Fact Check Your Paycheck: Sorting Through Common Pay Issues

Employee Discrimination, Unpaid Wages, Wrongful Termination , , , , ,

Paychecks can be confusing. There are many factors that go towards your final paid amount. Some of the most common pay issues arise through unique changes to your paycheck. Whether that is commission payments, raises, or termination final payments, there are precautionary steps you can take to prepare yourself to understand what you are entitled to.

Although every circumstance is different, take the following steps at the beginning of your employment or as soon as possible to define how each situation would affect your paycheck and what you can expect.

Address It in Advance

Although addressing pay with your employer can feel uncomfortable, it is important to ask any questions you have directly. Work with your employer to make sure any questions are addressed in writing. If you will be working under a commission pay structure, make sure you determine the commission rate and when you are to be paid the rate. If you are offered a raise, take the time to determine what that means. Are you able to receive a raise in payment form only or can you receive it in the form of additional paid time-off days? Finally, one of the most uncomfortable conversations to have is if you are to be terminated, what is offered to you? How will you receive your accrued paid time-off and your final paycheck?

Asking the questions in advance provides you the knowledge to address any potential issues that may occur during your employment.

Know the Laws and Your Rights

We know you are not a lawyer, but it is important to educate yourself with the applicable laws that may protect you and your paycheck. If you are concerned about a situation and worry there may be some misuse of your time, money, and compensation, take the time to learn. If you need to address your employer, having the correct knowledge will allow you to protect yourself. The California Department of Industrial Relations is an excellent resource and can be found at: https://www.dir.ca.gov/iwc/wageorderindustries.htm

Speak Up

If you feel like you are not being properly compensated based on your discussed employment, be sure to stand up for yourself. You work hard and deserve your compensation. If your employer is not respecting your concerns or dismissing your rights, contact a lawyer and determine your best plan.

Asking the right questions at the beginning of your employment will provide you with the information and formalities to protect you from any mistreatment. However, if you find yourself unsure, it is important to educate yourself and be sure you have the tools to successfully stand up for yourself.

Contact us today at info@bakerllp.com or (858) 452-0093 if you have any questions regarding your compensation as an employee or if you are concerned about your paycheck.

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Phone Calls Eligible for Unpaid Overtime

Unpaid Wages , , ,

Gavel with MoneyIn a recent case regarding phone calls and unpaid overtime, a police department was sued when it failed to pay a police officer who checked his work-provided cell phone while off duty.

Allen Versus the Chicago Police Department

Police Officer Jeffrey Allen estimated that he took an average of one or two off duty calls on his employer provided blackberry per day. Allen later sought payment from the Chicago Police Department (Chicago PD) for that time he spent taking the work related phone calls. Allen filed a lawsuit in the federal district court in the Northern District of Illinois alleging that the Chicago PD violated the Fair Labor Standards Act (FLSA) by requiring him to take calls while off duty.

The complaint alleges that Allen was a non-exempt employee, eligible to receive overtime pay for time when he worked more than 40 hours a week. In January the court approved a conditional certification of the class of plaintiffs, which meant that current and former Chicago police officers in the Bureau of Organized Crime also became eligible to join the lawsuit.

The Chicago PD responded to Allen’s claims by stating that it had procedures which allowed employees to report overtime worked, and that Allen and other police officers simply failed to comply with those procedures. However, Allen argues that there was an unwritten rule that if an officer wanted a promotion he or she should not report overtime for emails and calls taken off duty.

Emails and Phone Calls Count Toward Overtime

Legally an employer must pay an employee for all time worked. An employer may not discourage employees from reporting time worked just because it happens off their employer’s standard work schedule. An employer can get into trouble with the law if they schedule their workers for 40 hour weeks and then expect employees to also answer emails or take calls at home because extra time spent working off the clock needs to be compensated at the overtime rate for every hour worked over 40.

California’s fair pay law, Labor Code Section 510, also imposes stricter requirements that employers must comply with. In California an employer must also pay overtime when an employee works more than 8 hours in a single day and for any time spent working on the seventh consecutive day of the work week. In some circumstances double time also needs to be paid.

