Blog Archives - Page 14 of 24 - California Labor & Employment Law

Strike! Legal Guidelines to Going on Strike

December 13, 2016 by Beck Law P.C.

Strike! The rumblings in the workplace are growing. Employees feel dissatisfied on a many fronts, and negotiations with management are not going well. Now you hear fellow employees throwing around phrases like “job action,” and “going on strike”. You feel conflicted. Although you support your fellow employees and want to resolve the issues at hand, you worry about the ramifications of participating in a strike. What, exactly, are your rights?

Your Right to Strike

The National Labor Relations Act provides that employees have the right to “…engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 13 of the NLRA specifically calls out striking as a right guaranteed to union workers. However, under certain circumstances a strike may be unlawful:

If the strike is called in support of a union unfair labor practice (such as attempting to force individuals to pay dues when they choose not to);
If the purpose of the strike is to attempt to force employers into actions that are normally outside the employee’s range of influence. An example would be if employees wanted their employer to boycott a particular brand or company. It is generally understood that employers have the right to make such decisions, with or without input from employees; but employees may not legally force their will onto employers through a strike;
When a no-strike contract exists between employers and workers, it must be adhered to unless it is related to unfair labor practices or unsafe working conditions;
Strikes timed to coincide with the end of a contract are not allowed.
Strikes that involve illegal misconduct (including blocking entryways, threatening violence, or attacking managers);
Picketing, striking, or otherwise organizing a refusal to work in any health care institution without at least 10 days’ written notice to both the institution and to the Federal Mediation and Conciliation Service.

Will I Lose My Job if I Participate in a Legal Strike?

When union workers strike, they are striking for specific objectives which fall into two categories: economic issues and matters related to unfair labor practices. Those in the latter category have stronger rights related to job reinstatement.

Economic Strikers

When individuals go on strike in order to secure better working conditions, hours, or financial remuneration, they are referred to as “economic strikers”. Employers who replace these workers with bona fide permanent workers are not required to discharge the replacement workers when the strike ends. On the other hand, if the replacement workers are not equivalent to the previous workforce, strikers are entitled to be recalled to their previous jobs.

Unfair Labor Practice Strikers

Unfair labor practices relate to employers who in some way interfere with workers’ rights to unionize or to carry out union activities. This may involve discrimination, retaliation, or punitive measures in association with union activities. A striker in this category is entitled to their job at the conclusion of the strike, regardless of the classification of replacement workers. [Read more…]

Filed Under: Blog, Employee Rights Tagged With: employee rights, Labor Law, right to strike

Gender Wage Gap – California Fair Pay Act

November 28, 2016 by Beck Law P.C.

The gender wage gap has been around for a long time, and came to the forefront with Hillary Clinton’s bid for the White House. Although Clinton lost the election, the issue she ran on is still alive and well. Are you a woman who suspects disparate wages due to gender discrimination? You need an experienced legal team to help you recoup the wages you deserve.

Gender Wage Gap in California

An analysis of California wages demonstrates that women were earning about $8,000 less per annum than men in 2012. Women of color lagged even further behind. Latina women earned only 43 cents on the dollar, Black women earned 63 cents on the dollar, and Asian women earned 72 cents on the dollar in comparison to white men. The situation has improved with time, but women on average earn just 79 cents to every dollar a man earns in this country.

Why the Gender Wage Gap?

Research indicates that women traditionally gravitate toward lower paying jobs, such as nursing and teaching. Even in professions such as marketing and technology, women actually ask for roughly $14,000 less than their male counterparts for the same job. That makes it easy for employers to offer women about 3% less than men for the exact same position.

Discrimination may play a role in wage disparities. A Cornell study concluded that when women compete for men for the same job while holding equivalent credentials. Their study corroborates with census data indicating that across industries, job functions, and educational background. Women earn significantly less than men for the same work.

Closing the Gender Wage Gap in California

This fall, Governor Jerry Brown took a step to improve matters when he signed a tough new pay equity law that will come into effect in January 2017. Supplementing state and federal laws requiring equal pay for equal work, the new California Fair Pay Act prohibits bosses from paying employees less for “substantially similar work” when their titles or locations differ. It also bans retaliation against employees who discuss their disparate salaries.

