California Employee Rights Advocate

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.

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

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.

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 Rate Increase Effective Jan. 1, 2012 for California Exempt Computer Software Employees

Walter Haines, Esq. — Wed, 28 Dec 2011 09:08:53 -0800

Labor Code Section 515.5 dictates that certain software employees are exempt from overtime pay and Labor Code Section 510 sets forth the minimum that these exempt software employees shall be paid.

It’s Important to first identify who is considered exempt from over time. According to the California Department of Industrial Relations all of the following criteria must be met:

1. The employee is primarily engaged in work that is intellectual or creative and requires the exercise of discretion and independent judgment.
2. The employee is primarily engaged in duties that consist of one or more of the following:

o The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications.
o The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to, user or system design specifications.
o The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems.

Next, we can look at the rough road exempt software employees have had over the last decade. In 2000 the minimum salary for an exempt employee was equal to no less than $41.00 an hour. By 2007 it had climbed to equal not less than $49.77 an hour. Unfortunately in 2008 during our economic meltdown, this amount was reduced drastically to $36.00 an hour. There have been gradual annual increases. In fact, effective January 1, 2012 the increases will be no less than $38.89 an hour, or no less than $81,026.25 annually, or no less than$6752.19 monthly.

It’s important to note that although the minimum per hour has been effective since 2000, it was until the drastic decrease in 2008 that California labor laws also made sure that there would be a monthly and an annual minimum requirement. Thus ensuring that the while the employee may not be getting time and a half for all overtime hours worked they would be certain that their pay check would remain at or above the monthly and annual requirements while still meeting the minimum pay per hour.

California labor laws can be confusing and multifaceted if you are a software employee exempt or non exempt it is recommended you contact a California labor law attorney to be certain you are and have been paid properly over the last four 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

Sexual Harassment in the workplace

Walter Haines, Esq. — Thu, 22 Dec 2011 11:05:00 -0800

Does sexual harassment really still exist? Who would dare? It’s unfortunate that it does still occur in the work place but luckily California labor laws aim to offer protection. There are basically two different ways one can be sexually harassed: quid pro quo or to the point of hostile work environment.

Quid pro quo sexual harassment
“This for that” is the direct translation of quid pro quo. This type of sexual harassment is when the harasser offers something in return for the harassed to accept these unwanted advances. For example, if your supervisor or manager offers a promotion or a raise or rather threatens with a write up or termination in exchange for the harassed to bare or accept the harassment.
Under California labor law, the employer is absolutely liable for the sexual advances of a supervisor and has no legal defenses available to it. A victorious plaintiff can recuperate lost wages and compensation of other economic losses, emotional distress damages, interest and attorney fees, and in cases where the employer’s officers, directors or managing agents knew of the harassment, punitive damages intended to punish or deter the employer.

Sexual Harassment to the Point of Hostile Work Environment

Subordinates, co-workers, supervisors, and even managers can all participate in sexual harassment to the point of creating a hostile work environment. Often times this harassment can come in the form of slurs, intimidation, taunting, groping, grabbing and ridicule.
It’s important to note that a single severe act of sexual harassment can create a hostile work environment as well as many subtle acts, by one person or many. Also the person being harassed does not have to be the one that files a claim. Someone else that has witnessed and had to deal with watching another person being harassed is also a victim of hostile work environment.
Recently, the California Supreme Court held that employer actions, such as termination, demotion, etc., could also constitute hostile work environment harassing conduct. See Roby v. McKesson HBOC (2009) 146 Cal.App.4th 63.

Who is liable?

If the Harasser is a supervisor or manager then the company is certainly held liable for their actions. If the harasser is a coworker or subordinate then company will be held liable if you are able to show that a supervisors or manager was aware of this persons inappropriate behavior.
Under Title VII of the Civil Rights Act of 1964

When a supervisor engages in hostile work environment harassment that does not involve tangible employer actions (e.g., termination, demotion), the employer can escape liability for HWE if the employer can show

1) employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and
2) the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer, or to avoid harm otherwise.