If your employer has failed reimburse you or pay your wages you may be entitled to a lawsuit. To learn more contact experienced California Employment Law attorney Michelle Baker. Schedule your Free Consultation today by calling (858) 452-0093.

 

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Addressing Unpaid Time Off

Unpaid Wages , , , , , ,

Private AG ActHappy New Year from Baker Law Group! As the holiday season comes to a close, you may be returning to work after your longest vacation of the year. Now is the perfect time to assess whether your employer is providing you with the paid time off and wages you are entitled to.

Vacation Pay Rules

Although employers are generally not required to offer paid time off (PTO), many do. However, the employer can place restrictions on when you use your PTO. If an employer refuses to allow you to take off the requested days, and you refuse to take off days that are available, the employer must compensate you for the time not used.

Additionally, California Labor Code section 227.3 provides that employers are not allowed to require employees to use or lose their PTO or unpaid vacation time. The employer can put a reasonable cap on the amount of vacation time that an employee may accrue. However, if a court finds that the implementation of a cap is simply to deny or make it more difficult for employees to use their accrued benefits the policy will be invalidated. Also, keep in mind that these benefits can be enhanced or limited by a collective bargaining agreement.

Sick Pay Rules

Sick time and sick pay are governed by a separate set of rules. Sick time is treated differently because unlike vacation time or PTO, sick time is not considered earned compensation because it is only to be used in the event that you become ill.

Another common question is whether an employee can simply deduct PTO or vacation leave for parts of the day. This is usually up to the specific agreement between the employer and employee, and it is best to consult your employee handbook to determine this information. Some employers provide PTO, vacation, or sick time in 1 hour increments, but require that employees use their time in 4 hour increments.

Obtaining Compensation

This type of compensation can amount to a lot of unpaid wages over the years. This is one reason why so many workers are not receiving the full amount of compensation they are entitled to.

Although most employers are not required to provide PTO, vacation or sick leave, some cities and municipalities throughout the country have modified this trend by requiring employers to provide a minimum amount of these benefits. One example is San Francisco, where an employer must provide employees with 1 hour of sick leave for every 30 hours worked.

California employment law attorney Michelle Baker has many years of experience handling wage and hour cases, including lawsuits for unpaid wages due to failure to provide proper breaks. To schedule your Free Consultation, contact us at (858) 452-0093 today.

 

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Hourly Employees Eligible to Sue for Unpaid Overtime

Unpaid Wages , , , ,

CLC 226If you are an hourly employee working without a guaranteed monthly rate of pay, you are likely eligible for unpaid overtime even if your hourly wage is high. Don’t get caught in the trap of working constant overtime. If you are not a salaried employee, this is a violation of your legal rights.

The Case: Negri v. Koning & Associates

In 2013, the California Court of Appeals reviewed a situation where an employee who had been making significantly more money than the average worker, was still subject to California overtime law. In Negri v. Koning & Associates, Mark Negri was an insurance claims adjuster for Koning & Associates. He was paid $29 per hour but was given no minimum guarantee of pay per month. Although he worked more than 40 hours per week, every week, he was never paid more than $29 per hour. As a result Negri sued his employer for violating California overtime law. The employer argued that Negri was a salaried employee, subject to exemption from overtime.

The Definition of a Salaried Employee

Under California law employees are not subject to overtime pay when:

  1. they meet one of the duties tests for exemption,
  2. they customarily and regularly exercise discretion and independent judgment in performing their duties,
  3. they earn a monthly salary that amounts to twice the minimum wage.

In reviewing these elements the court determined that Negri seemed to satisfy all of the above prongs of the test, except for the salary aspect. Although he earned much more than twice the minimum wage, there was a question as to whether his pay could be classified as a salary. The court found that the definition of salary is quite specific, it does not merely mean pay. Rather, it is “a fixed rate of pay as distinguished from an hourly wage” that is not subject to reduction because of the quantity of hours worked or the quality of work. The employer had admitted that Negri was paid based on the number of hours he worked, and that alone dictated his pay. Because of this the court held that Negri had not been paid a salary and was thus entitled to overtime pay.

