Transportation News
California Labor Law: "Retaliation Means More Ammo for Me," Says Chauffeur
"I've been working with this company five years and our gratuities are included; they are automatically billed to the client," says Brent, "but we never get our tips??"and that includes about 30 of my co-workers; we're all in the same boat. And that's just one complaint with this company…"
Brent also says that all the employees have overtime issues with the company, and believe the company is making the most of today's economic problems. "I work 7 days a week, minimum 10 hours per day and sometimes up to 18 hours a day at my regular rate, which is $14 per hour," Brent adds. "I've complained to management on several occasions; the last time I brought up the subject of overtime at our regular chauffer meeting, the owners said, 'At least you have a job.'
"All of us employees are in a Catch-22 situation; - we're danged if we work overtime and danged if we don't. If we move on to another company, it will take two or three weeks before getting a paycheck. In the meantime we might as well keep going on. We get paid every two weeks and according to the California labor code, our tips are supposed to be included. Even though this isn't the job I want, it pays the bills, barely.
"To make matters worse, and the reason I am working so much overtime, is that my wife is sick - she has a brain tumor - so I have to keep up my medical insurance. The way it works with my company is that they take $332 out of my checks every two weeks to cover medical insurance; it would be decent if they added my gratuities. (My bosses know about my wife's illness.)
"My co-workers are afraid of complaining and I can totally understand; they are afraid of retaliation. And six chauffeurs were recently hired but only two are still working. I presume they were smart enough to read through the lines and see what was going on."
(If your employer retaliates against you in any manner whatsoever, that is a violation of the California labor law. For instance, if you object to your boss crediting your tips against your wages, you can file a discrimination/retaliation complaint with the Labor Commissioner's office and/or file a lawsuit in court against your employer. A wage and hour attorney can help.)
"I'm hopeful that I will file a lawsuit against this limo company," says Brent. "I know that I have a strong claim in this matter and I know it will take a little time, but an experienced attorney will probably help and I am told it would probably not take as long as trying to do it myself. I am willing to go the distance because no one should be treated this way. I haven't phoned the California labor board yet, because I know there is going to be retaliation, but at the same time, that will be more ammo for me."
"The driver's gratuities are included as part of the client's bill," says Penney Kemp, manager of Hancock Limousine Services. "We pay our employees all of their tips, every two weeks on their paychecks. We've been in business 12 years and have never done otherwise."
Some limo companies pay their drivers barely more than minimum wage, so they rely on tips to pay their taxes. Unfortunately, some drivers cannot rely on their employers to treat them fairly.
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.
California Labor Violation—Illegal Drugs an Excuse for Termination
"I found out three weeks ago that I was getting fired - I am friends with the owner's brother," says Kevin, who managed the detail shop at a car lot. " That was Wednesday, my day off. On Thursday I confronted the two supervisors but they knew nothing about it and the owner was at a car auction.
After the supervisors said I wasn't going to be fired, they (obviously) spoke with the owner and Jeff, the shop manager, fired me the next day. He was almost in tears; he was really broken up about this. I called the owner after I was fired. He said we would talk when he got back from the auction but he never came back to work.
I was confused. I worked here for six years; I put my heart and soul into this place. I had a meeting with the supervisors and the general manager and I told them I was really upset: the owner said I was taking drugs. I have never missed a day's work, only when my mother died. I think he fired me because I asked for a raise a week beforehand. And he just hired a Spanish guy for $9 per hour; I was making $13 and asked for a $1 per hour raise. It had been more than two years since I talked about money and I was due for a raise.
I was the most loyal and dedicated employee at the car lot and there is no reason for this. I do take prescription drugs sometimes but never at work. You can look at my work records. Unfortunately California is an at-will state so he needed some excuse to terminate me. He certainly can't fire me for being late or not doing my job. People who do drugs don't work like me; showing up every day at 7am and never having a complaint.
I did work faster than anyone - you could ask any of my former co-workers, all 15 of them.
I have a family to support and it is not right that I am fired because he wants to save money. Morally this is wrong. I just can't believe he would do this and what makes me even madder is that he couldn't even do it himself.