See Burlington Industries, Inc. v. Ellerth (1998) 524 US 742, 764–765;Faragher v. City of Boca Raton (1998) 524 US 775, 806. This is unfortunate in that many victims of sexual harassment do not immediately report it to their employers for fear of retaliation. Under federal law, these employees may be out of luck. This is one of the reasons why filing a sexual harassment claim under California rather than Federal law is usually the better course.

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 Labor Laws are Strict on Retaliation

Walter Haines, Esq. — Wed, 14 Dec 2011 10:23:19 -0800

While the law can’t prevent employers from retaliating against their employees, it can offer restitution should you fall victim to retaliation. Retaliation can come in many forms and can be a result of several different types of issues reported.

Often times the employee will report issues such as sexual harassment, unsafe working conditions, workers compensation claims, another employee breaking company policy or even broken laws, also known as Whistleblower. Most commonly discrimination is reported; such as: age, race, gender, sexual orientation, religion, and disability.

As unfortunate as retaliation is, it can be in administered in many different ways. Employers have been known to cut hours or pay, pass employees over for promotions, place people on unpaid administrative leave and even terminate employment. Termination in retaliation for reporting any of the previously mentioned issues would likely be considered a wrongful termination.

It’s also interesting to note that even though there might only one person, perhaps your manager, giving you a hard time or retaliating against you, under the law the company is still liable for that person’s actions. In 1998, the California Supreme Court ruled that individual managers and supervisors can’t be held personally liable for retaliation. However, the California Fair Employment and Housing Act says that it is unlawful for "any employer, labor organization, employment agency or person'' to engage in retaliation.

If you have recently reported some type of illegal or improper activity within the company and your working environment or conditions have been adversely effected you should seek counsel of an experienced California labor law attorney. An experienced attorney can help you understand the legal aspects of your situation as well as offer guidance in seeking recompense.

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

New Requirements for Retirement Plans offered at Work

Walter Haines, Esq. — Wed, 07 Dec 2011 09:19:12 -0800

Does your employer offer a 401k, profit sharing, or a money market account? Were you given specific details about this plan prior to signing up; such as past performance, fees and expenses? Do you get monthly or quarterly statements on your investment?

Until recently none of this was required by law. The US Dept of Labor (DOL) has better defined what is required to be shared with participants and beneficiaries prior to investing and throughout the term of the investment. In general all of these new requirements will go into effect as early as May 31, 2012.

Under the Employee Retirement Income Security Act (ERISA) the following information must be shared with potential employee investors and existing employee investors as well as their beneficiaries.

1. Initial & Annual Notice
Before the investor begins making contributions and every year after the investor should be notified of the following information.

a. Investment-Related Information
Investment related information can be complex and very detailed so the employer is required to provide the following: performance data, benchmark information, fee and expense information, Internet website address to obtain more specific or current information, and a glossary of terms. As well as a side by side comparison of each of the plans that are offered.

b. Plan-Related Information.

i. General Plan Information
Information regarding the operation of the investment including when and how to invest, if there are any limitation to the times amounts that can be invested, a description of “brokerage windows”, reference to any applicable voting rights and identification of investment managers.
ii. Administrative Expenses Information.
Administrative expenses are expenses that are typically related to cost of managing the fund such as monthly, quarterly or annual record keeping. If multiple accounts exist this information must be provided for each individual account and be specific that account.
iii. Individual Expenses Information
These are expenses that may be charged against a participant's or beneficiary's individual account for services provided on an individual basis (e.g., fees to process loans or qualified domestic relations orders (QDROs), or sales charges).

2.     Updating Notice
Any changes to the plan information previously disclosed must but updated and disclosed within at least 30 days but not more than 90 days prior to the effective date of the change. It’s important to note that updating notices do not apply to investment related information
3.     Quarterly Notice
Quarterly notices occur every 3 months and usually align with the fiscal year. Investor and beneficiaries must receive notice of the dollar amount of the plan related fees and expenses, both administrative and individual and description of services for all fees and expenses. It’s important to note that if notices of the account were made and outside of the regularly scheduled notices then those notices do not need to be reiterated at the regularly scheduled time.
4.     Disclosures Subsequent to Investment.
Not only do potential employee investors and beneficiaries need to be informed of the above mentioned investment-related information and the plan-related information prior to investing but they also need to be informed of the final regulations. Final regulations should provide information such as: voting rights, management rights and how these rights will and can be passed or shared with the beneficiaries.
5.     Information Provided Upon Request
Investors and beneficiaries can are any time request copies of any plan or investment related information including: financial statements, prospectus, reports, non-registered investment alternatives, share value information, dividend disbursement, list of assets comprising the portfolio.

