Compliance News
California Labor Law Violation: "Your Check Is in the Mail"
According to the California labor code, an employee who is discharged must be paid all of his or her wages, including accrued vacation, immediately at the time of termination. If you resign voluntarily, then California labor law requires that your employer pay you all final wages within 72 hours.
If the employer does not comply, California labor laws enforce financial penalties to employers called Waiting Time Penalties. California Labor Code 203 states, "If an employer willfully fails to pay…any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefore is commenced."
In addition to waiting time penalties, California Labor Code 218.6 provides for the awarding of interest on all due and unpaid wages at an annual rate of 10 percent. California employees can also expect to recover reasonable attorney's fees and costs in any action brought for the non payment of wages.
According to Denise, she was fired. "When I gave my resignation, my boss said, 'As soon as you are done today, make sure you have all your appointments written down for us,' and my office manager also interpreted that comment as getting fired," says Denise. The next day she went back to work, to return the company phone and tie up a few loose ends, and pick up her final check.
"I finally got my check one week later. That is a California labor law violation," Denise explains. "The letter said I was fired as of April 28, not the April 26, which is the day I left. I believe they were covering themselves by changing the date two days later because they didn't have the check ready.
"The events leading up to my termination are a long story, so I'll make it brief. When I was first hired as supervisor of a number of group homes, I told the boss that I wanted to change a few things and he was all for that because they were money-saving changes. Right of the get-go I felt friction from the staff.
"I heard from a few co-workers that a lot of the staff were bad-mouthing me, including discriminatory remarks, such as 'white bitch.' (I'm white and the majority of the staff is black.) The bosses had so many discrimination suits against them already from firing people they were afraid to take any disciplinary action; they just told me to be careful and document everything. I had a number of complaints against me, saying I was rude. But the complaints were retaliation for cutting people's hours - I was just doing my job."
California Labor Law Basis for Federal Lactation Accommodation Health Reform
"Today many women elect to return to work soon after giving birth," said California Labor Commissioner Angela Bradstreet, in comments appearing in US State News on 5/13/10. "They want to be a valuable member at work and still be able to care for their newborn. Compliance with California's lactation laws is not only the right thing to do for these employees, it is also smart business because there are many cost benefits to employers."
While California Labor Code sections 1030 and 1031 were adopted in 2001, it's only been in the last few years that the provisions have actively been enforced. Because of a complaint filed by an employee, the Office of the Labor Commissioner has been initializing investigations. Companies known or discovered to have failed in providing lactation accommodation have been cited by the Labor Commissioner's Office.
"Many businesses discover that having an effective lactation support program is good for their bottom line," said Bradstreet. "These companies see lower turnover rates, a reduction in health care costs, higher productivity and worker loyalty."
Bradstreet also emphasized the need for employees to report violations of the lactation accommodation law, noting that it is not a law that can be addressed with enforcement sweeps.
California employee labor law requires that every employer in the state, regardless of size, must provide a reasonable amount of time to accommodate the expressing of breast milk, together with reasonable efforts to provide the lactating employee with the use of a room or other accommodate that would allow for the process to be carried out in private.
A restroom does not qualify for that purpose.
Ms. Bradstreet recently visited the White House as a guest of President and Michelle Obama. The lactation provisions in the new federal health reform act are almost a direct clone of provisions adopted in California. While various employers have been cited for violations of California's lactation law, the release did not specify the penalties faced by those employers in violation of the law.
In recent years the popularity of breastfeeding over the use of formula has increased, due to the increased health benefits for both mother and child. California was among the first states to enact such a provision.
Updated California Labor Code Tested, Settlement Reached
More than 200 employees who worked for subcontractors under Tidy Building Services Inc. will receive between $100 and $2000 in compensation.
According to the 2/9/10 issue of the Business Wire, California Labor Code Section 2810 addresses the particular problems faced by low wage workers in the janitorial, construction, security guard, farm labor and garment industries??"sectors often dominated by immigrant workers, who are particularly vulnerable to violations of wage and hour laws.
In this case, the contractor, Tidy Building Services Inc., was found to have provided inadequate funding to subcontractors in order to ensure that employees received full benefit of employment laws and regulations, not to mention allowing the subcontractors to comply with same.
Although Tidy Building Services Inc. is based in New Orleans, the settlement is the result of charges that California Labor Commissioner Angela Bradstreet filed in San Diego Superior Court.
