California Employee Rights Advocate

In California how many hours can a salary or exempt employee, be asked to work?

Walter Haines, Esq. — Wed, 16 May 2012 08:30:13 -0800

Sort answer is that: there is no minimum or maximum hours an exempt or salaried employee can work. The problem is usually that the employee might be misclassified as salary or exempt from over time when they should actually be an hourly or non-exempt employee.

This raises the question: How do you know if you are properly classified as exempt or non-exempt from overtime pay?

Employer cannot arbitrarily classify employees however they see fit. If this were the case everyone would be a salaried or exempt employee and companies would no longer have to pay anyone overtime again, saving themselves a boatload of money and working people as may hours as they choose. California labor law has specific guidelines for classifying employees as exempt. The most common exemptions are as follows:

• Executive exemption
• Administrative exemption
• Professional exemption
• Outside Sales Person exemption
• IT or Computer Software Professionals exemption
• Overtime Pay for inside sales people at a rate of one half

Each of these exemptions is explained on the Department of Industrial Relations web site. The most important thing you can take way from the exemptions is that your job title has nothing to do with whether or not you are exempt from overtime. The main criteria used for deciding if someone can be properly classified as an exempt employee is there actual job duties. What an employee’s true tasks and job functions will help determine if they should be paid overtime or just a flat salary. Not all manager need to paid salary and not all assistants need to be paid hourly.

Labor law is complex if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

Pay back is a ... ... it's a Reimbursement.

Walter Haines, Esq. — Wed, 09 May 2012 07:42:31 -0800

California labor law section 2802 requires that employees be reimbursed for all expenses incurred during and for work. The most common reimbursements include: uniforms, mileage and other travel expenses.

California Labor Code section 2802(a) states:

"An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful."

Mileage
Currently the IRS will allow a deduction of .55 cents per mile to be claimed on your tax returns if you were not already reimbursed for these miles. While there is no labor law requiring that employers reimburse at this specific rate it is a pretty good guideline and most companies trying to avoid a lawsuit typically follow closely to this amount. Often employees can have questions about home many miles they can claim and whether or not they can include the miles they drive from home to work. This can get confusing especially if you don’t go to the same place every day for work or if during your drive restrictions are placed on you such as who can be in your car, or being required to be available for communication. If you have questions it is best to contact an experienced California labor law attorney to discuss your specific situation.

Uniforms
California labor code section 2802, Industrial Relations Order Section 9 also discusses uniforms : “The term “uniform” includes wearing apparel and accessories of distinctive design or color.”
In basic terms this means that if the employer requires that you to have very specific clothing or accessories the employer must either provide it or reimburse the employee for it. A larger number of employers have got themselves into hot water by requiring the employees to purchase their uniforms directly through the company. Other employers have wised up and now offer uniforms in exchange of a deposit. This means the employee will allow funds to be taken out of their pay to cover the uniform but when the employee turns in the uniform this amount will be refunded to the employee.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

Discrimination and Harassment in the Work Place

Walter Haines, Esq. — Wed, 02 May 2012 08:40:01 -0800

Discrimination and harassment can come in many forms but California labor law really focuses on specific protected classes; such as: age, race, gender, religion, sexual preference and disability. Age typically depicts older generations, race can often include national origin, gender might included gender identity and disability can cover any medical ailment temporary or permanent.

Discrimination or harassment based on national origin was discussed in appellate court, Rehmani v. Superior Court. Luckily for the plaintiff the court of appeals issued a writ of mandate overturning the previous courts decision on the harassment claim. Rehmani, a Pakistani, claimed the co-workers harassed him based on his national origin. The court describes a series of incidents, over a few months, in which there were political jokes, terrorism jokes, and the like. However, these jokes were pretty isolated, occurring about a month apart.

After reviewing the case the court found that these allegations were serious enough that they should be tried by a jury and that the court was too quick to grant a summary judgment. The court also believed that the company’s management had sufficient notice of the conduct, and there was insufficient evidence of an adequate response to the conduct to justify summary resolution.

The court had no choice to believe the plaintiff as it was proven that his manager was repeatedly advised of these harassing remarks. Because the manager did not take action after being informed of the harassment this case will go to a jury or mediator for final resolution.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

5 things you should be paid for under California Labor Laws

Walter Haines, Esq. — Wed, 25 Apr 2012 07:48:35 -0800

If you are an exempt employee you are likely not owed any additional compensation for your time; assuming your employer has properly classified you. If you want help deciding if you have been properly classified you should contact a California labor law attorney and discuss your job duties with them. It’s important to remember that the job duties are what determine the exemption status not you’re your job title.