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

Holiday Pay, Vacation Pay, Yearend Bonus... Ho Ho HO!

Walter Haines, Esq. — Thu, 01 Dec 2011 11:40:55 -0800

With the end of the year quickly approaching some people will be working on holidays others will be taking time off from work and we will all be hopeful for a little extra cash. California labor laws are pretty clear about how employers must treat these situations and what employees should expect.

Holiday Pay

California labor law does not require employers to pay employees extra for working on holidays. However, there are quite a few companies out there that offer their employees 1.5 times their regular rate or even double time. If this is a company policy then the employer must adhere to it. The best way to make sure you know what the company policies are regarding holiday pay would be to review your employee handbook or contact your human resource department. If these policies are not in writing it would be a good idea to request a written copy.

Vacation Pay

Vacation pay, sometimes referred to as paid time off (PTO). California labor laws do not require employers to offer PTO or vacation pay but if it is offered by the employer then the employee is either entitled to use it or be paid for its monetary value. It is important to note that the employer cannot take it away. “Use it or lose it” policies are not legal in the state of California. With that being said, the employee must understand that the employer does not have to give you the time off that you request. If your request for time off is denied you could lose your job if you leave anyway. You may decide to ask for your vacation pay on your next pay check instead of actually taking the paid time off.

Bonuses

Again, bonuses not required by California labor law but still common practice by most employers. Other common practices during the holidays are gift giving either in the form of actual tangible gifts or in the form of gift cards. In either instance you will notice that the monetary value of these gifts or bonuses will be taxed on your pay check. This often confusing to read on your paystub, but more than likely you will see the value on the gift added to your wages, then taxes will be taken out of your pay, then you will see the original amount of the gift deducted. This practice is required by law nationwide, all gifts and bonuses must be counted as wages according to the IRS.

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

Top 5 Most Common California Labor Law Violations

Walter Haines, Esq. — Wed, 16 Nov 2011 15:56:59 -0800

People call in everyday with various employment issues or concerns but what is interesting to me is that the majority of the time they have one of these 5 issues and they didn’t even know it. I have had clients tell me that they just assumed that they were being paid and treated properly because the company that they work for is so big and well known:”they must know what they are doing, right?!” The truth is that labor violations occur in any size business and that it’s the employee who needs to arm themselves with knowledge of their rights or at least contact a California labor law attorney with any questions or concerns.

1. Misclassified as an Exempt Employee (salary)
….when in fact they should be Non-Exempt (hourly). Companies are not allowed to arbitrarily classify their employees as exempt from overtime. California labor laws have set strict guidelines regarding who will be considered exempt. The most important thing to remember is that your exemption status is based on your actual job duties, not on your job title or on the job descriptions given to you by the company.

2. Working Off the Clock
Non-Exempt employees are often pressured to work while they are not clocked in. This could mean coming in early to work to prepare for the day or clocking out and remaining to finish work at the end of the day. Often times employers will not come right out and tell their employees that they must work off the clock, but the employer might pressure the employees by threatening with write-ups or termination if all of the work is not completed before the end of the day and in the same breath make it known that overtime is not allowed. Other times it’s more systematic, for example: an employee must spend 10 minutes in the morning booting up the computer system and logon to their computer before they are granted access to use the time keeping system. Or route drivers often have to load their trucks but their time clock doesn’t start until their first stop.