What This Case Means for You

This is a very helpful case for employees because Negri would have been exempt from overtime pay if his employer had merely set an established pay rate. There are many reasons why an employer would want to require employees to be paid hourly. The biggest reason is that it ensures that they are only paid for time the employee is productive. However, if an employer does not guarantee a set amount of pay per month or year, the work is considered hourly and subject to overtime law.

Keep in mind that different categories of employees have different overtime requirements. To view a full list of the categories of employees exempt from overtime law visit the California Department of Industrial Relations website.

If your employer has not paid you the full amount you have earned you may be entitled to a class action lawsuit or settlement against them. Contact experienced California wage and hour attorney Michelle Baker today. Call (858) 452-0093 for your Free Consultation.

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Debit Cards Instead of Paychecks

Unpaid Wages , , ,

Wad of Money_HOMEMore employers are turning to debit cards in lieu of paychecks to provide their employees with wages. However, an employer must make sure they meet all the requirements of the California labor code before they start this practice, or they may be liable for unpaid wages.

There are many reasons why an employer would want to use debit cards rather than checks. First, debit cards do not require the employer to print out checks and distribute them. Debit cards give the employer the freedom to basically use direct deposit with all employees, regardless of whether or not the employee uses a bank account.

The Drawbacks of Debit Card Payments

However, employers often do not consider the hardships that employees face when using debit cards. First, some debit cards may require employees to pay fees on ATM withdrawals, or to find their balance. The cards also may automatically deduct payment during periods of inactivity.

Employers must always give their employees the option to be paid by direct deposit or debit card. This also means that the employer cannot require the employee to agree to be paid by a debit card as condition of employment. However, besides these requirements, there is not a lot of guidance as to what would entail a violation of this law. Although the California Department of Industrial Relations Division of Labor Standards Enforcement provided an official opinion on the legality of debit cards several years ago, not many courts have analyzed the issue.

Know Your Paycheck Rights

Employers may not pay employees with credits that can be used to purchase merchandise. The employer also may not receive any part of the employee’s wage paid; this means that kickback schemes between financial institutions cannot provide the employer with a portion of the fees they collect. The full amount of the funds must also be available for at least 30 days after being issued. Further, the employer must provide a full wage statement that complies with Labor Code § 226(a).

An employer might also run into trouble if the fees imposed on an employee for the use of a debit card effectively reduces the employee’s wages to less than the minimum wage.

Wage and hour law is very complex. If you suspect that your employer has not properly paid you, take advantage of your free consultation with employment law attorney Michelle Baker. Call us at (858) 452-0093 to speak with an attorney today.

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Court Finds That Workforce of FedEx Ground Drivers are Employees, Not Independent Contractors

Missclassification, Unpaid Wages , ,

As a California employment firm specializing in unpaid wages and discrimination, Baker Law Group, LLP was extremely happy to hear of a recent ruling regarding FedEx ground drivers. This case ruling makes an important point regarding employees who have been misclassified as “independent contractors.” The following article contains very helpful information for potential clients who may find themselves in a similar situation.

The following is a special report from Leonard Carder, Copyright (C) 2014 PR Newswire.

On August 27, 2014, the Ninth Circuit Court of Appeal ruled that a class of 2,300 individuals working for FedEx Ground was misclassified as independent contractors instead of employees. As a result, FedEx may owe its workforce of drivers hundreds of millions of dollars for illegally shifting to them the costs of such things as the FedEx branded trucks, FedEx branded uniforms, and FedEx scanners, as well as missed meal and rest period pay, overtime compensation, and penalties. The case is known as Alexander v. FedEx Ground, and covers employees in California from 2000 – 2007. The ruling can be found on the Leonard Carder website at leonardcarder.com.

Employees Versus Independent Contractors

Judge Fletcher’s majority opinion was very clear on the question of whether these workers are employees or independent contractors, stating “We hold that plaintiffs are employees as a matter of law under California’s right-to-control test.”