As non-exempt or hourly employee you should be compensated for all of the time you spend working. Employers may often make mistakes while recording and compensating their non-exempt employees. Some of the common areas employer may make mistakes are as follows:

1. Seminars, Lectures, and Training Program

Hourly employees may or may not be compensated for attending training or lectures. Attendance at lectures, meetings, training programs, and similar activities is not considered compensable time only if all of the following criteria are met:

• Attendance is outside the employee's regular working hours,
• Attendance is voluntary,
• The course, lecture, or meeting is not directly related to the employee's job, AND
• The employee does not perform any productive work during such attendance.

If the training is considered related to the employee’s job if it will help the employee improve his work performance. If the training is for another job or skill set then it is not related specifically to the employees job function then it is likely not compensable. For example, an IT employee who takes classes toward an accounting degree may incidentally improve his or her organizational skills but that training is not job-related.

Likewise, if an employer offers a lecture or training session for the benefit of employees, voluntary attendance outside of work hours is not hours worked, even it if it is job-related or paid for by the employer. For example, an employer may offer all employees an opportunity to hear an author to speak about a new book about improving management skills. If it is during work hours, the time at the session is compensable time. If the speaker event is outside of regular hours, and is completely voluntary, it is not compensable time.

2. "Off-the-Clock Time"

A non-exempt employee must be compensated for all hours worked in a workweek. This includes work performed that may be outside the employee's regular workday. For example, a non-exempt employee may report to the office 30 minutes early each day and if that employee begins working prior their start time the employee must be paid for that time even if the employee did not record the time properly. The same requirement applies to the hourly employee who brings work home or responds to emails from home before or after the regular workday. Even if the employee has been told not to perform work off the clock the employee must be paid for the unapproved overtime. But the employee might be given a disciplinary action for not following company policy.

3. Attendance at Receptions, Dinners, and Other Social Events

Sometimes employers will host or sponsor Social events for the employees and or clients. If employees are required to attend this time should be compensated. If they are not required to attend then the time is not compensable. However it’s important not to pressure the employees to attend if it is not actually required.

4. Volunteer Activities

"Volunteering" or "team building" opportunities are not compensable if they are not mandatory and are not during regular work hours. But if they are required and or during the employees regularly scheduled time then these volunteer times must be paid. For example, a research assistant volunteers to be a greeter at an event on Saturday night, and is not required to volunteer, that is not compensable time. If the volunteering occurs during regular working hours, it is considered compensable time.

5. Work Performed while Commuting

One of the most confusing mistakes an employer can make is requiring the employee to perform work during the employees commute to work or on the way home from work as well. For example, an employer may ask the hourly employee to clock out and go home but then ask if they would stop by the bank on the way to drop off the deposits for the day. This time must be compensated.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

California Meal and Rest Breaks, Brinker Decision Changes the Game

Walter Haines, Esq. — Wed, 18 Apr 2012 08:03:39 -0800

The California Supreme court’s long awaited decision in the Brinker case was a relief to employers and a cautionary tale to employees.

Let’s review what California law dictates then we’ll discuss what the Brinker decision says about how that law should be applied.

California Labor code 512 discusses the ground rules for meal and rest breaks. First it states that all meal breaks be a minimum of 30 minutes long, they must be uninterrupted and must begin by the end of the 5th hour if the employee is scheduled for at least 6 hours that shift. It goes on to say they 10 minute rest breaks must be given for every 4 hour period the employee works. The penalty for improper meal or rest breaks in one hour of pay.

In the Brinker case the court was tasked to decide what the employers role of responsibility was in ensuring that all of these requirements be met. More or less the court stated that employers are charged with the following tasks:
(1) Relieve employees of all duty
(2) Relinquish control over their activities
(3) Permit them a reasonable opportunity to take an uninterrupted 30-minute break.

The decision also cleared up a common misconception that the employee must be given a break if working 5 hours. There is no rolling 5-hour rule. In other words, there’s no penalty if an employee works 5 consecutive hours without a meal period (as the plaintiffs in Brinker argued). The Court asked for post-hearing briefing on this issue, it raised the specter that almost every employer in the state had a policy that was wrong.

Here’s what we should take away from this decision:

Rules for meal periods:

• Employees who work no more than 5 hours get no meal period.
• Employees who work over 5 but no more than 6 hours get a meal period, unless they’ve waived it in writing. If they don’t waive it, the meal period must begin by the end of the 5th hour.
• Employees who work more than 6 but no more than 10 hours get a meal period regardless of whether there’s a waiver. The meal period must begin by the end of the 5th hour.
• Employees who work more than 10 hours get a 2nd meal period. If they work no more than 12 hours they can waive it. If they don’t waive it, the meal period must begin by the end of the 10th hour.

The rules for rest breaks:

• Employees who work no more than 3.5 hours get no rest period.
• Employees who work 3.5 to 6 hours get 1 rest period.
• Employees who work more than 6 and up to 10 hours get 2 rest periods.
• Employees who work more than 10 and up to 14 hours get 3 rest periods.

Labor law is complex if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

Yahoo Layoffs, Over 2000 Jobs Lost. Is there a Silver Lining?

