California Labor Law News
State Supreme Court: Richmond Did Not Violate California Labor Law
The decision reportedly affirms previous lower court rulings as well as the Public Employee Relations Board's decision to reject a claim arguing that Richmond violated its contract with the International Association of Firefighters, the news source said.
According to state law, public entities are allowed to lay workers off due to economic reasons, but they need to bargain the effects of reducing the workforce, including the potential consequences facing the workers remaining.
Local 188 of the International Association of Firefighters reportedly argued that the layoff of the firefighters adversely affected the safety of the workers, and as a result, should constitute a need for bargaining.
According to the San Francisco Chronicle, Justice Joyce Kennard wrote in the ruling that government employers still need to negotiate over decisions to carry out layoffs.
California Labor Law on Family Leave Receives High Marks in Study
The study was conducted by Eileen Applebaum, senior economist at the Center for Economic Policy and Research in Washington, and Ruth Milkman, a professor of sociology at UCLA and City University of New York.
The researchers said that as a result of the new law, workers taking family leave are enjoying their jobs more.
"All the fears that this program would be disruptive to business were not well founded," Milkman said.
Implemented in 2004, the Paid Family Leave Act provides eligible employees with up to 55 percent of their typical earnings for up to six weeks, according to the news provider. According to the Employment Development Department, 167,523 people in California took time off for "bonding" with their child during the last fiscal year. Additionally, 23,220 workers took some time off to care for family members who were ill, the news source said.
The workers, on average, received $488 per week.
According to the Employment Development Department's Web site, employees who are covered by State Disability Insurance are also covered by Paid Family Leave insurance.
"Call an Attorney," Says California Labor Board
"I was hired as a desktop support specialist at Dell in November 2009 and everything was going well," said Bruce. "My supervisor said 'Don't be surprised if you are contacted to discuss a promotion to a much higher level' and this was great news.
"But it was short-lived. Right after New Year's I was hospitalized with heart irregularity and stayed there for almost two weeks. After one week of home rest, I went back to work. I was still receiving accolades, but my heart problem came back in February and it landed me in intensive care for a week. I was told to take it easy and I was in constant contact with my employer.
"At the same time, I was the 'guinea pig' regarding how to file disability benefits with the insurance company. My benefits were up in the air at this point because I was originally hired by Perot Systems, which was acquired by Dell - when I was sick.
"It took a few months to get benefits so I was very stressed-out, which didn't help my recovery. While I was in hospital this second time, the director of computer services for the Sacramento area (AKA big shot) visited me with a fruit basket, assuring me that I had a job to go back to and quit worrying??"my health was priority. I was on all kinds of meds, including antidepressants. My brain became Swiss cheese.
"I filed for California disability that gave me 60 percent of my wage and decided to recover in Hawaii where I had friends - I didn't know anyone in Sacramento. I made travel arrangements and arranged a return-to-work date with my doctor - May 15, 2010. (My insurance company has a copy of the return-to-work form.)
"I received a letter in Hawaii from Dell that said my position was being terminated effective May 14. I read the following:
"You have been on a leave of absence from Dell…due to the expiration of your approved leave and/or your absence of 6-plus months in a rolling 12-month calendar period, Dell can no longer continue to accommodate your extension of leave. We sincerely regret to inform you that your employment with Dell is now terminated."…this termination is not a reflection on you or your time at work with Dell. This is due to a review of the completed medical information stating your situation.
"From what I understood, they are within their rights to fire me because California is as an 'at-will state,' but when I contacted unemployment they asked me the reason why I was terminated and I explained it was because of a medical reason. I sent them a copy of Dell's letter and they approved my unemployment without question. That's when they suggested I call an attorney."
Further, by telling Bruce that he would be "eligible to re-apply when I am ready to return to work," the company may have dug open a wider door to litigation.
"Because of the Privacy Act, there is no way that Dell would know about my depression issues or how serious my heart problems are," Bruce explained. "I think the insurance company told Dell about my medications - the Privacy Act went out the window.
