Family and Medical Leave Act (FMLA): Federal and State Laws

Family and Medical Leave Act (FMLA):

Under the Family and Medical Leave Act, employees are allowed 12 weeks each year to care for the serious health condition of an employee,, their spouse, child, regardless of whether or not the child is natural or adopted, or other family member.

Under the California Family Rights Act, domestic partners are allowed to take the 12 weeks each year to attend to each others medical issues. California state labor laws allow employees to now receive partial wage replacement up to 6 weeks of leave.

Under California Labor Code Section 233, sick leave is not mandated. In fact, sick leave is similar to vacation time and holiday pay laws in that it is something that an employer may choose, at its discretion, to give its employees. However, if employers in California offer employees a sick leave policy, the employee must be given the option of using it as family leave.

Common Labor Law Violations Committed Against Computer Professionals

Although information and technology systems at first galvanized California’s workforce by creating many more jobs, it soon became apparent that the state’s computer revolution not only led to many more employment opportunities, but also to many more opportunities for employers to violate the state’s labor laws.  Nowadays, it has become a standard business practice in California for computer companies to commit illegal labor practices against computer systems analysts, computer programmers, software engineers and other similarly skilled workers in the computer field.

The employment law lawyers of Blumenthal, Nordrehaug & Bhowmik are known throughout the state of California- from Los Angeles to San Jose, Silicon Valley and the San Francisco Bay Area - for obtaining large settlements and judgments on behalf of computer employees. We primarily concentrate on helping employees in the computer industry collect:

·        Unpaid overtime wages and salaries

·        Wages and penalties for misclassifying skilled workers as exempt from overtime pay

·        Unpaid vacation time

·        Out-of-pocket work expenses such as equipment, tools, software, hardware, seminars, computer classes, licenses, training and other certifications 

·        Compensation for time spent “on-call” or standby time

·        Compensation for time spent working off-the-clock booting up and shutting down computers or working from home

Our employment law attorneys also focus on helping employees in actions to recover penalties for illegal employer activity. Employees working in computer and technology position can rely on us in cases of wrongful termination, harassment, discrimination and retaliation.

In order to pay computer employees a fixed salary and no overtime wages, it is the technology company’s burden to prove that the worker is exempt based on his or her job duties. To satisfy the computer exemption test, you must be a computer systems analyst, computer programmer, software engineer or other highly skilled employee. In addition, you must be a paid a guaranteed, high minimum salary each week.  Computer workers that manufacture, install, repair, maintain, troubleshoot or perform other repetitive tasks are entitled to premium overtime wages. Whether or not the employee is capable of high-skilled work, has a fancy job title or makes a salary is irrelevant. All that matters is what he or she is actually doing.

Pharmaceutical Sales Rep. Not Making Overtime? Call 858.551.1223 Today!

On July 6, 2010 the Second Circuit Court of Appeals ruled in In Re Novartis Wage & Hour Litigation that Novartis' pharmaceutical sales representatives did NOT meet the requirements of the administrative or outside sales exemptions.

On August 11, 2010, just a month later, the Federal Labor Department also known as the DOL filed an non-party friendly brief in the Ninth Circuit case of Buchanan v. SmithKline Beecham Corp., declaring that pharmaceutical sales representatives are NOT exempt under the outside sales exemption or the administrative exemption. The 9th circuit has not yet made a ruling, but it is highly anticipated that it will make a decision in favor of the sales representatives not being exempt from overtime.

In 2008, about 24 percent worked more than 50 hours per week. See http://www.bls.gov/oco/ocos119.htm.  Employment of sales representatives, wholesale and manufacturing, is expected to grow by 7 percent between 2008 and 2018. http://www.bls.gov/oco/ocos119.htm. So as you can see, damages and substantial and only likely to increase.

The theory behind the sales reps not being exempt, in its most basic form, is this: The [reps] do not sell any [drugs] or obtain any orders for [drugs]. At most the [sales reps] can get the [doctors] to make a non-binding promise that they will [prescribe patients] the [drug]. As a result, the sales reps do not satisfying the sales exemption test because they are promoting rather than “Making sales.” 


At Blumenthal, Nordrehaug & Bhowmik, our California employment law attorneys represent Pharmaceutical Sales Representatives in actions for unfair employer practices such as discrimination, wrongful termination, harassment and unpaid overtime wages.