Walter Haines, Esq. — Wed, 11 Apr 2012 07:26:37 -0800

Yahoo has been trailing Google and Facebook Inc in overall revenue, mainly driven by advertising sales. Chief Executive Scott Thompson is restructuring the company and will lay off close to 2000 employees in an effort to catch up to their competitors. Hopefully, the company doesn’t cut any corners while doing so.

There are several issues that can arise during mass layoffs and restructures. Misclassification as a salary employee is usually the biggest concern. Oftentimes, employees that were improperly classified as salary employees are laid off and offered severance packages. It is standard that the severance packages relieve liability from the company. In other words, if the employee accepts the severance package they will never be able to sue the company for nearly anything, including misclassification. Misclassification cases are typically very costly for the employer, offering severance is a much more economical solution.

Next, with the new restructure companies may change the job duties of the employees which can again end up misclassifying the employees. After all, it’s not the job title that determines how the employee is paid, it is their job duties. During restructures employees may change titles, but not necessary job function and the company may seek to switch the employee from hourly to salary based on the new job title. This is potentially a poor decision on the employer’s part. Or the opposite, no change in job title but a big change in job duties. An employee that was once a salary employee may no longer be considered such under the law. Now the company may have left themselves open for a law suit for unpaid overtime.

Labor law is complex if you have any questions regarding your employment or your classification, it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

Failure to Pay Vacation upon Termination will cost Depot $1.6Million

Walter Haines, Esq. — Wed, 04 Apr 2012 07:48:33 -0800

Henshaw and Souza v Home Depot USA Inc. is a California class actions alleging that not all accrued vacation time was paid out upon termination of employment. Henshaw stated that Home depot only paid him 184 of his 528 accrued hours of vacation; and Mr. Souza stated that home depot only gave him 544 of his 1210 accrued hours of vacation.

This law suit was originally filed in August of 2010 in the California Superior court but was later removed to federal court in Sept of 2010. The employees alleged that Home Depots vacation policy allowed the employees to accrue vacation time and to roll over any unused vacation time to the next year without limits. The issue arose when Home Depot failed to pay out all of the unused vacation time that had accrued over the years.

The motion seeking preliminary approval of the settlement was filed in the US District court for the Central District of California stated, the ex-employees are to receive compensation for the unpaid vacation time, “as well as additional payment for interest and waiting time penalties.” The class was certified to include roughly 1300 former Home Depot Employees terminated since August of 2006.

As predicted by the plaintiffs Home Depot has agreed to pay out $1.6 million to settle the class action. But Despite agreeing to settle in mediation Home Depot maintains that they had no part in any wrong doing and are not accepting any liability for the claims.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

Employers are Asking for Your Facebook Password

Walter Haines, Esq. — Wed, 28 Mar 2012 07:55:30 -0800

There has been a lot of buzz over employers requiring that their employees allow the company access to their Facebook page as part of the hiring process. Facebook has recently issues a statement on this practice.

Erin Egan, Facebook’s chief privacy officer and former Covington and Burling attorney, issued a statement urging both public and private employers not to participate in these practices. She offers her legal reasoning as follows:

"We don’t think employers should be asking prospective employees to provide their passwords because we don’t think it’s right the thing to do. But it also may cause problems for the employers that they are not anticipating. For example, if an employer sees on Facebook that someone is a member of a protected group (e.g. over a certain age, etc.) that employer may open themselves up to claims of discrimination if they don’t hire that person." "It also potentially exposes the employer who seeks this access to unanticipated legal liability."
"Employers also may not have the proper policies and training for reviewers to handle private information. If they don’t—and actually, even if they do--the employer may assume liability for the protection of the information they have seen or for knowing what responsibilities may arise based on different types of information (e.g. if the information suggests the commission of a crime)."

Granted Egan might not be a California employment attorney and therefore not the most qualified to give advice to employers on what they should and shouldn’t do. She is correct to state that participating in this practice is definitely subject to be challenged. Egan’s statement was directed nationally so she did not address California’s Constitution's Privacy Protections.

California’s Constitution's Privacy Protections, Article I, Section I of the California Constitution provides: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."

The California Supreme Court has held that to determine whether an individual's constitutional right of privacy has been violated the court must balance the compelling need for the information against the reasonable expectation of privacy the person has in the information. It will be difficult for most employers (other than perhaps those hiring for national security or other related positions where they are exposed to extremely sensitive information), or any college, to demonstrate a compelling or strong need for this information. Employers have been hiring employees without detailed personal information for hundreds of years. In most cases, it will be extremely difficult for an employer to demonstrate a new and sudden compelling need to get behind an applicant's Facebook password to be able to evaluate that individual.

Basically Egan’s statement that requiring this information may leave the employer vulnerable to a lawsuit is quite accurate and increasing risky if you are a California employee.

