The law requires that workers must be given time to rest and eat during the work day.

The question now before the highest court in California is, who is responsible to make sure the law is followed?

Abuse abounds in this area of law. Employers acknowledge that employees are entitled to normal breaks and meals during the day. At the same time, some employers create an environment that systematically discourages breaks.

The result is that employees are forced to work through these breaks and many times must eat on the run.

In some lower court cases the employer has been able to persuade the judge that a policy allowing breaks is all that is required. Lawyers that represent workers have demonstrated that this leads to mass violations of the law. It is no secret that if an employee demands his right to rest and eat he is likely to find himself in hot water.

This fight has been taken head on by class action attorneys who are able to represent the entire employee base without putting individual workers at risk. This approach is an effective deterrent to employers who systematically violate the law. Employers are trying to prevent enforcement by taking the position that any violations, even if wide spread, should be handled on an individual and not a class wide basis. To sustain this position employers argue that it is the individual employee who has the power to decide to work thru his breaks. Therefore the employer states that it should not be held responsible on a class wide basis, even if it is found to be a systematic problem. Under this view of the law, even if there are intentional violations then each employee must individually enforce his rights through the courts and this is obviously highly impractical.

In order for the law to be meaningful, the Supreme Court is being asked to find that the burden is on the employer to prove that these breaks and meal periods are not only policy but are also being enforced. The fact is that this does not create any meaningful burden on the employer as he has the ability to control and monitor.

The main cases now under review by the California Supreme Court are two Court of Appeal court decisions in Brinker Restaurant Corp. v. Superior Court (Hohnbaum), 2008 WL 2806613 (Cal. Ct. App., July 22, 2008), and Brinkley v. Public Storage, 2008 WL 4716800 (Cal. Ct. App., October 28, 2008).

Your employer must make meal breaks available to you if you are a non exempt employee (an employee who is eligible to receive overtime pay). Failure to provide a meal break obligates an employer to pay non exempt employees one hour of pay.

The Law:

An employer must pay a nonexempt employee an hour’s pay for failure to provide a meal or rest period.

An employer who falsifies employment records is in serious trouble under a recently enacted California statute.  As of January 1, 2009,  it is a crime for an employer to require an employee to sign-off on any record of hours worked that the employer knows to be false.

This provides added protection where managers force employees to sign statements regarding their hours worked knowing at the time it is untrue, or where they alter time cards.

Strategy:

The fact is that over time the right to back compensation, interest and penalties add up to big dollars especially if it has occurred over an extended period of time. You are permitted to recover for missed meal and breaks for a period extending back over 4 years from the time you file your claim in court.

It is easy to get sound advice and an estimate of how much you may be owed by contacting a qualified California labor law attorney. Many of these matters are taken on contingency so you do not have to pay for representation unless you recover on your claim.

Photo Credit: Shutterstock/Piotr Adamowicz

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As clearly stated, in Federal labor law, which all the employees working for more than 40 hours on per week basis are required to be paid 1.5 times of their normal monthly pay rate by their respective employers. On the other hand, Labor laws in California signifies more specifically by stating that if a labor or employee works for his employers over and above the normal hours of 8 in a day and 40 hours in total in a week, then they must be paid 1.5 times of their regular monthly pay or salary. As a result of these laws, majority of the employers takes a step ahead to prevent the payment of overtime to their labors by making sure that each employee works only as per the designated schedule which restricts them not to work above 8 hours a day or 40 hours a week. Therefore, they have created the traditional weekly work schedule of 5 days a week consisting of 8 hours on daily basis.

But it is a very common practice in some industries to have long and stretch shifts for their workers. Consequently, employers would certainly demands his or her workforce to work 4 days a week consisting of 10 hours a day or it might be a 3 days a week consisting of 12 hours a day. But this act of employers would be really unjust from the viewpoint of employees, as most of their earned overtime has not be paid to them and this fact is accordingly mentioned as per the California labor laws. Thus, it indicates that employer might not desire to pay off such overtime to their workforce and which as a result indicates that most of their employees would not be able to relief for a shorter week of working hours.

The solution which the State has offered is that the employer can validly apply to avail the facility of having an alternative work week schedule for the employees. With this facility, the employees would be able to keep their work week rather shorter and in addition, employers would not require paying the daily overtime to their workers. For this work out accordingly, the employees must cast their individual vote in favor or against the new working schedule offered by the employers and the vote will take effect only if it is approved by the majority of a 2/3 workers or employees for that new schedule. And if the vote is successfully passed, the employer must abandon their registration with the state with immediate effects.
But the overtime is still owed to the employees if they work for more than 40 hours in a week or it gets double when employees work for more than 12 hours in day. Furthermore, margins for breaks during the works is also increased; second break of 30 minutes is offered when the employees work for more than 10 hours and another 10 minutes break is offered when the working hours increased to 12 hours a day.

Therefore, if you are not paid for your overtime work, you must check to confirm that whether your employer has registration with the state by visiting The Department of Industrial Relations. If not, then you must immediately consult one of the California labor law attorneys to review your position.

Remember, if you have any queries and doubts regarding your employment or overtime related matter, then it is our suggestion to you to please visit California labor law attorney who can seriously help you to understand your position more clearly and they might not charge even in some cases.
Feel free to contact us at in case you have any questions about this article or our blog:

San Francisco – (415) 200-0012 or (415) 230-2755

Photo Credit: Shutterstock/Vlad Teodor

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[headline]”You’ll Never Work in This Town Again” – Hogwash[/headline]

California Labor Laws have been implemented to protect the employees’ rights against their current or former employers.
Unfortunately, even with these laws in place abuses  happen to employees every day. These employees are systematically underpaid, overworked and then fired. Why would someone put up with this abuse rather than demand what is rightfully theirs by law? This is probably because they are unaware that the law has powerful protections built in.

