Whistleblowers and Employer Retaliation

April 22, 2015 by Beck Law P.C.

Whistleblowers and employer retaliation. Due to the expansion of the Securities and Exchange Commission’s watchful eye, and the lucrative rewards program offered to employees who come forward (10% to 30% of the money it collects) lawsuits involving retaliation and whistleblowing are on the rise.

Employers need to be aware that employees are encouraged to visit the SEC’s website to report claims whenever they believe their employer is failing to comply with SEC guidelines. See the excerpt below taken directly from the website:

Welcome to the Office of the Whistleblower

Assistance and information from a whistleblower who knows of possible securities law violations can be among the most powerful weapons in the law enforcement arsenal of the Securities and Exchange Commission. Through their knowledge of the circumstances and individuals involved, whistleblowers can help the Commission identify possible fraud and other violations much earlier than might otherwise have been possible. That allows the Commission to minimize the harm to investors, better preserve the integrity of the United States’ capital markets, and more swiftly hold accountable those responsible for unlawful conduct.

The Commission is authorized by Congress to provide monetary awards to eligible individuals who come forward with high-quality original information that leads to a Commission enforcement action in which over $1,000,000 in sanctions is ordered. The range for awards is between 10% and 30% of the money collected.

Sean McKessy
Chief, Office of the Whistleblower

Recently, a part time employee received a substantial reward for retaliation after reporting that JC Penney was overcharging customers by collecting sales tax on non-taxable purchases.

The law is clear that whistleblowers are protected and cannot be fired for turning in a claim. Here are more recent examples:

2.2 billion, Johnson and Johnson, employees take a percentage in Risperdal whistleblower lawsuit
38 million, Extendicare Health Services, employees take percentage in fraud whistleblower lawsuit
Chicago University, 3 million dollar award to employee wrongfully fired for whistleblowing
525 million, Trinity Industries, Inc., employees take percentage in fraud whistleblower lawsuit
Playboy Enterprises, 6 million dollar award to employee fired for whistleblowing retaliation

For small businesses, complying with the SEC rules and guidelines is imperative.

Additionally, a disgruntled employee may turn you into the SEC when you may have not violated any regulations which would create increased work for your company during the SEC investigation, which could take away from your profit margin with considerable time, energy and expense on your part to defend the claim.

What we suggest moving forward:

Review work protocol to insure SEC regulations are met and sustained;
Encourage employees to come forward with their concerns and attempt remediation;
Work toward a happy, open work place culture;
Reward employees for their loyal service;
Periodically meet one-on-one with supervisors to encourage communication; discuss the “talk” around the workplace to get a “heads up” on staff morale, being ever mindful of disgruntled employees;
Try to work with employees to encourage constructive improvements in their work rather than fire them;
Provide periodic training to supervisors to avoid any conduct that may appear to be retaliatory;
Review and revise Employee handbooks with strong SEC compliance policies and codes of conduct;
Make sure SEC compliance is mandatory at all levels of your business/work model.

I’m Being Retaliated Against at Work But How Can I Prove It?

April 17, 2015 by Beck Law P.C.

I’m being retaliated against at work but how can I prove it? As the definition of “protected conduct” in the workplace broadens, the number of employer retaliation lawsuits have increased exponentially. In turn, companies have found clever ways to get rid of employees who have reported them to authorities for protected class violations at work.

If you feel you are being retaliated against at work for protected conduct then you very well may be.

What is protected conduct?

Protected conduct is described by the EEOC under Title VII of the Civil Rights Act of 1964. Basically, there are provisions covered in the EEOC statutes that make it unlawful for an employer/entity to take action against an employee who complains (implicitly or explicitly) about discrimination in the workplace. Areas of protected conduct include employees’ rights to: religious preference, gender identification, race, age, disability, military status, freedom of speech and protest, equal pay, harassment and protection for rape victims.

