Brian is a field service engineer. Although engineers in California’s software industry are amongst the most misclassified of professions, Brian’s job isn’t dissimilar. “Say a customer has a broken pharmaceutical instrument??"I go to their facility and repair it on site and that’s basically my job description,” he says. Brian doesn’t design or implement anything, nor does he supervise anyone.
“I thought exempt means that you have people you are responsible for, which I don’t,” Brian says. “I asked my supervisor for the exact definition of exempt. He just answered by saying that my job is exempt. Period. That isn’t much of an answer.”
Brian’s previous employer did pay him overtime. It was the same position, going to the same pharmaceutical companies with the same type of repairs. But he was paid hourly??"his present job is paid by salary.
“When I was hired by the company I work for now, I asked about overtime; from past experience I know that the job means long days,” says Brian. “They told me right away that I wouldn’t get any overtime, so I asked what happens if I work 12-hour days, which I did often in my last job. I was always paid two hours at time-and-a-half and after that double time. My employer said it would only happen once in a while. I started this job last October and since that time I have worked 12 hour days three times a week, every single week.
"I still want my employer to explain why I am considered exempt. What is most annoying is that I got the evil eye because I asked. When I told him that every other company like this one pays overtime, he told me to ask HR. I just gave up, afraid of being labeled a troublemaker.”
The last company Brian worked for was much larger than this one, and their policy was straightforward??"they adhered to the California labor code. If anyone worked past 12 hours, they were paid double time. The company he works for now is much smaller, but the California labor law still applies.
Although the company he works for now employs about 15 engineers, Brian says the others have different circumstances. “This company was originally Canadian and a California company purchased it,” he explains. “The other engineers are Canadians??"they definitely don’t want to rock the boat! Some are in-house engineers so I don’t know what their status is, but all the external engineers are like me, exempt.”
Brian’s next move mainly has to do with his year-end review. “I am waiting to see what my review looks like,” he says. “If I start slowing down to 8-hour days, my review will likely say I don’t get the job done. If it is at all negative I will be pissed because I know I am getting the job done. And if it is negative I will continue to push hard for overtime because I will likely get laid off anyway…
"However, on a positive note, I was told that California labor laws are some of the toughest for overtime. They favor the employee so I am hopeful that this company will comply with the labor law. I considered working for other companies in other states such as New York, but this California company came out ahead. I hope.
"Meanwhile, in these tough economic times, I will just shut my mouth. Even though I am happy to do all of the work, I just want to be compensated for it. I haven’t figured out how much I am actually owed but I believe this company owes me thousands of dollars in overtime pay.”
Brian has to weigh the odds and decide whether he wants to make a California overtime claim, at the risk of getting laid off. At the same time, Brian also knows that his employer runs the risk of paying double the amount of overtime compensation if retribution is involved. A California labor law attorney will be able to assist Brian in making a decision.
As noted in the Daily News of Los Angeles (7/11/12), the dispute between Jennifer Augustus and her fellow plaintiffs and ABM Security Services centered on the expectation of being on call while on break. The California labor code mandates that employees are provided with regular meal and rest breaks within their workday??"during which they are not required to perform any work??"unless there are special circumstances.
To that point, the defendant had at one time an exemption in place that allowed for on-duty breaks by their security personnel. However, it has been reported the company failed to seek a renewal when the policy expired.
Augustus worked for ABM in Woodland Hills from 2003 to 2006. Los Angeles Superior Court Judge John S. Wiley awarded $89.7 million in wages, interest and penalties, and noted in his ruling, "Put simply, if you are on call, you are not on break. That has been the law for many years."
Even though the class action California labor lawsuit represented workers across the land, the guards involved worked primarily in Southern California and the Bay Area. ABM was based in San Francisco at the time of the ruling. It has been reported they will contest the award.
Assuming the award stands, according to California labor employment law, the payout to the plaintiffs will be founded upon their individual hourly rate of pay, together with their tenure with the firm.
The California and labor law award was for $89.7 million and represents lost wages, interest and penalties.