"And here's another thing: I was hired November 9, 2009, and my termination was effective May 14, 2010. I was hospitalized in January and terminated in May - I can do the math and that doesn't add up to six months. I didn't exceed 6-plus months of absence either. And I was terminated without severance pay - Dell simply considered me a liability because my medical condition sucks."
California Employer Sued for California Labor Law Violations
The complaint was filed in Superior Court of California, County of Napa.
According to court records, lead plaintiff Michael Evans worked for Johnson Controls in California. The plaintiff alleges that the Wisconsin-based corporation variously allowed him to work in excess of eight hours per day and/or 40 hours per week, and more than seven days straight without overtime pay - an allegation of conduct that flies in the face of the California labor code.
The plaintiff alleges that he also, on occasion, worked in excess of 12 hours in one day without being compensated according to an elevated overtime formula normally expected for toiling that many hours - specifically, two times his normal rate of pay.
Meal breaks were also an issue, according to Evans. He claims to have worked in excess of five hours in a day without provision for a proper meal break. The plaintiff also alleges that the defendant failed to compensate him for those missed meal periods in accordance with California labor employment law.
His class-action complaint also alleges the employer failed to maintain and complete accurate time and pay records, and allowed the plaintiff to pay business expenses during the regular course of his duties, but was not reimbursed.
When his employment was terminated, Evans alleges that he was not paid all wages owed to him at he time of his termination, nor was he paid wages owed for unused vested vacation according to the vacation policy of Johnson Controls Inc.
The defendant's alleged conduct is in violation of California state labor laws. Evans is suing for damages and his various legal costs.
Fired on Medical Leave—California Labor Law Violation?
"I was offered a position as outside sales and territory manager with this company in 2005 and everything was great. I was making $70,000 per year until I got sick," says Stan, who also said he worked more than a year for the company before he took sick leave. "I was off work just a few weeks when my boss phoned and said, 'Your service is no longer needed, and I have to let you go.' I figured they had reviewed my doctor's medical certification of my disability and didn't like the bi-polar diagnosis."
In California and nationwide, it's illegal for an employer to terminate an employee for taking leave under the Family and Medical Leave Act (FMLA). As well, the California Family Rights Act was established to ensure secure leave rights for the employee's serious health condition. It would seem that Stan's employer has violated the California labor code, but state and federal laws differ, and they are complicated.
"I called the California labor board when I was terminated and found out that my employer had lied," says Stan. "He said that I didn't report back to work when my medical leave ended, but he neglected to say that I was still on medical leave when I was terminated. He also lied to the unemployment office so it took me a long time to sort that out. Finally I was able to collect unemployment benefits, but here is the weird thing: My boss continued to pay my medical premiums into 2008 - for more than a year after I was fired and I have no idea why…"
Perhaps Stan's boss had a reason for paying his premiums or maybe it was simply an oversight; whatever the reasoning, an experienced labor law attorney will be able to advise Stan - but Stan should have contacted an attorney sooner as the statute of limitations may apply.
If you think that your employer has violated California medical leave laws, you can file a complaint with the federal Department of Labor (DOL), Wage and Hour Division within two years of the violation or file a lawsuit in federal court. In California, however, you must file a complaint with the California Department of Fair Employment and Housing (DFEH) within one year of the violation, in order to be able to file a lawsuit under the California Family Rights Act (CFRA), in addition to the FMLA.
Contrary to what a lot of people believe, an employer in California is not legally required to provide paid vacation or sick leave to their employees. However, employees have a legal right to take some paid time off but it's paid out of the state's temporary disability program, which is funded entirely by mandatory withholdings from employees' paychecks.
This is where it gets complicated: an employer can terminate you while out on medical leave. Even though FMLA and its California counterpart, the CFRA, protects employees from being terminated because they take a medical leave, it does not totally prohibit termination of an employee while they are on a medical leave. According to one interpretation of the California labor law, what really matters is why you were terminated while out on a medical leave, not just that you happened to be out on a medical leave when you were terminated.