The court’s decision is the most recent in a series of cases that have methodically proven that FedEx Ground’s independent contractor model is built on the legal fiction that its drivers are in business for themselves. The Ninth Circuit decisively rejected that claim. The court’s finding in Alexander that drivers in California are covered by California’s workplace protection statutes not only impacts one of FedEx Ground’s largest workforces but could influence the outcome in over two dozen cases nationwide in which FedEx Ground drivers are challenging the legality of their independent contractor classification. Millions of packages are delivered every day across the state under the control, direction, and supervision of FedEx Ground. In addition, many trucking companies have been operating under a similar model in which they classify their drivers as independent contractors.

“FedEx Ground built its business on the backs of individuals it labelled as independent contractors, promising them the entrepreneurial American Dream,” said Leonard Carder attorney Beth A. Ross who is a national leader on cases covering the exploitation of workers by mischaracterizing them as independent contractors. “However, as Judge Trott said in his concurring opinion, not all that glitters is gold.”

FedEx now requires its so-called contractors in California to hire a secondary workforce of FedEx drivers, who do the same work as the plaintiffs under the same contract. The Alexander decision calls into question FedEx’s strategy of making plaintiffs the middle men between the secondary workforce of drivers and FedEx.

“We have heard of many instances where the secondary drivers are earning such low wages that they have to rely on public assistance to make ends meet,” said Ross.

Everyday Work for FedEx Ground Drivers Includes:

  • FedEx Ground drivers were required to pay out of out of pocket for everything from the FedEx Ground branded trucks they drove (painted with the FedEx Ground logo) to fuel, various forms of insurance, tires, oil changes, maintenance, etc. as well as their uniforms, scanners and even workers compensation coverage.
  • In some cases workers were required to pay the wages of employees who FedEx Ground required them to hire to cover for them if they were sick or needed a vacation, to help out during the Christmas rush, and in some cases to drive other FedEx Ground trucks.
  • After paying these expenses, a typical FedEx driver makes less than employee drivers at FedEx Ground’s competitors like UPS, and receives none of the employee benefits, like health care, workers compensation, paid sick leave and vacation, and retirement.
  • In addition, their employment was subject to the whims of FedEx management and FedEx Ground’s decisions on staffing and routes left the employee drivers stuck with expensive long-term truck leases on FedEx branded trucks.

The drivers’ attorney Beth Ross added, “Nationally, thousands of FedEx Ground drivers must pay for the privilege of working for FedEx 55 hours a week, 52 weeks a year. Today, these workers were granted rights and benefits entitled to employees under California law. To be clear, the Ninth Circuit exposed FedEx Ground’s independent contractor model as unlawful.”

Among the noteworthy elements to emerge from the litigation, FedEx Ground’s practices take advantage of workers and are anti-competitive. FedEx Ground’s so-called “contractors” do the same work as UPS and U.S. Postal Service drivers for substantially less pay and without benefits. This plays out in two distinct ways. FedEx Ground saves money and harms drivers and the public by avoiding employment taxes and workers’ compensation insurance, and complying with all other workplace protections.

Ross added, “This ruling will have seismic impact on this industry and the lives of FedEx Ground drivers in California.”

If you believe you have been unfairly missclassified as an Independent Contractor, you may be entitled to compensation. To learn more, contact experience California employment attorney Michelle Baker. Schedule your free consultation today by calling (858) 452-0093.

 

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Sleeping On The Job Must Be Paid For Security Guards

Unpaid Wages ,

Employees must be paid for time worked. However, this rule gets tricky for certain classes of employees who work long shifts. For example, security guards are commonly required to stay during long shifts that can stretch for 16 or even 24 hours. Some companies allow security guards to sleep while on shift, as long as they remain on call. A recent case before the California Court of Appeals explains how this can work in the case of Mendiola v. CPS Security Solutions, Inc.

