Part-Time Workers Eligible for More Hours

May 12, 2017 by Beck Law P.C.

Are you a part-time employee in San Jose who would love a few more hours, but who has not been able to convince your employer to give you more time on the job? If so, Measure E might just make you smile.

Measure E Voted in

This measure, approved by voters in November, came into effect in March 2017. It requires that employers with 36 or more employees must give current part-time employees more working hours if more work is available. That is in direct contrast with some employers’ previous decisions to simply hire additional part-time workers.

The law impacts all part-time workers, including temporary workers and subcontractors. The limit to the law is that the additional work may not be at overtime or premium rates; nor does the law override collective bargaining agreements.

For franchises and chains owned by the same employer, the number of employees is determined by adding the combined number of employees at each location of the business, including those businesses located outside of San Jose.

Workplace Definitions

Anyone who has completed a minimum of two hours of work is considered an employee and is entitled to minimum wage in California.

An employer is one who exercises control over the schedule, wages, or working conditions of workers, and either pays San Jose business taxes or is legally exempt from those taxes, including insurance companies, banks and nonprofit organizations.

Enforcement Provisions

You must post in your workplace a bulletin in multiple languages outlining the new work hour requirements and provisions. Non-compliance could result in fines and penalties to the employer, or potentially even a civil action.

Exemptions to the Part-Time Law

For employers with 35 or fewer employees, the ordinance does not apply.

An additional exemption is allowed for hardship. An employer may be granted a hardship exemption for as much as 12 months at a time, if said employer can establish that they have attempted to comply with the law but that compliance would be either impractical, futile, or impossible.

Impacts Outside of San Jose

This initiative led to the introduction of the Opportunity to Work Act. This legislation contains language similar to that of the San Jose measure, but would apply to employers with 10 or more employees. The proposed law is quite a bit more restrictive, in that this measure contains language addressing retaliation, and does not provide hardship exemptions. Employers and employees alike are keeping an eye on this legislation to see how it falls out. [Read more…]

Filed Under: Blog, Wage and Hour Law Tagged With: California employment attorneys, minimum wage, workers' rights

Workplace Protection

April 26, 2017 by Beck Law P.C.

Last January, a number of bills, signed into law by Governor Jerry Brown in 2016 become effective. Many of those bills involve workplace protection, and compliance is required of California’s employers. If you are unclear about workplace protection compliance mandates with these or any employment laws, you may wish to enlist the help of an experienced employment law attorney.

Workplace Protection – New Laws that Impact You

SB 1732: Toilet facilities in businesses, government agencies, or places of public accommodation that are single-user facilities must be designated as all-gender facilities as of March 2017.
AB 1887: Travel prohibitions have been established forbidding state agencies from requiring employees to travel to states with laws that do not have protections against discrimination based on gender identity, sexual orientation, or gender expression. This means that state dollars may not be used for travel to states who repealed these types of laws.
SB 1234: Eligible employers, based on the number of eligible employees, who do not currently offer retirement plans must now participate in a payroll deposit savings arrangement allowing employees to join in the California Secure Choice Retirement Savings Program.
AB 2337: Employers are required to inform employees of their rights when experiencing domestic violence, stalking, or sexual assault. Forms created by the Labor Commissioner’s office must be posted by July 1 of this year.
ABX2-7: This law expands smoking restrictions in hotel lobbies, taverns and bars, banquet rooms, employee break rooms, and warehouses. Tobacco is no longer allowed in these areas, even in owner-operated businesses.
SB 1167: The Division of Occupational Safety and Health is required to propose a heat illness and injury prevention standard related to indoor employment locations by January of 2019.
SB 1241: Employers are prohibited from requiring employees who reside and work primarily in California from having claims adjudicated outside of California.
SB 1007: Employees who are involved in arbitration hearings are entitled to have a certified shorthand reporter available to transcribe proceedings, hearings, or dispositions.
SB 3: For employers with more than 25 employees, minimum wage increased from $10.00 to $10.50 per hour in January 2017. That increase will apply to employers with fewer employees in 2018. Further incremental increases have been established up to the year 2023.
SB 1015: The Domestic Worker Bill of Rights, originally scheduled to expire this year, has been extended indefinitely, providing wage and hour protections to domestic workers.
SB 1063: Workers of all races and ethnicities must be paid the same amount for work that is essentially the same.

Penalties for Workplace Compliance Employment Law Violations [Read more…]

Filed Under: Blog, California Employment Law Tagged With: California employment attorneys, workers' rights

Whistleblower Protection

February 1, 2017 by Beck Law P.C.

Whistleblower protection? Suppose you know that your place of employment engages in practices that contravene public policy or that are outright illegal. Let’s say you blow the whistle, and before you know it you are experiencing retribution for your actions, or perhaps are even fired? What are your options now?