Fortunately, if you have to take medical leave, your job is generally protected by federal and California employment laws. These laws also prohibit employers from terminating or otherwise punishing employees who take protected medical or family leave. If you think you have been illegally terminated while on medical leave, you should speak with a California labor lawyer.
Apparel Company to Pay Thousands for California Labor Law Violations
Laundry Room Clothing Inc., which is based in Westminster, California, and owner Milton Kaneda were told to pay the money to 115 current and former employees who were not sufficiently compensated for work between February 7, 2009 and March 31, 2010, the Labor Department said.
Under the Fair Labor Standards Act, employers are required to pay workers at least the federal minimum wage of $7.25 for every hour worked in addition to time-and-a-half for hours after 40 per week.
The ruling was handed down by US District Judge A. Howard Matz after Kaneda allegedly failed to defend a lawsuit filed against him by the Labor Department in April, according to the news provider.
According to the Labor Department's Web site, the Fair Labor Standards Act does not require employers to pay overtime for work on weekends, holidays or normal days of rest unless overtime hours are worked on those days.
California Labor Law: Harassment Led to Suicide Attempt
Steve (not his real name) worked four years as a company mechanic until he couldn't take any more harassment. Steve's co-workers, who were much younger than he, thought it was all "fun and games," but not for Steve - he tried to commit suicide.
"My co-workers and supervisors tormented me with ridiculous questions, usually of a sexual nature," says Steve. "They asked if I would have sex with a 12-year-old for a million dollars; Would I have sex with the owner? They also accused me of being a child molester and deliberately trying to get me upset - maybe so they would feel better? They wouldn't let up and continued to antagonize me until I answered."
Steve eventually went to HR, complaining that this kind of behavior was not correct for employee relations. The HR manager then brought it to the attention of Steve's supervisors.
"Apparently about nine co-workers were told not to say anything more to me," says Steve, "but that got ridiculous. They wouldn't even respond to a 'good morning' from me, and three of them were told not to talk to me at all (a co-worker told me). My supervisors tried to put me on as many solo jobs as possible, but when I did have to interact with others, important information I needed wouldn't be given to me. 'I guess I will just make it up,' I said to them once…
"The pressure got to me and I called in sick on Monday, August 17, 2009. I called in sick again Tuesday and tried to commit suicide Tuesday night. I also called my parents and good friends and told them I was taking my life. I took a bottle of pills and hoped I would die on my bed. My sister somehow got me up but I told her I was going to get in my truck and drive into a tree. As I tried to open the garage door, my sister kept closing it. Eventually I was able to drive my truck through the door, drove as fast as I could - about 150 yards about 7:30 pm at night so all the neighbors saw - and drove into a pile of rocks. I don't remember any of this; I don't remember anything until I woke up in the hospital…
"My truck rolled and landed on top of me; luckily the paramedics were called immediately. They performed CPR all the way to the helicopter pad and I was flown to hospital, where I spent several days in a morphine state. I was not expected to survive.
"After my 12 weeks of family medical leave was up, I was terminated - on December 1, 2009. I didn't get disability insurance until March 2010. I am still on unemployment but recently got hired back with the same company for less than half of my wages: I was making $20 per hour and now I am making $9.25.
"Apparently, they were legally able to terminate me, but I'm going to hear what my California labor law attorney, Morris Nazarian, says. He is working on a contingency basis and is in the process of filing a harassment and hostile work environment lawsuit against the company. I am hoping to get justice from this lawsuit.
"I have 30 years of experience in this industry and what they allowed to happen is not right; people should not be allowed to say things about your sexual orientation. I think I was picked on because I tend to be more sensitive and I am also old enough to be their fathers, most of them anyway. And I think a lot has to do with my experience and management training - these young supervisors (my immediate supervisor was 31) didn't know how to deal with these situations and I warned them that they could be held liable.
