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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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How Long do You Have to File a Disability Discrimination Lawsuit?

Employee Discrimination , , , , , , , ,

CA Labor board claims_HOMEIf you are currently deciding whether or not to file a disability discrimination lawsuit against your current or former employer, know that there are time limitations you should be aware of regarding your legal complaint.

An employee must first receive a right to sue letter from the Department of Fair Employment and Housing (DFEH) prior to filing a disability discrimination lawsuit. An employee generally has 1 year from the time of the violation to file this charge. This 1-year period is known as the first statute of limitations. After receiving the “right to sue” letter, an employee has another 1-year period within which he or she can sue the employer. This is known as the second statute of limitations.

As with any law, there are exceptions, and they can get rather complicated. There are two major exceptions to these rules: the continuing violations doctrine and equitable tolling.

Continuing Violations Doctrine

The Continuing Violations Doctrine essentially depends on whether the incident was “discrete” or “ongoing.” The doctrine allows employees to bring a charge to DFEH more than 1 year after discrimination occurred if the charge involves continuing discrimination and is brought within 1 year after the discriminatory behavior stopped. For most one-time instances of discrimination, such as firing or failing to hire or promote, the continuing violations doctrine will not apply. The doctrine will only apply to cases where discrimination is ongoing to a specific individual, even if most of the discrimination occurred more than 1 year before filing a charge. In practice, this usually means that the 1 year period does not actually start running until the employee quits, is terminated, or the employee responsible for the discrimination is terminated or leaves.

Equitable Tolling Doctrine

The Equitable Tolling Doctrine is a principal created by judges that seeks to impose fairness on statutes of limitations. It can potentially apply in many situations; however in practice it is usually effective in two specific situations. The first is when an employee files a charge with the federal equivalent of DFEH, the Equal Employment Opportunity Commission (EEOC). If DFEH gives the employee a right to sue letter, but the employee also files a charge with the EEOC, the 1 year period does not run for the duration of the EEOC’s investigation.

The second situation is when the employee is following internal grievance procedures. For example, if an employee suffers disability discrimination, they may bring a formal grievance charge, which will prevent the 1 year period from running during the pending grievance. However, there are limitations. The grievance system must have a hearing where the employee is able to present their claim and evidence of the discrimination.

Contact a Discrimination Disability Lawyer

To learn more about your rights under disability discrimination law, call California employment attorney of Michelle Baker today. Give us a call at (858) 452-0093 or use our online submission form to schedule a Free Consultation.

 

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EEOC Wins Case for Man With Disabled Family Member

Employee Discrimination , , , , , , ,

Age discriminationA recently settled case out of Texas demonstrates that if you have a disabled individual in your immediate family, you may qualify for protection under the Americans with Disabilities Act (ADA). The case clearly demonstrated that an employer may not base his or her employment decisions on your association with the disabled family member.

The Case: EEOC v. DynMcDermott Petroleum Operations Company

In EEOC v. DynMcDermott Petroleum Operations Company, an employee worked for DynMcDermott (DM) as a planner and scheduler. He was laid off in 2003, but was later encouraged to reapply in 2007 after his wife developed terminal cancer. He applied, and the supervisor, Ray Wood, identified the former employee as the best qualified candidate. However, the site director, Tim Lewis, believed that the former employee should not be rehired because of his wife’s cancer, which would require him to spend time at home, and because he believed DM had too many older employees already. At the time the former employee was 56.

The site director then sent an email to the former employee explaining that even though others had wanted to hire him, he could not be hired because of his age, health problems, wife’s cancer, and former attendance problems. Wood told Lewis that the actions were illegal; Lewis disciplined Wood for insubordination as a result. But Wood nevertheless scheduled an interview with the former employee, who was allegedly the only qualified applicant. Nevertheless, another applicant, who was 34 years old was also interviewed and received the job offer.

A Violation of the Americans with Disabilities Act

The Equal Employment Opportunity Commission (EEOC) then brought a lawsuit on the former employee’s behalf, alleging the DM had violated the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act. During the lawsuit, the site director admitted that when the employee worked for DM he had not had attendance problems.

DM first won the case at the district court, which based its ruling on the fact that Wood made the actual hiring, rather than Lewis. However, the 5th Circuit Court of Appeals reversed the decision, requiring the case to go to a jury because as Wood’s supervisor, Lewis exercised a significant amount of influence over Wood. The 5th Circuit believed that it was enough that Lewis mentioned the former employee’s disabled wife and age as factors in the decision.

This case demonstrates that one does not need to be disabled in order to qualify for protection under ADA. Association with a disabled person is enough to qualify for protection. To learn more about your rights under disability discrimination law, contact California employment attorney Michelle Baker today. Call us at (858) 452-0093 or use our online form to schedule 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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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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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.