Here are some examples of complaints/actions that an employer may not retaliate against:

A threat from a 56 year old employee to file a complaint against alleged age discrimination because of demotion
A female employee who complains that her male co-worker is making more money performing the same job
Employees who picket the workplace
Employees who slow production as a form of protesting unfair labor practices
An employee who suddenly comes to work wearing a hijab
Complaints about graffiti in the workplace that are derogatory to women
A concerned employee who complains that her supervisor is making fun of the receptionist in a wheelchair
An employee who refuses to obey an order that they believe is discriminatory
An employee who requests reasonable religious accommodation to take a half day off for Good Friday

There are various tactics that employers can use that may violate retaliation laws, some subtle and some not, that may be intended to coerce you into quitting your job. Be aware that retaliatory tactics can and often include what psychologists call the “outcast effect” that is best described when co-workers socially align with the “in crowd”. You will know this is happening when your friends at work shun you and label you as socially undesirable. Basically, the entire workforce may turn against you in a big way and it can be cruel.

This Forbes Magazine article clearly describes just how miserable co-workers and supervisors can make an employee feel who reports protected conduct to authorities.

I’m Being Retaliated Against at Work

Social isolation does not stand on its own as a case for retaliation. It is only one cog in the wheel of a divisive harassment campaign that companies may use against you. A typical retaliation campaign might include, along with social isolation, poor performance reviews, petty reprimands, cuts in duties and pay, unequal treatment between complaining and non-complaining employees, hostility, being moved from a bright office to a dull cubicle, loss of responsibilities and increased work load meant to make you fail.

What must an employee go through to prove a workplace retaliation claim?

Employees must provide evidence:

that they engaged in protected conduct;
that they suffered a tangible, adverse employment action; and that there is a causal connection between their protected conduct and the adverse action.
that there is a causal connection between their protected conduct and the adverse action.

Further, employees must prove causation by providing incidents, documents, witnesses and dates, with tangible evidence of:

unfair treatment between employees;
the timing between the adverse actions and the protected conduct (courts expect employers to retaliate quickly);
lack of a formal investigation into the employee’s complaint;
petty or vague reasons for reprimands, demotions, loss of status or duties;
a documented timeline of systematic company harassment after the time of the protected conduct.

If you feel you are being retaliated against at work and think you need assistance in proving causation please contact us at our Beck Law P.C. Santa Rosa Labor and Employment Law office so that we can discuss the circumstances of your situation.

Filed Under: Workplace Retaliation Tagged With: Petaluma workplace retaliation attorney, santa rosa workplace retaliation attorney, Ukiah workplace retaliation attorney

Understanding Workplace Age Discrimination Laws

April 8, 2015 by Beck Law P.C.

Understanding workplace age discrimination laws. Age discrimination occurs when a person is treated differently, or denied a benefit, right or service because of their actual or perceived age. Age discrimination is more subtle than other forms of discrimination, but can be just as pervasive in a workplace.

Workplace Age Discrimination Laws

Both federal and California state laws provide specific prohibitions against age discrimination in the workplace. The Age Discrimination in Employment Act of 1967 (ADEA) prohibits age discrimination against all persons 40 years or older. The ADEA is applicable to employers with 20 or more employees, and this includes labor organizations, employment agencies and also state and local governments. This law prohibits unfavorable treatment against those who are 40 years or older, though it is not illegal for employers to favor an older employee over a younger employer, even when both workers are over the age of 40. Furthermore, age discrimination can be conducted by a person who is also over the age of 40.

The ADEA prohibits age discrimination from occurring during any part of the employment process, which includes firing, hiring, job assignments, training, promotions, layoffs, benefit payouts, and for any other condition or term of employment. Harassment is also prohibited by the ADEA. Harassment can take an assortment of forms and can include offensive remarks about an employee’s age and ability to perform job functions as the result of their age. Furthermore, an employment practice/policy that has general applicability to all employees, regardless of their age, can still be found illegal under the ADEA if that practice/policy is not based on a reasonable factor other than age, and has a negative impact on employees 40 years of age or older.

