This term generally refers to a situation where a person has been fired when he/she should not have been. In California, employment is considered "at will", which means that an employer can fire someone for any reason or no reason, so long as the termination is not based on illegal reasons (i.e. one's race, or because one refuses to engage in illegal activity and is fired as a result).
The Family Medical Leave Act ("FMLA") allows leave for a period of up to 12 weeks for employees who have worked for their employer for at least 12 months, and have worked for at least 1,250 hours over the previous 12 months at a location where at least 50 employees are employed by the employer within 75 miles. Leave is permitted for the following:
- Your own "serious health condition" which keeps you from doing your job;
- To care for a sick child, spouse, or parent with a serious health condition;
- To care for a newborn child, newly adopted child, or foster child.
Like the FMLA, the California Family Rights Act ("CFRA") allows employees to take up to 12 weeks of leave. However, unlike FMLA leave, a CFRA leave of up to 12 workweeks may be requested (at the end of a PDL leave) if the child has been born by this date. There is no requirement that the employee or child have a serious health condition.
Employees that oppose unlawful conduct often fall victim to retaliation by an employer. The same laws that protect employees from discrimination (Title VII under federal law and FEHA under California law) also protect them from retaliation.
- This means that if you suffer an adverse employment action (discharge, demotion, suspension, transfer, negative performance review, denial of raise, or some other loss of a tangible job benefit) because you reported discrimination, made a complaint (formal or informal), cooperated or participated in an investigation, gave testimony regarding discrimination, or refused to participate in discrimination or other wrongful conduct, then you can state a claim for retaliation.
- Listed below are a few examples of circumstances that may have prompted your employer to retaliate against you:
- You filed a workers' compensation claim or attempted to file a workers' compensation claim;
- You took a leave for pregnancy, a leave for a disability or a leave for a family emergency;
- You reported illegal behavior by your employer, such as unpaid overtime or no breaks, or you reported a dangerous workplace condition;
- You complained of racial discrimination or sexual harassment or any other type of discrimination going on at work.
In retaliation, your employer may have subjected you to the following: being given fewer hours, being assigned to dangerous duties or a dangerous location, being demoted, being fired, or other punishing conduct by your employer.
Sexual harassment is a form of sex discrimination. Conduct is not sexual harassment if you welcome it (or consent to it). The unwelcome conduct must either be "severe" or "pervasive." There are two types of sexual harassment: quid pro quo and hostile environment. Quid pro quo harassment arises when the employer makes sex a prerequisite for the employee to get something in the workplace. This can occur in the negative (i.e., go out with me or you won't get the promotion).
Harassment from a hostile work environment arises when an employer makes the person feel uncomfortable because of his/her sex. An employer's conduct must be offensive.
Whether a worker is an "employee" or an "independent contractor" makes a big difference. Independent contractors are not entitled to many benefits that must be offered to employees, such as overtime pay, health and pension benefits, social security credits, protection against discrimination, and unemployment insurance. Some employers wrongly classify their workers as "independent contractors" to avoid providing those benefits. It is in your best interest to know whether you are properly classified as an employee or independent contractor.
Courts use different tests for workers for deciding different issues, but there are some common principles. In wage and hour cases, they focus on the following factors:
- The degree of control the employer exercises over the day-to-day work performed;
- The amount of the worker's investment in facilities and work equipment;
- The worker's opportunities for profit and loss;
- The degree to which the worker's independent initiative, judgment and planning is necessary for the success of the worker's operation;
- The permanency of the relationship between the employer and the worker;
- The extent to which the services are a part of the employer's business;
- How dependent the worker is on the employer for continued work.
The courts will look to all the facts of a particular case and compare them to the appropriate factors. Thus, the employees should understand that an agreement that he or she is an independent contractor, though important, will not decide the case. If you believe that your employer has failed to follow the law in payment of your wages, contact our office for a free consultation with an experienced employment attorney who will evaluate your options under the law to enable you to obtain the most complete relief possible.
California Labor Law Exemptions
According to our California labor laws attorneys, the greatest area of abuse of California state overtime laws is the area of classifying California exempt employees. In simple terms, "California labor law exemptions" are employers' legal defenses to not paying overtime. An important distinction, however, is that the employer must bear the burden of proving this exemption to prevent employees from recovering overtime pay. California wage and hour law is complex, and this holds true especially in determining which employees are California exempt employees. Under California wage and hour law, there are three major categories of California exempt employees: the California Professional Exemption, the California Administrative Exemption, and the California Executive Exemption.