Timing is everything-
Contrary to what you might think, if someone is at risk of losing their  job they should immediately consult with a Labor Law attorney. If they  have a legitimate claim they should act quickly. If the company then  attempts to retaliate because the employee exercised his or her right  to seek unpaid wages, the company is then at risk for substantial damages. In order to avoid incurring a loss from a retaliatory claim, the  company usually will choose to act responsibly toward the employee.

Both State and Federal labor laws have strong protections built in to deal with employers who threaten employees for pursuing their rights. In addition there are new laws in California to protect you further.

A Los Angeles County jury on Nov. 2, 2010 awarded Richard Romney an 18-year veteran Los Angeles police officer, nearly $4 million in his case against the LAPD, concluding the officer was fired in retaliation for testifying against the department in a labor dispute. You can read the full story in the Los Angeles Times at“L.A. County jury awards $4 million to former LAPD officer”.
As far back as the early 1900’s the labor code recognized the disparity in power between employee and employer which gave rise to these strong protections built into the law.
California Government Code section 12940(h) provides that it is an unlawful employment practice “[f]or any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”

The Federal law under the Fair Labor Standards Act’s (FLSA) anti-retaliation provision makes it unlawful “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under [the FLSA] . . . .” 29 U.S.C. §215(a)(3).
Any employee, who is discharged, threatened with discharge, demoted, suspended, or in any manner discriminated and/or retaliated against in the terms and conditions of his or her employment for engaging in a “protected activity” is protected under the law.
Some examples of “protected activity” under the California Labor Code include:
1. Filing or threatening to file a claim or complaint with the Labor Commissioner.
2. Taking time off from work to serve on a jury or appear as a witness in court.
3. Disclosing or discussing your wages.
4. Using or attempting to use sick leave to attend to the illness of a child, parent, spouse, domestic partner, or child of the domestic partner of the employee.
5. Engaging in political activity of your choice.
6. For complaining about safety or health conditions or practices.

The following is a letter taken from an actual case warning an employer that it is at serious risk if it continues to engage in any action against our client that is retaliatory.
“Dear Mr. (Atty for Employer):
We have been advised by our client, JW (“John”), who is one of the named plaintiffs in connection with the above-entitled lawsuit, that he believes that XYZ , Inc. (the “Company”) intends to retaliate against him for being involved in this lawsuit.
The concern regarding retaliation first arose shortly after you were served with a copy of the lawsuit and no doubt provided a copy to the Company). John received a telephone call from Human Resources and attempted to obtain information from our client regarding the case, including, most ominously, who “instigated” the lawsuit. John replied that he did not feel comfortable discussing the case until he spoke to his attorney.
On the very next day, John was asked by his supervisor to train another technician. This appeared to John to be a poorly disguised attempt to mask the fact that Mike wanted Steve trained to do John’s job because the Company intended to terminate John.
Mr. X telephoned John again, but John was not available to take the phone call and X left a message to call him back. Several hours later, X again telephoned John and left another message that since John had not returned the earlier call and was not communicating with him, he was guilty of “insubordination”. After John received these messages, he did telephone X and advised X that his attorneys had advised him not to discuss the matter with him.
Based upon the above, we believe that the Company may be attempting to create “grounds” in order to either terminate John or take other adverse employment action against him, in retaliation for John’s participation in the lawsuit. Any such action taken against John on “pretextural” grounds (such as “insubordination”) would, of course, be unlawful. If the Company is foolish enough to engage in such conduct, we will immediately institute a lawsuit against it for wrongful termination and/or such other causes of action as may be appropriate. This, of course, will only exacerbate the situation and expose the Company to further damages, costs and expenses.
We request that you advise your client in the strongest possible terms that California law protects employees against retaliation for enforcing their legal rights. In this regard, it would also be helpful for you to advise your client not to discuss the case with any of our clients.”

If for any reason you think that you are owed unpaid wages but are concerned about retaliation it is important that you seek legal advice with a California Labor Law Attorney as soon as possible. It just may save your job.

Photo Credit: Shutterstock/Idutko

The post Blackmailed by Your Boss? Know the Law. appeared first on UELG.

Whether you are leaving on your own or you were terminated, in California you are owed money for all accrued vacation time upon leaving your job.

The Home Depot was sued in a case known as Henshaw and Souza v Home Depot USA Inc., claiming that the employees were only paid for a fraction of owed vacation days. Henshaw was paid for 184 of his 528 accrued hours of vacation; and Mr. Souza claimed they paid him only 544 of his 1210 accrued hours of his accrued vacation time.

As happens with many such cases, this case was escalated to the federal court when it was determined that this was a much more far reaching problem, and the case for unpaid vacation time quickly turned into a class action.
The case was approved in US District court for the Central District of California and mandates payment of accrued vacation hours as well as penalties and interest to more than 1300 former employees. The settlement means a payout of $1.6 million by Home Depot, though they still claim they did nothing wrong.

You cannot assume your employer has the numbers right or your best interest.  At the end of the day we are each responsible for our own paycheck. You have to double check and make sure you are getting what you are owed. If something doesn’t seem right get another opinion. Many employees are told by their employers that they are not owed for different things, like overtime or mileage, when in fact they should be collecting.

Stand up for yourself and get the money you work for. If you believe you are owed money call us for help. United Employees Law Group will assess your personal situation and tell you if you are owed money.

COLLECT NOW!

The post Don’t Leave anything behind: Home Depot Vs. Henshaw appeared first on UELG.