with the assistance of 4,000 workers in three major centers around the country. Los Angeles was one of them. The survey found that almost half of workers who filed a justified complaint against their employer or attempted to form a union were subjected to various forms of undue retaliation. Among the illegal responses on the part of unsavory employers were threats to call immigration officials, threats of deportation or actual retaliatory firings. Such responses fly in the face, for Los Angeles respondents at least, of California labor code.
The same survey found that respondents were losing, combined, an incredible $56.4 million per week as a result of various labor law violations and - in California - violations to California and labor law.
Among the alleged violations revealed in the survey: 26 percent of workers had not been paid the minimum wage in the workweek preceding the survey. Of those having worked more than 40 hours in the preceding week, 76 percent were not paid overtime as outlined in binding labor law statutes.
The US Department of Labor initiative would also bode well for legitimate companies and employers who play by the rules, but which are being adversely affected by those employers undercutting the system by violating California labor employment law.
Under terms of the plan, immigrant workers willing to aid in the investigation of unscrupulous employers would be eligible for a U Visa - a document that would allow an immigrant worker to remain in the US for a total of four years, and providing a pathway for an application of permanent residency.
California state labor laws are designed to protect workers from exploitation. This US Department of Labor initiative - albeit federal - would augment efforts by the state of California to protect worker's rights, and pursue those employers engaged in illegal activity in violation of California employee labor law.
California Labor Law Violations: Last-Day Pay and More…
When the bakery hired Michelle - who is a cake decorator and has a culinary arts degree - last December, she wouldn’t have taken the job if it paid minimum wage, mainly because she had to drive one hour each way to work. “When I got my first paycheck I thought my hours were short but HR said I had to start at minimum wage because I was a new employee. After one month the manager sent me to the other bakery where I was supposed to start baking and decorating. Instead I was on customer service for five months.
“I pretty much stuck with the job, hoping it would turn into a better position. Many things improved and we started doing ‘market night,’ like a farmers market where local vendors sell their wares. The first night the manager's friend, who wasn't on payroll, was working. Everything I did was wrong in his eyes. Instead of arguing I stepped back and waited for either one of them to tell me what to do. Later that evening, my co-worker had to run back to the bakery for coffee and she left the cash box with me. ‘You aren't supposed to touch the cash box,’ my manager screamed at me in public - how embarrassing.
“Market night was an 11-hour shift without lunch. I found out that after five hours you are supposed to be paid time and a half, but we were only paid overtime after eight hours. A few days before the market night, we informed our manager that we weren't able to take a lunch break with this kind of set up. 'No problem,' she said, which we interpreted as getting overtime pay. (My fiancé and I checked the hours and overtime compensation with the California labor board and it clearly states overtime is due when you work through lunch…
“The next day my schedule was changed and I was sent back to the first bakery. When I talked to a co-worker, she informed me that I was “getting a second chance’ but at the same time, I was very talented and a good worker. I asked her if I was possibly getting fired. Apparently my work wasn't very professional at market night, but I was getting all this instruction from the “friend.’ I think that no matter what I did, it wouldn’t have been correct.
“Over the last three weeks I worked at both bakeries which meant more travel time. And I was given tasks that were making it impossible to do in one shift. A few days before Easter we were extremely busy and one night I worked overnight. My shift was supposed to be 1am-9am. Instead I worked until 1:30 pm - 12.5 hours. Again, I only got time and-a-half over eight hours, and again without lunch. My manager said I could take my lunch while making a delivery to the other bakery.
“The next night the same thing happened again, and at the end of my shift my manager asked if I could work longer.
“I didn’t know that they were violating the California labor law until last week, when they fired me. I have no idea why I was fired. ‘I want you to come in tomorrow and decorate and I will call you with your schedule,’ my manager said. I finally phoned her. ‘I removed you from the schedule permanently and we no longer need your services,’ she told me. When I picked up my belongings, my coworker said I was fired because I was ‘no longer a good fit.’
“Going through the California labor code, I found out employers are supposed to pay you right away when you are terminated. But it's been more than a week, and I still haven't received my last paycheck.
“I also heard that it is illegal to fire someone over the phone. According to my mother, the employee has to be called in and then released person-to-person. But she works at Chevron, so maybe that is Chevron’s rule…
“As for overtime, I am waiting to hear back from a wage and hour attorney to find out if I am legally allowed to request my time cards and all payroll information pertaining to me. And I am going to speak with an attorney before I phone the California labor board so I don't screw up anything with my case.”