Labor law is complex and if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or information on our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

Discrimination Laws Add a Protected Class

Walter Haines, Esq. — Thu, 22 Mar 2012 07:29:00 -0800

Currently the federal fair employment act prohibits discrimination based on protected classes such as age, race, gender religion, disability, sexual orientation, and gender identification. Over 15 states are working on passing legislation to include a new protected class of discrimination, unemployment discrimination.

The nation’s unemployment rates are in decline but not by much, 8.3 percent of the population is still unemployed. It has been reported that because employers are over run with applicants they have started advertising that “the unemployed” need not apply. Due this alarming prejudice congress and over 15 states have started to mend their anit-discrimination laws to include discrimination based on unemployment as a protected class.

Currently Congress has two bills pending approval: HR 2501, the Fair Employment Opportunity Act of 2011 and S 1471, also known as the Fair Employment Opportunity Act of 2011. These bills aim to prevent private employers with fifteen or more employees from discriminating against the unemployed when posting job openings and when considering an applicant for employment, unless current employment status was a bona fide job requirement.

On March 29, 2011, New Jersey became the first state to actually pass a law regarding discrimination on the basis of an applicant's employment status. Specifically, New Jersey now disallows employers and employment agencies, from advertising job vacancies that include "currently employed" as a job qualification, or indicate that applications will be accepted only from currently employed people or that applications from the unemployed will not be accepted.

While New Jersey may have bee the first sate to enact such change there are over 15 other states considering the same thing and in some cases more far reaching amendments to their fair employment practices laws. In fact, several states are currently considering amendments to classify "unemployed status" as a protected class, thereby seeking to prohibit discrimination in hiring on the basis of an applicant's unemployed status.

For links to the participating states proposed legislation on the matter:

California
Connecticut
District of Columbia
Florida
Iowa
Illinois
Maryland
Michigan
Minnesota
Missouri
Nebraska
New York
Ohio
Oregon
Pennsylvania
South Dakota*
Tennessee
West Virginia

If you have any questions about this article or information on our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

New Employee Rights Posters

Walter Haines, Esq. — Wed, 14 Mar 2012 10:10:42 -0800

The National Labor Relations Act was upheld in a DC federal court confirming that the National Labor Relations Board (NLRB) can and will require all employers to post large official notices. The National Labor Relations Act is a federal law aimed at protecting employees that take part in union and other concerted activities. Starting April 30, 2012 practically all private sector employers, even non-union workplaces, will be required to post these labor law posters with the exception of airline, railroad and agriculture industries.

The new NLRB posters must be placed in a commonly used location for notifying the employees of updates. For example in the break room, on or nest to an existing bulletin board, next t o the employees schedules. Employers can duplicate the poster so long as they do not alter the size of at least 11 x 17 inches.

Language requirement are also a concern, If 20% or more of the employees are not proficient in English the employer must post the notice in the language of those 20% plus employees. Should the workforce have 2 or more groups of employees of 20 % or more that speak a language other than English, the employer has the right to post only one of these languages so long as the employer gives a copy of the notice to the remaining group.

The good news for employers is that the posters, including those translated into other languages, are available at no cost from the NLRB's regional offices. The notices can also be downloaded from the NLRB's website at www.nlrb.gov/poster

The NLRB is also requiring that companies who employ mostly web or intranet based employees post a link reading "Employee Rights Under the National Labor Relations Act." Which will allow the employee to view the poster inline or on the intranet. This can be done in lieu of posting a physical poster.

Because the Department of Labor already posts similar notices on its websites and thus Federal contractors are required to do the same they do not need to post the new NLRB poster.

Although the court decided that the NLRB had the authority to impose the poster requirement, it struck down two related provisions of the new rule. Those stated that failure to comply with the new posting requirements would be an unfair labor practice and could also have the effect of enabling employees to file unfair labor practice charges after the normal six-month time limit has expired.

The decision has been appealed. Stay tuned updates to follow.

This poster is regarding employees rights to unionize and their rights not be retaliated against for attempting to do so. If your employer is not in compliance or you feel you are being retaliated against please contact an experienced California labor law attorney to evaluate your situation.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

California Employment Background checks

Walter Haines, Esq. — Wed, 07 Mar 2012 08:50:23 -0800

As usual California tends to add protections for it’s residents on top of the national standard set by the federal Fair Credit Reporting Act (FCRA). However it’s important to note that the FCRA only applies when an employer has hired an outside agency to conduct the background check. FCRA requires the following:

1) Obtain your permission.
2) Give you notice on a separate document that a report may be required.
3) That you are given the opportunity to consent
4) That you are notified if information in the report is used to make an "adverse" decision about you
5) Get your specific permission if medical information is requested.
6) Give a specific notice if your neighbors, friends, or associates will be interviewed about your "character, general reputation, personal characteristics, or mode of living." This is called an "investigative consumer report" under the FCRA.