"This settlement sends a strong message that my office will aggressively pursue contractors who seek to gain an unfair advantage by underfunding subcontracts," said Bradstreet. "The subcontractors get squeezed, the workers don't get paid, and law-abiding contractors lose out as well through unfair competition."
The action was the state's first lawsuit aimed at enforcing Labor Code Section 2810. Tidy Building Services Inc. has agreed to pay the state of California the sum of $100,000 on behalf of employees who worked in janitorial services in San Diego County and the Los Angeles area.
Labor Code 2810 was designed to spread the responsibility for systemic violations of minimum labor standards by making those entering service contracts responsible for fully and accurately estimating service contract performance. The cost of labor law compliance must be incorporated into the contract price paid.
While contractors may approach tenders with low bids to secure a job, the bid is often so low that the contractor cannot afford to uphold the provisions of California labor law, thus under-funding subcontractors.
California Labor Law and Federal Express Not on the Same Page
And Rene isn't the only driver claiming that FedEx violated the California labor code: in April, 2009 a federal judge in California certified five subclasses of drivers alleging FedEx Corp. bilked them of pay for missed meal periods, off-the-clock work and working split shifts.
Rene says he took lunch breaks after 5.5 hours, in keeping with FedEx policy. But he was also late for lunch??"three times??"although no more than about five minutes. Seems like no big deal, but FedEx interpreted Rene's 5 minutes late as grounds for termination.
" My boss told me that because I went over 5 minutes they had to let me go," says Rene. "I asked him why it even mattered and he said that I didn't follow company rules. But a courier usually has to stop anywhere for lunch breaks, such as a parking lot…
I was a swing driver, which means you are scheduled to work anywhere that has an opening. That day I was supposed to start at 8am but I was called to work at 6.45 am to help unload packages onto trucks. Then I ran over to my truck and drove to another city where I had parcels to deliver. I forgot that I started at 6.45 because my usual start time was 8am. I took my lunch at the regular time I took it each day??"just before noon--because I didn't want to go into overtime, but this day I was 5 minutes late."
But how did FedEx know Rene was 5 minutes late? Rene explains that FedEx has a hand-held computer used to scan packages and read addresses, and it also acts as a courier's time card.
"The FedEx manual states if an employee has 3 or more performance write-ups, you can still retain employment if a manager chooses not to discharge you, if he provides written explanation to the HR manager," says Rene. "My manager chose not to write the letter because he is afraid of losing his job.
I sent letters to HR explaining how I never took 10-minute breaks and why I was late for lunch but they didn't bother to respond; what a way to be treated after working 20 years for this company. And it gets worse: about 2 weeks ago I got a letter from FedEx; they want to take me to court and take away my unemployment benefits.
The letter from Employment Development Department in California says: 'Your former employer, Federal Express Corp. has appealed the department's decision, finding you illegible for unemployment insurance benefits,' and the appeal has been sent to the Oakland office of Appeals. So now I have to wait for my day in court. The letter says I may be required to pay back benefits received after the date this letter was issued.
I made $26 per hour with FedEx; they are trying to cut costs and I believe this was a way to get rid of me. I don't know where to go or what to do; right now I am just trying to find a job, but most of them pay $12 per hour. I have a family to support; my kids are 2 and 8 and I am very worried; my family doesn't even have medical insurance now, thanks to FedEx."
Many lawsuits have been filed by FedEx drivers against the company; a quick search online brings up claims such as misclassification and failure to pay overtime rates. Rene also says managers manipulated drivers' time cards, "to make themselves look good," and that's another violation of the California labor law.
California Labor Law Turns Up the Heat on California Farm Labor Contractors
As reported July 3rd 2009 in US State News, the labor commissioner for the State of California initiated proceedings to revoke the farm labor contractor licenses for Joel Salazar Farm Labor and Valley Pride Inc. after state inspectors witnessed conditions considered dangerous to workers and in violation of state labor statutes.
According to a communiqué issued June 30th by the California Department of Industrial Relations, state inspectors attended a site May 20th of this year and encountered a crew of 15 workers planting date palm trees in 116-degree heat. The workers had less than a single gallon of water for the entire crew.
Regulations require sufficient quantities of fresh drinking water to allow each worker four, 8-ounce glasses per hour??"equivalent to a gallon of water per worker in an 8-hour shift.
Salazar Farm Labor was also cited for failing to provide adequate training to their employees in heat illness prevention.
Valley Pride Inc. was issued an Order Prohibiting Use (OPU) on May 19th when inspectors found two employees toiling in 108-degree weather, without shade. Various other citations were issued for violations ranging from the lack of an injury illness prevention program, to failure to comply with field sanitation requirements.