California’s Fair Employment and Housing Act

California’s Fair Employment and Housing Act (FEHA) provides specific prohibitions against discrimination in California workplaces. The FEHA applies to all employers with five or more employees, and this includes government bodies, labor organizations, apprenticeship programs, employment agencies and private employers. Under the FEHA, there is an exception to the five-employee minimum when harassment has occurred in the workplace. Under this exception, all employers with one or more persons, or those receiving the services of at least one independent contractor, are subject to the FEHA’s prohibition against workplace harassment. This exception also allows individual co-workers who are harassing other employees to be held strictly liable for their actions.

Both the ADEA and the FEHA provide employees with a cause of action to file suit against their employers because of workplace age discrimination laws. However, state administrative remedies provided under the FEHA must first be exhausted before a civil action is pursued under the ADEA. In order to pursue age discrimination suit under federal law, the age discrimination suit must be filed with the Equal Employment Opportunity Commission (EEOC) within 300 days of the alleged discrimination, or within 30 days after the EEOC receives notice from the California’s Department of Employment & Housing (DFEH) that they will not pursuing the age discrimination claim.

Age discrimination in the workplace is a very important issue that is prohibited by both state and federal laws. If you work in Sonoma County, Mendocino County, or Lake County California and feel that your employer is in violation of workplace age discrimination laws, contact the employment law attorneys at Beck Law P.C. in California today.

Filed Under: Age Discrimination, California Labor Law Tagged With: age discrimination, mendocino county age discrimination, petaluma age discrimination, santa rosa age discrimination, sonoma county age discrimination, ukiah age discrimination, workplace discrimination

California Job Retaliation and Wrongful Termination Laws

April 1, 2015 by Beck Law P.C.

California job retaliation and wrongful termination laws. Under California state law, it is illegal for an employer to retaliate against any employee who has provided information to law enforcement or government agencies, or engages in other protected activities. Employment retaliation can take a variety of forms including an employer’s decision to demote, terminate, fire or conduct some other negative act against an employee because that employee has exercised an activity protected by federal or state law. Most often employment retaliation occurs when an employee becomes a whistleblower by reporting an employer’s activities that are in violation or public policy or law, or is otherwise considered illegal. Under the California Labor Code, an employer is prohibited from taking any adverse, negative action, or any other form of discrimination in response to an employee:

Reporting discriminatory acts and other illegal activity that have occurred in a workplace controlled by the employer;
Participating in a labor union and other activities related to collective bargaining and/or an employee’s right to freedom of association and expression;
Complaining about the state of the workplace facilities and/or working conditions;
Participating in investigations and/or filing suit against an employer;
Filing a complaint against an employer with California’s Division of Labor Standards and Enforcement (DLSE).

CA Law Regarding Job Retaliation and Wrongful Termination

The most common form of employer retaliation is the wrongful termination of an employee who has engaged in activities protected by the federal and state government. Here in California, employment relationships are presumed to be at will, which means that the employment relationship can be terminated by both the employer and employee at any time without the consent of the other party. However, there does exist an exception to the at-will employment presumption, which provides that employers can be found guilty of wrongfully terminating an employee when that employee has been discharged for “performing an act that public policy would encourage or for refusing to do something that public policy would condemn.” Under this exception, a California employee who is discharged because of these reasons can bring suit against the employer in order to receive damages and compensation for the wrongful discharge. However, this exception does not apply when the parties have a pre-existing employment contract that allows employment termination based on cause or because of specific reasons previously outlined in the employment contract.

An employee can bring a wrongful termination claim by asserting that the employment discharge violated federal law, public policy or California state law. Typically, wrongful termination suits are brought under the California Fair Employment and Housing Act (FEHA), which allows employees to bring suits against employers. However, the FEHA cannot be used to bring suit against an organization’s managers, supervisors and other employees. A complaint alleging discrimination or retaliation in the workplace must be filed within six months following the occurrence of the alleged activities. However, complaints filed under California Labor Code section 230.1 and 230 (c) can be filed within one year following the alleged retaliation or discrimination. Complaints of employment retaliation and discrimination are filed with the DLSE.