Keep in mind the information obtained in the background check usually can only go back 7 years. There are a few exceptions to this up to 10 years for issues such as bankruptcy or insurance policies over a certain dollar amount. Lastly the FCRA states that there is no limit to the number of years your criminal convictions can be reported.

If the employer has decide not to hire you or promote you based on the information obtained in the background check they must issue a "pre-adverse action notice" along with a copy of the background report before an adverse action is taken.

California law has stated that Starting Jan. 1, 1012 the employer provide the web address and telephone number of the third party that conducted the report. If the company does not have a website, you may request that a copy of the privacy policy be mailed to you. Also should you request a copy of the report the company must produce it within 3 days of your request. California law also requires that the report's cover page include:

• A notice in at least 12-point boldface type saying that the report does not guarantee the accuracy or truthfulness of the information, but only that the information was copied from public records.
• A warning that negative information could be the result of identity theft.
• Gives notice of your rights in English and Spanish.

Interestingly enough California has also decided that as of January 1, 1012 credit reports can only be obtained for people applying for specific job titles or functions. (CA Civil Code §1785 et seq.) Again, the employer must give notice that a credit check will be obtained, along with an explanation of why the check is allowed.

If the Employer chooses to conduct its own investigation and forgo a third party firm the FCRA and all of its provisions do not apply. However California law does impose a few regulations on the employer. (CA Civil Code §1785.53) For instance the employment application should contain a box to be checked indicating that the applicant wishes to receive a copy of all public records obtained during the internal investigation.

If you have any questions about this article or information on our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

California Labor Commissioner's office and the U.S. Department of Labor Join Forces to Attack Misclassification of Independent Contractors

Walter Haines, Esq. — Wed, 29 Feb 2012 08:39:46 -0800

The U.S. Department of Labor’s (DOL) Wage and Hour Division, and California's Labor and Workforce Development Agency (LWDA) are operating together under a memorandum of understanding (MOU). This Mutual agreement to seek "to protect the rights of employees and level the playing field for responsible employers by reducing the practice conducted by some businesses of misclassifying employees."

Other states that are under similar MOU’s with the U.S. Department of Labor include Missouri, Montana, Maryland, Massachusetts, Colorado, Connecticut, Hawaii, Illinois, Montana, Utah and Washington. The hope is that by sharing information whenever possible they will be able to assist each other’s outreach and education efforts. Also this should increase taxed revenue for both the state and the federal government along with all penalties acquired as a result of any legal proceeding due to misclassification.

The MOU was announced the day following the decision in the Ruiz v. Affinity Logistics Corporation, vacating the court's ruling that the employees were correctly classified as independent contractors. In this case the court upheld a contractual provision that would apply Georgia law and in doing so gave status as an independent contractor. Georgia law is very different from California law in that California requires the burden of proof to be on the Employer not the employee and Georgia does not. The 9th Circuit opposed with the District Court's decision, finding that California law should apply notwithstanding the parties' contractual selection of Georgia law, because the Georgia law conflicts with what the 9th Circuit found was a fundamental California public policy. This decision was based on the fact the work preformed was done so in California. The 9th circuit did turn the case back to the district court to reexamine the independent contractors issue.

This issue of misclassification has been a hot topic since our country’s economic issues began; all of the various government agencies are working hard to protect employees from being misclassified as well as ensure that all taxes from these employees and employers are being paid out properly. The main thing to take away from this case is that usually where the work is being preformed dictates the law that can be applied to the situation and that it’s important to follow the guidelines for independent contractor set forth by that state.

If you have any questions about this article or information on our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

Proposed Changes to Caregivers Exemption, meant to Redefine Companionship Services

Walter Haines, Esq. — Wed, 22 Feb 2012 09:14:32 -0800

In 1938 the federal Fair Labor Standards Act (FLSA) was passed setting minimum wage requirements but it did not apply to workers providing “domestic services” such as, housekeepers, in home cooks, maids, nannies and gardeners. In 1974 FLSA was amended to include most of these domestic services with the exception of babysitters and companions for the elderly. However, the department of labor is proposing new regulations that would further restrict the requirements of exempt domestic employees specifically companionship services.

FLSA states that, "employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves" are exempt from overtime. The current law also characterize "companionship services" as "services for the care, fellowship, and protection of persons who," is unable to care for themselves. Often these services will include tasks such as vacuuming dusting washing dishes, but it’s important to note that these tasks should not exceed 20% of the caregiver/ companions time.

In 2007, Long Island Care at Home v. Coke, 551 U.S. 158, the United States Supreme Court acknowledged the DOL's authority to "work out the details" of the statute's broad language and upheld the companionship exemption's applicability to third-party employers, such as agencies. Thus, the DOL’s new proposed description of "companionship services” would be restricted to tasks "that are directly related to the provision of fellowship and protection . . . ." this proposed redefinition would still afford some time for services that are incidental to fellowship and protection but certainly not to exceed 20% of the companion’s time. This would greatly limit the amount of time the companion can spend on general house hold work or this could result in the loss of the caregiver’s exemption. Lastly the proposed regulation would limit the exemption to employees that are directly hired by the family or person using the service.