The Case of Mendiola v. CPS Security Solutions

In Mendiola the employees provided security guard services for CPS Security. The employees were assigned to construction sites where they operated out of residential trailers for 16-hour regular shifts and 8-hour on call shifts during the night. During the night shifts, CPS only provided compensation for time spent conducting investigations, meaning that any time they spent not conducting investigations, but being on call, was uncompensated.

The employees filed a class action lawsuit to recover wages for their time spent being on call. The trial court granted the employee’s requests. The employer appealed. The California Court of Appeals said that the guards performed an important function for the employer and its clients by deterring theft and vandalism. Further, the guard’s ability to engage in their private wishes was “substantially restricted” because they did not enjoy the typical freedom of an off-duty worker.

Although federal wage and hour regulations do not require that employees who reside on work grounds be compensated for the time they are on the premises, the court declined to adopt that provision into California law.

Receiving Compensation for Overtime

The takeaway point is that just because an employee is not technically working during a shift, if they are on call and remain at the workplace they should be compensated. However, employers in these situations generally require employees to exclude a total number of 8 hours for sleep time that may take place during the job.

If your employer has not paid you the full amount you have earned, you may be able to recover your unpaid wages with a lawsuit. To learn more about your legal options contact the experienced California wage and hour attorneys at Baker Law Group, LLP. Call (858) 452-0093 today for a free consultation.

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Failure to Reimburse Employee Expenses is Cause for Unpaid Wage Lawsuit

Unpaid Wages , ,

California law generally prohibits employers from requiring employees to bear the costs of business expenses. These costs can include cell phone expenses, client entertainment, and some uniforms. California Labor Code § 2802 states that employers must reimburse employees for “necessary expenditures and losses incurred as a direct consequence of the discharge of his or her duties.”

When an employer violates this law, an employee is entitled to collect interest on the expenses made as well as recover attorney’s fees and costs incurred in bringing a lawsuit. The only case in which an employer is not required to reimburse expenses when the employee believed the expenses were unlawful at the time. Nevertheless, even if the expenses were actually unlawful, the employee would still be able to claim expenses if they were unaware of that fact.

Under California Labor Code § 2804, an agreement to waive full reimbursement for expenses is not enforceable even if an employer requires the agreement as a term of employment. Similarly, an employer’s deadlines for requiring an employee to submit reimbursement are not enforceable. Employees are legally entitled to reimbursement for up to 4 months after the date of the expense.

Common Examples of Reimbursement Violations

One common violation of this rule involves uniforms. A dress code is not a violation of this rule, but requiring the purchase of dress code items directly through the employer is basically the same thing as a mandatory pay deduction.

Travel is another common way in which employers violate the expense reimbursement rule. When an employer requires an employee to run errands, the employer must pay for the employee’s time. If the employee uses his or her own vehicle to run the errands, the employer must also pay mileage costs. Current IRS guidelines dictate that employers should pay 55 cents per mile in these circumstances. Time spent driving should also be paid at the employee’s regular rate of pay.

What if An Employer Violates The Reimbursement Rules?

Some employers have internal rules governing how to request reimbursement if a request was initially denied. However, employees are not required to comply with an employer’s formal rules. In the case of Stuart v. RadioShack the court held that the employer, not the employee, has a duty to investigate if they have reason to believe that an employee incurred expenses on their behalf. Employees may bring a lawsuit to enforce their right to reimbursement regardless of whether they followed the employer’s official rules governing reimbursement.

If your employer has failed reimburse you or pay your wages, you may be entitled to a lawsuit. To learn more, contact experienced employment law attorney Michelle Baker. Schedule your free consultation by calling (858) 452-0093 today.

 

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Meal Breaks and Unpaid Wages

Unpaid Wages ,

CLC 512Failure to provide adequate meal and rest periods are one of biggest areas of employment disputes. California has strict meal and break laws, perhaps some of the strictest in the country.

What are the California Meal Break Laws?