In a related story, it appears as if wage and hour lawsuits are on the rise, according to the Sacramento Business Journal (7/23/12). While it is a national phenomenon, the trend is also being seen in California, representing California labor employment law cases. Those numbers reflect a total of 7,064 cases filed nationally under the Federal Labor Standards Act for the year ended March 31st, v. 5,302 for 2008. That's a 33 percent increase.
Complaints under California prevailing wage law remain fairly common??"as do issues having to do with misclassification, work performed off the clock and incorrect, or lack of overtime pay for non-exempt workers.
California scored top marks for having America's first paid leave program for parents of newborns and for providing disability payments for private sector employees with pregnancy- or childbirth-related disabilities, a flexible sick leave law and unpaid, job-protected leave for pregnancy-related disability. Additionally, state employees are eligible for up to 26 weeks of benefits for pregnancy-related disabilities and a year of unpaid parental leave.
And operated through the state disability system, in California, statewide family leave pays 55 percent of a worker's salary, up to $840 a week, for six weeks, for new parents - fathers also qualify, although 85 percent who use the leave pay are women.
Yet some employers in California are still violating the California labor code by punishing pregnant workers.
"The rise in pregnancy-related cases is part of a rise in motherhood cases," said law professor Joan Williams, at the University of California, adding that "Motherhood is a key trigger for gender discrimination." Even though Federal laws have changed in the past decade, making it easier to bring pregnancy discrimination cases to trial, those lawsuits brought by the EEOC have increased about threefold, from six or fewer per year in the 1990s to 16 or more per year since 2001, according to Equal Employment Opportunity Commission (EEOC) spokesman David Grinberg.
But the good news is that younger women know their rights, more so than women, say, 20 or 30 years ago. These days if employers attempt to penalize them for getting pregnant or having children, they call "sex discrimination" and are more likely to sue their employer.
In 2009, Darlene filed a lawsuit against her employer after he threatened to terminate her. "My boss told me that I could take as long as I wanted on my maternity leave because I wouldn't be needed back," says Darlene. "Of course I took mat leave and I told them that firing me was against the California labor code so I returned to work, but it was part time: they took away all of my duties except payroll."
Darlene's attorney has filed a discrimination claim against her employer. Even with countless pregnancy discrimination settlements nationwide, women are still illegally fired for having a baby. A recent incidence may be good news for Darlene.
In February 2012, a female employee was awarded $148,000 - including back pay, interest and damages - or being illegally fired by HCS Medical Staffing in Milwaukee - she got pregnant and went on maternity leave. In this case The US Equal Employment Opportunity Commission got involved and filed charges against the bookkeeper's employer after she was accused by the owner of "using pre-natal doctor appointments as an excuse to play hooky from work." Adding insult to injury, she was in the hospital recuperating after a Caesarean section when she was notified of her termination - by mail.
The California Fair Employment and Housing Act states that:
It explicitly prohibits employers from harassing, demoting, terminating, or otherwise discriminating against any employee for becoming pregnant, or for requesting or taking pregnancy leave. The Act applies to all employers that regularly employed five or more full-time employees in the preceding year.
The California Pregnancy Disability Leave Law ("PDLL") is part of the California Fair Employment and Housing Act, and requires employers who employ 5 or more employees to provide employees who are disabled by their pregnancy a reasonable period of leave, not to exceed four months. An employee who is disabled by her pregnancy and entitled to PDLL leave may take the leave all at once, or in increments. An employer is not required to pay wages to an employee taking PDLL leave, unless it has a policy of continuing the payment of wages for other types of temporary disability leaves.
However, the employer may require the pregnant employee to use, or the employee may elect to use, any accrued sick leave during the period of leave. For most purposes, employees who are on pregnancy disability leave must be treated the same as employees on other types of disability leave in terms of pay, benefits and other terms and conditions of employment. There is no length of service requirement, so even recently hired employees are eligible for this leave.
In addition, in California, once the employee has given birth, she may be entitled to an additional 12 weeks of leave "for the reason of the birth of a child" under the California Family Rights Act ("CFRA"), which is California's version of the FMLA. Entitlement to CFRA leave for birth of a child depends on, 1) whether the employer employs more than 50 employees within a seventy-five-mile radius; and 2) Whether the employee worked more than 1250 hours in the 12 months preceding the first day of the requested CFRA leave or any pregnancy disability leave; and 3) Whether the employee has more than one year of service with the employer.