Now, more than ever, rather than differentiating pay at will, employers must apply a reasonable standard based on seniority, merits, quantity or quality of production, education, or experience. Furthermore, employers must keep accurate records of pay for three years.

Remedies for Discrimination and Retaliation

Under statute, employees may recover wages plus interest and attorney’s fees. If unfairly discharged as retaliation, an employee may pursue civil action and seek reinstatement, as well as pay for lost wages and benefits, plus interest. The employee must make such a claim within one year of the perceived actions. [Read more…]

Filed Under: Blog, California Labor Law, Gender Discrimination Tagged With: gender pay gap, Labor Law, wage equality

Employment Case is Settled – Who Pays Costs?

November 21, 2016 by Beck Law P.C.

Who pays costs when an employment case is settled? The California Code of Civil Procedure makes it clear that in litigation, the prevailing party is generally entitled to recover its costs from the losing party. According to Section 1032, the “prevailing party” is either the party with a net monetary recovery, or the defendant in whose favor a dismissal is entered.

This rule is usually quite straightforward when a court awards a plaintiff money damages – or when a court dismisses a plaintiff’s entire claim. What about when the parties reach a settlement out of court, as is so often the case in employment cases? Has the plaintiff prevailed, or the defendant?

When the defendant pays a plaintiff to resolve a claim, one might expect the plaintiff to be regarded as the party with a net monetary recovery. But a California trial court recently had a different idea. After a Monterey hospital resolved a wrongful termination complaint by paying a former employee $23,500, the court ruled that the hospital had prevailed, and ordered the employee to pay the hospital’s costs.

The Facts of the Employment Case

Maureen deSaulles was hired by Community Hospital of the Monterey Peninsula as a patient business services registrar. She was fired the next year, and filed a wrongful termination complaint. Her complaint alleged seven different causes of action, including claims that the hospital failed to accommodate her medical condition, that the hospital retaliated against her for asserting her rights under California employment law, and that the hospital breached her contract (as well as an implied covenant of good faith and fair dealing).

At trial, the hospital filed a motion for summary judgment, and the court ruled that deSaulles could only make arguments and introduce evidence on two of her causes of action – breach of contract, and breach of an implied covenant of good faith and fair dealing. The parties then agreed to settle the employment case. The hospital would pay deSaulles $23,500, and the claims of breach of contract and breach of covenant would be dismissed with prejudice. The employment case agreement also allowed deSaulles the right to appeal the court’s rulings on the five other causes of action.

As expected, deSaulles appealed the court’s dismissal on the five causes of action. The appeals court upheld the trial court’s ruling on those causes of action, and the parties returned to the trial court, where both deSaulles and the hospital argued that they were entitled to recovery of costs. The trial court ruled that the hospital was the prevailing party, because it prevailed on five of the causes of action, and entered into a settlement on the remaining costs. The hospital was awarded $12,731.92 in costs, while deSaulles’s request for costs was denied.

The Employment Case Appeal

DeSaulles appealed the trial court’s ruling on costs, and a California appeals court overturned the decision, holding that deSaulles was the prevailing party. In DeSaulles v. Community Hospital of the Monterey Peninsula, a superior court ruled that when a plaintiff is paid money in exchange for a dismissal, the plaintiff has obtained a net monetary recovery, and is entitled to costs – even if the recovery is only partial. This default rule only applies, however, if the settlement agreement does not resolve the matter of costs, and does not have a provision stipulating alternate procedures for awarding costs. [Read more…]

Filed Under: Blog, California Employment Law Tagged With: employment law, recovery, settlement

Final Paycheck When Leaving a Job

November 16, 2016 by Beck Law P.C.

When can I expect to receive my final paycheck? Dissatisfied with your employment situation, you look for another job, providing your current employer with two weeks’ notice. You expect your final paycheck On the last day of employment along with unused vacation and sick pay. You are told, however, that payment will be deferred until the end of the pay period. So you scratch your head and wait for the check. Ten days later when it comes, the paycheck includes payment for the hours you worked, but nothing more. Where is the compensation for unused vacation and sick days?