Should these new restrictions become approved agencies and families can expect to see increases in labor costs for in home care services. Families or households that employ caregivers directly will need to pay close attention to the tasks being performed in the home or risk running afoul of the FLSA's minimum wage and overtime requirements.

While federal law affects all states, it is common for individual states to have addition rules and regulation that further define exemptions. In Maine, for example, the exemption for individuals "employed in domestic service in or about a private home and engaged directly by the resident or owner of that private home . . ." was repealed in 2008. Thus, in Maine, as in many states, employers are already required to pay minimum wage and overtime to companions for elderly or infirm family members.

If you have any questions about this article or information on our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

Proposed changes to FMLA leave for Military Families and Airline Flight Crews

Walter Haines, Esq. — Wed, 15 Feb 2012 10:06:06 -0800

In 2008 FMLA was amended by congress to include eligible employees with family members serving in the military with two types of leave

Military caregivers leave gives employees up to 26 weeks of leave in a 12-month period to take care of a “seriously injured or ill” family member currently serving in the military.
Qualified exigency leave allows employees (whose spouse, child, or parent is called into active duty) time off to respond to certain circumstances that arise because of a call to active duty.

President Obama took these guidelines a step further and proposed the following in his the National Defense Authorization Act for Fiscal Year 2010 ("NDAA"). In January of this year The Department of Labor, (DOL) released a notice of proposed rulemaking to implemented these rules as follows:

Extends military caregiver leave to eligible employees whose family members are recent veterans that suffered a serious injury or illness (prior to the NDAA, military caregiver leave was available only to employees of current service members);
Permits eligible employees to take military caregiver leave for up to five years after their family member was discharged from military service, and continue that leave during the twelve-month leave period, regardless of whether the leave extends beyond the five years since active service;
Expands the definition of serious illness or injury to include pre-existing conditions that become aggravated during military service; Expands the number of eligible medical providers that can draft a medical certification to justify military caregiver leave by including medical providers that are not associated with the military;
Expands the scope of qualified exigency leave by extending it to eligible employees whose spouse, parent, or child serves in the Regular Armed Forces (not just the National Guard or Reserves);
Clarifies that the qualified exigency leave is permitted only if the service member is deployed in a foreign country; and
Provides that eligible employees may take up to 15 days (rather than the current 5 days) to spend time with a family member on rest and recuperation leave from the military.

The DOL also proposed implement on regulations for Airline Flight Crews in the form of the “Airline Flight Crews Technical Corrections Act” ("AFCTCA"), which the President signed into law in December 2009. Because airline crews work such different schedules than most other industries the AFCTCA proposed rules to create special FMLA minimum hours of service eligibility requirements for airline flight crew employees and flight attendants to provide leave entitlement to such employees.

The Notice of Proposed Rulemaking is available here. Interested parties have until March 30, 2012 to submit comments on the proposed regulations. Comments may be submitted electronically at www.regulations.gov (identified by Regulatory Information Number 1235‐AA03) or by mail addressed to Mary Ziegler, Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S‐3510, 200 Constitution Avenue, N.W., Washington, D.C. 20210.

If you have any questions about this article or information on our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

California Labor Laws most Common Violations

Walter Haines, Esq. — Wed, 08 Feb 2012 10:12:50 -0800

California is one of the most employee friendly states to work in. Our labor laws are meant to protect the employee and keep the employers on the right track. Sometimes employees are over whelmed or worried that they won’t know how to prove that their employer is not following the rules. It’s important to not give up or continue to let your employer mistreat you. In California the burden of proof is on the employer. This means that it is the employer’s job to prove that they are following California labor law. The following issues are commonly accepted by employees because they are under the misconception that they would not have ample proof to show what their employer is doing to them.

Working Off the Clock

This violation is very common; employees often think they are “volunteering” to work off the clock because no one has specifically told them to do so. However upon further investigation, it is found that the employee is under a tremendous amount of pressure to perform and not enough time in the day to complete the work that has been assigned; this becomes equally evident that it is a corporate culture when we see that all the hourly employees in this position are doing the same thing for fear of losing their jobs. The unfortunate part is that the employees either think that this is just what they have to do to have a job or that even if they were willing to say something they wouldn’t know how to prove their time, since after all, they weren’t clocked in.