In attempting to gain an unfair competitive advantage (and to save costs), many employers stoop to unsavory practices all in the name of making a better buck. That includes paying workers less than minimum wage, denying workers overtime, misclassifying workers to avoid overtime costs, and non-provision of workers' compensation coverage and benefits. The foregoing is in violation of the California labor code.
Companies employing such tactics gain an unfair and undeserved advantage over their competitors when bidding for projects. Conversely, those employers who play by the rules are often shut out of lucrative contracts.
In either scenario, a California labor lawsuit is often the response.
"We are very excited to announce the creation of this unit, which will be tasked with leveling the playing field for California employers by raising the stakes for those who underpay, underbid and under-report in violation of the law," said California Labor Commissioner Julie A. Su in a statement late last month. "This is a vital tool in our efforts to step up enforcement to protect California workers and employers struggling to make an honest living."
The unit, which will be comprised of peace officers reporting directly to the Labor Commissioner, will work under the auspices of the Department of Industrial Relations' Division of Labor Standards Enforcement (DLSE), and will investigate and pursue any and all violations and allegations of fraud against the required guidelines of conduct set forth in California labor employment law.
A news release from the state February 27 noted the unit will be watching for labor theft, lost wages through bounced paychecks or accounts with chronically insufficient funds, and kickbacks on public labor projects. The CIU will also have in its sights unlicensed farm contractors and similar conduct in the garment industry, together with violations involving minors on the job. All flies in the face of California and labor law.
"As a law enforcement agency, we will use all tools available to us to bring about compliance," Su said in a statement. "The Labor Code's criminal provisions acknowledge that wage theft is a threat not just to those most directly affected, but to public safety and the health of our economy."
While the unit will bolster compliance with California employee labor law, it is not known if the unit's activities will stem the flow of lawsuits or increase their number. Many violations go undetected, given that workers are often reluctant to come forward to complain, afraid for their jobs and their respective livelihoods. An increase in the rate of exposed employers in non-compliance could very well increase the likelihood of a California labor lawsuit.
According to the news source, the court is basing its ruling on a state court decision that employers in California have to pay nonresident workers for overtime work performed within the state.
Reuters reported that the US Court of Appeals for the 9th Circuit reversed a federal district court ruling in favor of Oracle. Under the California wage and hour laws, the appellate court found, Oracle could be liable for unpaid wages if it did not compensate out-of-state computer trainers for overtime work they performed within the state.
Oracle employees who were residents of Arizona and Colorado had sued the company for not paying them overtime for work performed in California. The trial judge granted summary judgment in favor of Oracle, according to the news source.
As part of the appeal, the 9th Circuit asked the California Supreme Court to provide guidance as to whether the state's labor code applied to nonresident employees when they are performing work within the state.
According to the news source, the California high court ruled that it did apply, finding that not applying the state's law would be motivation for companies to substitute lower-paid temporary employees from other states.
"The 9th Circuit agreed with the Supreme Court's common sense analysis: If you're a business in California, you will have to comply with California's overtime laws. You can't treat people differently because they live in a different state," a lawyer for the employees told the news source.
The 9th Circuit sent the case back down to the district court for further proceedings following the judgment.
Business Insurance reported that this is the second time the 9th Circuit has ruled on the issue. A 2008 case was brought to the court regarding the same issue of out-of-state residents and California labor law.
Mary dealt with sexual harassment from her boss for the past two years. About four months ago she couldn't take it anymore so she called the California Labor Commissioner’s Office to inquire about filing a California labor lawsuit against her employer. That call prompted her to quit her job and hire an attorney.
"On my third day of work, the owner of the company started to hit on me," says Mary (not her real name). "He started harassing me by making comments like 'You're looking really hot today,' or 'There's something wild about you,' and he would just leer at me.
"That was bad enough and I just put up with it, fearing that I might lose my job if I told him to stop making lewd comments. Then he told me that my customers (I was in sales and worked on commission) wanted me sexually and I was only making sales because of that. It got to the point where I was afraid to bring customers to the office or even talk to customers because I felt too dumb to get a sale on my own. Either way he was putting me down. And as you can imagine, my self-esteem was virtually non-existent."