3. Misclassifying Employees as Independent Contractors
Often time employers will classify employees as independent contractors in order to avoid paying overtime, additional taxes and insurance. Again California Labor law has set guidelines regarding who can be classified as an Independent contractor. In order to be an independent contractor you should be responsible for the following:
• Make your own schedule
• Use your own equipment, vehicle, tools etc
• Not have to wear a uniform for the other company
• Not have a supervisor or manager directing you on a regular basis

4. Not Providing Suitable Seating for Employees
Private Attorneys General Act ("PAGA") states "nature of the work reasonably permits the use of seats." Recently large companies like Home Depot, Whole Foods, Costco and Nordstrom have all been in the courts for this violation. Typically for not providing seating to cashiers or other positions where the employee is somewhat stationary.

5. Failing to pay Reporting Pay
Reporting pay is owed when an employer has an employee come to work but the decides that person is not needed for the day and sends them home or works less than half of the shift they were scheduled to work. At this point an employer is required by California labor law to pay this employee for half of the usual or scheduled day's work. This amount should be no less than two hours or more than four hours at the employee's regular rate. The exception is that employee was unable to work due to acts of God, threats to employee or property, etc.

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

Governor Brown goes on a Signing Spree, Changing California Labor Laws, PART 2

Walter Haines, Esq. — Wed, 09 Nov 2011 15:38:08 -0800

Wage Theft Prevention Act of 2011

According to Section 2810.5 of AB 469, at the time of hire all employer must now inform, in writing, employees of rate of pay and the of how wages will be calculated. In other words: hourly, daily, piece rate, salary, commission or by some other method. If applicable the employees must also be informed of their overtime rate, allowances, the regular pay date, the name of the business or any other names the business operates under as well as the physical mailing address for the business. AB 469 also requires that any changes made to this information be given to the employees in writing within 7 days of the change. Not only does the existing law require employers to pay penalties and back wages for violating minimum wages laws it now criminalizes certain wage violations by providing that any employer who willfully violates specified wage orders, willfully fails to pay wages due, if convicted is guilty of a misdemeanor. It important to note that, the statute of limitation for collecting penalties under the Division of Labor Standards Enforcement ("DLSE") has increased from one to three years.

Commission Contracts will be required by 2013

By January 1, 2013 AB1396 will amend the labor code to require employers to have written contracts with all employees who will receive wages from commissions. This contract must also define how these commissions will be calculated and when they will be paid. This does not include bonuses or short term incentives. This should alleviate the guess work and should allow the employees the ability to track and determine, in advance, what their commission pay will be. AB1396 will be particularly helpful to employees that are classified as inside sales or outside sales people.

Wage Garnishment : Medical Debts are now Exempt

Currently the law requires employers to garnish employee’s wages up to the portion of the earnings the debtor proves is necessary to support himself or his family, for things like Child support payments, back taxes, credit card debt, and other debts can all be subjected to wage garnishment. AB 1388 adds an exemption for debt that is incurred "for the common necessaries of life furnished to the judgment debtor" or his or her family, including, e.g., hospital services and other medical debts.

Even though most of these new laws will take effect January of 2012 it is recommended you speak with an experience California labor law attorney as soon as possible if you have any questions or concerns about your employment 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

Governor Brown goes on a Signing Spree, Changing California Labor Laws: Part 1

Walter Haines, Esq. — Wed, 02 Nov 2011 16:56:01 -0800

Recently Governor Brown has signed over 20 new bills effecting California labor laws. Employers and employees alike will see several changes in the coming months, some changes will be beneficial and or costly and some help to better define existing a laws. Here is an over view of a few notable changes.

Gender Discrimination: Identity and Expression

Bill 887 redefines or better defines the term gender to aid in how gender discrimination cases will be assessed, specifically in regards to the terms gender identity and gender expression. The idea is that a person should not be discriminated against based on their gender. Previously this was described as one’s sex, male or female. Now it will include how one perceives themselves or chooses to express their self; often displayed through appearances such as clothing, hair styles, makeup and even behavior. Assembly bill 887 instructs employers that they must to allow employees to appear or express themselves as whichever gender they choose to identify with.