Misclassified as a Salaried Employee

Are you a manager or a supervisor? Do you believe that because you hold this title you are NOT entitled to overtime? Would you be surprised to learn that this isn’t always the case? Often time’s companies will give the employee the impression that their job title defines how they will be classified; as either salary (exempt) or hourly (non-exempt). This is not what California labor law had in mind. There are various exemptions defined by California labor law but all of them have something in common. The exemption are all defined by WHAT the employee is doing not the title the employee holds. Also Companies will sometimes give the employee a job description that would be classified as an exempt employee if that was actually what the employee was doing. More often than not the employee will spend his or her time doing a much different set of tasks than outlined on the company given job description. California law is only concerned with what is actually happening not what the company would like to pretend is happening.

If you have any questions about this article or information on our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

Criminal Background Checks can be Considered Discrimination.

Walter Haines, Esq. — Wed, 01 Feb 2012 09:05:57 -0800

Pepsi Bottling Group recently paid out $3.13 million in racial discrimination case for its practice of criminal background checks. Pepsi was simply not hiring anyone with a criminal record, or anyone that currently had a criminal case pending, regardless of conviction. While having a criminal record is not a protected class and cannot be considered discrimination in and of its self. The EEOC did find that the incidence of African American applicants and some other minorities with criminal records was much higher than Caucasians, therefore finding this hiring policy to be racially disproportionate.

When the company applied across-the-board criminal background checks, the EEOC found that over 300 African-American people were adversely affected. "Under Pepsi's former policy, job applicants who had been arrested pending prosecution were not hired for a permanent job even if they had never been convicted of any offense," according to the EEOC. In a press release the EEOC reported that the policy violated Title VII of the Civil Rights Act of 1964.

Acting Director of the EEOC's Minneapolis Area Office, Julie Schmid said, “When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position. Such exclusions can create an adverse impact based on race in violation of Title VII." Schmid also stated, "We hope that employers with unnecessarily broad criminal background check policies take note of this agreement and reassess their policies to ensure compliance with Title VII."

Later a Pepsi spokesperson, announced a new policy that takes a more "individualized approach" in considering an applicant's criminal history relative to the job being sought in an effort to "...create a workplace that is as diverse and inclusive as possible." The Pepsi has also decided to provide the EEOC with regular reports on its hiring practices and to provide nondiscrimination training to its hiring personnel and managers.

If you have any questions about this article or information on our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

Arbitration Agreements for Employees in California

Walter Haines, Esq. — Wed, 25 Jan 2012 09:27:34 -0800

Typically, arbitration agreements are given to employees to sign when they are hired. These agreements usually state that both parties, employee and employer, agree to resolve their issues out of court should legal issues arise. Often time an arbitration agreement can require that this process take place in a specific jurisdiction/ particular geographic area and can also redefine or restrict some statutory issues.

However, there has been much debate over if these statutory restrictions are legal in California. One provision some companies have tried to include in their arbitration agreements was to take away the right for employees to be able to file a class action for any employment issues that might affect them and all of their similarly situated colleagues. This waiver is also commonly referred to as a class action waiver.

A recent ruling by The National Labor Relations Board (NLRB), In D.R. Horton, Inc. and Michael Cuda, concluded that as a condition of employment employers cannot require that employees sign arbitration agreements that give up their right to file a class action in any forum.
The NLRB did not apply the United States' Supreme Court's holding in AT&T Mobility v. Concepcion. This case had previously set president that class action waivers could be included in consumer arbitration agreements then to workplace arbitration agreements.

The NLRB held that: "employers may not compel employees to waive their [National Labor Relations Act (NLRA)] right to collectively pursue litigation of employment claims in all forums, arbital and judicial." The NLRB also stated that "[s]o long as the employer leaves open a judicial forum for class and collective claims, employee's NLRA rights are preserved without requiring the availability of classwide arbitration." Therefore, "[e]mployers remain free to insist that arbitral proceedings be conducted on an individual basis.”

Because this topic is being contested by both employees and employers it’s important to seek legal advice from an experienced California class action attorney. Labor law is complex and if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or information on our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

Non-Compete Agreements Legal or Not?

Walter Haines, Esq. — Wed, 18 Jan 2012 08:55:24 -0800

A non-compete agreement is a contract between the employer and an employee whereby the employee agrees not to compete with his ex-employer when he leaves the employ of that company. In other words, the employee may not contact customers of his old employer and solicit their business. The purpose is to protect the employer from the employee using confidential knowledge acquired during his employment which the employee wants to use to compete against the old employer.

In most cases non-compete agreement are not enforceable in California. Business and Professions Code § 16600 provides that:

"every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void." Section 16600
invalidates agreements to preclude employment in a certain line of work. The section has also been construed by California courts as invalidating agreements that seek to prevent former employees from accepting work from any of the former employer's clients. (Morris v. Harris (1954) 127 Cal.App.2d 476.) A former employee may also solicit employees from his or her former employer if unlawful means or acts of unfair competition are not used. (Diodes, Inc. v. Franzen (1968) 260 Cal.App.2d 244.)

Even though non-compete agreements are generally not legal many companies require their employees to sign non-compete agreements to deter an employee from competing or using his/her knowledge after leaving. If you have been asked to sign a non-compete it most likely is non-enforceable or at least much more limited than it appears.