Mary adds that on several occasions he harassed her in front of co-workers. While that in itself is demeaning, it can likely work in Mary's favor??"a dispatcher and office manager have promised to testify in court. And according to Mary, her office manager was sexually harassed.
Mary adds that she was also discriminated against. She was the first salesperson to be hired, but during her two years of employment, several men were hired, all of whom received a higher base salary and more commissions than Mary.
"I didn't find out that I was discriminated against for a long time but I had my suspicions," Mary explains. "One guy told me, when he was first hired, that he couldn't afford health insurance for his family, but several months later he showed me a diamond ring that he bought for his wife. It was hurtful, to say the least, especially because I was the only salesperson meeting the quotas but getting less commission."
After Mary phoned the California labor board and decided to seek help from a California labor law attorney, she wrote a resignation letter. "This guy harassed me for too long and I don't want to be a victim anymore," she says. "After I quit, it felt like I just got out of prison. But my self-esteem is still non-existent and I have anxiety attacks."
Given the fact that Mary put up with sexual harassment for two years, her health problems could be a lot worse. And all too often, symptoms of sexual harassment are unrecognized. Last month myhealthnewsdaily listed these six side effects of sexual harassment (of course there are many more):
• Depression
• Post-traumatic stress disorder
• Elevated blood pressure
• Sleep problems
• Neck pain
• Suicide
According to Amy Blackstone, a sociologist at the University of Maine, about 70 percent of women and 45 percent of men have experienced some form of sexual harassment in the workplace. Not only are they working in a hostile environment, they are also at risk for physical and psychological health problems, and sometimes they can cause irreparable damage.
Some people may ask why Mary stayed at her job for two years, or why she didn't confront the owner. Like so many in her situation, she was afraid of losing her job.
"You make the best of the situation and take it, what else can you do?" she says. "I was afraid, especially in these economic times, but this guy should be accountable and he has to stop. And it isn't just me that he targeted; now that I have a lawyer we are considering a class-action suit against him."
As for the discrimination issue, Mary says she doesn't know how to figure out the monetary damages. "Who knows how much he was paying these guys, how much would I have made if I had the same opportunities as they had?" Mary's labor law attorney can help.
Under federal law, the EEOC's definition of sexual harassment is "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." That definition also applies under California law.
Last month, a group of nonexempt employees traveled to Sacramento, where their HQ is based, from New York to work on a project that lasted about 45 days. They all worked long hours, typically 60 hours per week. The workers were familiar with the Supreme Court ruling last June because when they returned to New York, they indicated on their time sheets that overtime pay was due, as well as meal and rest breaks.
Just like those employees at Oracle Corporation, the new ruling applies to the New York workers - at least on the overtime issue. The Oracle employees sued the company (Sullivan v. Oracle Corp) for unpaid overtime wages under California's overtime and unfair competition laws. The Ninth US Circuit Court of Appeals (which covers California) asked that the California Supreme Court weigh in, and it found that out-of-state employees working in California for a California-based employer are entitled to the protections of California's overtime laws.
The court further wrote that "To exclude nonresidents from the overtime law's protections would tend to defeat public policy goals by encouraging employers to import unprotected workers from other states."
But the California court's decision didn't include meal and rest breaks, nor did it address other California labor laws pertaining to nonresident employees working in California under the same circumstances as residents. Furthermore, the court didn't rule on whether or not the California overtime law applies to nonresident employees who are working temporarily in California but their employer has headquarters in another state.
It is understandable that employers, and even out-of-state employees, may not understand the new nonresident ruling. And it is very likely that a number of lawsuits regarding nonresidents and California labor law issues will be forthcoming. Regardless, employers should expect to incur overtime costs when sending employees to work on a temporary basis in California. If not, they may be facing possible liability. And before sending employees to California, it might be a good idea to seek legal advice from an experienced California employment attorney.
Acme Electrical Corporation was fined $846,300 for allegedly firing an employee due to the fact that he had cancer. This violation of the state's labor law led to the awarding of the money to the affected individual.