It all boils down to economics when an employer doesn't want to pay you, but this decision to fire me is going to come back to haunt him financially because it would take two people to do my job. And I don't even know if this new employee is here legally…"
California Labor Lawsuit Sees Settlement of $22 Million
According to an article at Cincinnati's CityBeat (August 20, 2009), Cintas Corp. will pay over $22.75 million to settle a federal lawsuit that alleged the company failed to properly pay employees overtime wages. The lawsuit was filed on behalf of employees who said they were misclassified as exempt from overtime pay as required by both state and federal laws.
The employees were uniform delivery drivers, responsible for picking up dirty uniforms and dropping off fresh ones. They were classified as salary instead of hourly workers; however, the plaintiffs argued that they drove trucks and delivered uniforms and therefore should not have been classified as exempt from overtime pay.
It has not yet been decided how many drivers are included in the settlement or how much those drivers will receive. The lawsuit was filed in the US District Court for the Northern District of California and sought compensation for unpaid overtime dating back to March, 2000.
Cintas CEO Scott Farmer said in a statement that the suit was unfounded but that the company resolved the claims through mediation to avoid the expense of litigation.
Meanwhile, former employees of Aurora Las Encinas Hospital, a psychiatric facility in California, have filed a class action lawsuit against the owner of the facility, alleging that understaffing has not only compromised patient care but has also put employees in a position of working overtime without proper compensation. The suit also alleges that employees worked in unsanitary conditions, including using a bathroom that had a toilet but no sink.
According to an article at latimes.com (August 7, 2009) employees say they were given the answers to mandatory examinations so that the hospital did not have to pay workers for time spent studying for the exams. They also say they were overworked, not paid for overtime and felt they could not provide safe care for patients.
The lawsuit seeks unspecified restitution and legal fees. One plaintiff said the goal of the suit was to improve Las Encinas, a facility that reportedly had three unexpected adult patient deaths in a five-month period during 2008. In the same time frame, a 14-year-old patient was raped.
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.
Automotive Company Downsizes-- California Labor Law Violation?
Sean has family with 2 young kids to support so this lay-off has been devastating. He has never been laid off or fired in his life. "I've never been in this situation before??"I filed for unemployment and it is really hard to take," says Sean.
"I understand times are tough but a few months back they just changed my pay from salary plus commission to an hourly rate which gave me a substantial pay cut, but I still did my job regardless," says Sean. "Getting a reduction in pay was bad enough??"for the last 3 months I got about $600 per month less than my regular salary. Overtime wasn't allowed so I was just working an 8-hour day. When I was on salary, it was the same schedule; nothing changed in my job description. And my pay reduction happened right before my father passed away so it's been rough.
I more or less resigned myself to the fact that I had to live with this cut in pay, but when I was laid off my position was filled from someone inside the company with less seniority than me, and that wasn't right. I called my ex-boss and asked why; in all my yearly reviews I got perfect scores and was always told I was doing a great job.
He said that 'I was not going above and beyond my call of duty'. I didn't know what else to say to him except 'Thank you'.
The only thing that changed from my salary to hourly position was that we had 4 people in the department and the business opened a wholesale division, which meant one of my guys moved into the wholesale store, leaving me short-staffed. The guy who moved was also 'buddies' with my boss so when they laid me off, the next day he was back at our store. And the day after I was 'laid off' I got a lot of phone calls from co-workers and suppliers I dealt with telling me the news--that he had just moved into my former position.
I believe that I was laid off because there was no justification to fire me. But I haven't been told when I can return to work and I don't think I will ever get a call to return.
I think the main reason I was laid off was simply because my boss and this guy were good friends. And that isn't fair. The chances of my finding another job in my particular field are pretty slim; I think it is going to take a while??"or maybe never. As you probably know, California car dealerships are going out of business??"my prospects aren't good. In fact I'm looking at switching careers; I'm thinking about computer design or construction of some sort but my automotive days are likely over.
I want to file a complaint against my former employer so he won't be able to do this again, to somebody else. This company is huge so I am sure their lawyers research and advise them on how to get rid of employees without any recriminations. And that isn't right??"even in these times."
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.
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