If you believe you have been the victim of employment retaliation or discrimination you should contact one of the labor and employment attorneys here at Beck Law P.C. here in Santa Rosa, California today.

Filed Under: Employee Retaliation, wrongful termination Tagged With: mendocino county labor lawyer, Petaluma Labor Lawyer, Santa Rosa Employment Attorney, Santa Rosa Employment Lawyer, sonoma county labor lawyer, Ukiah Labor Lawyer

The Nightmare of Missed Breaks and Unpaid Overtime

March 16, 2015 by Beck Law P.C.

The nightmare of missed breaks and unpaid overtime. A key and trusted employee gives notice. He was well liked and you give him a special going away party.

Ten months later that key and trusted employee files an overtime and missed breaks violation complaint against you with the Labor Board. At first you are shocked because you really liked him and he left on good terms! He never said a word to you about any of this. You wonder, when and how could this have happened? Why was this was never brought to your attention during all his years of employment?

Missed Breaks and Unpaid Overtime

You review his time cards. They show no missed breaks or unpaid overtime and you continue to believe that this must be some sort of mistake. All you have to do is show the employee’s time cards to the Labor Board and all this will be cleared up, right?

You attend the Labor Board hearing, and show the commissioner your records. At this time that key and well liked employee produces another set of time sheets. A “secret” set of time sheets personally kept for years by the employee, showing that he worked a lot more that what he reported on his official time cards. This secret set of time cards documented hours and hours of “missed overtime and breaks” over a period of, well years – he even shows overtime for work he says he performed late at night when your office was closed. All you can think is what is going on? At this point, you go completely numb.

The employee tells the commissioner that he wanted to do a really good job but there wasn’t enough time in the day to keep up without working late at night or from home and tells the commissioner that you as his employer “should have known this.” You can’t remember ever asking your ex-employee to work late at night or from home (off the clock) ever. What was this extra work? What did he do for all those years of overtime?

How will the Labor Board Rule?

More often than not the Labor Board will side with the employee. It is imperative that employers seek the counsel of an experienced Labor Law attorney prior to attending a Labor Board hearing.

Employer’s Case: The employer believed that the company time cards were an accurate record of the the time worked and is therefore completely caught off guard by the extra set of time sheets produced. It must be some kind of mistake. But, at the Labor Board hearing the employee testifies that he never told his employer about the “secret” overtime he worked because he wanted to do a good job, to get everything done, and he didn’t want to lose his job to an assistant who was pining for the title.

Neither the employer nor the employee could document the actual work produced during these years of “overtime” but the Labor Board commissioner was satisfied that in spite of this lack of concrete evidence, the employee seemed earnest and appears sincere in his belief that he did something beneficial for the employer.

Department of Labor Decision: Employee was granted the full amount of his claim, with all penalties and interest. In addition the employer was required to pay back taxes to the IRS for these wages. Further, the Department of Labor included even more interest and penalties due to the employee wait time. This exacerbated the cost to the employer even further, escalating the dollars in interest and penalties (per day for a 30 day period).

BECK LAW P.C. SUGGESTED TIPS TO SECURE EMPLOYEE TIME CARD ACCURACY

It is essential that all employers:

