Undocumented Worker News
Domestic Workers Eligible for Overtime Pay
Under California’s Domestic Worker Bill of Rights (AB 241), people employed as personal attendants are eligible for overtime pay, which they were not before. The Act defines personal attendants as people employed to work in a private household, “to supervise, feed, or dress a child, or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision.” People who spend more than 20 percent of their time in other duties are not considered personal attendants. Personal attendants can be either live in or live out and include nannies, babysitters and certain caregivers.
People who work in facilities are not included. Also not included are family members of the employer or casual babysitters.
The Domestic Worker Bill of Rights requires personal attendants who work more than nine hours in a workday or 45 hours in a workweek to be paid one-and-one half times their regular rate of pay for any time above nine hours per day or 45 hours per week. Personal attendants are also entitled to minimum wage pay.
This means that someone who works as a personal attendant for an elderly person and spends 10 hours a day working should be given overtime pay for one hour that day.
Prior to the Domestic Worker Bill of Rights, employers would rely on the personal attendant exemption to avoid paying their domestic workers - which included caregivers, housecleaners, housekeepers and childcare providers - with overtime pay. Now, if personal attendants are not given their overtime, they can file a lawsuit to recover unpaid wages, reasonable attorneys fees and interest and penalties.
The distinction between personal attendant and domestic worker is important because there are different overtime rules governing the two groups. California Domestic Workers Coalition notes that while overtime for personal attendants kicks in at nine hours in a day or 45 in a week, overtime for live-out domestic workers who are not personal attendants kicks in at eight hours in a day or the first eight hours on the seventh consecutive day. Double overtime starts for live-out domestic workers at 12 hours in a day or more than eight hours on the seventh consecutive week.
Live-in domestic workers have different overtime rules as well, including time-and-a-half for more than nine hours in a day and for the first nine hours on the sixth and seventh consecutive days, and double time for more than nine hours on the sixth or seventh consecutive days.
Despite having a right to overtime, personal attendants do not have a right to meal or rest breaks.
Although the Domestic Worker Bill of Rights is law, it is only a temporary law and ends in 2017 if the legislature does not extend it.
Failure to pay domestic workers and/or personal attendants for their overtime hours can result in a lawsuit being filed against the employer.
What Rights Do Illegal Immigrants Have regarding Wage and Hour Issues?
Moises worked as a cook at Mel’s Diner for six years before it was sold six months ago. The new owner asked him to continue working in the same position at the same rate: $12 per hour, 40 hours per week.
First California labor law violation: Moises says he typically worked 50 hours per week but he never got overtime pay.
“I asked the new boss about California overtime compensation but he told me they never pay anyone overtime,” says Moises. Other employees worked overtime but they didn’t get paid either, so I wasn’t singled out. The previous owner never scheduled us for more than 40 hours per week, but sometimes we would work an extra few hours and always get paid time and a half.”
Second California labor law violation: California wrongful termination?
Moises had a minor “incident” that triggered his termination. “One day I had a problem,” he says. “I was pulled over by the police and jailed overnight because I forgot my driver’s license - I had left it at home. My friend called my boss (I tried to call him first from jail) and told him what happened. The next day I showed up at work and he said, ‘I don’t need you anymore,’ and said I have too many problems. But I think it was because I asked for overtime. They said they have too many cooks but I know they don’t have enough cooks.”
Third California labor law violation: Not receiving last paycheck in a timely manner.
“I was fired one month ago and I still haven’t received this last paycheck,” he says. Moises went back to Mexico but his wife and two daughters, ages seven and three (they were born in the US), stayed in the US. “I sent my wife to the restaurant to get my check. My boss said he wouldn’t give it to her, using the excuse that he doesn’t know her, but that is not true.”
Moises, age 28, has been working illegally in California for the past 10 years. He is in the process of getting his green card. His wife is a US resident and she has applied for citizenship. “I gave my boss a fake social security number; it is a number I have used for the entire time I was in the US. I never had a problem with it. I bought it from someone on the street in Mexico for $80.
“My boss has taken advantage of me because I worked illegally,” Moises adds. “Everyone knows there are a lot of illegals in the US; illegals who want to move here to work and get a better life. I hope to return to the US when I am legal; right now I am trying to fix my status in the US. My family can visit me here but I don’t think I can go to the US for about a year. Meanwhile, I have a construction job here in Mexico City, but I would rather be a cook in California.”
LawyersandSettlements (LAS):
Do the above labor law violations apply to illegal immigrants, i.e., overtime violation, wrongful termination (not even sure if wrongful termination applies to any employee because California is an “at will” state) and not getting the last paycheck on the day of termination?
Attorney David Yeremian (DY):
Yes. According to the CA website of the California Department of Industrial Relations, “All California workers - whether or not they are legally authorized to work in the United States - are protected by state laws regulating wages and working conditions.” The website states that all California workers have the right:
• To receive a minimum wage of $8.00 per hour
• To earn overtime pay - with some exceptions - after working more than 8 hours/day or more than 40 hours/week
• To file wage claims with the state labor commissioner if they believe their employer has violated state wage laws
• To file workplace safety and health complaints with Cal/OSHA, the state’s workplace safety and health program
• To work in an environment free from retaliation for exercising their rights
LAS: Can Moises get a letter from a notary public stating that his wife can receive his last paycheck?
