The present COVID-19 pandemic has led to a historically unparalleled increase in the level of unemployment insurance (UI) claims filed in California since the crisis started in mid-March. Employees that have been laid off from their job due to the COVID-19 pandemic, or that are unable to work due to childcare or school closures, or that have had their hours or wages reduced by a fraction continues to apply for the unemployment insurance benefits in order to maintain basic necessities while they are temporarily unemployed.

This article will look into how unemployment insurance works, insurance benefits, employees that may be eligible for the unemployment insurance benefits and those that are not, the requirements that must be met, as well as the various federal intervention programs aimed to suppress the effect of the COVID-19 coronavirus pandemic on affected Californians.

NOTE: As you know that things are changing rapidly, the various relief benefits and explanations described in this article are subject to change.  Therefore, this article is simply our best perception as to where things currently stand as of June 10, 2020.

HOW THE UNEMPLOYMENT INSURANCE (UI) WORKS

The unemployment insurance system usually provides about 26 weeks of regular insurance benefits to unemployed workers while they actively look for a new job. The program is funded by payroll taxes paid by California employers on the amount of wages they pay to their employees. No tax deductions are made from employees’ wages in California to finance this program.

The tax rate an employer pays is different and influenced by the number of prior unemployment benefit claims that have been filed against the employer. The more claims that are filed against an employer, the higher the tax rate is for that employer. It is therefore important that employers understand the UI system and carefully consider how its benefits affect their employees before they reduce hours, furlough, or layoff.

THE CALIFORNIA INSURANCE BENEFITS

While the State provides most of the funding to employees based on the employment taxes collected from California employers, the federal government pays part of the administrative costs for the unemployment insurance program. If an employees’ claim is approved, the amount that the employee can collect per week in insurance benefit ranges between $40 and $450, and it is dependent on their previous earnings.

CALIFORNIA UNEMPLOYMENT AND THE EMPLOYMENT DEVELOPMENT DEPARTMENT (“EDD”)

California’s Unemployment and the Employment Development Department (EDD) process unemployment claims and determine employee eligibility. The department has, in the past few weeks recorded over 1.8 million unemployment claims filed, about the same amount as all unemployment claims from the 2008 recession. For employees to be eligible for the regular California UI benefits, the EDD generally requires that the applicant must be:

• ready, willing and able to work
• unemployed without fault; and that their
• past earnings must meet certain minimum thresholds;

 If approved, the Unemployment and the Employment Development Department determines the amount for the weekly benefit based on the applicants’ past earnings, up to a maximum of $450 each week. However, these benefits can be extended by an additional 13 weeks under the Coronavirus Aid, Relief, and Economic Security Act.

What Is The Coronavirus Aid, Relief, And Economic Security (CARES) Act?

The Federal CARES Act was signed to law on March 27, 2020, by congress, as a protective measure to provide essential relief to more Californians that are impacted by COVID-19 coronavirus pandemic. It offers emergency aid to eligible businesses, individuals, and families affected by the COVID-19 coronavirus outbreak. The CARES Act, among other provisions, temporarily expands the regular California UI benefits by creating several new programs. These programs include:

a)      Pandemic Unemployment Assistance (PUA)

The Pandemic Unemployment Assistance program is an extended eligibility for some employees who traditionally are ineligible for the regular California Unemployment Insurance (UI) benefit, and are unemployed or partially unemployed due to COVID-19 reasons. These include:

• Business owners, Independent contractors, and self-employed employees
• Individuals with a limited work history
• Individuals with false statement penalty weeks on their regular UI claim.
• Individuals who have exhausted all of their regular UI benefits as well as any extended benefits.

Eligibility For PUA Benefits

To be eligible for PUA benefits, applicants must either be unemployed, partially unemployed, or unable to work for reasons related to COVID-19, like when:

• The applicant is diagnosed with COVID-19 disease or have its symptoms
• The applicant provides care for their family member diagnosed with COVID-19 disease
• The applicant has a family member who is diagnosed with COVID-19 and has to isolate
• The applicant is unable to get to their workplace due to a forced quarantine, or because the applicant is advised by a health care provider to self-quarantine due to COVID-19
• The applicant is the major caregiver for a child(ren) whose care facility or school is closed because of COVID-19
• The applicant becomes the primary breadwinner because the head of the household died from COVID-19 coronavirus infection
• The applicant was scheduled to start a new job but cannot get to the workplace because of COVID-19
• The applicant had their workplace closed due to COVID-19 pandemic
• The applicant quits their job due to COVID-19
• Meet any additional criteria specified by California EDD.