California employers must legally provide employees who work more than 5 hours a day with a 30 minute unpaid lunch break, which must occur no later than the 5th hour of work. However, employers often break the rules by interrupting the employee’s break in some way. The employer must pay the employee during the break if they interrupt the break in any of the following ways:

  1. Fail to relieve the employee of all duties
  2. Fail to give employees free control of their activities
  3. Impede the employee from taking an uninterrupted 30 minute break

However, if an employee is working only 6 hours, he or she may voluntarily waive the right to the meal break.

Employees who work long hours in a day may also be entitled to a second meal break. When an employee works for more than 10 hours a day, they must receive a second meal break no later than the 10th hour of work. Although, as with the first meal break, an employee can waive his or her second meal break if:

  1. The employee took advantage of the first meal break
  2. The employee is working 12 hours or less
  3. The employee and the employer both consent to waive the meal break

In some unique situations, an employee can take an “on-duty” meal break. This would occur if the nature of the work prevents the employee from being completely relieved of duty.

What Happens When an Employer Fails to Provide Breaks?

When employers fail to provide an uninterrupted 30-minute meal break period, employers must pay the employee compensation for an entire hour of work. Keep in mind that if an employee is given a break, the employer is under no duty to ensure that the employee actually takes the break. However, the line between providing breaks and having unofficial policies that discourage breaks is thin. It is best to contact an attorney in these situations to find out if your employer is subtly impeding you ability to take a break.

Employees generally have 3 years to file claims for unpaid wages, although special circumstances may apply. Because claims can be barred after a certain amount of time, it is critical that you take action quickly if you think your employer has failed to provide you with proper meal or rest breaks.

The California employment law attorneys of Baker Law Group, LLP have many years of experience handling wage cases related to proper meal breaks. To schedule your Free Consultation, contact Michelle Baker today at (858) 452-0093.

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When Unpaid Interns are Eligible to Collect Unpaid Wages

Unpaid Wages , , ,

With many unemployed entry-level professionals and students seeking work in today’s economy, many young professionals are turning to unpaid internships. These internship opportunities are intended to provide a “foot in the door,” along with the experience that will enable the launching of a paid career.

However, not all employers legally qualify to allow interns to work without pay. The Department of Labor has outlined six criteria for determining whether an individual may be eligible to participate in an unpaid internship at a for-profit company.

1. First, the internship must include similar training as would be given in an educational environment.

This does not necessarily mean that the employer must provide formal training in a classroom setting, but the intern should enjoy a good deal of training during the program. Ideally, an unpaid intern’s time would be split between work and training.

2. The experience of the internship must primarily benefit the intern, rather than the employer.

This is probably the most difficult part of the test for private employers to pass. The surge in the number of unpaid interns is not a benevolent phenomenon. The fact that the economy is so tough at the moment means that some employers try to take advantage of the oversaturated job market in order to cut their own costs. A true internship should provide interns with transferable skills, rather than having them engage in less meaningful work such as filing documents or fetching coffee and mail.

3. The intern may not take over the duties of a regular employee and must work under close supervision of the staff.

An employer simply cannot lay off regular employees just because they know that they can hire unpaid interns to do the same work at no cost.

4. The employer may not receive an immediate advantage from the intern’s activities.

This means that the employer’s operations should be reasonably impeded from time to time due to the engagement with the intern. For example, by taking time out of the normal schedule to provide the intern with reviews, or formal training and mentoring.

5. The internship is not contingent on a job offer at the end of the term. In other words, a job is not necessarily available at the end of the term.

Although the intern should be able to receive employment at the end of the internship, the Department of Labor wants to avoid setting a trend that would allow employers to require their employees to work for a short time unpaid in order to get a paid position.

6. Finally, both the intern and employer have to both understand that the intern is not eligible to receive wages for the internship.

This is usually not the biggest issue: with so many individuals looking to distinguish themselves in anyway they can from their colleagues, many interns are more than happy to forgo pay. The problem arises when the employer takes advantage of the intern’s inability to get a job by making them perform work that directly benefits the employer without pay.

If your employer owes you unpaid wages due to contradiction of the Department of Labor rules above, contact the experienced California employment attorneys of Baker Law Group, LLP. Call us at (858) 452-0093 today to schedule your free consultation.

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