Include a mandatory Declaration Under Penalty of Perjury on each time card, signed by the employee, that clearly states the employee swears that the time submitted on the card is accurate, honest and includes ALL time worked for that pay period
Mandate in your Policy Manual that non-exempt employees with pre-approved overtime must clock in and clock out, remotely, via e-mail prior to commencing and ending any work performed.
Ensure that time sheets are legible, professional and clearly written
Ensure employees initial all notes and changes and provide reasons and copies of email approvals for overtime, late, sick and vacation days, in their own handwriting
Outline Employee Manuals with language that non-exempt employees are never permitted to work “off clock” for any reason whatsoever, unless pre-approved by management in writing
Ensure all non-exempt employees are not permitted to sit at their desks during breaks and/or meals
Train management to post break/meal schedules in a public work area and to monitor them accordingly, and ensure breaks and meals are taken timely and in a manner that complies with current labor regulations
Provide recurrent reminders to management and employees to never talk about work to an employee that is on a break or meal period
Provide a separate defined space for employees to take breaks and meals that is free from work
Install time clocks within sight of management to monitor that employees clock in and out in a timely manner and do not clock in and out for another employee
Keep up to date employee records that are stored in a locked file or a password protected computer file
Seek a professional employment/labor law attorney, such as Beck Law P.C., to prepare and annually update all employee manuals, policies, procedures and employment documents

Filed Under: Blog, Meal Break Violations, Rest Break Violations Tagged With: Petaluma Labor Lawyer, Santa Rosa Labor Attorney, Ukiah Labor Attorney

Big Win for California On-site On-call Employees

March 10, 2015 by Beck Law P.C.

Big win for California on-site on-call employees. CPS Security Solutions, Inc., a California employer was delivered a crushing blow when the California Supreme Court ruled that the company’s compliance with a federal employment law that permitted the exclusion of compensation for sleep time was irrelevant in determining CPS compliance with California employment law. In Mendiola v. CPS Security Solutions Inc. the dispute was whether California’s Wage Order 4 was being adhered to by CPS. In determining that CPS’s wage policy violated the Wage Order 4, CPS and other California employer’s will now have to determine what retroactive effect if any the ruling will have on their compensation policy for employees.

The California On-site On-call Employees of CPS

The ruling in Mendiola requires that on-call security guards employed by CPS at different construction worksites are entitled to retroactive pay for 24 hours of work, despite the fact that their same employees only actively worked 8 hours per day. Originally, the on-call security guards employed by CPS had a written agreement with the company to reside in trailers provided by CPS. While residing at these trailers, the on-call/site security guards were allowed to rest and enjoy other leisure activities, though with some limitations. The guards were compensated at an hourly rate for all time spent patrolling their construction worksite. However, no compensation was received for time spent on-call at the worksite trailers unless an alarm went off or other circumstances required the attention outside of the trailer, or during the time spent waiting to be relieved from work by another guard. Ultimately guards were only paid for their time spent patrolling sites, and time spent in the investigation of disturbances occurring at the site.

The difficulty in this case is the fact that CPS did not intend to violate California state law when developing its compensation plan for on-site, on-call employees. In fact throughout the 1990s CPS worked with the California Labor Commissioner in order to ensure that the compensation policy in place, which excluded sleep time at the trailers, was in compliance with relevant federal and state law. The basis for this suit was a request by CPS for a declaratory relief action, requesting assistance from the California courts to review the compensation plan, and to also rule on its viability. Ultimately it was determined that though the federal law provided an express provision allowing the exclusion of sleep time in compensation, this fact was irrelevant in the determination of whether CPS was in compliance with state law because, as the court put it, California “is free to offer greater protection.” As a result, subject to Wage Order 4, CPS will be required to retroactively pay its employees for their rest time while on-site and on-call.

The ruling in the CPS case is interesting in that it does not involve an employer attempting to thwart labor employment law. In fact the unfavorable ruling was the result of CPS attempting to ensure their compliance with California state law. However, the holding means that other employers in California who do not pay compensation for rest time at on-site locations for on-call employees could be required to provide retroactive compensation to these employees. If you have any legal questions regarding California’s wage and compensation laws, and live in Sonoma County, Mendocino County or Lake County California contact the attorneys at Beck Law P.C. in Santa Rosa today.

Filed Under: Blog, California Employment Law, Wage and Hour Law Tagged With: Petaluma Employment Attorney, Petaluma Employment Lawyer, Santa Rosa Employment Attorney, Santa Rosa Employment Lawyer, Ukiah Employment Attorney, Ukiah Employment Lawyer

I’m Being Laid Off But Must Train My Replacement?