These applicants may, however, receive below the 39 weeks of PUA benefits if:

• Their unemployment or partial unemployment is no longer due to COVID-19.
• The PUA program is no longer available for weeks of unemployment following December 31, 2020.

Exemptions To The PUA Benefits

Applicants that can work from home or on leave and being paid or receiving other paid leave stimulus are not eligible for the PUA benefits, whether or not they meet a category listed above.

b)     Pandemic Unemployment Emergency Compensation

Applicants generally collect up to 26 weeks under the regular California UI benefits within a 12-month benefit year. But the Pandemic Unemployment Emergency Compensation (PUEC) offers an extra 13 weeks of insurance benefits to the regular 26 weeks already provided to make a total of 39 weeks coverage. The extended relief is available up till December 31, 2020.

To qualify for a PEUC extension and claim, the applicant must:

• Be fully unemployed or partially unemployed as of March 29, 2020, or after.
• Have used up all the benefits they are due under the California law.
• Not qualify for a regular California UI claim.
• Meet all requirements to be eligible for California UI benefits.

c)      Pandemic Unemployment Compensation

Under the PUC provision, employees that qualify for UI benefits will receive an additional $600 benefit every week on top of the regular benefit they are entitled to receive under the California State law. This is approved for all weeks of unemployment starting from weeks available for benefits until July 25, 2020.

Given this federal benefit under CARES Act, a California employee that earns below $54,000 per year, may be eligible for pay weekly via unemployment insurance benefits than if they work reduced hours. Regardless of what their regular benefit is, from April 1 up to December 31, 2020, such an employee:

• may qualify for an extra 13 weeks of benefits according to the Pandemic Emergency Unemployment Compensation. This means the period of benefit is increased from 26 weeks to 39 weeks;
• can receive an additional $600 every week according to the Pandemic Additional Compensation, although it is only available until July 31, 2020.

APPLYING FOR THE CALIFORNIA INSURANCE BENEFITS

To receive insurance benefits in California during this COVID-19 pandemic, the employee needs to file a claim with the unemployment insurance program in person, online or by telephone. The fastest and easiest way to apply is online. The employee needs to take the following steps:

• Contact EDD as soon as possible after becoming unemployed.
• The employee will be asked for certain information, such as Social Security Number, mailing address, county of residence, addresses, and if available, their Driver’s License or state-issued ID number.
• Employees will also be asked about the dates and details of their former employer when filing a claim. To ensure your claim is not delayed, make sure you provide correct and complete information.

FREQUENTLY ASKED QUESTIONS

1. Is there any reduction in UI claims as Californians begin to resume work?

As of June 11, 2020, the proportion of California UI claimants, either not getting their initial benefit payment because their incomes were very high or are receiving partial unemployment insurance benefits increases. While only employees earning less than three-quarters of their previous weekly wages are eligible for partial UI benefits, employees that are earning above that are entirely denied the benefits for that week, resulting in a complicated decision for employees in a doubtful labor market.

2. Can California employees who lost their job and their private insurance find some sort of coverage through the State?

According to a statement made by Peter lee, every California employee is eligible for financial support through the State, except if the employee is an undocumented immigrant.

3. Can California employees collect Employment Insurance (EI) if they self-isolate?

California employees can collect employment insurance if they have to take time off work due to quarantine or self-isolation. They may also be eligible for employment insurance if they are unable to work due to illness caused by the coronavirus.

4. Can an employee apply for disability insurance if they are at home with COVID-19?

An employee that is at home because they need to take care of a family member who has contracted COVID-19 coronavirus can apply for California Paid Family Leave, but it requires medical certification. PFL assistance is presently not a feasible option in other cases. For example, the employee does not currently qualify for PFL if they have to stay home with their kids because the schools are closed.

5. Can Employees Receive Unemployment Insurance Benefits For Reduced Hours? 

If the employer shuts down their operations or reduces their employees’ work hours due to COVID-19, the employees can file a UI claim. The unemployment insurance system under California law exclusively provides partial wage replacement stimulus to employees who have their hours reduced or were laid off without their fault.  Even if an employee is still working part-time, the employee may still be eligible for insurance benefits depending on their earnings and other circumstances. They may even qualify for more money per week if they are furloughed than if they work reduced hours.

