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Claiming Punitive Damages in Discrimination Lawsuits

CLC 510What are punitive damages and when can you claim them? Punitive damages are damages designed to punish an organization or individual for particularly bad behavior and deter them from doing it in the future. Punitive damages are possible to receive in employment discrimination lawsuits. However, these damages require a very high level of proof, including the following requirements.

Punitive Damage Proof Requirements

The first requirement is that the employer acted with oppression, fraud or malice. This must be shown with clear and convincing evidence. Clear and convincing evidence is a higher standard than the typical burden of proof in a civil case. Generally, to prove anything to the court requires a preponderance of the evidence, which means that the weight of the admissible evidence rests on your side; in other words it was more likely than not true. By contrast clear and convincing evidence requires that the admissible evidence shows a high probability that what you accuse occurred.

California Civil Code § 3294 defines more explicitly what oppression, fraud, and malice are. Oppression is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Fraud means an intentional lie, misrepresentation, or concealment of an important (“material”) fact that was made in order to deprive the person of their property of legal rights. Malice means acts where the employer intentionally caused injury to the plaintiff or acted despicably with a “willful and conscious disregard of the rights or safety of others.”

Should You Claim Punitive Damages?

In summary, unless the employer intentionally lied about an important fact to deceive the employee, committed some other fraud, or intentionally tried to injure the employee, the employee must show that the act of discrimination was despicable. Despicable means conduct that is so bad that it would be looked down upon and despised by ordinary decent people. Some examples of despicable conduct include conduct that is intended to humiliate an employee and force them to quit. It generally requires more than 1 act. For example in McGee v. Tucoemas Fed. Credit Union (2007) an employee with cancer was able to win punitive damages after the employer refused to give the employee extended leave after cancer treatment surgery, cancelled the employee’s medical insurance, and demoted the employee.

An employee must also prove with clear and convincing evidence that the employer either authorized the discrimination or learned of the discrimination and did nothing to prevent it; effectively ratifying the discrimination.

If you have been discriminated against due to your disability or perceived disability contact California employment law attorney Michelle Baker right away. Schedule your Free Consultation today or call us at (858) 452-0093.

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Addressing Unpaid Time Off

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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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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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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Is Failure to Pay Wages Equal to Wage Theft?

California and Federal law requires employees to be paid for work performed, in the amount of at least the minimum wage, as well as any applicable overtime. Unfortunately, many employees are not paid at the rates they should be. Many believe that when employers do this, it is tantamount to stealing their workers wages because the employees have rightfully earned them, making the wages the property of the employee. By keeping this property it is no different than taking the money right out of their wallet.

The California Labor Commissioner in particular is fond of using the expression wage theft. In a recent case the commissioner filed a mechanic’s lien to recover more than $240,000 in unpaid wages from 31 construction workers at a Holiday Inn Express in Eureka California. The construction contractors were not properly licensed contractors, and had been purposefully misclassified as independent contractors in order to avoid properly paying them for every hour worked and to avoid paying overtime.

This action was taken as a part of the Labor Enforcement Task Force (LETF), an agency formed by members of the Labor Commissioner and Cal-OSHA offices to tackle labor and employment law violations in the underground economy. The complaint against the employer was first filed to the LETF by the local Carpenters Union.

The investigation also uncovered significant workplace safety violations, including unsafe scaffolding, ladders, and training, which totaled up to $27,000 alone in workplace safety citations on top of the $247,681 in unpaid wages. One reason the amount of unpaid wages was so high for workers on this single project is because the workers were paid with checks that bounced, and the employer also violated meal and rest break requirements.

The mechanic’s lien placed on the property will be used to ensure that the workers will be paid for all the time they are owed, and that the fines and assessments for the violations of the labor code are also paid off.

This case shows the problems of working in the underground economy. Business who try to operate under the radar of regulatory agencies often do so in order to cheat their workers and avoid paying income taxes. If your employer has committed wage theft against you, contact the experienced California employment attorneys of Baker Law Group, LLP today. Call (858) 452-0093 to schedule a free consultation.