Tech & IT News
"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."
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.
Can California Labor Code Computers Not Keep Up?
According to the 7/19/10 issue of the Los Angeles Times, the California Supreme Court ruled in a unanimous decision in 2003 that state workers should be paid no more than the federal minimum wage during a budget impasse.
There have been lots of those lately, as the state limps from one budget crisis to another.
At the time of the Supreme Court ruling, former State Controller Steve Westly indicated that a decades-old computer system could not be easily re-programmed to accommodate the change. However, he assured the Court that compliance with the May 2003 ruling could happen by September of that year.
Seven years later, it still hasn't happened.
There is little doubt that the California labor law computer system is decades out of date. According to the LA Times, current Controller John Chiang recently released a three-month study claiming that it would take in excess of two years and nearly $8.7 million to re-program the system to reflect changes in minimum wage. Given that the entire system is to be replaced in 2012, such a revision would make little sense.
However, critics of the status quo claim that the Controller's computer system has already been revised to halt the pay of elected officials and their appointed staffs during a budget impasse. The system then reimburses those affected in withheld wages once a budget is signed. There have been other changes and updates over the years as well.
It was also noted that labor unions contributed millions of dollars to Chiang's election campaign in 2006 and have so far provided $350,000 for his current campaign. A pay reduction to minimum wage for state employees would in theory affect a lot of unionized workers.
In fairness, former Controller Westly also claimed there were technical obstacles to the requested change, given the inadequacies of the current system.
However, in a ruling last year Sacramento County Superior Court Judge Timothy M. Frawley wrote that Chiang's argument was "long on qualifiers and conclusions, and conspicuously short on facts." He added that "many of the Controller's objections seem to relate to whether the [minimum wage] should be implemented, rather than whether it can be implemented."
On July 16 Sacramento County Superior Court Judge Patrick Marlette denied a request from California Governor Arnold Schwarzenegger for an injunction compelling Controller Chiang to lower state salaries while there is no budget. But he ordered the two sides back to court in August to argue the feasibility of reprogramming the computers to comply with the California labor code in this instance.
California Labor Law: Stand Up for Your Rights Sooner than Later
David's main complaint is not being paid overtime. He worked in the computer IT department and all techies were covered under a union contract??"that excluded technicians' classification for overtime pay. "We belonged to a union that was covering the airline mechanics and we were part of that same contract," says David. "We were called 'remote terminal maintainers' back in 1979 and it wasn't until years later that the company changed it to 'computer terminal technicians'. Changing the name was more descriptive of what we did, even though it was lacking.
We did tech computer maintenance from the PC, the network, infrastructure and associated hardware. This work was supposed to be based on an 8-hour shift but one year we finally made a verbal complaint to our regional manager that we were not being paid overtime. The owners of the company came to a meeting with the techies and the president of the local union. We were told by the company that it was not a company issue; it was a collective bargaining issue. The union president said at the meeting that we were excluded on the overtime issue from the union contract. 'You are either under the company rules or the state guidelines,' he said, 'and you can go for relief in the courts.'
The regional manager's eyes popped out when he heard that. Years have passed and we tried to fight this issue many times, to bring it up with the company. We had pushed at union meetings for the techs to be included in overtime pay. The union negotiated an agreement but at that time everyone else who was classified under that contract could only get paid time and a half. Prior to that, in that same contract, everyone but 2 classifications was paid time and a half and double time, except the techs and the ground radio techies.
Most techs in my department thought we might be outsourced if we were paid overtime. In 2006 that eventually happened. It was very traumatic for all of us??"I estimate that 150 techs lost their jobs nationwide. The managers, supervisors and regional manager??"everyone below the director??"lost their jobs. The whole department was outsourced to a Texas company, who subcontracted a lot of work to another company whose pay was less than half our pay.
We could have sued the union for not representing us properly but most people who tried to fight the company or bring about some type of complaint were forced??"somehow??"out of their jobs. So why didn't we fight? Nobody wanted to go through all the aggravation and the stress you are put through standing up for your rights in a hostile environment…
There was a lot of favoritism for certain individuals and in my opinion they would not join a lawsuit because they benefited most for not doing so. Others felt they were wronged but were too afraid and didn't want the pressure. We (numerous techies from several states) tried to fight in our own way: by trying to get management above us to get us better pay conditions; contacting the union to fight for us and hoping someone in our tech classification would file a lawsuit. We were hoping that someone more independent could file.
What I know now, I would have filed a suit. At that time, the environment we worked in was very hostile. They were very discriminatory in promotions and work assignments and in my opinion they violated the contracted agreement along with several California labor laws. In retrospect, we should have had a labor lawyer representing us."
California Labor Law Violation: Workers Exploited
It appears as if justice will prevail for employees holding the job titles of Systems Integrators and Graphics System Validation Engineers, after their action against Intel has been granted class certification status in Superior Court of California, County Santa Clara.
Intel is the world's largest manufacturer of semiconductor chips for the computer industry. And yet, even given that status it appears to be not above the alleged practice of misclassifying employees with the intent to freeze them out from receiving the overtime pay they are owed.
