Retaliation In the Workplace

Under federal and state laws, employees are protected from employer retaliation in the workplace. In California, retaliation is considered to be “any adverse employment action resulting from an individual opposing practices prohibited by the FEHA or an individual who filed a complaint, testified, assisted or participated in any manner in an investigation, proceeding or hearing conducted by the Fair Employment and Housing Commission (FEHC) or Department of Fair Employment and Housing (DFEH) or their staffs.” If an employee wants to establish the basic components of a case of retaliation, they must show that they engaged in a “protected activity”, experienced a negative employment action, and that there was a link between the protected activity and the negative employment action. After these components have been established, the employer must offer a legitimate reason for the adverse employment action. If the employer is successful in offering a legitimate reason, then there is no longer a presumption of retaliation. The burden will then move to the employee who wrongfully tried to prove retaliation.

Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Equal Pay Act (EPA) are federal laws that prohibit retaliation in the workplace. Retaliation made by an employer, employment agency, or labor organization that resulted from an employee’s involvement in protected activity is forbidden by these laws. According to a United States Supreme Court ruling, a retaliation claim under Title VII of the 1964 Civil Rights Act could surface from any employer action that would discourage an employee from making a charge of discrimination.

Claims of retaliation in the workplace are growing. Nearly 25 percent of the claims filed with the U.S. Equal Employment Opportunity Commission (EEOC) are based on retaliation. Essentially, they are growing because retaliation is easier to substantiate than discrimination, and juries are more likely to believe that someone would retaliate than discriminate. When there is a short amount of time between when an employee files a workers’ compensation claim and gets fired, retaliation is easy to prove. Discrimination cases do not involve this shortcut of proof. In order for employers to protect themselves from retaliation claims, they must ensure that their management treats employees fairly when they file claims against the company. Furthermore, they should seek legal counsel before terminating an employee. Above all, employers should communicate to their employees that they have the protected right to complain about an issue involving their employment.

Wage and Hour Laws

Wage and hour laws employment law attorneys of Blumenthal, Nordrehaug & Bhowmik are known throughout the state for our success on wage and hour claims of all kinds. Our experience with litigation over unfair compensation issues can help ensure that we identify all of the available claims for back pay that apply to an employee's situation, not just the most obvious ones. Contact us for a free consultation about the full range of your claims for compensation.

The Full Scoop on Labor Laws Breaks

Many employees and employers are unclear about labor laws breaks, which often lead to inadequate time taken by the employee. Regarding meal breaks, the employer must provide a break of at least half an hour for every work period which is longer than five hours. The meal break must begin no later than four hours and 59 minutes into the employee’s shift.

The employee can only voluntarily choose not to take the meal break if the shift is less than 6 hours long. Additionally, meal breaks can be unpaid if and only if the following conditions are met: the breaks are less than 30 minutes long; the employee is relieved of all duty; and the employee is free to leave the premises. Of course labor laws breaks permit meal breaks to be longer than 30 minutes, at the discretion of the employer.

According to labor laws breaks, a second meal break of no fewer than 30 minutes must be supplied for all workdays on which an employee works over 10 hours. To summarize the labor laws breaks discussed thus far, the following number of meal breaks must be supplied: o meal breaks for any hours worked between 0 and 3 hours; 1 meal break for any hours worked between 3 and 10 hours (although it is optional for the employee up to the 6th hour); and 2 meal breaks for any hours worked between 10 and 18 hours (2nd break is optional for the employee if they work between 10 and 12 hours).

If the employer fails to provide a meal break and consequently violates labor laws breaks, they owe the employee one additional hour of pay at the employee's regular rate for each meal break missed. It is therefore up to the employer to ensure that employees actually take meal breaks.

How is Vacation Pay Earned and When can You Use it?

Vacation pay is an optional employee benefit which is chosen by the employer. However, if the employer chooses to offer vacation pay, they must comply with certain laws and regulations. Vacation pay is technically considered a form of wages, since it is earned based on the number of hours worked. Therefore, a contract between the employer and employees is created which bounds the employer to certain laws. Although the employer can set a cap on the amount of unused vacation time, instigating a “use-it-or-lose-it” policy is not allowed.

Employers must allow employees to use earned vacation, or they can compensate employees with vacation pay for those hours not used. Of course, employers are permitted to put a limit on the amount of vacation time used at any one point of time. When employers offer vacation pay instead of actual time off in order to prevent vacation time from being carried over from year to year, all terms agreed upon must be followed.

Upon termination or voluntary departure of an employee, the employer is required to compensate him or her for all unused vacation pay due to the fact that vacation pay is considered a form of wages. Even if the employee was not yet eligible to use that vacation time, he or she must still be paid for all vacation pay earned up to that point. For example, employees may start earning vacation time immediately after the date of hire, but be required to work for a year before using any vacation. Still, if the employee is terminated or quits after six months, the employer must compensate him of her for all vacation pay earned within those first six months.

California Minimum Wage

The minimum wage has been increasing over the last decade. It is important to stay up-to-date on the current minimum wage because the state and federal minimum wages are not always the same.

Effective January 1, 2008, the minimum wage in California is $8.00 per hour. As of July 24, 2009, the federal minimum wage is $7.25 per hour. Always comply with the higher minimum wage, which is California’s in this case. Local “living wage” ordinances vary, therefore, you may have to pay more than the minimum wage in certain cities and counties. A “living wage” is defined as “a wage sufficient to provide the necessities and comforts essential to an acceptable standard of living.”On the federal level, the Fair Labor Standards Act (FLSA) necessitates minimum wage payment to employees who work in any workweek.