Discrimination: Domestic Partners

Bill 757 relates specifically to medical insurance offered by employers. the Knox-Keene Health Care Service Plan Act of 1975 does not allow discrimination in coverage between spouses or domestic partners of a different sex and those of the same-sex marriages. Senate Bill 757 takes it a step further and makes it a crime to willfully violate the Knox-Keene Health Care Service Plan Act. There is an exception for a policy issued outside of California to an employer with a majority of its business and employees located outside of California.

Discrimination based on your Credit Report

…Sounds ridiculous to begin with and with our countries current economic issues even more so. Assembly Bill No. 22 says what we are all thinking. Previously Employers were allowed to access an employee or potential employees credit report (with the employee’s permission) regardless of the employee's position or the position the applicant is seeking to fill. Bill 22 recognizes that there are some instances when a credit report is necessary to the employer and has restricted access to the following types of employment positions:

• person is or would be named signatory on the employer's bank or credit card account, or authorized to transfer money or enter into financial contracts on the employer's behalf
• person will have access to confidential or proprietary information
• person will have regular access to $10,000 or more
• a position in the state Department of Justice, that of a sworn peace officer or other law enforcement position
• a managerial position as defined by the stringent exempt status definition
• a position for which the information contained the report is required by law to be disclosed or obtained;
• a position that involves regular access to specified personal information for any purpose other than the that the routine solicitation and processing of credit card applications in a retail establishment;

Labor law id 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:

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

Maternity Leave: California fills in the Gaps for Pregnant Employees

Walter Haines, Esq. — Thu, 27 Oct 2011 10:13:27 -0800

Effective Jan. 1, 2012 The bills – A.B. 592 and S.B. 299, signed by California Gov. Jerry Brown will attempt fill coverage and enforcement gaps between the state and federal leave laws. SB 299 and AB 592, as well as SB 222 and AB 210, propose pregnant employees will maintain their insurance benefits while on pregnancy-related leaves. These new laws will have a significant financial impact on employers big and small, but will also give pregnant employees a little piece of mind.

The federal Family Medical Leave Act only required the same level insurance coverage to pregnant employees as they had previous to going out on leave. But it only applied to employees who were employed at a company with 50+ employees and if they had worked there over 1 year or more than 1,250 hours. Often pregnant employees working for companies with less than 50 people were unprotected

The California Family Rights Act (CFRA) allows leave for bonding with an employee’s newborn, newly-adopted or foster child. But again only applies to employee with a company of 50 or more employees. However, pregnancy itself is not a condition covered under CFRA. Pregnancy and related medical complications are covered under the PDL law.

California Pregnancy Disability Leave, (PDL); under the California Fair Employment and Housing Act, employers with 5 or more employees must give up to 4 months of unpaid disability leave to women facing time off work because of pregnancy, childbirth, or a related illness. Prior to Jan. 1, 2012 employers with less than 50 employees have right to discontinue health insurance or other benefits if this is their policy for disability leave.

A.B. 592 and S.B. 299 will change how medical insurance coverage will be maintained during PDL. Not only must the employer with 5 or more employees maintain medical insurance for their employees while out on leave. California Insurance Code mandates that all individual health insurance policies must provide coverage for maternity services for all insured’s covered under the policy. Under existing law, if a health insurer provides maternity coverage, it may not restrict inpatient hospital benefits. The change in law, however, actually mandates that the maternity coverage be provided.

If you are going out on maternity leave and your employer has put restrictions on your time off or has not given you the option of selecting maternity medical coverage it is recommended that you contact a California employment law attorney to fully understand your rights and options. Many labor law attorneys offer free or low cost preliminary consultations and in certain cases may represent you on a contingency fee basis.

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

Unemployment Benefits: Valuable Tips to Get Your Benefits

Walter Haines, Esq. — Wed, 19 Oct 2011 10:18:00 -0800

We have placed some of the most common concerns in an easy to follow question and answer format.

Question: How does an employee qualify for unemployment insurance?

Answer: The main criteria is you have to be unemployed. You are not allowed to claim unemployment insurance for the same period of time you are working. This is illegal and can land you in a lot of trouble.