"Since this happened, I've become very guarded when it comes to trusting people. Some of my friends and family have suggested that I drop this case because of the stress it will cause me, and it is very unlikely that it will settle right away. But it's a matter of principal more than anything else."
Steve is right, and he is standing up for his rights. Employers - and anyone for that matter - should be aware of the California labor code and they shouldn't get away with these violations; they have no idea how a hostile work environment, harassment and wrongful termination can destroy people's lives.
Hotel in Violation of California Labor Law
The Eureka Times Standard reported on December 4 that the Valley West hotel facility has seen 11 unpaid wage claims filed against it and owner Penta Hospitality (now doing business as Silver Creek Hospitality) since 2007. So far, eight of those claims have gone to court and a total of $19,000 in back wages has been awarded to former employees of the facility.
However, aside from one partial payment, the lion's share of that $19,000 bill has yet to be paid, according to the Eureka Times Standard.
The California labor code holds that employees are owed a fair day's wage for a fair day's work. When an unpaid wage claim is filed, a deputy labor commissioner is assigned to the case and attempts to arrive at a resolution between the parties. When a resolution isn't possible, the claim proceeds to a hearing before an administrative law judge.
Beyond back wages allegedly owed to former workers, Valley West Days Inn is said to owe the city some $150,000 accrued from unpaid bed taxes and water bills. The city indicated that garbage collection at the hotel had also been stopped due to lack of payment.
In its defense, the hotel owner noted an ongoing slump in the hotel and accommodations industry that is the worst since the Great Depression. In sum, the hotel simply doesn't have the money to pay their bills. Silver Creek Hospitality principal Mukesh Mowji added that the three principals of the chain have declined drawing a salary for quite some time.
In an interview with the Times Standard, former employees of the hotel indicated that the Valley West Days Inn failed to pay their employees on time, which flies against California labor employment law. One former employee noted that following a two-week stint at the hotel, he went looking for his paycheck and was told by management that as a subcontractor, he would not be paid regularly. The employee suggested he never agreed to his status as a subcontractor.
Hotel management allegedly told other employees that their first paycheck was withheld as policy. When the second paycheck came due, it was late. The former employee who spoke to the newspaper indicated that he had been told a complaint to the labor board would constitute a legal action, and thus he would not receive what he was owed??"another violation of California employee labor law.
Car Dealerships and California Labor Law: Get a Signed Contract
Adding insult to injury, Ray says his GM talked him out of a good job at the Toyota dealership to work at the Nissan store, even though it meant driving 110 miles each day to work. And he was given a verbal promise that no changes would be made - his job was secure.
"In my position as the general sales manager, I was in charge of the volume of sales and Nissan would gratify the dealership by their volume," explains Ray. "I would be paid a Nissan factory incentive and I achieved every imaginable sales goal possible - no question they owed me.
"This past September, after working there for eight months, I got to work at 8:00 am and my GM told me that we needed to sell nine new cars that day. At 5:30 pm he called me into his office and said he was making changes and had to let me go. Of course I asked him why; I hit every sales goal. 'At least give me vacation pay,' I said. But he said I hadn't been there a year so I wasn't entitled to anything.
"What about severance pay? 'I don't know what severance pay is,' he replied. I explained it to him and he said I should call him back the next day. He wanted me to sign some forms but I refused, then he handed me my final draw against my commissions. 'When we close the month I will figure out how much money you have coming,' was his parting remark.
"'And don't forget to take care of the Nissan factory incentive,' I said. No answer. I called the next day about the severance pay. 'I talked to my partners and you are getting nothing,' he said. 'What about my vacation pay and bonus?' Nothing. I didn't even get a final check. They are supposed to give you a monthly statement regarding how much in commissions and incentives you are owed, but I didn't get a dime. I did get a check for $24.95 - a reimbursement for balloons I bought for a store promotion.