What now? This is precisely the type of question that an experienced employment lawyer can assist with.

Was I Entitled to my Final Paycheck on the Last Day I was Employed?

In this situation, the answer is yes. The employee’s final paycheck is due within 72 hours of termination if the employee leaves without notice. The check may be picked up at the office or mailed to a designated address. If notice was given 72 hours or more prior to leaving, as in this case, the final check is due at the time of termination and at the location of the employer’s office.

What About Unused Sick Days and Vacation Days?

Earned, unused vacation pay must be included in the final payment. The same is not true for unused sick leave, however. Unless your contract says otherwise, California law does not ensure payment for these unused days.

Can Penalties Be Assessed if I am Forced to Wait for My Final Paycheck?

California law provides for employees who were discharged or who quit to be reimbursed at their daily wage for up to 30 days if an employer willfully fails to pay the earned wages in the time frame outlined. In this case, the 10 days of waiting may qualify for penalties. Also, the failure to pay out the unused vacation days may result in additional penalties. In Mamika v. Barca (1998) the court determined that the penalty would be calculated based on the monthly wage rather than at the daily rate for 30 days, which resulted in a slightly lower penalty.

Am I Entitled to Severance Pay?

California law does not require employers to provide severance pay, although many companies do have their own contractual obligations. It is important to examine your contract with regard to this matter.

Can I Collect Unemployment While Looking for a New Job?

All employers must pay unemployment insurance, which covers employees except in certain circumstances. In this case, you quit your job. Unless you can demonstrate good cause for quitting, you are likely ineligible for unemployment benefits. [Read more…]

Filed Under: Blog, Termination of Employment Tagged With: California employment attorney, final pay, Labor Law, Petaluma Final Paycheck Attorney, Santa Rosa Final Paycheck Attorney, Termination of Employment Attorney, Ukiah Final Paycheck Attorney

Time Off From Work – New Provisions

November 11, 2016 by Beck Law P.C.

Do you wish to enroll your child in a new school, but time off from your work schedule makes the process too difficult? You are likely unaware of SB579, but it is a legal provision that both you and your employer should become acquainted with. Labor Code 233, sometimes called the Kin Care law, has been revised to include favorable impacts for employees. Because this law, as most, is open to interpretation, getting experienced legal help for your individual circumstances is always a good idea.

How Does Labor Code 233 Impact Time Off For Child-Related Activities?

This law protects employees in their efforts to participate in school activities for children in pre-kindergarten through twelfth grades. In addition, the law provides that parents, grandparents, and other custodial guardians, including step-parents and foster parents, may take time off of work to deal with child care provider emergencies, school emergencies, or to simply enroll a child in school or with a licensed child care provider. In fact, the law entitles you up to 40 hours per year for such activities in the state of California.

Employers may require employees to use their personal leave, comp time, vacation time, or other leave for such activities, but if that is unavailable, the law allows up to eight hours per month of unpaid leave.

What Other Time Off Changes Does Labor Code 233 Invoke?

Changes made to the “Kin Care” law took effect in January of 2016. These changes widen the scope of activities for which individuals may use their accrued sick leave. Employees may now use up to one-half of protected leave under these circumstances:

Health reasons related specifically to the employee;
Health reasons related to the employee’s family members;
Employees who are victims of sexual assault, stalking, or domestic violence.

Is a Doctor’s Note Required in Order to Take This Type of Time Off?

Under the new provisions, an employer’s right to seek verification of an illness is limited, as well. The changes in Labor Code section 233 protect employees from disciplinary action when using one-half of their accrued leave. Employers may not request a doctor’s note substantiating the illness until the employee has used one-half of the leave. So for example, if an employer provides 20 sick-leave days per year, a request for a physician’s documentation of illness could not be requested until after the first 10 days of leave has been taken.

Do All Employers Have to Provide This Type of Time Off?