Employee Reporting Back to Work for Second Shifts? Contact Experienced Overtime Wage Lawyers

Reporting time compensation, commonly known as "call back pay" provides wages to nonexempt employees who report to work but are permitted to work less than half the hours of their regular shift due to scheduling conflicts or inadequate notice by the employer. Employees must be paid for half the usual or scheduled day's work, but in no event for less than 2 hours nor more than 4 hours, at their regular rate of pay. Wage Order Nos. 1-2001-16-2001, §5(A) (8 Cal Code Regs §§11010-11160, §5(A)); see §5(C)-(D) for exceptions.

If an employee is required to report for work a second time in any one workday and is furnished less than 2 hours of work on the second reporting, the employee must be paid for 2 hours at the employee's regular rate of pay. Wage Order Nos. 1-2001-16-2001, §5(B) (8 Cal Code Regs §§11010-11160, §5(B)).

At Blumenthal, Nordrehaug & Bhowmik, our California employment law attorneys represent workers who are called back for second shifts in a single day but not given extra compensation for that reporting time. Additionally, our experienced overtime wage lawyers represent loss prevention and other similar employees.

Mutable Timekeeping Systems

Often times, employers use mutable timekeeping systems. These are problematic for two reasons. Foremost, mutable timekeeping systems are problematic because the timekeeping systems are not capable of recording and reporting all of the hours that employees work. Second, these types of mutable timekeeping systems are problematic because they are subject to manipulation.

1. Timekeeping Systems Not Capable of Tracking Your Hours
In California, employers are suppose to pay non-exempt employees one and a half times their regular rate of pay for all hours worked in excess of 8 hours in a workday, 40 hours in a workweek, or the first 8 hours of work on a seventh consecutive day or work. In addition, employers are required to pay non-exempt employees double the regular rate of pay for working more than 12 hours in a single workday or for working more than 8 hours on a seventh consecutive workday.

When employers have mutable timekeeping systems, often times the timekeeping systems are not capable of tracking all of the overtime hours that employees work. This is particularly the case when employees are required to perform job duties for their employers away from the employers place of business.

2. Timekeeping systems subject to manipulation.
 The second major problem with these mutable timekeeping systems is that they are subject to manipulation. As a result, managers and supervisors can alter the amount of time that employees work. For instance, suppose you worked 9 hours in a workday. The manager can go into the time system and mark it down as though you worked 8 hours. Then the employer can try to make a comp time deal with you, saying something like "you worked an extra hour yesterday so you can leave an hour early today." However, this is a problem because the employee should be receiving overtime wages for working 9 hours the previous day.

At Blumenthal, Nordrehaug & Bhowmik, our employment law attorneys represent workers throughout the state of California in actions to recover wages from employers based on the employer's illegal pay practices.

Call (858) 551-1223 in San Diego, Los Angeles, or Northern California.

Administrative Exemption Under California Labor Laws- Are you Misclassified?

Industrial Welfare Commission, ICW Wage Order No. 4, and California Labor Code Section 515 lays out the requirements which must be complied with to classify an employee as exempt from applicable labor laws. For an employee to be exempt from these rules as a bona fide “administrator,” all the following criteria must be met and the Employers have the burden of proving that:

(a) The employee must perform office or non-manual work directly related to management policies or general business operation of
                 the employer; and,
(b) The employee must customarily and regularly exercise discretion and independent judgment; and,
(c) The employee must regularly and directly assist a proprietor or an exempt administrator; or,
(d) The employee must perform, under only general supervision, work requiring special training, experience, or knowledge, or,
(e) The employee must execute special assignments and tasks under only general
supervision; and,
(f) The employee must be primarily engaged in duties which meet the test of exemption.

Executive Exemption under California Labor Law

The Industrial Welfare Commission, ICW Wage Order No. 4, and Labor Code §515, sets forth the requirements which must be complied with to classify an employee as exempt from applicable labor laws. For an employee to be exempt from these rules as a bona fide “executive,” all the following criteria must be met and Employers have the burden of proving that:

(a) The employee’s primary duty must be management of the enterprise, or of a customarily recognized department or subdivision;
                and,
(b) The employee must customarily and regularly direct the work of at least two or more other employees; and,
(c) The employee must have the authority to hire and fire, or to command particularly serious attention to his or his recommendations
                on such actions affecting other employees; and,
(d) The employee must customarily and regularly exercise discretion and independent judgment; and,
(e) The employee must be primarily engaged in duties which meet the test of exemption.

If you think that you or your fellow employers currently are or formerly were misclassified as exempt from overtime wages based on the executive exemption, you may be entitled to overtime wages for all of the hours you worked. It does not matte if your employer classified you as an exempt salaried employee if you were misclassified. Visit http://www.bamlawca.com for further information on the executive exemption.