There are a few exceptions where non-compete agreement may be enforceable.

• Business ownership exception: It applies when a shareholder "sells" their stock to another for valuable consideration. (Hilb, Royal & Hamilton Ins. Services v. Robb (1995) 33 Cal.App.4th 1812, 1824-1825.)

• Partnership Exception: Business & Professions Code § 16602. However, not every agreement restricting competition between partners is valid. A "rule of reason" applies. (Howard v. Babcock (1993) 6 Cal.4th 409.) For example, a partnership agreement may validly restrict competition by precluding withdrawing partners from practicing in a limited geographic area. (Id.) Unlike business sales and section 16601, there is no requirement pursuant to section 16602 that compensation for goodwill in the partnership be transferred. South Bay Radiology Medical Associates v. Asher (1990) 220 Cal.App.3d1074, 1083.

If you have any questions about this article or information on our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

Unpaid Internships in California, Legal or not?

Walter Haines, Esq. — Wed, 11 Jan 2012 08:55:07 -0800

With our current economic state, companies, employees and new graduates are equally concerned with employment. College students or new graduates are facing the age old issue of having a degree without experience while companies are looking to save money on payroll and keep a knowledgeable staff. Often time companies will offer unpaid internships a seemingly mutually beneficial relationship. College students are able to add experience to their resumes while companies get free labor.

But at a closer look, this might not be a fair shake. What if the student is studying to be in marketing and the company places he/she in the accounting department to do data entry all summer?

Federal Department of Labor (DOL) has set forth a few ground rules on who should be considered and intern versus who will be an employee.

1. The training is similar to that which would be given in a vocational school.
2. The training is for the benefit of the trainee.
3. The trainee does not displace a regular employee and works under close observation.
4. The training provider derives no immediate benefit from the trainee; in fact, its operations may be impeded.
5. The trainee is not entitled to a job at the completion of the training.
6. The employer and the trainee understand that the trainee is not entitled to wages; however, a stipend may be permitted. (Employment Relationship/ Trainees, U.S. Dep't of Labor Op. Ltr. Wage and Hour Adm. WH-229.)

California Department of Industrial Relations took it a step further and added a few criteria of its own:

7. The training should be part of an educational curriculum.
8. The students should not be treated as employees for such purposes as receiving benefits.
9. The training should be general in nature, so as to qualify the students for work for any employer, rather than designed specifically as preparation for work at the employer offering the program.
10. The screening process for the program should not be the same as for employment.
11. Advertisements for the program should be couched in terms of education rather than employment. (See generally Cal. Div. of Labor Standards Enforcement, Opn. Ltrs. 1998.11.12 and 1996.121.30, available at www.dir.ca.gov/dlse/ DLSE_OpinionLetters.htm.)

It’s important to be able to distinguish who will be considered an intern and who should be considered an employee not only for payment purposes but also for workers compensation insurance and for benefits entitled to employees such as medical insurance and paid time off.
Labor law is complex if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

Effective Immediately, California's New Wage Theft Protection Act

Walter Haines, Esq. — Wed, 04 Jan 2012 09:18:28 -0800

Starting January 1st all employers must comply with the California new wage theft protection act, Labor Code Section 2810.5. . Theft protection act sets out to clearly define how, when, and what employees shall be paid. The idea is alleviate any confusion or misunderstandings about the type of employment and benefits the employee will receive. Effective immediately all California employers regardless of company size and industry are required to give the following information to all of their employees regardless of full time part time or seasonal status.

1. Classification: exempt, non-exempt, commission, piece rate. In other words, how the employee will be paid, hourly, salary, commission only, days wage, piece rate. It’s important to note that if the employer is claiming that employee is exempt from overtime they must also cite the exemption that they feel the employee falls under.
2. How much the employee will earn: by the hour, overtime rates, annual salary, piece rate day rate.
3. When the employee will be paid: weekly, biweekly, bimonthly, monthly etc.
4. If applicable, allowances claimed as part of the wage, meals, housing etc.
5. Name of the employer or the DBA (doing business as) or any other names the employer uses to conduct business.
6. Mailing and Physical address of the employer main place of business.
7. Phone number to the main office
8. Workers compensation information: Name of insurance carrier, phone number, address

Moving forward Employers must give written notice to all newly hired employees as well. Also if any of the information above changes the employer has 7 days to furnish notice of change in writing to the employee, California Labor Code §226. Notice need not be provided to non-exempt employees who are both covered by a collective bargaining agreement and who earn at least 30% more than the California minimum wage per hour.

The Labor Commissioner will be publishing a notice template later this month for employers to use.

With new laws come new penalties, the Wage Theft Protection Act adds or increases existing civil and criminal penalties, in some instances allowing liquidated damages and attorneys' fees, and extends the applicable statute of limitation to three years.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193