6. When should employees affected by COVID-19 apply for insurance benefits?

Employees that are affected by COVID-19 should apply for insurance benefits the moment they realize that their employment contract and income will be impacted by COVID-19. If the employer demanded that an employee should stay home and was not offered any compensation, the employee might be eligible for insurance benefits provided they meet the financial and weekly eligibility conditions.

7. When will I get the additional $600 benefit?

The additional $600 federal insurance stimulus is available for all approved claims, and retroactive payments will be made for the weeks starting March 29 to July 25, 2020. The Unemployment and the Employment Development Department is currently paying the additional fund, and you don’t have to submit any further paperwork to qualify. The EDD will automatically add the fund on top of each week of benefits you are eligible to receive.

8. Do I Have To File A Claim Every Week?

To maintain insurance benefits, applicants are required to file a claim every week. The week starts on Sundays and ends on Saturday. Once an initial claim has been filed, the applicants will have to wait until the following week to submit another weekly claim. Applicants should understand that the weekly claims must be filed albeit their initial claim is still pending.

9. Do I Qualify For The Unemployment Insurance Benefits As A Freelancer?

The PUA program created by the CARES Act covers individuals that are ineligible for the California unemployment insurance benefits or have exhausted their benefits. These include contract workers, self-employed, etc. This program is particularly important for individuals that work in the gig economy, who work largely as freelancers and independent contractors.

FINAL THOUGHT

If you need help filing for the appropriate insurance benefits during the COVID-19 pandemic or you want to make inquiries, the team of attorneys at United Employees Law Group is always at your service. We understand your request is unique and will personalize our service to suit your insurance benefits needs. To schedule an appointment, do not hesitate to contact us through our contact form below.

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Did you know commission’s and bonuses are part of your overtime pay calculation?! If California labor law’s dictate you should be classified as a non-exempt employee,  in which you are entitled to overtime pay at 1 ½ to 2 times your straight time rate. And you are promised bonuses for reaching certain goals or you are entitled to commissions, then according to California labor law’s a special calculation must be made that increases your regular hourly overtime rate.   California wage law provides that when a non-exempt employee works hours in excess of eight in any workday or 40 in any workweek, employers must compensate the employee at 1 ½ to 2 times the employee’s regular rate of pay depending on the total number of hours worked. The “regular rate of pay” comprises more than just the employee’s hourly rate of pay it includes many different kinds of monetary remuneration an employee earns for his labor, including commissions and bonuses. 29 U.S.C. 207(e).
When calculating the regular rate of pay, employers must follow specific rules depending on the type of income in question. Where an employee earns commissions or bonuses, the Department of Labor Standards Enforcement (“DLSE”)  uses the following rule to incorporate the additional compensation into the employee’s regular rate of pay:

“Compute the regular rate by dividing the total earnings for the week, including earnings during overtime hours, by the total hours worked during the week, including the overtime hours. For each overtime hour worked, the employee is entitled to an additional one-half the regular rate for hours requiring time and one-half and to an additional full rate for hours requiring double time.” DLSE Manual, Section 49.2.1.2 

For example, one type of incentive compensation may provide additional compensation if the store performs at a certain level. A company’s bonus plan could provide that a bonus will be paid to employees for increasing sales of specified products, increase profitability, improve customer handling and enhance quality of service. It could be referred to as an Incentive Program that requires employees to reach attendance goals to be eligible. The plan may also specify the payout schedule: eligible employees receive both quarterly and year end payouts. Another type of incentive may also pay certain hourly employees additional compensation, or a commission, for the sale of various products.

Employers must include these nondiscretionary bonuses along with other earnings to determine an employee’s regular rate on which overtime pay is computed. A bonus is “nondiscretionary” if the employer makes a promise to pay it based on the requirements being met. This includes bonuses designed to induce the employees to work more steadily, more rapidly or more efficiently, to remain with the employer, to meet attendance goals, individual or group production bonuses and bonuses for quality and accuracy of work. 29 C.F.R. 778.211(c). 