March 5, 2015 by Beck Law P.C.

I’m being laid off but have to train my replacement? SCE is Southern California’s biggest utility provider. The company has recently faced public criticism after it was confirmed that SCE would be laying off many members of its large IT department in order to replace them with new hires from Tata Consultancy Services (TCS) in Mumbai, India, as well as from Infosys, an IT company in Bangalore. These new employees will be allowed to begin work in Southern California through the U.S. federal government’s H-1B program. The intent of the H-1B program is to allow foreign workers to access jobs in the U.S. that employers are unable to fill with U.S. employees. The main complaint about using the two Indian companies is that SCE already had U.S. employees who were trained, ready and willing to complete the work required, thus negating the very need for H-1B employees in the first place.

SCE and the Alleged H-1B Program Abuse

SCE is one of Southern California’s largest utility companies, which, before layoffs, reported having 1,800 employees in its IT department alone, with an additional 1,500 workers on contract. The IT department’s transition effort will result in an estimated 400 employee layoffs along with an additional 100 employees terminating their employment voluntarily. The employees who will be leaving SCE’s IT department have years of experience in their jobs, and will be forced to train their replacements in the upcoming months as part of the broader transition effort. Not surprisingly, many of the workers feel betrayed by SCE, and believe this transition is an attempt to pay lower wages to foreign employees, through the abuse of the U.S. federal government H-1B program. This argument is somewhat persuasive when one considers the very goals and purpose of the H-1B program, which is to provide employers access to non-U.S. employees when there are not enough domestic employees to provide the unique services that their businesses require. However, as one employee put it,

“Not one of these jobs being filled by India was a job that an…employee wasn’t already performing”.

Laid Off and Training My Replacement

The fact that some of the laid-off U.S. employees will be training their own successors seems to support the claim that the U.S. employees are skilled, trained and capable of providing all of the employment services that SCE requires.

In response, SCE has stated that the transition towards using Tata and Infosys H-1B employees will inevitably “lead to enhancements that deliver faster and more efficient tools and applications for services that customers rely on. Through outsourcing, SCE’s information technology organization will adopt a proven business strategy commonly and successfully used by top U.S. companies that SCE benchmarks against.”

However, SCE’s response does not touch on the issue of why California, home to Silicon Valley and some of the most advanced tech specialists and professionals, was not an adequate location to find the employees that SCE required. Some from within SCE have voiced concerns that the new Indian tech workers do not posses the necessary skill levels of the very people that they will soon replace.

The layoffs at SCE are a unique example of the immigration issues involved in foreign labor and employment. If you think you need a Santa Rosa Labor Attorney, or Mendocino County Labor Lawyer, contact the California labor and employment lawyers at Beck Law P.C. in Santa Rosa today.

Filed Under: Blog, California Employment Law, Labor Law Tagged With: California employment attorney, california employment lawyer, lake county labor lawyer, Santa Rosa Labor Lawyer, Ukiah Labor Attorney

Can An Employer Fire An Employee For Discussing A Raise?

February 24, 2015 by Beck Law P.C.

Can an employer fire an employee for discussing a raise? You have a great Office Supervisor that deserves additional compensation for her dependable work. You decide to reward her with a fantastic performance review and an excellent raise. But, because not all of your your employees are exceptional and you have only so much money to go around, you would prefer that the Office Supervisor keep her raise to herself and not share this information with her co-workers. As she leaves your office, you tell her: By the way, I would prefer you not tell anyone about your raise. If you do, it may cause a lot of disruption in the office, and hurt other employee’s feelings. Actually, I need to trust that you will not tell anyone in this office or you may lose your job over it.

From an employer’s point of view, this statement may seem like a good reminder, given what you think about the other employees, how fairly you want to compensate the other employees, and how much you appreciate the hard work and dedication of this particular employee over the others, given that cash flow is tight. You know your business and what your limits are, and you just don’t want to deal with all the other employees’ complaints. The bottom line is you want the raise to go to the person who earned it, you believe it is reasonable to ask that some things remain private, and frankly, you don’t want to have to explain yourself.