Hostile Work Environment at Universal Studios
One such employee is Janet (not her real name) who worked as an accountant in a hostile environment for three years, until she had a nervous breakdown. Janet worked at Universal Studios for 11 years before taking nine months maternity leave. When she returned to work in 2007, her new supervisor started to make her life miserable.
According to Janet, her supervisor, let's call her Mary, harassed her from Day One. "She came into my office and pulled a list of names off my wall and screamed that we weren't using this billing list anymore, as if I had done something wrong," says Janet. "I had no idea why she acted this way??"I was startled. And it was strange that she didn't explain this new rule to me rather than yell. I had met Mary once; just one month before I went on maternity leave and didn't know her at all. She constantly put so much pressure on me and never missed an opportunity to criticize me. I never had a complaint before; everyone knows me as a hard worker and I did my job well."
To make matters worse, Janet's co-worker (there were only four people working in her department, including Mary) also added to the hostile environment??"and they were friends. Apparently, Allan (not his real name) has a history of drinking on the job, and Mary has a history of harassment, which Janet discovered from her former supervisor. Mary, who had worked at Universal for 30 years, even had a harassment lawsuit filed against her some years previously: Janet said Mary "came out on top."
Janet said that Allan often came into her office drunk. "I have witnesses who heard him call me a 'f**king slob' and 'f**king slut,' and they attested to that in a signed letter," Janet adds.
"By 2009 I found enough courage to talk with Mary; I told her she intimidated me and made me feel worthless and that I was also disrespected by Allan. 'You know that he drinks and you had better not report it or ever talk about his drinking on the job because it will backfire on you,' she said. I walked out of her office speechless and even more afraid.
"I went back to my office, put my head down and kept working. Then a few days later I spoke with my old supervisor and explained how I felt threatened by Mary. She told me that I needed to speak to HR. I didn't follow up on her advice because I was afraid of losing my job if I reported anything. Unfortunately my old supervisor won't speak against Mary either because she is also afraid of retaliation.
"But about five months later it became unbearable??"I went to HR shaking and crying uncontrollably; I was having a nervous breakdown. I told HR about Allan's drinking and swearing. She said an investigation would be forthcoming. It took her three months to get back to me. 'I find no evidence of him drinking,' she said. That was the end of discussion. As for my supervisor; 'Perhaps she could work on her management skills but perhaps you are oversensitive.' I didn't have the opportunity to respond??"she had another appointment.
"I was crushed. What do I do now? In an email to HR, I said if the harassment and intimidation continued, I would go higher up to seek help because I couldn't continue under this stress. She responded the next day and said we should talk further, meaning Mary, Mary's supervisor, and me. I didn't want to do that without my union's representation because this was going to mean more intimidation. I tried to contact my union but they never returned my call. So now I felt that I didn't have anyone on my side; fear gripped me even more.
"I have to say that after speaking with HR, M and my co-worker backed off but it started all over again after this 'cooling off time.' By November 2010 I knew I couldn't take anymore: it started affecting me physically...
"I found it hard to get up in the morning; I felt worthless because I couldn't get help anywhere. I went to my doctor with back spasms??"directly related to stress??"and I haven't been back to work since. He recognized right away that I couldn't return to work and wrote a note that said I needed to go on disability leave. He also referred me to a psychiatrist.
"I am currently on long term disability, seeing the psychiatrist and trying to get better so I can return to work. I requested to be moved to a different department but I was told by email from HR that I had to either go back to work with Mary or quit my job and re-apply. Technically I am supposed to go back to work June 1st but I can't go back to that hostile environment. In a perfect world, I need to work in an environment where I'm not afraid. Of course problems and issues arise, but nobody should have to work with fear."
Levi Strauss Fined for California Labor Law Violations
According to Reuters, the Labor Department found that the jeans manufacturer had not recorded all of the hours that its employees had worked in its payroll system. As a result, the company mistakenly said that some workers were exempt from overtime, according to an investigation by the Labor Department's San Francisco district office.
"The federal rules governing the employee classification process are complex and it's common for companies to have issues with misclassification," a spokesperson for the company told the news provider.
The spokesperson added that Levi Strauss had worked with the department to review the information and answer questions that arose during the investigation.
A statement from the Labor Department said that the investigation examined the back wages for time worked during a span of two years, according to the news source.
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