"This sends yet another strong message to all farm labor contractors statewide," said Commissioner Angela Bradstreet. "If you fail to provide the required level of protection for employees or falsify information on your application you can lose your license."
California became, in 2005 the first state to develop a safety and health regulation addressing heat illness.
That regulation was tested three years later after a 17-year-old farm worker succumbed to heat and died while toiling for Merced Farm Labor. The labor contractor was fined in 2008 for work safety violations and surrendered its license to operate for 3 years, prior to a license revocation hearing.
Three years is the maximum revocation period that can be sought by state regulators under California labor law. California labor employment law represents an important protection for workers in all sectors, ensuring that under California state labor law workers are free from exploitation and risks to their health and wellbeing.
Bounced Checks don't bode well with California Labor Law
"Our checks are always short," says Eddie. "Recently one paycheck I got was short $300??"that's around 7 or 8 hours of work--and my co-worker was shorted 15 hours just last week. We keep asking the boss if everything is OK and he assures us that everything is fine; that we are just in a crisis right now due to this recession." But even in these hard economic times, employers can still be fined if they violate California labor employment laws.
Eddie is a motorcycle mechanic and works on commission only, but he has a choice: he can either get paid minimum wage or commission??"whichever is greater. However, he should be getting an hourly wage because he provides his own tools. "The last place I worked at was fined for not giving the commission technicians their minimum wage," Eddie says. "That was in 1999 and our minimum wage was $19 per hour. One of my co-workers looked up our wage this year and it is anywhere from $18 to $23, depending upon how long you have been in the industry.
"I think my current employer should also be fined and penalized for not complying with the California labor laws. We have talked to him about this issue and he just says 'Don't worry' or he will blame it on his CPA??"the accountant who does our payroll. But this has been going on since last October when he fired everyone in HR. This company employed 134 workers but now we are down to 40 employees. Ninety people have been laid off due to the economy. We are holding on with a skeleton staff??"they look at us as commission technicians and if work doesn't come in, we don't get paid. I also know co-workers in the parts department who have gone 3 months without their bonus checks; nobody knows how long they can hold on for.
Sometimes we've gone home with 40 hours of pay for a two-week period and a lot of the time we are here 6 days a week waiting for someone to bring their bike in for repair. We are supposed to get paid idle time if nothing comes in but that's not getting paid. We are also supposed to get paid if we clean up the shop or do any maintenance in the shop??"of course we don't get paid for that either.
Two brothers own this corporation. One of the owners came by and let us know last Friday that they were giving up on two of the brands??"Suzuki and BRP. This means that we have two less brands to work on??"the future of my job is looking pretty bleak.
Last month the owners were supposed to give us 30 days notice of any payday change. They never did. The California labor law states that within 30 days prior to a payday change, the employer is supposed to post the new payday change in a prominent location where everyone can see it.
If it is money the owners need to pay, they'll hide from you. My boss is constantly hunting them down. Apparently it is hard to find the owners because they switched offices in another location and we don't even have their phone number. The only way to get in touch with them is through our boss who will email the owners and then he has to wait for a reply.
I'm not the smartest guy in the industry but right now I have a way out??"I have another job lined up. So I'm just waiting to find out if my next check bounces. It doesn't make sense that our checks bounce because we get paid from commission??"if we make $30 per hour, the owners are making $45 per hour. They make good money off us??"it's not that they don't have the money to pay us--they are just bad business people.
Our next step is to file a complaint with the California state labor board and then seek legal help."
Housekeeper Made to Jump Through Hoops in Basketball Star's Home
Such is the case with Maria Jimenez, the former housekeeper for NBA basketball star Kobe Bryant. Jimenez filed a lawsuit last week in Orange County Superior Court alleging that she was "harassed and humiliated" while on the job. The plaintiff also alleges that she was denied health insurance and was ultimately forced to quit her job due to "intolerable" working conditions.
Working in someone's home may present a more intimate stetting than working in a large corporation, but California labor law applies nonetheless.
In court papers filed earlier this month, Jimenez alleges that she was promised health insurance when she was hired, but realized too late that the promised coverage had not been secured on her behalf after she incurred more than $127,000 in medical bills for a back injury, and surgery to remove an ovarian cyst.
The 48-year-old former housekeeper also alleges in court documents that she is owed more than $20,000 in earnings that have been wrongfully withheld, together with unpaid overtime. She argues there should also be penalties for not being paid properly.