In any pay period in which a bonus has been earned the employer must recalculate the rate of pay upon which overtime for that pay period is calculated. The employer must add together all compensation earned for the workweek and then divide the compensation by the number of hours worked.

These Bonuses and Commissions Must be Timely Paid

Generally speaking, commissions and bonuses are due and payable after the employee did what was required and the amounts could reasonably be computed. Commissions are considered earned only after the happening of that event designated in the agreement with the employee so long as the event is reasonably tied to the calculation. DLSE Opinion Letter, 2002.12.09-2.

If for example a commission is earned when the sale is made then that is the date from which all calculations are made.

Labor Code section 204 designates the time frame in which an employer must pay its employees. Wages earned by any person in any employment are due and payable twice during each calendar month, on days designated in advance by the employer as the regular paydays.

Section 204(b)(1) allows an employer additional time to pay commissions in the next pay period but only if it also itemizes the subsequent wage statement by including detailed information regarding the wages that it could not pay on time. Each wage component must be separately listed and specifically list the dates for which it is applicable.

The amount that an employee is short changed may not sound like a lot of money at first, when just looking at just a couple of pay periods. But the amount increases well into the tens of thousands of dollars when a claim includes up to four years of back wages plus interest and plus penalties.

Labor laws can be very complex if you have any questions and think you may have a claim against your California employer contact our team now at:

408-648-4248 direct or United Employees Law Group

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California Labor laws give a different set of overtime rules to “ambulance drivers and attendants” who work 24-hours shifts, than the rest of the California work force. Under certain circumstances, the rule allows employers to schedule ambulance drivers to work 24 hours without paying daily overtime pay. The California law states:

“The daily overtime provision of subsection (A) above shall not apply to ambulance drivers and attendants scheduled for 24-hour shifts of duty who have agreed in writing to exclude from daily time worked not more than three (3) meal periods of not more than one (1) hour each and a regularly scheduled uninterrupted sleeping period of not more than eight (8) hours. The employer shall provide adequate dormitory and kitchen facilities for employees on such a schedule.”

In other words, if all the following circumstances are met then the ambulance driver need only be paid for 13 hours:

• Cannot exceed 3 hours of meal periods, of which are not more than 1 hour each
• Not more than 8 hours of regularly scheduled uninterrupted sleep period.
• a written agreement to this effect

It is important to note that this exemption to overtime applies to California daily overtime (for more than 8 hours a work day) but not to California weekly overtime (for more than 40 hours a work week).

In order for the employer to be able to save money by saving overtime hours, the employers must meet the terms of the 24-hour shift rule. For instance, if the sleep time is “on call” instead of scheduled to be uninterrupted, then the employer is not in compliance. If there has not been a written agreement between both parties, then the employer is not in compliance. If the employer is not in compliance then they will be forced to pay its ambulance drivers daily overtime for the entire 24-hour shift.

Aguilar v. Association for Retarded Citizens is a perfect example of what happens when an employer fails to comply with the 24-hour shift rule is. In Aguilar, the ambulance drivers were scheduled to work 24-hour shifts, but the employer would“temporarily released them” for a few hours each day to let them to pursue their personal matters. Basically, they did not work a complete 24-hour shift. The employer had to pay the employees for all hours worked, including overtime pay. To paraphrase, the court reasoned:

The IWC Wage Order outlines the difference between ambulance drivers that work 24-hour shifts and those who work less than 24-hour shifts. The Wage Furthermore wage order affords an exemption from compensation for sleep time only, for ambulance drivers that work 24-hour shifts. It has been made obvious the ambulance drivers here do not work 24-hour shifts.

If you are an ambulance driver, ambulance attendant or EMT and you feel you have not been compensated properly for your 24 hours shifts please contact an experience San Jose Labor Law attorney to review your potential case.

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A former sales representative claims he is owed $30,000 in commissions. His California labor law attorney has filed suit in San Francisco alleging this computer manufacturing giant denied three former salespeople thousands of dollars in commissions. The plaintiffs are seeking to represent all salespeople employed by the company who have not received their commission payment or bonuses. According to Bloomberg this could be at least 50,000 current and former employees. The company claims this loss may have been caused due to a malfunction in their order-management system and that around 2,000 out of 23,000 personnel from its global sales team were affected by the glitch

Oftentimes, sales people rely heavily on their commission and are generally classified as exempt employees or not entitled to overtime pay. However, it’s important to understand that in order to be classified as exempt, among other things; you must be actively selling at least 50% of the time. Whether you are an Inside Salesperson or Outside Salesperson, California laws strictly regulate salesperson commissions.