Employees may not be retaliated against for being a whistleblower, but if retaliation does occur, an attorney who is schooled in labor law can be a lifesaver.

Whistleblower Case in Point

After a month-long whistleblower trial, Melody Jo Samuelson was rewarded a $1 million dollar verdict in her favor.

The case revolved around Samuelson’s claim that, as a state employee charged with evaluating the fitness of patients to stand trial, she was pressured into “returning patients to court to stand trial” even when they might not be ready. The complaint stated that the hospital’s chief of psychology compelled her and other staff to lower standards used in patient evaluations and otherwise depend on unreliable methods in order to taint the evaluations in favor of competence. The goal was improved outcome statistics, but , Samuelson believed this resulted in patients facing trials that they were simply not competent to stand.

After Samuelson answered questions about the egregious practices under subpoena, she endured a backlash of retaliation ranging from the manipulation of her credentials file to outright false statements about her. She also claimed the peer-review process was used to “extort” her.

After months of such retaliation, Samuelson was eventually fired, purportedly for committing perjury while testifying in a patient’s criminal case. On appeal to the State Personnel Board, she was reinstated a year later.

Upon her return to work, Samuelson found herself in an entry-level position, rather than in a clinical job. Her pay was shorted, false documents remained in her file, and insurance deductions were taken for the months when she had no coverage.

Samuelson took the state hospital and three of its employees to court with a claim of whistleblower retaliation. The Department of State Hospitals was found liable for the lion’s share of damages, with an order to pay $890,000. Her immediate supervisor was ordered to pay $50,000, and two other employees were ordered to pay $30,000 each.

California Whistleblower Law

Under California statute, employees cannot be fired for refusing to break the law, for exercising any constitutionally protected right or privilege, or for reporting violations of statute for the public benefit.

What if your employer enacts a policy stating that you are not allowed to disclose violations that you suspect are occurring? Is it possible to be terminated for cause if you break the contract? The answer is no! Policies of this nature are unlawful to begin with, and you are not required to follow them. [Read more…]

Filed Under: Blog, Whistleblower Retaliation Tagged With: California employment attorneys, santa rosa whistleblower retaliation attorney

Workplace Race Discrimination – Stanley Wilson v. CNN

January 3, 2017 by Beck Law P.C.

Race discrimination in the workplace? What would you say if someone told you “there is no biological reality to human race.” That is right: Anthropologists have believed for years that there is no such thing as variation in biological races. Despite these scientific conclusions on race, racism itself continues to be pervasive in America. U.S. courts are working overtime to protect the rights of Americans who face discrimination due to their skin color, heritage, or culture. If workplace discrimination due to race has impacted you, an experienced employment law attorney can help.

CNN Race Discrimination Lawsuit is Not Going Away

A California Appellate court found that CNN was not off the hook in the case of Stanley Wilson v. CNN. In a 2014 suit, Wilson claimed that after years of being passed over for promotions, he was ultimately fired from CNN. While CNN asserts the firing was a result of plagiarism, Wilson contends that race discrimination was at the root of the termination.

In an anti-SLAPP (strategic lawsuit against public participation) motion against Wilson, CNN argued in favor of its “protected activity” in the free speech arena. The trial court granted CNN’s motion, and Wilson’s claims were dismissed.

But in December of 2016, the Second Appellate Court essentially found that free speech does not trump an employee’s right to a discrimination-free workplace, nor the does it give employers the right to retaliate against employees. Wilson’s suit is alive and well and will proceed.

What Constitutes Race Discrimination?

Race discrimination is a violation of the Civil Rights Act of 1964, and comes in many variations. Some markers of this type of unlawful activity include:

Job Accessibility: Not being recruited, hired, or being fired, due to race;
Segregation: Experiencing physical isolation or exclusion from positions, responsibilities, or relationships; even having one’s employment files coded according to race;
Being passed over for promotions despite experience, seniority, or qualifications, particularly if specific groups are disparately impacted;
Harassment: Exposure to derogatory or unflattering racial comments or labels causing one discomfort in the workplace;
Lower Pay: Experiencing significant pay differentials which appear to be based on race;
Duties: Being assigned to tasks which are more menial in nature, with less authority or impact;
Fewer Training Opportunities: Being excluded from opportunities for professional development.

How Common is Race Discrimination in the Workplace?

Unfortunately, discrimination occurs more often that many Americans would like to admit. In fact, the number of complaints received by the Equal Employment Opportunity Commission (EEOC) since 2011 based on race is approaching 50,000. [Read more…]

Filed Under: Blog, Employment Discrimination Tagged With: California employment attorneys, racial discrimination

California Court Holds Class Action Waiver Violates Federal Law

September 14, 2016 by Beck Law P.C.

A new federal class action waiver decision could have major ramifications for arbitration agreements. The opinion in Morris v. Ernst & Young declares that arbitration agreements violate the National Labor Relations Act (NLRA) if they require employees to arbitrate separately.