Can you say this to your employee? The answer is: NO. In fact, it is illegal.

Under the National Labor Relations Act, employers cannot prevent employees from discussing wages, salaries, raises, evaluations, cuts in pay, bonuses, benefits, or anything related to their employment among themselves. Employees may discuss ALL WORKING conditions among themselves and they are free to organize, share information and band together as a group. As taken from the NLRB website:

“The law we enforce gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away. These rights were written into the original 1935 National Labor Relations Act and have been upheld in numerous decisions by appellate courts and by the U.S. Supreme Court”

More specifically, Section 7 of the National Labor Relations Act clearly states:

“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.”

You may then wonder, can I as an employer discuss one employee’s raise with another employee? The answer is again: NO.

Whereas employees can discuss all work related information with each other, you as an employer must protect the privacy of every employee, and you are not allowed to discuss information regarding one employee with another employee, unless that employee is a supervisor; and even then, information can only be shared that is relevant/necessary for the supervisor to do the job, and nothing more. For example: An employer and a supervisor may discuss an employee’s bonus only if that employee is working directly under that supervisor. An employer may not “tell” an employee anything about another employee’s bonus. [Read more…]

Filed Under: Blog, California Labor Law, Employee Rights Tagged With: Petaluma Labor Lawyer, petaluma lafbor attorney, Santa Rosa Labor Attorney, Santa Rosa Labor Lawyer, Ukiah Labor Attorney, Ukiah Labor Lawyer

Labor Law Overtime Violations and Employee Commute

February 20, 2015 by Beck Law P.C.

Labor law overtime violations and employee commute. Must I pay overtime for my employee’s commute? Your receptionist has clocked out for the day and is driving home; yet, while at a stop light, gets a text from a co-workers regarding a work related question. It requires a simple “yes” or “no” and being a diligent employee he/she pulls over and responds with a text back. A few minutes later, another text is received that requires a very simple response which only takes a minute. In total, your receptionist spent approximately 1 minute and 20 seconds to read and respond to these texts.

No big deal right? Wrong! It is a big deal. The receptionist, being a non-exempt employee, is due overtime for the work performed answering texts while commuting home. For employers, the modern use of devices and smart phones by employees has further complicated the lines between clocking in and out of work and what is considered “working”.

The Fair Labor Standards Act in the United States regulates overtime, and additional state laws are in place that can affect employers, especially in regard to non-exempt employees who communicate on devices prior to and after work hours.

Employers need strict guidelines for non-exempt employees regarding work related texts, emails, face chats and messaging while commuting to and from work or employers may be liable for expensive penalties and fines.

It is important that employers evaluate non-exempt status to determine if their business is following fair labor standards regarding overtime. A general rule of thumb is: if a non-exempt employee is working (doing something for their employer) no matter their location, including being “on-call” they are considered “working” and must be paid appropriately. Additionally, if non-exempt employees are sent off-site during working hours they must be paid for their travel time as well.

Violations to labor laws carry serious penalties and fines, so small business owners should have carefully written policies. Labor law violations can trigger a domino effect for an employer: when one employee files a complaint with the Labor Board, other employees often follow. Even past employees can get in on the action.

A clearly defined policy regarding telecommuting, such as provided below, should be included in your Employee Handbook:

TELECOMMUTING POLICY FOR NON-EXEMPT EMPLOYEES

For non-exempt employees, telecommuting (working from another location, i.e., mobile, smart phone and/or from one’s home computer) is not permitted, unless pre-approved by your immediate supervisor, in writing, via e-mail communication. Without express written permission to telecommute, all non-exempt employees must perform their job duties at their primary central and customary workplace, “on clock” and cannot work or resume work if clocked out. Failure to comply with these requirements will subject the employee to disciplinary action and/or termination of employment.

