The Five Most Common Wage and Hour Labor Law Violations
/It is not uncommon for employers violate state wage and hour laws. After all, most big businesses in the state of California have committed illegal pay practices. These are probably the 5 most typical and reoccuring violations of overtime laws by employers.
1. Paying employees in California a fixed salary without overtime pay is a violation of California law. This is probably the biggest misconception. Even though many employers trick employees into thinking that they are not entitled to overtime compensation and meal and rest breaks, employees must be aware of the fact that a salary by itself does not preclude workers from making overtime pay.
2. Another major problem involves tricking highly skilled professionals into thinking that they are going to have a job under which they can exercise independent discretion and judgment but in reality the company has simply violated state overtime pay laws by misclassifying the employee as exempt.
3. The third most common wage and hour violation in California involves illegal timekeeping systems. Many companies in the state have been caught changing the hours employees work in violation of CA Law.
4. Failing to reimburse employees for work-related expenses incurred while working for the employer, whether it be gas mileage or something, has become a very prevalent and reoccuring labor law violation committed by employers.
5. Unpaid vacation time and waiting time penalties. When an employee is terminated and not paid all of the vacation time the employee earned under over the years of his or her employment, the business is violating the Labor Code. For these common vacation pay violations, employees can get waiting time penalties since vacation time is considered earn "wages" for purposes of California law.
California Overtime Laws: Reporters and Journalists are supposed to be paid Overtime, says the Ninth Circuit
/On September 27, 2010, the Ninth Circuit in Wang v. Chinese Daily News, 623 F.3d 743 (9th Cir. Cal. 2010) disagreed with the newspaper company, upholding violations of wage and hour laws committed against newspaper reporters and journalists. The California district court originally found that the newspaper company violated state labor laws by failing to give newspaper reporters labor law breaks and the newspaper company failed to pay the reporters proper overtime pay as required by state and federal wage and hour laws.
The newspaper company argued that it was not required to pay newspaper reporters overtime compensation for working more than 40 hour weeks under the Fair Labor Standards Act because the newspaper reporters meet the test of the creative professional exception to federal and state overtime laws. Federal wage and hour laws exempt certain companies from paying overtime compensation to professional white collar workers. To qualify as an exempt professional under federal overtime law, a newspaper reporter must be paid at least $455 every week and the reporters "primary duty" must be the performance of work involving invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.
Reporters journalists are entitled to overtime compensation when they perform job duties involving routine mental, manual, mechanical or physical work. California wage and hour law, with respect to overtime rules for professional employees and reporters, is similar to overtime laws under the Fair Labor Standards Act in that a professional employees is one who is primarily engaged in the performance of work that is original and creative in character in a recognized field of artistic endeavor and the result of which depends primarily on the invention, imagination, or talent of the employee.
The Obama Administration has chimed in on this issue about overtime pay for professional employees and reporters. The Department of Labor takes the position that journalists and reporters are required to be paid overtime compensation when they perform job duties that are limited to collections, organizing and putting data into a computer or other system. In order for newspaper reporters and journalist to be denied the benefits of state overtime laws and federal overtime laws, the employees must perform job duties that involve creation, imagination or ability. Reporters and journalists are entitled to overtime compensation under wage and hour laws when their work is routine and clerical in nature, rather than creative.
California Wrongful Termination Laws
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Furthermore, even where an employer does not actually terminate an employee, an employee can still bring an action for wrongful termination under California labor laws using the theory of constructive discharge. In order for an employee in California to successfully bring a claim for constructive discharge, the employee must be able to show that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable person in the employee’s position would be compelled to resign. If the employee can prove that the working conditions were truly intolerable, the employee may be able to recover damages under the constructive discharge theory for a violation of state labor laws.
Pursuant to California wrongful termination laws, constructive discharge occurs when the employer's conduct effectively forces an employee to resign. Although the employee may ultimately say, "I quit," the employment relationship is actually terminated involuntarily because the employer has intentionally created an intolerable working environment for the employee, against the employee's will and against California labor laws. As a result, under California labor laws, a constructive discharge is legally regarded as a firing rather than a resignation.
Even though employees can sue employers for wrongful termination under California labor laws based on a constructive discharge theory, an employee cannot simply quit and sue the employer. The conditions giving rise to the employee’s resignation must be sufficiently extraordinary and egregious, known as intolerable in the legal work, to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer. Under California state employment laws, an essential component of a constructive discharge lawsuit against an employer is that the hostile working conditions must be so intolerable that any reasonable employee would resign rather than continue to work for the employer.
Why California Employers can actually Benefit by Violating State Labor Laws
/The California class action lawsuit statute entices employers to commit Labor Code violations in two respects. Foremost, businesses can benefit from paying improper wages and taxes and trounce liability all together without ever arguing whether or not a violation was indeed committed. To achieve certification under California’s class action statute, the following requirements must be satisfied: (1) the parties must be numerous; (2) there must be an ascertainable class; (3) there must be a well-defined "community of interest" in the questions of law or fact affecting the parties to be represented; and (4) class treatment of employees' claims must be superior to other available methods for the fair and efficient adjudication of the controversy. The “community of interest” requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. The law requires employees to move for class certification before the action proceeds on the merits.
