Wage & Hour News
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
Worker Denied Tips Contrary to California Labor Law
"My employer said the tips belong to the restaurant and they can split them however they please," says Tuyen, "even though when I was hired I was told that the tips would be spilt between all employees based on the numbers of hours they work and not the managers." Tuyen was fired after she gave notice (not surprisingly) and one of her co-workers said the tips were split equally amongst the rest of the staff a few days later. And Tuyen's tips were split equally too.
"After I kindly tried to explain to my employer that he didn't have the right to do that he was very rude to me and acted as if he and the restaurant are above the law," she says.
It would likely benefit Tuyen's employer to acquaint himself with the California labor law because it isn't just about protecting employee's wages and preventing discrimination, etc. One law protects employees who earn tips during their employment.
A customer tips an employee as a thank you for services given or goods sold. Tip pooling is common, particularly in restaurants and is usually at the request of the employer. All employees are required to combine all their tips and split the money among their co-workers. Under California law, tip pools are allowed when the tips are shared with employees who provide direct services that result in a tip. In a restaurant this would include hosts, servers, busboys and anyone else who provides direct table service. Chefs are only included in tip pooling in restaurants where the chef prepares the meals at the customer's table.
Tuyen is right when she told her employer that tips belong to the employees and not the restaurant. In fact, supervisors cannot share in tip pools because tips can only be shared with workers who do not perform any managerial duties such as hiring and firing or supervising the direct actions of their co-workers. And employers cannot deduct money from wages because of earned tips, nor can tips be used to compensate business owners.
Any tips that are made on a credit card must be paid to the employee by the next regular payday that follows the date the credit card payment was authorized. Employers must give their employees the full amount of a tip given on a credit card and may not deduct any credit card processing fees from the tip.
Tips are currently not considered part of a regular pay rate in California. In this way, California law differs from federal law in how tips are viewed. Under California law, "an employer cannot use an employee's tips as a credit towards its obligation to pay the minimum wage." Therefore, tips that are collected are over and above the required minimum wage pay.
Workers whose employers violate California labor law can file a lawsuit against their employers. In March 2008 Starbucks baristas did just that and a US Superior Court judge ordered Starbucks to pay its baristas more than $100 million in back tips that were paid out to their shift supervisors, saying that the practice of sharing tips with managers and supervisors was a violation of the state law.
The lawsuit was filed in October 2004 by a former Starbucks barista in La Jolla, California who complained that shift supervisors were sharing employee tips. In 2006, about 100,000 former and current baristas in the giant coffee chain's California stores joined the lawsuit that was granted class action status. Why did Starbucks think it was above the California labor law? Tuyen's employer might learn a lesson from the Starbucks lawsuit and settle sooner than later.
Overtime in California: Employees Expected to Work During Vacations
"I started with the company in 2003 and have been with them for about five years," Troy says. "I was hired on as a broadband engineer. I did the normal routine, worked hard and was a team player. The company was pretty successful and paid overtime back then. Then, management changed. After that, it went downhill. The company emailed us that it wanted the installation department to do comp time [where time off is provided in lieu of overtime pay].
"We started acquiring comp hours and tried to use them, but the company told us it was poor timing for us to use our comp hours," Troy says. "But, they wouldn't give us overtime pay unless there was an extraordinary situation. We had no contract regarding comp time and the company had no rules for using comp time. We all have a lot of accrued comp hours that we can't use."
As if not being paid for overtime was not enough of a problem, the company also expects employees to be on call 24 hours a day, without compensation. "If you do not answer a phone call on the weekend you are reprimanded verbally," Troy says. "They accuse you of not supporting the company and they give a lot of guilt.
"Overtime work depends on each situation and scenario??"technology is in a flux. Sometimes, you only work eight hours a day for months at a time, other times something happens and you're scrambling and constantly working. I took some of my vacation time last week and was called to work four times. It was easier to call me in from vacation than have someone from a different region take care of our towers.
"It is a typical mentality of this company. The do not care about their workers on the front lines and employees are taking the brunt of it. We are often told that if we don't like it, we should find another job."
Making the situation even worse, Troy's company says it has not been accurately calculating vacation time and is not allowing employees to use their sick time. "I had four weeks of vacation accrued and when I went to use it, the company informed me not to read the vacation time listed on my pay stub because those hours are inaccurate. They also have nothing actually documented to tell us what is accrued for comp time."
Troy says he is actively looking for another job, tired of dealing with employers who will not properly compensate employees for the hours worked. Unfortunately, this is a situation that occurs all too frequently in California??"employees are expected to work overtime without proper compensation.
If you worked overtime hours without proper pay, contact a lawyer to discuss your legal options.
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