The most sensational aspect of the case, however, remains the alleged abuse suffered by Jimenez while on the job in the Bryant household, in which she worked from September 2007 to March of 2008??"a tenure of just six months.
From the time she began her employment at the Bryant home, Jimenez alleges that she was "badgered, harassed and humiliated" by Vanessa Bryant??"the basketball star's wife??"behavior that continued until Jimenez finally found the situation to be intolerable and quit.
The former housekeeper alleges that she was harassed by Vanessa Bryant in front of Kobe Bryant, the couple's children, and others. According to court documents "Vanessa began a continuing pattern of verbally abusing and demeaning (Jimenez)," and the plaintiff claims she was called lazy, slow, dumb, a liar and was cursed and screamed at.
When Jimenez finally approached Kobe Bryant about quitting the basketball star is said to have talked her out of it and elicited an apology from his wife, court papers said. But then, the plaintiff said, the abuse began again.
According to court papers Vanessa Bryant screamed at Jimenez for putting an expensive blouse, worth $690 in the clothes washer, then directed Jimenez to retrieve the price tag from a jar containing dog feces with her bare hand. When Jimenez finally gave notice, Vanessa Bryant allegedly insisted that Jimenez continue to work until her next payday in order to cover the cost of the blouse, which Jimenez said she did.
The Jimenez lawsuit claims that working conditions in the home were intolerable, and that the situation constituted a violation of California labor laws that protect workers from being forced to toil in unhealthy situations.
The action seeks unspecified general, punitive and special damages, as well as back pay and the overtime Jimenez says she is owed.
Institutions not above the California Labor Law
On every invoice, Caroline writes 'payable on receipt' but it often takes more than 60 days for her to receive payment. "The last time I waited for my check, I called my contact on day 31 and asked when I would receive the money," she says, exasperated. "I called twice and both times were told 'It is in accounting and out of my hands.' Then my contact went on vacation so I e-mailed accounting. Again I was up against a brick wall.
Next up, I called the small business association with the state of California??"on their website they have a liaison for prompt payment of vendor invoices from state agencies. They advised me to contact the state controller who then put me on to the auditor. I talked to the auditor and he said it is unprofessional and said they do have a time limit of 30 days??"max.
The auditor also said I need to contact the university accounting department to see if the check had indeed been cut. I called someone in the clerical department??"a friend??"and she found out that none of my invoices (I was waiting for 3) were actually in accounting. If I hadn't chased this down, I would still be in limbo and maybe not get paid for months.
I finally got it resolved and received one check a week later??"just the one that was overdue. 'You have to pay in a specific time', I said to the the health system contractor??"she is the person responsible. 'We are a university and we don't need to pay on time, neither do we pay interest or late fees,' she replied. She is a piece of work. I found out that a lot of contractors don't want to work with the university because, even though they pay, you never know when.
But the university is bound by state and federal law: they receive federal funding and my tax dollars; they think they are above the law and this is so frustrating. They have such a laissez-faire attitude; I have a mortgage and bills to pay and it is very difficult sometimes.
The head of the department finally apologized and sent me a note, so I'm hopeful that it won't happen again. I've been told that many contractors are abused by the university. Right now I want to get the word out so that people in my situation don't have to go through this; we are all in business together but not treated equally and in a professional manner. We are not respected and paid on time but we give 120 percent to them. Some people have advised me not to talk about this issue because they think I could lose the business. Then again I spent 3 days chasing down my money and that cuts into my work."
California Labor Law: A Tale of Two Hard Drives
Take the hard drive that represents life in the truck cab. Truck drivers in California put in long hours. One might think that sitting on one's duff all day does not constitute work but the opposite is true. The truck driver may be sitting for a good part of the time, but he or she is responsible for piloting a vehicle weighing several tons safely along a road with other cars. There's the load to think of??"getting it on and taking it off??"the logbook, the payload roster and, when on the road, all that shifting. You haven't really used a clutch until you've driven a big rig.
It's a tough life. So imagine California Attorney General Jerry Brown's dismay when he found more companies allegedly exploiting their hard-working drivers by illegally classifying them as independent contractors. As such, an employer can get out of paying overtime, payroll taxes, health care costs and worker's compensation by classifying an employee as an independent contractor.
The Associated Press reported late last month that three additional trucking companies doing business at the ports of LA and Long Beach had been accused by Attorney General Brown of committing tax fraud and breaking labor laws. That brings to 5 the number of companies that have been cited since Labor Day.