"As well, the GM favored a girl that he wanted to make manager. I guess that is sexual discrimination but I'm not trying to sue them; I just want my final pay check, including bonuses, vacation pay and a small amount of severance pay. And all that traveling time? He didn't even pay for my gas.
"I think this dealership breaks labor laws constantly. Salesmen put in an eight-hour shift and never get time for lunch. If they don't make enough commission based on minimum wage, the company has to top it, but that's a whole other story. Anyway, by the will of God, I got another job. I don't burn people like these guys."
Unfortunately, Ray can forget about severance pay. California does not require employers to give severance pay unless you and your employer have a signed employment contract, your employer has an employee policy handbook, or your union has rules or a collective bargaining agreement that state otherwise. A verbal agreement may not be sufficient. But Ray is entitled to receive his final check??"withholding his check is a California labor law violation.
As for vacation pay, Ray should speak with a wage and hour attorney. According to California Department of Industrial Relations (DLSE), the Nissan store isn't violating the California labor code??"vacation pay doesn't have to be paid for the first year:
DLSE's enforcement policy does not preclude an employer from providing a specific period of time at the beginning of the employment relationship during which an employee does not earn any vacation benefits. This could apply to a probationary or introductory period, and can even apply to the whole first year of employment.
Such a provision in a vacation plan will only be recognized, however, if it is not a subterfuge (phony reason) and in fact, no vacation is implicitly earned or accrued during that first year or other period. For example, a plan with the following provisions would be an obvious subterfuge and not recognized as valid:
- Year 1: No vacation
- Year 2: 4 weeks vacation
- Year 3: 2 weeks vacation
The DLSE also states that under California law, "…if the employee has not used all of his or her earned and accrued vacation, the employer must pay the employee at his or her final rate of pay for all of his or her earned and accrued and unused vacation days. Because paid vacation benefits are considered wages, such pay must be included in the employee's final paycheck.
Lesson learned: try to get a signed contract from your employer - don't rely on verbal agreements, no matter how great your new boss seems to be.
Was Worker's Death Due to Ignorance of California Labor Laws?
Margarita Mojica was 26 at the time of her death two years ago when she became entrapped in a box creasing and cutting machine. She was 17 weeks pregnant at the time with her second child.
California labor code, as with many federal statutes, dictates not only the requirement that an employer provide a safe work environment, but also that a worker has a right to protest if he or she feels at any time in danger while on the job.
It is not clear if the victim was even aware of the potential for disaster while simply doing her job.
According to the October 19th issue of the San Francisco Chronicle, the Oakland wife and mother of a young daughter was preparing a box creasing and cutting machine to start a job at the facility to replace a cutting die. According to prosecutors she was leaning into the machine when it suddenly activated and closed like a giant clamshell around her.
It is alleged that the owners of Digital Pre-Press International (DPI) of San Francisco were employing a previously owned cutting and creasing machine originally purchased in 2003. It has been reported that workers at some juncture asked to have a safety bar removed from the machine to allow for the handling of thicker cardboard. Investigators say the safety bar was not reinstalled.
While it is unclear if the accident would have been prevented had the safety bar been in place, there are a number of allegations that suggest workers at the facility were not properly schooled in safety protocols according to the tenets of California and labor law.
Regulators cited DPI on two previous occasions, in 1998 and again in 2001, for failing to maintain a worker safety program. The owner of DPI, Sanjay Sakhuja, is reported to have communicated to regulators that he had a training program in place by 2002; and an insurance inspection in 2007 found no problems with the machines at the facility.
However, following the tragic death of Mojica, state regulators under California labor employment law issued no fewer than 14 citations against DPI for not training workers properly. While the plant was reported to have a written safety program, workers told regulators they were never instructed on machine safety.
Sakhuja, along with pressroom manager Alick Yeung, have each been charged with manslaughter and willful violation of California state labor laws. A wrongful death civil suit has since been settled, according to The Chronicle. The value of the settlement was reported to be $6 million.
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