Labor Code Section 233 applies to all employers who employ 25 or more individuals. [Read more…]

Filed Under: Blog, Parental Leave Tagged With: California employment law, childcare leave, family leave, paid leave

Filing Deadline to Sue an Employer in California

November 4, 2016 by Beck Law P.C.

What is the filing deadline to sue an employer in California? Reginald Mitchell worked as a health facilities investigator for the California Department of Public Health until 2011. After he resigned, he filed a complaint with the Equal Employment Opportunity Commission (EEOC). The complaint alleging that he had been subjected to racial discrimination. A copy of his EEOC complaint was also filed with the California Department of Fair Employment and Housing (DFEH), which issued him a right-to-sue notice.

The right-to-sue notice stated that he could bring a civil action against his employer within one year from the date of the letter – September 9, 2011. It also stated that the one-year period would be tolled during the time that the EEOC investigated his complaint.

On September 30, 2013, the EEOC found that there was reasonable cause to believe that Mitchell had been the victim of discrimination. A right-to-sue notice was later issued by the U.S. Department of Justice. Mitchell received the notice on March 21, 2014.

Mitchell then filed a civil action under the California Fair Employment and Housing Act (FEHA) on July 8, 2014. This was 107 days after he received his federal right-to-sue letter. The federal right-to-sue period lasts only 90 days.

Was Mitchell still eligible to file that action? On one hand, his federal filing deadline had expired. But on the other hand, he had been informed by the state of California that he had a year to bring a suit against his employer – and that this time period would be tolled while the EEOC was investigating. And when Mitchell filed his complaint, far less than a year had passed since the conclusion of the EEOC’s investigation.

Can the Filing Deadline Be Extended?

The case of Mitchell v. California Department of Public Health revolved around whether an employee in Mitchell’s situation can file a complaint after the federal right-to-sue period has ended. A California appeals court provided an answer that will please plaintiffs in employment discrimination cases – but not employers.

The court ruled that FEHA’s one-year filing deadline limitation period was tolled while the EEOC investigated, and thus Mitchell’s complaint was timely. The ruling points out that, according to Section 12965 of California’s Government Code, the limitation period can be tolled when the following three factors are met:

Concurrent charges filed with the EEOC and DFEH
The DFEH defers investigation of the charges to the EEOC, and
Charges are deferred to the EEOC and right-to-sue notice issued by DFEH.

The court held that all three of these factors were met in Mitchell’s case. According to the ruling, even though the federal right-to-sue period had expired, the equitable tolling meant that Mitchell’s right to take action under FEHA was still valid on the day he filed his complaint.

The court’s opinion argues that equitable tolling of the FEHA limitation period is in the public interest. It points out that, with equitable tolling, the defendant will receive notice of the claim, and the plaintiff will not have to pursue simultaneous actions based on the same set of facts. It also notes that equitable tolling prevents the costs of duplicate proceedings. [Read more…]

Filed Under: Blog, Employee Rights Tagged With: california employment lawyer

Overtime Pay Rules Get a Bump: California Workers Expect to See More in their Pockets

October 26, 2016 by Beck Law P.C.

Changes to federal overtime pay rules implemented by the US Department of Labor (DOL) take effect December 1st of this year. It is anticipated to impact over four million white-collar workers who previously earned salaries that exceeded overpay rule thresholds, with nearly 400,000 of those workers residing in California.

Just what, exactly, do the new overtime pay rules mean for California workers?

The most critical change to the overtime pay rule involves the annual salary threshold: Although the previous federal threshold was only $23,660, the new minimum is significantly higher, topping out at over $47,000. That amount also exceeds the California state maximum annual earning cap of $41,600.

What are Basic Overtime Pay Requirements?

Employers are expected to pay minimum wage or more for the first 40 hours worked in a week, and overtime pay at one and one-half times the regular rate for all hours beyond 40. In California, the number of hours worked in a day is considered in addition to the number of hours worked in a week.

Are There Exceptions to the Overtime Pay Rules?