"Truck drivers at the ports work long hours under tough conditions," Brown said in a written statement. "These companies take advantage of their workers by failing to provide them with state-mandated protections and benefits."
And then there are those other hard drives??"the ones in your computer, or more specifically the hard drives over which computer programmers and specialists in California slave, day in and day out.
Due to the nature of the work, and of the industry itself, California has strict overtime statutes that are customized to the computer industry, although these always keep changing, and a new bill signed by California Governor Schwarzenegger in late September is already in effect.
The new law, California Assembly Bill 10 (AB 10) amends existing overtime exemptions contained in Section 515.5 of the California Labor Code for computer professionals. The amendments cover two primary areas: employee duties and compensation.
One change involves the simple change of a word, from the conjunctive 'and' to the disjunctive 'or.' Thus, the qualifier phrase 'highly skilled and proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering' which previously qualified for the overtime exemption, now reads 'highly skilled and proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, OR software engineering.'
Just a slight change. But what this does, it has been reported, is increase the number of computer professionals eligible for the overtime exemption.
As for compensation guidelines, the standard $36 per-hour threshold has been augmented by the identification of a yearly salary of $75,000, or a rate of at least $6,350 per month. In other words, computer professionals may be exempt from overtime if they earn $36 per hour or an annual salary of $75,000 (or greater) for full-time employment paid in monthly amounts of not less than 1/12th the annual salary.
Fans of the change say that this will streamline the process. And, of course, it allows employers to minimize their potential overtime liability??"a cost that is difficult to control??"by identifying a greater number of computer professionals who would not qualify for overtime.
However, critics say this favors the employer and is a loss for any employee who, before the law took effect may have been regularly claiming overtime. The sudden inclusion into exempt status for them represents a loss of income.
A number of California computer professionals have litigated against their employers for freezing them out of the possibility for overtime, due to misclassification??"either accidental, or deliberate. It's hard to determine what effect this latest update to the law will have. However it's safe to say that if you're a California computer professional and you have any questions about the work you do vs. the manner in which your employer has you classified, a consultation with a California Labor Law lawyer would go along way in helping you determine your rights in an ever-changing environment.
Disgruntled Employee says Disney violated California Labor Law
But that's just one of Timothy's complaints. His problems with Disney started when he suffered an injury at work and was put into a 'transitional duty stage'??"which means he was removed from his regular work and placed in another position that wouldn't require the use of his arm. "I worked for Disney WorldWide Services' restaurants and was diagnosed with advanced carpal tunnel in both wrists and torn rotator cuffs," says Timothy.
Timothy collected workers compensation benefits but says Disney caused him to lose workers compensation benefits. "Twice, they told my insurance adjustor that I had returned to work, but I hadn't returned," he says. Timothy was eventually reinstated but he didn't have any income for weeks and has a family to support.
"I'm not Disney's only workers compensation case but after my injury it has been one problem after another," he says. "I know other employees who have had medical problems??"they were transferred to positions where they have to use their hands in repetitive motions even though their doctor has given notification.
But this is my biggest beef with Disney: I came back to work on September 22 and they took union dues from my pay when the union has no standing contract with Disney and they haven't taken any dues from other union members since February. They took $140 off my check and on my pay stub it states this amount went to 'Local 681 union dues'. I phoned accounting and was told to talk to my immediate supervisors. They sent me to HR and HR told me to call the union. I even called my workers' compensation adjustor and he advised me to contact a lawyer.
The union called Disney's payroll department and Disney told the union that I would be refunded $105 on October 16th. Had I been fired, I would have been given a check immediately. Why do I have to wait for this money?"
Thirdly, Timothy says Disney has also violated California state labor law because it
"owes me money from the time when I was in transitional duties one year ago," he says.
"That position came with a premium pay which means that if I am not making tips, I get paid a higher rate than basic minimum wage. They didn't inform me that I was entitled to this premium and instead they paid minimum wage: $7.50 per hour. However I was entitled to receive $8.36 per hour. Again I called labor relations, accounting and HR and they told me to call transitional duty. Guess what??"transitional duty told me to call labor relations.
In other words, I am getting the run-around. My co-worker is owed about $350 because Disney paid out union dues when they weren't supposed to. They told him the money would be refunded but that was a year ago and he hasn't been paid what is rightfully his. Because of him I decided to seek legal help and get paid what is legally mine according to California labor employment law."
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