While the granting of class action status cannot be seen as a ruling on the merits of the case, insiders report that the plaintiffs are one step closer to potentially claiming back overtime pay and other related costs.
There are strict provisions in California labor law governing the computer IT industry and software engineers in particular, with overtime considered exempt with regard to certain job classifications and work that is performed.
Companies that employ software engineers and computer professionals have been known to bend the rules and play fast and loose with classification parameters, in an effort to avoid paying overtime and thereby reducing costs. However, computer IT professionals work hard enough without giving up extra pay that is their due. Many are fighting back through lawsuits.
Meanwhile the California State Labor Commissioner has yanked the carpet out from under a California provider of flooring. All Floor Commercial and Residential Flooring and its owner have been frozen out of participating in public tenders for 3 years after serious violations of public works laws were found, together with a 'clear intent of fraud.'
The list of alleged misdeeds, which are presumed given the State's position, is a sorry example of how an employer is capable of taking advantage of employees who are probably impoverished to begin with.
Among the allegations and evidence uncovered during work completed by the company in 2007 and 2008:
Failure to pay proper prevailing wage rates; Misclassification of workers; Failure to pay travel and mileage reimbursements; Falsification of certified payroll records; Falsely reported work hours of employees.
The investigation also revealed that the contractor maintained two separate sets of books in which they falsely reported dates, hours and projects on which employees worked. The contractor was also found to routinely misclassify employees as lower-paid laborers to avoid paying the higher wage. In some cases the workers were paid less then half the required prevailing wage for their true classification.
As a result of the investigation and evidence found, the Labor Commissioner issued an Order of Debarment against the firm.
"The debarment proceedings are necessary to remove employers operating in an illegal manner at taxpayer expense and to the detriment of employees on public works projects," said California Labor Commissioner Angela Bradstreet. "The action that I am taking will help to create a level playing field for legitimate employers operating in this tough economic time.
"Our investigation revealed serious violations of the public works laws and a clear intent of fraud against employees and the awarding bodies on two separate projects," Bradstreet continued. "I cannot allow a company to continue operating while deliberately taking advantage of their employees and the tax payers who fund these public works projects."
While it is a sad state of affairs to witness such blatant violations of workers' rights and California labor laws??"especially in the midst of one of the toughest economies in decades??"it is heartening to know that California state labor law is defended and upheld on behalf of workers made to suffer from unscrupulous employers that have little regard for California labor employment law. If you know of, or suspect, such a violation in your own workplace, don't take the abuse. Fight it, with the help of an attorney.
California Labor Law: Taking a Bite Out of Apple
Given that the State serves as the defacto home base to the computer industry (Silicon Valley, et al) California has a number of unique laws and statues over and above the federal employment regulations that are designed to protect California workers from being taken to the cleaners by their employers.
Such employers have a limited window of opportunity to legally avoid having to pay overtime. Those allowances include certain managerial positions, and employees who earn income above a certain threshold. That threshold, it should be noted, was recently lowered in favor of the employer. Not only is the employer freed from paying overtime to a larger collection of employees, the threshold change means that the overtime rate in real dollars paid, is lower as well.
That doesn't appear to be enough for some employers, who feel like they have to circumvent California State labor law by incorrectly classifying employees in a bid to avoid paying them their due.
That's the accusation against Apple in a 40-page class action lawsuit filed last Thursday in San Diego court by former Apple network engineer David Walsh, who claims that Apple knowingly violated California Labor Law overtime and Industrial Welfare Commission requirements by "systematically" misclassifying Walsh, and his fellow technicians as management.
Apple is alleged to have created hundreds of seemingly unique positions that, in reality, were subtle variants of the same role. As an example, the simple placement of the word 'Senior' in front of 'Network Engineer' created an instant managerial position that would allow the employer to require long hours without any hope for overtime pay??"even though the Senior Network Engineer was doing the same work as the larger pool of network engineers.
According to the complaint, the number of work hours required by the company was appalling. Walsh claims that even though he was scheduled for an eight-hour day, the reality was anything but, as his employer would allegedly direct him to maintain the network "well into the night." Walsh also claims that he was on call at all times of the day, and that many calls would come in after 11pm, or on weekends.
Not only did Walsh have to defer leisure activities, but he also found himself deferring more important tasks, such as going to the doctor or even taking a meal break.
It has been reported that Apple bestowed the management title on Walsh even though his work did not change??"that of installing, and maintaining computer networks. He was, as a result, found to be working alongside other technicians, performing the same tasks, who had no title.
And even though he was classified as management, Walsh claims that he had no authority over where he could go (in the workplace) and required permission from the true executives and site staff.
Even though he was classified as management.
Walsh, who is seeking class action status for his California State labor lawsuit,
wants to force Apple to properly classify employees according to the work they do. He also wants Apple to compensate employees who missed out on overtime pay, and advance any employee the equivalent of two hours of pay for each full day of work where a technician wasn't allowed a meal break.
The suit was filed August 8, 2008
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