The Professional Exemption or "Learned or Artistic" Exemption applies to employees who maintain a license to practice a profession (i.e. doctors, lawyers). However, registered nurses, pharmacists, and most school teachers are non-exempt under these laws. Under the professional exemption, employers are permitted to require such employees to work without being paid overtime.
Computer Professional Exemption
This particular exemption is found under California Labor Code section 515.5 and has undergone changes throughout the years. In September of 2008, the California Legislature again modified the Computer Professional Exemption. This time, they allowed a fixed salary of $75,000 per year to be paid no matter how many hours are worked. As such, as long as this salary is paid, and the other requirements of the exemption are met, there is no right to overtime pay. For most computer programmers making more than $75,000 per year, this eliminates overtime.
Nevertheless, the good news is that "most" computer professionals are actually non-exempt and entitled to overtime pay under California Labor Code 515.5 because employers cannot meet the other prongs (excluding the minimum rate of pay). Regardless of the job title an employee is given or whether the employee is told he or she is exempt from overtime, the tasks performed will determine whether they are entitled to overtime pay.
In 2006, the U.S. Department of Labor in a letter indicated that employees who primarily analyze, troubleshoot and resolve complex problems with business applications, networking and hardware are entitled to computer professionals overtime pay. Also, employees who primarily install, configure, and test computer hardware are not exempt and are entitled to overtime pay. Therefore, their employers must pay these computer professionals overtime pay. Most computer professionals’ overtime pay is due unless such employees primarily spend their time working on management policies or general business operations.
The Executive Exemption applies to employees who spend over half their work time managing businesses or departments of a business. The following shall occur for the exemption to apply:
- Manage the entire company or department or subdivision.
- Direct the work of at least 2 subordinates in your department or division.
- Have the power/authority to hire or fire - either directly or indirectly.
- Exercise independent business judgment.
- Spend more than 50% of your time doing the above tasks.
- Be paid at least $640 per week (as of this writing).
The Administrative Exemption applies to employees who provide "administrative work" that relates to supporting the business itself. This work is in contrast to production work which applies to products or services that a company provides. Nevertheless, when a company’s product is actually a service, that service is deemed to be "the product." For instance, courts have held that a County Probation Department "produces" the monitoring of convicted persons who are on probation. Since a probation officer directly works by monitoring people on probation, he/she is involved in production work and entitled to overtime.
Severance agreements are not required in California but many companies offer them to employees in employment contracts or use them as a way to uphold non-compete and/or other agreements prohibiting you from taking legal action against them. Negotiating a severance agreement that provides adequate compensation and benefits while upholding your rights is critical and an experienced lawyer can help you achieve your goals. For those inexperienced with employment law issues, it is difficult to discern whether a severance package is in your best interests. The terms and conditions of these agreements are extremely important, especially if you feel that you have been subjected to discrimination and/or harassment during the course of your employment.
If you were terminated, laid off, or fired, you are still owed overtime if your duties were primarily non-exempt. DO NOT SIGN A SEVERANCE AGREEMENT without consulting our office first. If you sign a severance agreement as part of a layoff you may be waiving your right to make a claim for overtime or discrimination, amongst other claims. Typically, companies include a "general release" in severance agreements, such that once you sign, you may be waiving your right to bring any future legal claims against the company.
Contact our office immediately if you are asked to sign a severance agreement or general release as a result of a layoff or termination.
The term "whistleblower" was originally used to describe an individual who reported the illegal actions of a company that was defrauding the government. In fact, the False Claim Act was signed into law more than one hundred years ago to help combat fraud by suppliers to the United States government during the Civil War. Over the years, however, the definition has expanded to identify anyone who reports corporate or business crimes that are being committed without the knowledge of the victim. The False Claim Act provides whistleblowers compensation in the form of a percentage of the amount the government recovers in the case the whistleblower brings to them.