Additionally, you have to have been laid off or fired (not for willful misconduct). If you simply quit in most instances you will not qualify for unemployment insurance. You should understand that even if you do initially qualify for unemployment benefits, your employer is able to appeal such ruling and that ruling could be reversed. Some employers do this for good reason and others because they are vindictive.

Question: Can I file my claim online or do I need to go the unemployment office of EDD?

Answer: Conveniently, you may now file for your unemployment benefits online. No more embarrassing visits to the unemployment office.

Question: Can I be disqualified for unemployment benefits if my employer fires me for being late to work or failing to meet my performance goals?

Answer: To be disqualified for benefits your conduct must rise to the level of willful misconduct as interpreted by EED or ultimately a judge. One example of this might be carrying weapon to work another may be driving a company vehicle while intoxicated.

It is not uncommon for an employer to attempt to challenge unemployment benefits if an employee has another labor case pending against the employer. The reason for this is they will have a chance to question and gather evidence at this hearing that may enable them to have an advantage in the other labor matter. For this reason, it is wise to have a California labor lawyer represent you in the unemployment hearing if you have another labor case pending against the employer in order to keep the questioning on point with the unemployment issues only.

If you have questions related to unemployment insurance and cannot resolve them through communications with EED it is important that you speak to a California labor lawyer?

This is especially necessary if you believe that you have other labor claims aside from unemployment insurance as a California California employment lawyer?

can advise you as to how to protect your interests prior to the hearing with EED?

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

Governor Brown and the IRS Reexamine the Classification of Independent Contractors

Walter Haines, Esq. — Thu, 13 Oct 2011 11:17:50 -0800

Both houses of the California Legislature recently passed S.B. 459 and sent it on to Governor Brown for signature. S.B. 459 prohibits and punishes the "willful misclassification" of employees as independent contractors; S.B. 459 would impose stiff civil penalties for each violation and even higher penalties if a "pattern" of violations is found.

At the same time the IRS has unveiled an employer forgiveness program, called the Voluntary Classification Settlement Program. Wherein if an employer voluntarily comes forward and reports that they have been misclassifying their employees as independent contractors the IRS would require that they only pay approximately 10 percent of the back taxes. The IRS also promises no audits and no penalties on unpaid taxes.

However the IRS has no control in courts as far as labor laws are concerned so the companies that do come forward will be opening themselves up for lawsuits for overtime back pay. With the new legislation S.B. 459 and its stiff civil penalties for each violation and even higher penalties if a "pattern" of violations is found, this could be very costly to employers.

S.B. 459 creates two new unlawful practices

1. "Willful misclassification" of an individual as an independent contractor.
2. Charging a willfully misclassified worker a fee, or making any deductions from compensation for any purpose that would have violated the law governing deductions from pay — Labor Code §§221 and 224 — had the worker properly been classified as an employee.

It’s important to also note the change in the definition of "Willful misclassification". Previously the definition of "willful" in earlier versions of the legislation was "voluntary and intentional" the new bill redefined “willful” as "avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.” Knowingly being the operative word. "Knowing" is interpreted by the courts as including constructive knowledge, which in turn incorporates what the employer allegedly should have known — an inexact and subjective standard applied post hoc by a finder of fact. In other words, even if the employer believed they were classifying the independent contractors according to law the employer is still expected to know otherwise.

If you are currently classified as an independent contractor you should have control over the following:

- Make your own schedule
- Use your own equipment, tools, vehicle
- Not required to wear a uniform or clothing with company logo
- Use/ purchase your own materials to complete work
- No constant supervision of tasks and performance

If any of these conditions are not met you should contact an experience California labor law attorney to review your situation. You may be entitled to overtime back pay as well as penalties for missed meal and rest breaks.

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

Wrongful Termination for Comments made on Facebook?

Walter Haines, Esq. — Thu, 06 Oct 2011 07:13:05 -0800

Employers are often concerned with how employees conduct themselves on social networking sites as they are, in a sense, representatives of the company. However employers should be cautious of disciplining employees when it comes to the content of the employee’s posts. More specifically if the post is related to the working conditions the employer should be wary of how they choose to react.

