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Debit Cards Instead of Paychecks

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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When Obesity Discrimination is Illegal Disability Discrimination

In certain California cities, including San Francisco and Santa Cruz, city officials and government contractors cannot discriminate against employees and job applicants based on their weight. In some situations an individual struggling with obesity can file a lawsuit under federal law when an employer or potential employer makes a decision against them based on their weight. However, note that under California law, weight and obesity discrimination is generally not illegal without additional physiological complications.

Protection at the State and Federal Levels

Both federal and California law protects individuals with disabilities or perceived disabilities from discrimination. At the federal level, the Americans with Disabilities Act (ADA) is an anti-discrimination law that defines disability as a condition that substantially limits one or several major life activities. In some cases Obesity might be classifiable as a disability under ADA. The department responsible for implementing ADA, the Equal Employment Opportunities Commission (EEOC), won a settlement against an employer in 2012 after a federal court agreed that obesity impairs major life activities including walking, digesting, and bending. See EEOC v. Resources for Human Dev., Inc., 827 F. Supp. 2d 688, 694 (E.D. La. 2011).

By comparison, California law is generally stricter than federal law. Under California employment discrimination law an employee must also show that if a major life activity is impaired, that the impairment is due to a physiological condition. This means that obesity must result from a physiological disorder to be considered a disability under California law; it must not merely be a condition resulting from an individual’s voluntary action or inaction.

The Importance of Proving Your Physiological Condition

As a result, California courts have been much more reluctant to allow obesity to be claimed as a disability than Federal courts. For example, in the case of Cassista v. Community Foods, Inc, 5 Cal. 4th 1050 (1993) a woman struggling with obesity applied to work at a grocery store. The store rejected her application and told her that they were concerned she would not be able to perform the necessary functions of the job because she was obese. The woman sued the store under California disability law, but the Supreme Court of California held that the woman failed to show that she had an underlying physiological disorder that caused her obesity or that the store believed she had such an underlying disorder.

When employers discriminate against job applicants or employees due to a disability the employer may be subject to liability. If you think you have been discriminated against in any way, find out how to get the justice you deserve by contacting experienced employment lawyer Michelle Baker today. Call (858) 452-0093 now to begin your free case evaluation.

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

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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The Interaction Between Disability Benefits and Disability Law

Disability DiscriminationSometimes when an employee becomes injured they qualify for protections under state or federal disability law. However, this can present complications when the employee also seeks disability related benefits through state or private insurance. In a recent case the 9th Circuit Court of Appeals reviewed whether an employee who claims total disability for the purpose of disability benefits can also be protected under the Americans with Disabilities Act (ADA).

Smith v. Clark

In Smith v. Clark County School District a school employee, Smith, suffered a back injury. She then applied for disability benefits under Nevada’s Public Employee’s Retirement System (PERS) as well as medical benefits from her insurance.

Smith also applied for Family and Medical Leave Act (FMLA) leave. On Smith’s FMLA application her doctor stated that Smith was presently incapacitated and was unable to work until she received further notice by a doctor. Smith stated on her application for disability benefits under PERS that she was completely unable to work due to her injury.

However, during this time Smith also negotiated with the school over when she could return to work. Smith claimed that she could work as a literary specialist but not as a teacher. The district offered Smith a position as a teacher with accommodations, but not a literary specialist position. Smith declined this offer.

Smith then sued the school in federal court alleging violations of ADA for failing to provide her with reasonable accommodations for the literary specialist position. The court dismissed the lawsuit because Smith stated that she was permanently disabled, meaning she could not do the work.

The Ninth Circuit’s Decision

When the case reached The Ninth Circuit, they reversed the decision. The mere fact that Smith had made inconsistent statements in the PERS application was not seen as conclusive that she was totally disabled and could not perform essential job functions. In other words, the fact that Smith was totally disabled for the purposes of PERS disability benefits, but at the same time told the district that she could perform the duties of a literary specialist could not be used against her. The reasoning was because the claim for disability benefits under PERS did not take into consideration whether reasonable accommodations could make employment a possibility for Smith.

If you have experienced disability discrimination, you may be entitled to compensation. To learn more contact Michelle Baker at Baker Law Group, LLP. Schedule your free consultation today by calling (858) 452-0093.

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Supreme Court Limits Employee Retaliation Cases

Natl Origin DiscriminationThe U.S. Supreme Court decided a case that will have a significant impact on retaliation cases under Title VII of the Civil Rights Act of 1964. Generally, an employee can sue an employer if the employer made a decision about the employee and the motivating factor was based on race, color, religion, sex, or national origin under federal anti-discrimination law, even if motivating factors were also present. However, the language of the statue does not specify that the same language regarding the decision being only a “motivating factor” applies to cases of retaliation. A charge of unlawful retaliation can be brought “because [the employee] has opposed any practice made an unlawful employment practice by [Title VII], or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].”

Up until now, courts have been split as to whether to interpret the cause of retaliation in the same way the cause of a direct discrimination act.

The Case: University of Texas Southwestern Medical Center v. Nassar

In the case of University of Texas Southwestern Medical Center v. Nassar, Nassar, a doctor of Middle Eastern heritage complained that he had experienced harassment due to his race. However, after he made the complaint he alleged that he suffered retaliation from his employer because of his complaints. He filed a retaliation lawsuit and won based on the jury instruction that the complaint he made only needed to be a motivating factor for suffering retaliation. The employer appealed the decision all the way to the Supreme Court.