Under California law, employers generally may not retaliate against employees that "blow the whistle" on illegal practices such as discrimination, safety violations, mismanagement, false claims, misuse of funds, wage and hour violations or any other type of criminal activity. And, yet, employer retaliation seems to be the norm rather than the exception when it comes to whistleblowers.
If you have blown the whistle on illegal practices you observed in your company and, as a result, have been demoted, fired or endured an adverse working environment that caused you to quit, you may be able to pursue legal action against your employer. Depending on your circumstances, you may be able to seek reinstatement, compensation for lost wages and benefits and even attorney fees. If you have blown the whistle on illegal practices you observed in your company and, as a result, have been demoted, fired or endured an adverse working environment that caused you to quit, you may be able to pursue legal action against your employer. Depending on your circumstances, you may be able to seek reinstatement, compensation for lost wages and benefits and even attorney fees. At Briana Kim, PC, we are proud to represent clients who take a chance on telling the truth at the risk of losing their job.
WAGE & HOUR
In the state of California, all employers are required to abide by state and federal employment laws and pay most employees for overtime worked beyond the eight-hour workday, or forty-hour workweek. California employees are generally classified as either exempt employees or non-exempt employees. If you are not being paid for your overtime hours or feel your job has been misclassified as being exempt from overtime laws, your employer is most likely violating California law. Briana Kim, PC can help determine your rights to overtime pay in the workplace
The law regarding overtime is fairly simple: a non-exempt employee must be paid time-and-a-half for all hours worked over eight hours in any workday and over 40 hours in a workweek.
Some companies routinely violate wage-and-hour laws, by making non-exempt employees work through lunch breaks, take unpaid rest breaks, or open or close the business on unpaid time. Others classify certain workers as managerial and therefore treat them as "exempt" from wage-and-hour laws, even when these employees are not really managers, as defined by California law.. If you and your co-workers have been made to work off-the-clock or if you have been mistakenly classified as an exempt employee, you may be entitled to compensation for your unpaid overtime and benefits.
Here are some key points to remember in regard to the State of California Overtime Rules:
- California overtime law provides that an employee be provided California overtime pay when working in excess of 40 hours per week OR in excess of 8 hours per day.
- California labor law exempts employees who, among other things, perform exempt duties in excess of 50% of the time. This means employers must carefully examine whether or not exempt employees are truly exempt by the actual duties they perform (versus their job title or the mere fact they are salaried and labeled exempt).
- California law overtime pay requirements are extremely strict and may result in payment of up to 4 years of back overtime pay, interest, penalties, and the attorney fees of the employee. California overtime rules typically favor the employee. This means, for example, California labor laws for exempt employees require employers to prove such employees are exempt.
- California labor laws shift work hours are governed by the alternative work week rules if employers seek to work employees more than 8 hours per day without overtime pay. Alternative work week schedules of, for example, four "10 hour days" must be approved by a vote of the employees and such vote must be recorded at the Department of Labor Standards Enforcement.
- California labor laws on-call duties are complicated when it comes to compensable overtime and are typically based on how restricted the employee is while on call. If, for example, an employee must always be near a land line to log onto a server, it may be construed that such employee is entitled to California overtime pay for the entire time of the restriction. California law overtime pay requirements typically favor employees and on call time is no different.
No employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron, or deduct any amount from wages due an employee on account of a gratuity, or require an employee to credit the amount, or any part thereof, of a gratuity against and as a part of the wages due the employee from the employer. Every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for. An employer that permits patrons to pay gratuities by credit card shall pay the employees the full amount of the gratuity that the patron indicated on the credit card slip, without any deductions for any credit card payment processing fees or costs that may be charged to the employer by the credit card company. Payment of gratuities made by patrons using credit cards shall be made to the employees not later than the next regular payday following the date the patron authorized the credit card payment.
In short, no part of tips or gratuities given to an employee can be shared with or taken by the employer or its managerial employees, nor can they be used to subsidize employer obligations to pay minimum wages. (Although a recent court of appeal decision held that tips provided in a collective tip jar for Starbucks' employees could be shared with "shift supervisors" after concluding they primarily provided services to customers and customers intended for those supervisors to share in their tips.) Tips can only be shared with those employees involved in the chain of providing service to the customer and, therefore, the legality of a particular tip pooling policy will depend on the application of an employer’s policy in a particular workplace. Labor Code Section 351 does not permit a private right of action, in light of a 2010 case called Lu v. Hawaiian Gardens Casino, Inc. However, the Lu case left open the question of whether employees can collect damages for illegal tip-pooling through other legal remedies and causes of action, such as a lawsuit against the employer for conversion or for a violation of the Unfair Competition Law, Business and Professions Code § 17200.