In New York an employee was recently fired from a nonprofit organization for posting a comment about the working conditions. Later an administrative judge ruled this to be a wrongful termination.

Judge Arthur Amchan of the National Labor Relations Board ("NLRB") reviewed statements of five employees of Hispanics United of Buffalo, an entity providing social services to low-income clients. One of the employees created a post on facebook in which she describes the organizations failure to adequately serve their clients. This was followed by other employee’s posts in which they defended their performance. All five employees that participated in this discussion were terminated. According to the employer they were terminated for harassing of the employee of the original post.

Judge Amchan, concluded that these discussions were protected under Section 7 of the National Labor Relations Act, because it was regarding communications among employees about their terms and conditions of employment. As such this ruling set new president for the NLRB. The judge then ordered reinstatement and back pay for the five employees.

There have been other cases in which employers have faced adverse decisions regarding comments made on social media sites. In Connecticut an employee called their supervisor a "scumbag" and derogatory term for male genitalia. The NLRB found a violation of Section 8(a) as the basis of the employee's complaint regarding his supervisor was being denied union representation in connection with filing an incident report. An employee can lose protection under the National Labor Relations Act if they engage in outrageously disgraceful conduct during the course of the protected activity, but the NLRB did not find the employee's conduct to rise to this level.

Employees and employers alike are treading in new waters with regards social media and free speech laws on social media sites. It is important to note the decision in the Hispanics United case and National Labor Relations Act protects both organized and non-organized employees, as well as protects the rights of all employees (unionized or not unionized) to discuss and engage in other concerted activity relating to their working conditions.

If you feel you have been wrongfully terminated due to comments made on a social media Site you should contact an experience labor law attorney to review your case.

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

ADA Expands Definition of "Disability" Increasing Wrongful Termination Suits

Walter Haines, Esq. — Wed, 28 Sep 2011 13:17:13 -0800

Due to the expanded definition of the term “disability” under the Americans with Disabilities Act Amendments Act of 2008 employers have been receiving an increasing number of requests for reasonable accommodations under the ADA. Most commonly of these requests are leaves of absence or changes to the employees schedule. The Equal Employment Opportunity Commission ("EEOC") and courts recognize that use of accrued paid leave or additional, unpaid time off from work may be a reasonable accommodation under the ADA.

Employers have several ways to accommodate employee requests for time away from work. For example, they can allow the employee to use accrued paid-time-off benefits like paid vacation or sick time. The employee can use the unpaid Family and Medical Leave Act during while also using accrued paid-time-off benefits or receive payments to a disability or workers' compensation benefits plan at the same time. Or the employer can also provide paid or unpaid leave according to company policy. All of these efforts are usually viewed as a form of reasonable accommodation under the ADA.

Often, employers mistakenly believe that their accommodation obligation ends once these efforts have been exhausted. Recently, this mistaken belief has been challenged by the EEOC, and at a very high cost to employers.

In 2009 a retailer settled for $6.2 million after the EEOC challenged the company policy to terminate all employees that had not returned to work after 12 months of being out on disability due to workers compensation claims.

A national communications company also settled for $20million after the EEOC alleged they had violated the ADA by holding the employees accountable for all their absences due to their disabilities. The company would fire the employees for excessive absences even though those absences were directly related to their disability.

Recently a Grocery Store Chain also settled at $3.2million after the EEOC disputed the employer's policy to terminating employees at the end of a fixed medical leave period instead of allowing the employees to return to work with reasonable accommodations.

Lastly, the EEOC Challenged a national airline company regarding it's company policy to not issue reduced work schedules for any of the employees. Instead the company required employees to either take a leave of absence or to take early retirement. The company eventually settled as well.

In short, regardless of what your company policy is you may be entitled to further accommodation of your disability. If you have been terminated or being asked to resign due to your disability you should contact an experienced labor law attorney to examine your case.