Charles Richard Wideman had reportedly worked for the company as western regional sales manager overseeing sales operations in Acme's largest territory. He was employed in this position from February 2004 to March 2008, according to the news source.
Wideman developed kidney cancer in 2006 and prostate cancer in 2007. His illnesses reportedly required two surgeries and numerous disease-related outpatient appointments to try and help him recover, the news provider said.
According to the DFEH, the company immediately granted his requests for time off for recuperative leave and surgery. Although this was allowed, Wideman reportedly requested further accommodation for the travel limitations that his cancer had caused him from June 2006 through April 2007.
It was at this juncture when Acme allegedly refused to grant or "even acknowledge these accommodation requests," according to authorities. Instead of the issuance for Wideman, the company is accused of giving him an unfavorable performance evaluation and criticizing him for insufficient travel, according to the news source.
"California's Fair Employment and Housing Act provides that persons with disabilities, such as cancer, must be reasonably accommodated, so that they can continue to work productively," Phyllis Cheng, director of DFEH, said in a statement. "This historic administrative victory underscores the department's commitment to vindicating the rights of Californians victimized by workplace discrimination."
The state's Fair Employment and Housing Commission found Acme had violated California law by failing to accommodate Wideman's known travel limitation due to the two cancers.
This was the not the only California labor law violation that was cited recently, as a smaller, family-owned electrical business??"Wulff Electric??"recently entered into a settlement because of alleged wage payment failure, according to the Vacaville Reporter.
"Many of Wulff Electric's workers were unaware of the prevailing wage laws that protect worker rights," a representative for the Northern California Electrical Construction Industry-Labor Management Cooperative Trust told the news source.
Casey, who was recently terminated from his job as an Engineering Technician, wants to know if his employer has violated the California labor law by wrongfully terminating him, specifically due to a Workers' Compensation claim. Furthermore, termination due to disability is discriminatory. LawyersandSettlements asks Randall Crane to discuss Casey's complaint.
Casey: A week after wrist surgery this past May I returned to modified work for a few weeks. My employer decided that I wouldn't do that type of work anymore and sent me home. I've collected Worker's Compensation Temporary disability benefits since June. Can he make me stay home from work?
Randall Crane (RC): The employer doesn't have a right to send an employee home if there is modified work available. But Casey must perform this work if his doctor gives the OK. If Casey refuses to do this work, he can possibly be terminated, subject only to the Family Medical Leave act.
If you collect Workers Comp (WC) and your doctor releases you back to work, you must accept your doctor's decision if you can work within those restrictions or subject yourself to termination and loss of WC benefits.
On the other hand, the employer is obligated to make work available if feasible. Obviously there are a lot of gray areas. If Casey attempts to do the work and he has acute pain, goes back to doctor and says he can't perform, his doctor can modify the terms of the "back to work" order and, in that case, he goes back to full temporary disability benefits.
Casey: At my last doctor's appointment, he released me back to work with restrictions limiting how much weight I could lift with my right hand, and other limitations. When I reported to work with these latest restrictions, I was sent home and told to return on the following Monday.
RC: It sounds like the employer has a problem with these further restrictions and they decided??"truthfully or not??"why not include this employee in reduction of the workforce [below].
Casey: Monday morning my badge access was deactivated and I was given separation papers. HR told me that there was no work for me and that they would have laid me off in July (along with about 20 other people) but they were waiting for me to get healthy.
RC: I'm rather skeptical of that statement but it certainly does raise the possibility of disability and WC discrimination. If you injure yourself trying to be a loyal worker and your employer lays you off but doesn't tell you for 60 days, that's not a great show of employer loyalty…I don't know what truth lies behind this??"is the employer not being candid?
The ultimate problem is that this employee has not gone to a WC attorney to get a detailed resolution of this question. This is a situation where small differences of fact will lead to wide differences of result.
Casey: HR advised me to apply for unemployment insurance (UI) benefits as soon as I got home.
RC: Telling Casey to apply for UI while on disability is ludicrous??"it is not available. It is possible that you can be partially eligible for UI but I don't think that is what is going on here.