DY: A notarized authorization letter may work; but Moises’ employer is not obligated to give his paycheck to anyone other than him.
LAS: Is the employer in violation of CA labor law for hiring Moises with a fake security card?
DY: The Immigration Reform and Control Act, a federal law, makes it illegal for an employer to knowingly hire undocumented aliens.
LAS: Moises has a fake social security card. What rights does he have re: getting overtime and his last paycheck? Moises says he paid taxes from his pay stubs.
DY: See response to Question 1 above.
LAS: If Moises paid taxes, doesn’t he have a right to get his last paycheck?
DY: Yes, Moises has a right to get his last paycheck. In fact, pursuant to California Labor Code Section 201, an employer who discharges an employee must immediately pay all compensation due and owing.
David Yeremian is an experienced litigator and business counselor, and co-founder of Orshansky & Yeremian LLP. He has worked on a wide variety of litigation matters including employment. The employment discrimination lawyers in Los Angeles provide free consultations to discuss your case fully.
Class Action Lawsuit Attempts to Clean Up the Car Wash
The latest blight on the car wash horizon was revealed this week in the Los Angeles Times (5/22/12) following the filing of a lawsuit by the Mexican American League Defense and Educational Fund against the operators of a trio of car washes in the state.
According to the report, Bijan, Edna and Kambiz Damavandi are the defendants in a class action lawsuit alleging unpaid overtime and other California labor law violations.
In their lawsuit, the plaintiffs allege the owners of Lincoln Millennium Car Wash, at 2454 Lincoln Blvd. in Venice; Santa Monica Car Wash, at 2510 Pico Blvd. in Santa Monica; and Bumble Bee Car Wash, at 2711 Del Amo Blvd. in Lakewood required workers to arrive at the facilities early, yet allowed them to formally clock in only when there were sufficient cars to wash.
Allegations include the denial of proper lunch and water breaks.
Plaintiffs are buoyed by previous settlements, which have favored workers in their California overtime law disputes with operators. The most recent was this past January when a settlement was announced by California Attorney General Kamala D. Harris benefitting workers employed at a collection of eight car wash facilities peppered throughout the state.
Akin to the current action, defendants were alleged to have denied workers meal breaks and rest periods, falsified payment records, and engaged in the non-payment of overtime. The settlement was worth $1 million.
Various efforts have been undertaken to enforce overtime pay laws and other labor statutes in the car wash industry, a sector that leans towards the employment of undocumented immigrants from Mexico and Central America. With fierce competition and diminished profit margins, many owners attempt to increase their already meager profits through the exploitation of their workers.
The lawsuit was filed May 21 in LA County Superior Court. Spokesperson for the plaintiffs Marcial Hernandez revealed he had toiled at Lincoln Millennium Car Wash for eight years prior to resigning, often working as many as 50 hours but paid for only 40. Adhering to overtime laws was never part of the equation. "(The owners) often insult you to get you to work faster," he said.
Federal Initiative Augments California Labor Law
Judy Chu, Representative for the State of California, applauded the olive branch.
"Today's decision by the US Department of Labor is a bold step in addressing our nation's immigration challenge as it relates to unscrupulous employers illegally taking advantage of immigrant workers," Chu said in a statement released April 28 by States News Service. "This practice is far too common and it hurts immigrant workers and it undercuts American workers. No longer will immigrant workers be enslaved out of fear of deportation by abusive employers who refuse to treat them by the standard that the law requires.
"This decision will allow immigrant workers to come out of the shadows, leave cruel working conditions behind and find jobs where they are treated with the dignity and respect every worker in America deserves."
A survey was initiated with the assistance of 4,000 workers in three major centers around the country. Los Angeles was one of them. The survey found that almost half of workers who filed a justified complaint against their employer or attempted to form a union were subjected to various forms of undue retaliation. Among the illegal responses on the part of unsavory employers were threats to call immigration officials, threats of deportation or actual retaliatory firings. Such responses fly in the face, for Los Angeles respondents at least, of California labor code.
The same survey found that respondents were losing, combined, an incredible $56.4 million per week as a result of various labor law violations and - in California - violations to California and labor law.
Among the alleged violations revealed in the survey: 26 percent of workers had not been paid the minimum wage in the workweek preceding the survey. Of those having worked more than 40 hours in the preceding week, 76 percent were not paid overtime as outlined in binding labor law statutes.
The US Department of Labor initiative would also bode well for legitimate companies and employers who play by the rules, but which are being adversely affected by those employers undercutting the system by violating California labor employment law.
Under terms of the plan, immigrant workers willing to aid in the investigation of unscrupulous employers would be eligible for a U Visa - a document that would allow an immigrant worker to remain in the US for a total of four years, and providing a pathway for an application of permanent residency.
California state labor laws are designed to protect workers from exploitation. This US Department of Labor initiative - albeit federal - would augment efforts by the state of California to protect worker's rights, and pursue those employers engaged in illegal activity in violation of California employee labor law.
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