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

Administrative Exemption Under California Labor law

Walter Haines, Esq. — Wed, 21 Sep 2011 16:16:34 -0800

The Administrative Exemption is one of the most disputed exemptions under California law due to its ambiguity. The question is usually whether or not the employee should be compensated for overtime or if they are properly classified as exempt from overtime. California courts have examined the Administrative Exemption under the Federal Labor Standards Act (FLSA)

Bell v. Farmers Ins. Exchange (2001) is a noteworthy case in which the courts review whether or not the employees met the requirements to be considered exempt from overtime. First the minimum requirement rate of salary must be met. Then the administrative work must be

(1) non-manual
(2) related to management policies or general business operations of the employer or the employer's customers
(3) must involve the customary and regular exercise of discretion and independent judgment.

The stipulation "directly related to management policies and general operations of the employer or the employer's customers" is often the key requirement that is scrutinized most due to its expansive nature. But more often than not California courts reject the argument often made by employers that "management policies and general operations" must be interpreted broadly and it applies to any employee who exercises minimal discretion in his work. The California Courts interpretation of the language in this stipulation is much more focused.

The interpretation has been published in the decision in Bratt v. County of Los Angeles (1990) to mean directly related to management policies or general business operations, as in running of the business and not merely the day to day carrying out of its affairs. The Bratt Court considered whether the county probation officers are exempt from overtime under administrative exemption. The court concluded that although probation officers provide recommendations to the courts, these recommendations do not involve advice on the proper way to conduct the business of the court, but merely provide information which the court uses in the course of its daily production activities. So it was decided that the tasks the employees preformed did not meet the requirement to be exempt from overtime under the Administrative Exemption

If you are concerned that you might be improperly classified as exempt from overtime you should contact and experienced California Labor law Attorney and have them examine your job duties. You could be owed a substantial sum of money in overtime back pay.

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

Dukes Decertification Changes California Overtime Litigation

Walter Haines, Esq. — Fri, 16 Sep 2011 09:34:35 -0800

After the decision for Wal-Mart v Dukes was announced many believed that it was significantly change class action litigation, specifically what was needed to certify a class action. The case also alleged Sexual Discrimination and much of the language seemed to apply to other kinds of class actions, those outside of the employment context entirely.

Particularly; will Dukes apply to collective actions under FLSA section 16(b)? 16(b) is what allows wage and hour claims to be filed collectively if the class members are “similarly situated”. In the past, most courts find this to mean that the class members must be able to show that they were subject to "a common policy or plan that violated the law." The best example of this was written by district court judge Sonia Sotomayor , Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 367-68 (S.D.N.Y.1967). However the Dukes Decision was related specifically to Rule 23(a)(2), which necessitates a commonality. In other words: Are the facts of the case common to the class?

In California Cruz v Dollar Tree, Case No. 3:07-04012-SC (N.D. Cal. July 8, 2011), demonstrates that Dukes will apply to wage and hour suits as well. Cruz represented all current and former Store managers of the Dollar Tree Stores in California. Cruz filled in Northern California courts alleging that they were misclassified as exempt from overtime but were in fact entitled to overtime pay as well as meal and rest breaks. The court certified the class in 2009.

In both of these cases the plaintiff won the first round, but this did not last. After the cases were certified the Ninth Circuit render it’s decision in Wells Fargo Home Mortgage Overtime Pay Litigation, 571 F.3d 953 (9th Cir. 2009), and Vinole v. Countrywide Home Loans, Inc.,571 F.3d 935 (9th Cir 2009), rendering the class partially decertified. Then later The Ninth Circuit decertified a class of truck loading dock supervisors it had previously certified in Marlo v UPS, Case No. 09-56196 (9th Cir. 2011).

After Cruz v Dollar tree and Marlo v UPS were decertified the court felt obligated to reexamine Dukes v Wal-Mart, stating, "a forceful affirmation of a class action plaintiff's obligation to produce common proof of class-wide liability in order to justify class certification." The court’s interpretation of this requirement was "common proof to serve as the 'glue' that would allow a class-wide determination of how class members spent their time on a weekly basis." The end result, decertification of the class.

The bottom line is that no matter what you think the current labor law says about your employment rights, the laws are always changing. It can never hurt to reach out to an experienced California labor law attorney to evaluate your current 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