Casey: I asked the WC doctor if I could get a new job; he said as long as the new job follows my work restrictions. I have been an Engineering Technician since I graduated high school in 1997 and don't have training to do anything else. Unfortunately, Engineering Technicians (in general) must have full use of both hands.
RC: My impression is that Casey does assembly on a high level or works with sophisticated tools so both hands are required. Even so, he is better than most to come out of this with a good job, and he has a good work history. Again, I can't understand why he didn't go to an attorney right away.
Casey: I believe that I was terminated because I still can't use my right hand fully, but I can't get assistance from the ADA because it hasn't yet been determined if I have a permanent disability??"I'm in limbo.
RC: I'm not suggesting that Casey is depressed, but one of the problems in counseling injured persons is to be aware of the effects of depression that often accompany an injury. Many employees who are injured do not see clear avenues in front of them and many do not realize that psychological and psychiatric assistance is available if they explain depression to their doctor.
When a person has a good array of choices it is imperative that they maintain a stable frame of mind. A general practitioner and WC doctor should be made aware of depression; they may refer a person to counseling and possibly prescribe medication??"both for short- and long-term depression. And an attorney working with injured employees needs to be very perceptive of this.
Casey: I don't know if I qualify to file a complaint with the EEOC.
RC: You do qualify for EEOC but don't apply before speaking with an attorney because it might be advantageous for you to go with the DFEH??"the Department of Fair Employment and Housing (the California equivalent of the EEOC). Great care needs to be used before filing a written complaint because the facts set forth tend to frame up your case. Many people believe these government agencies, which are set up to help those discriminated against, actually work against them. And sometimes they are right.
Casey: HR gave me paperwork for a severance package but I don't want to sign until I know what assistance I qualify for. However, I need to sign it to get my severance pay and three months of medical insurance that it offers.
RC: It sounds like Casey is afraid of losing his health insurance. Does the severance package include three months medical insurance before his COBRA kicks in?
The severance package doesn't sound like a good deal because Casey already has disability benefits and unless there are other health problems, it's hard to see what going on COBRA will gain. It is better to recover from disability and then apply for ordinary health care.
Casey is better than most: he has benefits and is working in a profession where disability can be gotten around with retraining??"under WC he is eligible for retraining which should deal with the hand problem. Casey also says he is getting therapy and his Temporary Disability payments will continue until the doctor releases him back to work with no restrictions or determines that he has a permanent disability.
Ultimately, any severance package or government applications should be reviewed by an attorney.
According to a release from the agency, the fine amounted to $371,250 for 11 citations, including four that were deemed willful citations, suggesting the firm had knowledge of the violations. Baxter reportedly has 15 business days to either appeal or pay the fine.
The allegations and fine reportedly stem from a January 21 incident during which Baxter technician Henry Astilla reportedly collapsed after entering a 6,000 liter tank in which nitrogen was bubbled through plasma, according to the release. With air allegedly being displaced by the nitrogen, the tank became oxygen deficient, which led to the worker's death. Baxter is being accused of not properly testing the tank to make sure there was enough oxygen before sending in the technician.
The investigation conducted by Cal/OSHA also indicated that when Astilla was found, a supervisor allegedly told two other employees to bring him out of the tank, without providing the necessary protection or testing the tank for oxygen levels. The agency claims that this alleged negligence led to the two other employees suffering serious injuries, with one of the workers still in the hospital as of July.
"The hazards of working in confined spaces are well documented and this is a classic example of the kind of injury that occurs when employers fail to adequately protect their employees," Cal/OSHA Chief Ellen Widess said in the release. "When confined space operations are not properly planned, it is unfortunately common for other employees to be injured or killed while attempting impromptu rescue of the initial victim."
In other recent cases, Cal/OSHA is reportedly investigating a number of potential heat-related deaths, including two instances where farm workers allegedly collapsed while harvesting crops, according to The Associated Press.
The news source reports that the agency is investigating whether a 47-year-old Blythe farm worker died while operating a tractor to harvest cantaloupes in temperatures exceeding 100 degrees on July 7.
Cal/OSHA spokeswoman Erika Monterroza told the news source that the agency is also in the process of investigating an April death of an Imperial County farm worker who was reportedly breaking corn in 84-degree heat in April.
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