Pursuant to California Labor Code section 512 and the applicable Wage Order, the employer is obligated to provide an uninterrupted meal period (in which employees are relieved of any duty or employer control and are free to come and go as they please) of not less than thirty (30) minutes after employing a non-exempt person to work for five (5) hours, absent 1. a mutually agreed-upon waiver if the workday is six (6) hours or less or 2. written agreement to an on-duty meal period (if circumstances permit this). There are certain terms that must be contained in the written agreement pursuant to California Code of Regulations, Title 8, §11040. Most jobs do not qualify for "on duty" meal breaks. It is clear that under California labor laws, meal breaks can simply not be waived by employers without a written, revocable agreement with employees. Should employers fail to give employees their required meal period, such employees must be compensated in the amount of one hour's worth of wages.
While employers are not required to ensure that no work is performed during its employees’ meal periods, employers cannot undermine a formal meal period policy by pressuring its employees to work (i.e. implementing an informal anti-meal-break policy through reprimand). Indeed, if employers knew or reasonably should have known that its employees were working during their meal period, then they will be responsible for compensating (at straight pay) their employees for such time worked.
The first meal period must be provided after no more than five (5) hours of work.* If an employee is entitled to a second meal period, it must be provided after no more than ten (10) hours of work.**
* Unless the total daily work period is no more than six (6) hours, and the parties mutually agreed to waive the employee’s meal period. ** Unless the total daily work period is no more than twelve (12) hours and the employee took the first meal period, and the parties mutually agreed to waive the second meal period.
Pursuant to the Industrial Welfare Commission’s ("IWC") Wage Orders, rest time will be determined on the total hours worked daily, at the rate of ten (10) minutes of net rest time for four (4) hours or major fraction thereof (which means a fraction greater than ½, such that if an employee worked more than six (6) hours in a day he/she would get twenty (20) minutes of net rest time). Rest time does not need to be provided for employees whose total daily work time is less than three and one-half (3½) hours. In effect, employees are essentially entitled to 10 minutes’ rest for shifts from 3½ to 6 hours in length; 20 minutes’ for shifts more than 6 hours up to 10 hours; 30 minutes’ for shifts more than 10 hours up to 14 hours; and so on. Ex: Rachel works for an employer with a written policy applicable to all its employees, in which its employees are authorized to receive one 10-minute break for each four hours worked. Rachel regularly works 7 hours a day but only receives one 10-minute break per Company policy. The Company is not complying with the rest break policy in California. While employers are not legally obligated to permit employees to have a rest period before any meal period, employers are still required to make a good faith effort to permit rest breaks in the middle of work periods, insofar as it is feasible.
Issues concerning commission earnings typically arise under two scenarios: 1) failure to pay overtime based on an improper sales commission exemption; or 2) failure to pay correct overtime by not including commission earnings in the regular hourly rate. Under the first scenario, the employer fails to account for certain job duties that disqualify the sales commission exemption from applying to overtime pay, such that the employee is entitled to overtime. The second scenario concerns those commission employees who work under a compensation plan that pays hourly wages, overtime, and commissions. When calculating overtime, the employer must account for all wages earned—including commissions—when determining the employees' true hourly rate. Thus, if an employee earns in a 40 hour week a regular hourly wage of $10.00 and commissions that average $2.00 per hour, the employee’s true hourly wage is $12.00. Overtime should thus be time and a half of $12.00, or $18.00 per hour. An employer who fails to calculate the true overtime rate including commissions owes the employee the difference between the proper rate and what was actually paid.
On some occasions, however, employers fail to properly pay commission earnings to their employees based on improper commission plans or by improperly deducting certain business costs in the commission plan. An example here is where the employer offers the commission-based employee an assistant whose salary is covered wholly or partially by the commissioned employee. While a commission split is lawful, to require one employee to cover another employee’s salary is not lawful.
Commission earnings, like any other wage, are subject to strict protections.