Doctors, teachers, and lawyers are all exempted from the overtime rules laid out by the Fair Labor Standards Act (FLSA). Executives who supervise at least two employees and have hiring/firing authority are exempted, as well as individuals involved in outside sales and certain persons who work with computers. Finally, salaried employees whose pay is not flexible or based on quantity or quality of work may be exempted from the overtime pay rules. Each classification of employee has several qualifying points, making the exemption determination somewhat complex.

Can Salaried Employees Expect Overtime Pay?

Assuming one meets the qualifications, the short answer is yes. Consider too that overtime pay for one earning a salary would necessarily include all aspects of the salary package—not simply a sum based on a calculation of hourly wages. While record keeping obviously facilitates an understanding of overtime hours, time clocks are not required.

Are Government Workers Entitled to Overtime Pay Remuneration?

Government workers do not have a blanket exemption with regard to overtime pay, and, in fact, FLSA provides specific guidance with regard to compensatory time (comp time) for government workers. Essentially, comp time may be earned at the same rate as overtime pay, meaning that an employee who worked 50 hours in one week earned 10 hours of overtime, or the equivalent of 15 hours of comp time.

Do Negotiated Agreements Supersede these Overtime Pay Rules?

It is possible for employees to engage in collective bargaining and determine other frameworks for overtime pay. [Read more…]

Filed Under: Blog, Wage and Hour Law Tagged With: employment law in California, overtime, overtime pay laws, wage laws

Religious Accommodations in the Workplace

October 21, 2016 by Beck Law P.C.

Do your religious beliefs impact your job requirements? Under a 1972 amendment to Title VII of the Civil Rights Act, religious accommodations in the workplace are obligatory as long as those accommodations do not cause the employer undue hardship on the conduct of the employer’s business. What does that mean for you? The experienced team at Beck Law P.C., can help you sort through the specifics of your circumstances and help you with a legal remedy to your situation.

What Does the Law Say About Religious Accommodations?

The Seventh Circuit Court of Appeals designated three features that determine whether a belief is religious and eligible for Title VII accommodations. Those features comprise:

The belief compelling the accommodation must truly be religious;
It must be a sincerely held religious belief:
Accommodation must not impose an undue hardship on the conduct of business.

Specific circumstances addressed by various courts include a range of issues, but it is clear that the law protects both the traditions of organized religion and the practice of dearly held religious or moral beliefs of unaffiliated individuals. Indeed, “any belief related to the afterlife, spirituality, or the soul…qualifies as religion under Title VII.”

Requests for Leave and/or Scheduling for Religious Accommodations

Employers are directed through Title VII to make reasonable accommodations for an employee who requests time off for religious holy days or to participate in ceremonies or other activities with religious significance. Additionally, daily schedules may be adapted to allow for prayer or other religious requirements.

Dress and Grooming

Employees must express to their employers any religious restrictions on dress and grooming, and employers must make reasonable accommodations. Recent cases involving the wearing of a headscarf/hijab support the employee’s right to dress in accordance with religious tenets.

Job Duties

The array of duties that may conflict with a given religious stance is quite broad, and individual circumstances differ widely, making it difficult to determine hard and fast rules regarding religious accommodations in the workplace. That being said, recent trends indicate that it is the employee’s responsibility to notify the employer of religious conflicts and desired accommodations. As long as those accommodations do not infringe on the rights of other employees or create undue hardship for the employer, the courts tend to support the need for accommodation. [Read more…]

Filed Under: Blog, Religious Discrimination Tagged With: religion, religious accommodation, religius discrimination

Is Workplace Retaliation Impeding Your Career Path?

October 17, 2016 by Beck Law P.C.

Do you feel that not getting promotions at work is because of workplace retaliation? Suppose you are a high-ranking individual with your company and a heavy decision looms before you and your management team. You hold many discussions, and ultimately, you disagree with the direction chosen by your immediate supervisor and the rest of the team. Fair enough. The majority rules, and what is done is done. Or is it?

Fast-forward a few years. Your management peers have moved up in the company, leaving you behind. You cannot prove it, but you have the sinking feeling that your career stagnation is a direct result of your stance in that meeting back in the day. In retribution for speaking your mind, you have been sidelined.