Employers have developed many effective techniques to manipulate these requirements to beat class certification. One approach employer’s use is to focus the court's attention on the credibility and sufficiency of the evidence. For example, employers often proffer individual anecdotal stories of liability, reshape the employees' theory of the case, and then claim that individual issues predominate. Moreover, opponents to certification use the “bait and switch” technique to confuse the trial court as to the issues of the case. In one case, for instance, the employer successfully convinced the court to deny class certification since the work of employees varied week by week and assignment to assignment. Moreover, employers can defeat class certification even where employees meet the numerosity, typicality, commonality, and adequate representation requirements.
The second incentive to commit Labor Code violations is that losing the certification battle does not mean the employer loses the lawsuit. Conversely, employers can still benefit since a class settlement, absent the assessment of civil penalties, can be a discount on labor received. California courts presume settlements are fair. Class counsel often persuades the class to settle due to the fact that it generally takes the case on a contingent fee and hopes to cash in on the investment. Since discovery with respect to certification is limited, attorney’s fees are not too costly at this point in the litigation. Thus, employers can pay the representative employees and attorneys handsomely to agree to the settlement, but pay the class members quarters on the dollar.
This means that even when they lose the certification battle and decide to settle, employers still benefit financially. Employers are aware of this economic advantage of operating in the underground economy without being subject to civil penalties, as can be seen from the huge percentage of businesses that operate in violation of the Labor Code. In fact, employers even flout the fact that they violate California wage and hour laws and have been able to get away with the violations for such a long time.
California Overtime Laws- What time Should You get Paid for Working?
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California typically defines work time somewhat more broadly than the Fair Labor Standards Act. While under federal employment law work time is paid when a company suffers or permits the employee to perform job duties, the state of California widens work time to include all that which a company suffers, permits, or “controls.” Set out below are the circumstances in which California’s broader definition of work time produces a different result.
California’s bigger description of work time, as that which a company suffers, permits or “controls,” has been construed to make extended commute time on company buses paid hours of work where the company requires workers to ride on the buses. Under the Fair Labor Standards Act, travel as a passenger outside of the regular workday on an overnight trip is not considered to be work time. The time spent by workers on company-provided shuttles from a parking lot to a work site was found not to be paid where the workers did not have to ride the shuttles from parking lots to work, but could be dropped off at the work site.
On-call time is not paid if the employee can use the time spent on call primarily for his or her own benefit. Considerations in determining whether on-call time is work time for purposes of California wage and hour laws are geographical restrictions on the employee’s movement, required response time, nature of the employment relationship, including industry practice, and any other limitation on the employee’s ability to use the time for his or her own benefit. In determining whether on-call time is work time, the state does not give any deference to whether the company and employee have agreed to consider the on-call time to be noncompensable.
California labor laws do not specifically exclude from work time certain activities that are excluded from work time under the Fair Labor Standards Act. The activities which are excluded from work time under the Fair Labor Standards Act but not California state labor law include preliminary and after-work activities, commuting time in company-provided vehicles, and clothes changing and wash
CALIFORNIA DISABILITY DISCRIMINATION LAWS
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Under California labor laws, namely California's Fair Employment and Housing Act, "reasonable accommodation" for purposes of handling employees with disabilities in the workplace is not clearly defined but instead explained through certain examples. The Americans with Disabilities Act governs the federal approach for workplace disability rights. The definition of the “reasonable accommodation” that California employers are required by law to give employees with disabilities in the state are virtually identical under both California’s Fair Employment and Housing Act and the federal Americans with Disabilities Act.
California law affirms that employers are not allowed to bar or to discharge an employee from employment or to discriminate against employees by demoting or disciplining them based on physical disability because doing so can constitute a violation of California labor laws. compensation or in terms, conditions, or privileges of employment. However, it is important to distinguish this type of illegal employer conduct from times when the employer fires an employee that happens to have a physical or mental disability and is not capable of adequately completing the work even though the employee is given reasonable accommodations, which would not be considered a violation of employee rights and state labor laws.
Under California Labor Laws and the Americans with Disabilities Act, California employers are not allowed to fire an employee based on a physical disability even though the employee is able to complete the job with reasonable accommodations. In the event that an employer violates the labor law by discriminating against workers with physical or mental disabilities, in order to win a lawsuit for money and damages, the employee must be able to prove that the employer in fact fired the employee because of the employee’s disability and that the employee could perform the essential functions of the job with or without accommodation.
Under the Americans with Disabilities Act, employees must show that they were a qualified individual with a disability if they want to sue their former employer for violating the employment rights of workers with disabilities. Under federal law, in the event that the workers tries to get an accommodation by getting reassigned to an open job in another area of the company, the workers can satisfy the "qualified individual with a disability" requirement if the worker can show that he or she is able to complete the critical jobs of the open job position with or without accommodation. Additionally, for the employee to recover money under Federal laws governing employee with disability rights, the worker must prove that the job applied for existed and that it was not a promotion for the employee to get the job but instead an equivalent job position.