On the state level, the California Wage Orders insist that every employee must receive at least the minimum wage per hour for all hours worked. According to a California appeals court, it is unlawful to average the hourly rate of the California and federal minimum wages.Some employees can be paid less than the minimum wage in rare cases, but as a general rule, the California Labor Code mandates that employees are paid minimum wages.

Based on the IWC Wage Orders, it is legal to pay “learners” 85 percent of the minimum wage. “Learners” are employees who do not have previous similar or related experience in their current occupation. After 160 work hours, state law requires the “learners” to be paid at least minimum wage. If an employee is under 20 years old, the federal law allows payment of subminimum wage, or “opportunity wage”, for their first 90 consecutive calendar days of employment. It is unlawful to replace employees or reduce employees’ wages, hours, or benefits in order to hire a youth who could be paid below the minimum wage.In San Francisco, the minimum wage is higher than the state minimum wage. The hourly minimum wage is $9.92 per hour, which was effective January 1, 2011.

The city minimum wage became indexed and will increase from year to year based on increases in the Consumer Price Index (CPI). Employers who violate the minimum wage ordinance are subject to penalties. It is important to note that the San Francisco minimum wage only applies to nonexempt workers, which are employees who are paid on an hourly basis. It is state-mandated that an exempt employee is paid at least two times the state minimum wage. The current minimum monthly and annual salary requirements for exempt employees are $2,773.33 and $33,280.

Exempt vs. Non-Exempt: Claims Examiners

Exempt vs. Non-Exempt: Claims Examiners

Under the Fair Labor Standards Act, a workers employed in an "administrative capacity" means any employee whose duties and responsibilities involve the performance of work directly related to management policies or general business operations. Under this language, a person is employed in an administrative capacity and exempt from the reach of overtime pay laws when the employee's job duties and responsibilities involve the performance of office or non-manual work directly related to general business operations of his or her employer or the performance of office or non-manual work directly related to general business operations of his or her employer's customers.

Claims Adjusters Overtime Cases

Recently, the issue of whether or not claims examiners and adjusters are exempt vs. non-exempt from overtime pay laws has come under scrutiny by the courts. The California Supreme Court took on a case called Harris vs. Liberty Mutual, in which the claims examiners for Liberty Mutual claim that the company violated the Fair Labor Standards Act and/or California Labor Code by classifying the claims examiners as exempt despite the fact that the claims examiners do not perform exempt job duties. On Monday October 3, 2011, the California Supreme Court listed to oral argument in Harris vs. Liberty Mutual.

The claims examiners rely on prior California cases that found that claims examiners are non-exempt, meaning that they should be paid for all hours worked in excess of eight in a day and 40 in a week at one and a half times the claims examiners' regular rate of pay. In these previous cases that dealt with workers' compensation claims, the adjusters were deemed non-exempt because they could not exercise independent discretion and judgment, which is the touchstone of the administrative exemption. The reason they could not exercise the requisite discretion and judgment is because California has very strict workers' compensation laws and the claims adjusters were only allowed to fill out standard template forms and follow strict company guidelines as opposed to making their own decisions about whether or not a claim should be accepted.

Extremely poor work conditions inside Amazon warehouse

Elmer Goris, an Allentown, Pennsylvania resident, quit working at an Amazon.com warehouse because of shockingly harsh work conditions. Goris reports that he quit after only a year of working for the world’s largest online retailer. He said that the heat and mandatory overtime demands made the job too difficult to work. The work conditions got extremely harsh this summer when there was a heat wave in Allentown.

Goris reports that temperatures continually exceeded over 100 degrees in the warehouse. "I never felt like passing out in a warehouse and I never felt treated [so terribly] in any other warehouse but this one," Goris said.Goris is not the only one dissatisfied with this particular warehouse. Interviews with 20 other warehouse workers revealed similar experiences with the harsh work conditions. They reported that they were enforced to work at an unsustainable pace in extremely brutal heat.

The employees were commonly threatened with termination if they did not meet the high productivity expectations. The heat was so intense that Amazon arranged for there to be ambulances outside of the warehouse in order to treat employees that had fainted. On a hot summer day, it was not uncommon for an employee to be taken out of the facility in a wheelchair or on a stretcher.Catherine Ruckelshaus, legal co-director of the National Employment Law Project, thinks that Amazon has been getting away with these harsh work conditions because people are eager to gain employment at whatever job they can due to the weak economy. Therefore, the announcement of the opening of the Pennsylvania warehouse, where Goris worked, was seen as particularly good news.

Megan Couch, an Amazon spokeswoman, said: "Our employees' safety is a top priority for us, and the focus on employee safety from Amazon leadership is impressive. We support our employees with a variety of programs to ensure their well-being, including light duty and leaves of absence."Amazon followed the proposals of the Occupational Safety and Health Administration in order to improve work conditions.

The proposals included adding fans, giving more breaks, and keeping the employees more informed about the heat index.Amazon has also been entangled in a disagreement with California lawmakers over a mandate to collect sales tax on online purchases made by California customers. However, Amazon recently agreed on backing a second law in which they would start collecting California sales taxes starting September 15th. At a bill signing ceremony, Amazon Vice President Paul Misener said that the company planned on creating 10,000 jobs and investing $500 million to build new distribution warehouses in California.

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