If you are a commissioned sales person and believe you have been paid incorrectly we can help. Call now for a free and confidential review of your case.

Call now: 408-648-4248

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• Using your car for business
• Cleaning clothing required to be worn at work
• Purchase, maintenance or loss of tools and equipment
• Expenses related to attending training or educational materials
• Travel
• Cell phones
• Lodging and meals
• Entertainment

An easy way to figure out if an expense should be paid back to you is to simply ask yourself the following question:

“Is this an expense that my company expects me pay for their benefit?” If the answer is yes you are probably entitled to be reimbursed.

To state it another way, the law requires employers to pay employees for any business expenses that arise out of an employee’s reasonable performance of job duties.

For example, if an employee must drive a car (other than to commute to and from work), pay for client entertainment, or make cell phone calls then Section 2802 of the labor code requires the employer to reimburse the employee for the expense.

An employee is entitled to recover all or a portion of unreimbursed business expenses that was paid in the last four years even if he agreed to forgo reimbursement, took an amount that is less than his costs or agreed a salary or commission that was supposed to include reimbursement for these expenses.

This law also covers anyone who was misclassified as “independent contractor”. There are many instances where a person believes he is an independent contractor but in fact is an employee. It does not matter if the error was made by an honest misunderstanding or intentionally. It also does not matter if the misclassification was made by the employer or the employee. It is the law that decides who is an employee and all the rights given to employees.

The law specifically requires an employer who provides a fixed expense allowance or an enhanced commission rate, ensure that expense
reimbursement payments fully cover all necessary expenses. The enhanced portion of any compensation that is supposed to cover all expenses paid by an employee must be identified by the employer by setting forth the method or formula used.

It is the employer’s obligation to show that all expenses incurred by its employees have been fully reimbursed because Labor Code Section 2804 forbids an employer to permit an employee to waive the right to reimbursement. Employees must be reimbursed for all necessary expenses of the employer.

Employers are liable for business expenses even when an employee has failed to submit required expense reports. The law focuses not on whether an employee requests reimbursement but rather on whether the employer either knows or has reason to know that the employee has incurred a reimbursable expense. If the employer has that actual or constructive knowledge, then it must exercise due diligence to ensure that the employee is reimbursed.

An employee should not pass up his right to receive reimbursement because no claim was made in the past or there is little or no documentation. This could occur when an employee does not understand his rights was misinformed or was discouraged from making a claim.

Not only does an employee have the right to reimbursement for business expenses but has the right to recover attorney’s fees, interest and penalties.

We as California labor lawyers know that an employee is not like a company that has the money to pay attorneys to protect them. That is why our law firm provides representation paid solely from money that we recover from the employer. In other words we help level the playing field.

If you have questions about this or any California Labor Law issue please call our offices at : 408-648-4248

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Are you a seasonal worker? Were you given a lot of extra hours over the holidays? If you made overtime you may want to double check just what you got overtime for.

Most employees are unaware that overtime is NOT just based on hourly pay. If you are getting bonuses and or commission pay these should be factored into your overtime rate, this can add up in a big way if you are a sales person during Christmas!

While this won’t apply to all employees and does not include those exempt from or not entitled to overtime, you should be sure you are getting paid correctly. We like to assume our company knows the laws and will always pay us accordingly, but unfortunately thee laws are broken everyday either unknowingly or in an attempt to save money.

It’s your paycheck; don’t assume they are getting it right!

If you are paid a piece rate, regular bonuses or commission they should be added in to your base pay BEFORE calculating overtime, it would look something like this:

If you are regularly paid $10 an hour and you have been working 4 hours overtime each shift, you would expect to make time and a half or $15 an hour for each of those four hours right?

WRONG, if you made $600 in commission during that week when you worked 60 hours you would divide that commission over the hours worked to determine your new hourly rate BEFORE calculating overtime.

That means your actual hourly rate for the 60 hours was $20 an hour making your overtime rate $30 an hour NOT $15.

Now you can see how this can add up quickly.

If you believe you have been paid incorrectly Call UELG TODAY, we help employees collect what they are owed!

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