OFF-SITE REPORTING OF TIME FOR NON-EXEMPTS

When pre-approved for telecommuting (working off site), it is a requirement that non-exempt employees work “on clock” via e-mail certified time by following this procedure:

Before beginning any work, send one (1) e-mail to your immediate supervisor outlining the anticipated duties you will be performing; the time recorded on this e-mail is your certified start time.

At the end of work, send one (1) e-mail to your immediate supervisor outlining the work you accomplished; this e-mail will certify your finish time.

Non-exempt employees may not work before the first e-mail is sent, and may not resume work after the second e-mail is sent. For clarification, the time that is marked “sent” on the e-mails will be the certified/official time record for purposes of compensation. It is the employee’s responsibility and word of honor to use this e-mail certified time “clock” system in an accurate manner and to strictly follow all break/rest period labor law requirements when working via telecommunication, no matter their location. [Read more…]

Filed Under: Blog, Overtime Violations Tagged With: petaluma overtime violations attorney, santa rosa overtime violations attorney, ukiah overtime violations attorney

Big Labor Rights Movement Win For California-Area Walmart Employees

January 21, 2015 by Beck Law P.C.

Big labor rights movement win for California-area Walmart employees. Walmart employees at stores in Richmond and Placerville, California recently had a big win against their retail giant employer. In fact, in December an administrative law judge found in favor of California-area Walmart employees who claimed that they were unfairly disciplined for attempting to organize employees in a strike and other collective bargaining activities. The National Labor Relations Board Administrative law judge of Washington, D.C. ordered Walmart to stop pressuring employees in order to prevent work stoppages, because it is believed that Walmart used intimidation tactics to encourage employees to return from strikes. Walmart was also ordered by the judge to change its dress code for its California employees who were being restricted from wearing pro workers’ rights shirts.

Labor Rights Movement

The administrative judge’s decision in favor of the California Walmart employees is a victory for the Organization United for Respect at Walmart (OUR Walmart), an employee-based campaign advocating enhanced health benefits and better pay for Walmart’s employees at the companies 4,000+ U.S. stores. Though OUR Walmart is not an official labor union that represents workers in collective bargaining issues, the organization does receive substantial support and advice from the United Food and Commercial Workers Union. On Black Friday of this year, OUR Walmart led employee protests at over 1,000 Walmart stores, while calling for more full-time jobs opportunities and also for a $14 base wage paid to employees.

The OUR Walmart Labor Movement

The NLRB ruling was supported by the federal law that prohibits employer retaliation against workers who support unions, and also prohibits employers from making intimidating statements intended to discourage workers from supporting worker unions. The NLRB judge ruled that a California Walmart manager had unlawfully threatened to close a Walmart store if employees decided to join the (Organized United for Respect at Walmart) or “OUR” Walmart in its demands for higher wages, and also that Walmart had illegally disciplined employees for exercising their legal right to go on strike. It was discovered that one specific Walmart manager had used illegal intimidation tactics against workers by stating that “If it were up to me, I’d shoot the union.” Furthermore, it was also found that it was an unlawful statement for the Walmart managers to tell its employees that their co-workers who had returned from a one-day strike would soon be looking for new jobs.

In addition to claims that Walmart prevented employees from exercising their right to both strike and organize, the suit also focused on dress code restrictions enforced at Walmart’s California stores that prohibited employees from wearing most logos excluding clothing manufacturers and also Walmart logos. This restriction served to prevent workers from wearing clothing that expressed the OUR Walmart cause and message. The administrative judge’s ruling, which focused only on the two specific California Walmart stores, is the first NLRB judge opinion that was submitted since OUR Walmart began operations in 2010. Complaints about labor practices at Walmarts across the U.S. have also been consolidated into one nationwide complaint that is currently ongoing.

If you need legal advice and representation regarding workers’ collective bargaining rights, or any other employment law legal assistance, you should contact our employment and labor law attorneys at Beck Law P.C. in California today.

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