Alleged Workplace Retaliation – LAPD Captain Whittingham

Your situation may not be unlike that of LAPD Police Captain Peter Whittingham. The once-successful captain on an upward trajectory found five years with no promotions unsettling, to say the least. In 2014, Whittingham filed a lawsuit against the LAPD alleging workplace retaliation and discrimination. The courts now must weigh the evidence and determine the legitimacy of Whittingham’s workplace retaliation claim.

What Constitutes Unlawful Workplace Retaliation?

Workplace Retaliation may mean promotions passing you by. But that is only one of many ways in which employers may unlawfully express their dissatisfaction with you. Other common examples include:

Demotion, suspension, refusal to hire, reduction in hours;
Threats, unjustified negative evaluations, unjustified surveillance;
Any other action designed to deter individuals from pursuing their rights.

Legal Response to Workplace Retaliation

The US Equal Employment Opportunity Commission (EEOC) is tasked with holding employers accountable when they retaliate against employees. Whether the retaliation is in response to an employee complaint of some kind, or, as in Whittingham’s case, a response to differing management tactics, it is unlawful and subject to legal remedy.

Additionally, the California Division of Labor Standards Enforcement (DLSE) allows employees, as well as applicants for employment, to file to file a complaint when they believe they have experienced retaliation for lawful activities. Your employer cannot legally punish you for sharing information with the DLSE. It is a protected activity, and employers may not discipline employees for answering questions or filing complaints with government agencies.

Proving Workplace Retaliation Causation

Proving that your employer took action against you as retaliation is held to the “but-for-causation” standard. This means that you are responsible for drawing a clear line between the protected activity and the employer response. Your employer will doubtlessly contend otherwise; it is up to you to undermine your employer’s rationale for unlawful actions. [Read more…]

Filed Under: Blog, Employee Retaliation Tagged With: employment law, workplace retaliation

Age Discrimination Incurs Financial Settlements in California

October 14, 2016 by Beck Law P.C.

The $26 million settlement in a Los Angeles Superior Court confirms what federal law states unequivocally: Age discrimination is against the law. 66-year-old Bobby Nickel was fired after being the brunt of age-related jokes and receiving pressure to retire. Although the company claimed the job action was related to other issues, the court found that Nickel was discriminated against due to his age.

A Fresno-based company paid $11,500 to a claimant who was denied a cashier’s position, which was ultimately given to a younger, less experienced applicant. The Equal Employment Opportunity Commission determined that hiring decisions were based on age, and the claimant was discriminated against.

Legal Protections Exist for Older Workers

Fortunately, the Age Discrimination Employment Act of 1967 protects both applicants and employees who are over the age of 40 from workplace bias. If you feel you are a victim of workplace discrimination based on your age, contact the experienced Santa Rosa attorneys at Beck Law P.C. for a free consultation. Successful litigation of workplace bias may be based on a variety of issues, including:

Harassment or name-calling;
Compensation discrepancies;
Duty differentiation;
Benefit disparities:
Educational opportunities or lack thereof;
Promotion, or lack thereof;
Hiring, or disinclination to hire;
Firing.

When The Company Claims Factors Other than Age Impacted their Actions

Naturally, the problem of workplace discrimination is generally clandestine, and although you, as a worker or potential employee, may feel the effects, it is not a part of any written, or even spoken policy.

Sometimes employers claim a firing is simply a necessary reduction in force. In this case, it is incumbent upon the employer to show that the RIF does not disparately impact older employees. Additionally, the action must be justified by a “reasonable factor other than age.”

Older workers may be targeted due to the higher costs of insuring them. The Older Workers Benefit Protection Act of 1990 requires employers to provide equivalent payout for all employee benefits. Therefore, although some workers may have higher deductibles than others, the employer contribution to all worker benefits must be equal. Additionally, employers may not decide to exclude older workers from insurance plans in an effort to reduce negative impacts on the insurance pool. [Read more…]

Filed Under: Age Discrimination, Blog Tagged With: age discrimination, employment law