The Supreme Court found that the law governing Title VII was originally based in the law of personal injury (Tort law). Tort law generally requires that a party prove that if it were not for the act of one party, the damage would not have resulted. As a result the court concluded that the lesser motivating factor requirement was incorrect. The court found that the correct standard is the higher, “but-for”, standard.

What The Ruling Means:

This finding essentially means that an employee must show that retaliation occurred because of an employee’s complaint. If there were other legitimate motivating factors for an employer’s actions after the complaint, the employer can escape liability for retaliation. This ruling will affect a wide variety of retaliation claims, including sex discrimination, race, and potentially even other discrimination law that is based on Title VII.

Employment discrimination law is a complex area that involves both employment and tort law. Having an experienced employment attorney on your side is vital to a successful discrimination lawsuit. The employment lawyers of Baker Law Group, LLP can help you if you have been wrongfully discriminated against. To schedule your free consultation call (858) 452-0093 today.

 

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Reasonable Accommodation and the Interactive Process in Disability Cases

ADA ActOne of the biggest sources of conflict between disabled employees and their employers is deciding whether to grant an employee a reasonable accommodation as required by the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA).

What is the Interactive Process?

The interactive process is a shorthand way of describing the informal negotiations that occur between an employer and employee as they attempt to find a reasonable solution under ADA and FEHA. This process is critically important because if an employer fails to engage in the interactive process, the refusal to engage can be seen as a violation of disability law in and of itself.

Although there are no set guidelines for how the interactive process should work, it is critical that the employer take steps to work with the employee and to ensure that he or she is notified of the existence of a reasonable accommodation.

Problems that can arise during the interactive process include when the communications between employer and employee come to an impasse or breakdown. For example, if the employer refuses to discuss options or rejects accommodations without reason, despite the proposal being clearly simple fixes and not constituting an undue hardship. In these situations an employer may become liable for failure to engage in the interactive process under California law.

The Case of Wysinger v. Automobile Club of Southern California

For example, in the case of Wysinger v. Automobile Club of Southern California (AAA) (2007) 157 Cal. App. 4th 413 an employee, Wysinger, suffered from lupus and rheumatoid arthritis. After his employer AAA instituted plans to reduce the pay of senior employees, he filed an age discrimination claim and also a claim that the employer failed to reasonably accommodate his disabilities because it failed to discuss options in reducing his commute time. Wysinger had requested a transfer in order to reduce his commute time; however AAA rejected this and did not raise any other possibilities.

The California Court of Appeals found that AAA could not rely on its rejection of Wysinger’s suggestion and claim that Wysinger had the burden to request other reasonable accommodations because it is not up to an employee to request multiple types of accommodation that an employer may choose from. The court upheld that under FEHA failure to engage in the interactive process can be seen as a separate claim from failure to provide reasonable accommodations.

If you have a disability and your employer or former employer failed to discuss reasonable accommodations with you after you told them you needed accommodation, you may be entitled to damages. To learn more, contact the experienced California Employment law attorney Michelle Baker. Schedule your free consultation today by calling (858) 452-0093.

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The Basics: Resolving a Lawsuit

If you are considering bringing a case against your employer, you may be envisioning a long and unpredictable battle in the courtroom. However, there are several ways that your disability discrimination or wrongful termination lawsuit may be settled, and not all lawsuits necessitate a formal courtroom trial.

When your employer discriminates against you and you decide to take action, the employer is subjected to major financial loss far beyond that any rational organization would care to lose. The cost to defend a disability discrimination or other wrongful termination lawsuit is astonishingly high. For example, defense attorneys in California may cost employers $450 per hour or more if the employer does not have the proper insurance. For these reasons it is often in the best interests of the employer to settle a pending claim without an expensive and potentially lengthy trial. That is not to say that every lawsuit will be settled out of court without trial, but the vast majority of non-frivolous lawsuits are. There are three primary ways to solve a discrimination lawsuit: negotiation, mediation, or arbitration.

Negotiation

Negotiation is a tactic that both sides will employ to get the case settled. There are many different styles and strategies of negotiation. Negotiation is often initiated with a demand letter, which may propose a formal negotiation meeting. If formal negotiations break down, negotiation can continue to play a key role in mediation.

Mediation

Mediation is when the employer and employee meet and discuss the merits of their positions with a neutral 3rd party, a mediatory. The mediator will question the parties and attempt to get the parties to rethink their approaches and come to a final mutually agreeable solution. This process is informal, and generally non-binding, unless the parties agree to write out a settlement agreement during the mediation.

Arbitration

Arbitration is similar to mediation but is much more like a trial, although the arbitration rules are less formal than traditional court hearings. Arbitration may be the first resort for many employment cases because many large employers require their employees to sign arbitration agreements that require the employees to forgo suing the employer in court, leaving arbitration as the only resolution process.

There are many legitimate reasons why arbitration is the least favored dispute resolution system for employees.First, the employer’s arbitration agreement may require that the arbitrator be chosen from a specific panel of arbitrators. Although the arbitrators will not have any interest in the employer in particular, the employer may be a repeat player in arbitration so the arbitrator may slightly favor the employer so that the employer continues using arbitrators from the selected panel. Although most large arbitration organizations can avoid this problem, smaller arbitration panels are more easily susceptible to this bias. Second, arbitration may not allow the employee the benefits of having full discovery, which would allow the employee to obtain evidence that he or she might not otherwise ever get to see. Finally, arbitration generally takes away the right to a jury trial.

To learn more about lawsuit or settlement options for your disability discrimination or wrongful termination lawsuit, contact California employment attorney Michelle Baker today. Schedule your free consultation online or call us directly at (858) 452-0093.

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Sleeping On The Job Must Be Paid For Security Guards

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

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

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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