The Forbidden Class Action Waiver

The arbitration agreement at the heart of the case stated that employees of Ernst & Young were required to pursue any legal claims against their employer through arbitration, and that they could arbitrate only as individuals in “separate proceedings.” The employees were required to sign these class action waiver agreements as conditions of employment.

An Ernst & Young employee named Stephen Morris filed a class action against his employer, in spite of the class action waiver arbitration agreement. He alleged that the company had misclassified him, and denied him overtime wages. When Ernst & Young filed a motion to compel arbitration, Morris (and another plaintiff named Kelly McDaniel) argued that the arbitration agreement’s requirement that proceedings take place separately violated the NLRA.

The case made its way to the U.S. District Court for the Northern District of California. The Court found that the clause against separate proceedings violates the “essential, substantive right” of the NLRA – the right of employees to pursue work-related legal claims together. The Court ruled that the waiver in Ernst & Young’s arbitration agreements dealing with separate proceedings is unenforceable.

The Rationale for the Class Action Waiver Decision

The Court pointed to Sections 7 and 8 of the NLRA. Section 7 states that employees have a right to join labor organizations, bargain collectively, and “to engage in other concerted activities for the purpose of collective bargaining, or other mutual aid or protection.” The Court held that the right to engage in concerted activities, as laid out in Section 7, is the NLRA’s primary substantive provision.

Section 8 bars efforts by employers to interfere with the rights guaranteed by Section 7. According to the court, an employer violates Section 8 by including a waiver in an arbitration agreement that prevents concerted activities by employees – and it violates Section 8 a second time if it requires employees to sign such an arbitration agreement as a condition of employment.

The Court highlighted the distinction between procedural rights and substantive rights. One of the differences between procedural rights and substantive rights is that substantive rights cannot be waived in arbitration agreements. According to the ruling, the right of employees to pursue their claims together is a substantive right – and thus the Federal Arbitration Act does not require the “separate proceedings” waiver in the arbitration agreement to be enforced.

The Effect of the Ruling

The U.S. District Court for the Northern District of California has jurisdiction over Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San Mateo, Santa Clara, Santa Cruz and Sonoma Counties. If you operate a business in one of these counties, and you have been requiring your employers to sign arbitration agreements that contain a “separate proceedings” waiver, it may be time to speak to an attorney. [Read more…]

Filed Under: Binding Arbitration, Blog Tagged With: arbitration agreements, California employment attorneys, Santa Rosa Labor Attorney

An Important Entertainment Law Ruling: Do Interns Have to be Paid?

August 19, 2015 by Beck Law P.C.

Do interns have to be paid? A recent federal ruling provides some interesting insight into the issue of where the line is drawn between unpaid interns and paid employees. The case, Giatti v. Fox Searchlight Pictures, involved several unpaid interns in the film industry who sued for lost wages under the Fair Labor Standards Act (FLSA). In considering their case, the United States Court of Appeals for the Second Circuit adopted a “primary beneficiary” test, intended to determine whether workers should be considered employees.

The primary beneficiary test, as laid out in the decision, focuses on what an intern receives in exchange for his or her work. The test consists of the following “non-exhaustive” considerations, including the extent to which:

The intern and the employer clearly understand that there is no expectation of compensation. (If there is the promise of compensation, whether it be express or implied, this would suggest that the intern is an employee.)
The internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
The internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
The internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
The internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
The intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
The intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

The court added that none of the factors are dispositive, and that they do not all need to point in the same direction in order to provide an indication as to whether an intern should be considered an employee.

The Department of Labor’s Test

The court rejected the test proposed by the interns, which was developed by the U.S. Department of Labor. This test provides that there is not an employment relationship if the following six factors all apply:

The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
The internship experience is for the benefit of the intern;
The intern does not displace regular employees, but works under close supervision of existing staff;
The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
The intern is not necessarily entitled to a job at the conclusion of the internship; and
The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

The Department of Labor filed an amicus curiae brief supporting the use of this test, but the court nonetheless chose not to apply it. The court held that this test was “too rigid for our precedent to withstand.”

The FLSA and Your Workplace

The experienced Beck Law P.C., employment and labor law attorneys in Santa Rosa can provide you with advice about any questions you may have in Sonoma County, Mendocino County and Lake County California about the Fair Labor Standards Act. You can call or email our office today to schedule a consultation.

Filed Under: Employment Law Tagged With: California employment attorneys, lakeport labor lawyer, Petaluma Employment Lawyer, Santa Rosa Labor Lawyer, Ukiah Labor 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.

Photo Credit: JeepersMedia via Compfight cc

Filed Under: Employment Law, News Tagged With: California employment attorneys, California labor attorneys, lake county california labor attorney, mendocino county labor lawyer, sonoma county labor lawyer