Unpaid Overtime

According to the Washington Post, a lawsuit has been filed against the Loudoun County sheriff’s office and Sheriff Stephen O. Simpson due to unpaid overtime. Numerous Loudoun County deputies, as well as members of the Police Benevolent Association (PBA), filed this lawsuit. They contend that the unpaid overtime was caused by Simpson’s implementation of unfair labor practices. Furthermore, they claim that these unfair labor practices have a negative influence on how a deputy does his or her job and, therefore, affect the safety of the community. Accordingly, they are seeking $600,000 in damages.

Basically, the lawsuit affirms that the deputies should be paid overtime for all hours worked over forty in a workweek. In addition, the lawsuit contends that the sheriff’s office has purposely avoided paying overtime by establishing a flex policy. This policy involves cutting a deputy’s regularly scheduled work hours when he or she has worked extra hours in a workweek, to cover for another deputy perhaps.

Simpson claims that this lawsuit is a case of “dirty politics” because the PBA had previously supported his political opponent. The Loudoun chapter of the PBA strongly denies a political motivation of the lawsuit, however. Simpson also noted that he opposed the implementation of the flex policy. He alleges that a county-hired consultant put it into place, and that the county is more to blame for the unpaid overtime. “Somebody works overtime, you get paid overtime, that’s the price of doing business. But [the county] cut my overtime dramatically, and that’s why we’re where we are” he said.

How to avoid an unpaid overtime claim: Overtime Policies

In California, there are several regulations and exemptions that relate to overtime pay. These statutes are more beneficial to employees than the corresponding federal regulations. Eight hours of work per day is normal for a nonexempt employee with a regular workweek. Nine or ten hours of work per day can be normal for employees with an alternative workweek. Only straight-time hours count towards overtime. Therefore, if an employee has been paid overtime for hours over eight in a day, those overtime hours do not count toward the 40-hour weekly limit. Overtime does not include hours not actually worked by an employee, which includes vacations, holidays, etc. Overtime hours are strictly based on hours worked, not hours paid.

Overtime pay is based mostly on the number of hours worked in one day. Overtime must account for weekly totals as well. Based on California law, time-and-one-half an employee’s regular rate of pay must be provided for all hours worked beyond eight in one workday, as well as the first eight hours worked on the seventh consecutive day worked in a single workweek. An employee must be paid double their regular rate of pay for all hours worked beyond twelve in a single workday, as well as any hours worked beyond eight on the seventh consecutive day. Essentially, it is imperative for an employer to put posters regarding pay rules and overtime on a place where all employees can view them. That way, employees will be reassured that their employer will not consent to unpaid overtime.

Wrongful Termination

Texas Tech football coach, Mike Leach, might sue the university for wrongful termination. Leach claims that his dismissal was in violation of his contract and was made without due process. Leach’s suspension was attributable to several unfair decisions that he made involving his football players. In particular, he has been criticized for his decision to isolate Adam James, a sophomore receiver, in an equipment garage during team practice. At the time, James was recuperating after a concussion that Leach allegedly failed to acknowledge. James went on to report that he was deeply embarrassed for being punished for his football-related injury, and that Leach treated him extremely unfairly. After this incident, Leach refused to apologize to James and claimed that the university never gave him the opportunity to tell his side of the story.

Texas Tech alleviated its necessity to pay Leach by firing him “for cause.” Ultimately, this “for cause” component leaves Texas Tech free from an obligation to compensate Leach and continue his contract. Nonetheless, Leach could file a wrongful termination lawsuit against the university by claiming that his actions did not violate any of the stipulations listed in his contract. Leach could also come to argue that his suspension was too early and impulsive of Texas Tech. On the other hand, the university could contend that Leach violated player safety rules, which is noted in his contract. Thus, if Leach is found to have violated these safety regulations, then the “for cause” suspension will be justified. In effect, there might be a big “legal showdown” between Leach and Texas Tech. It is also likely that James will sue Leach for his unjustified punishment and humiliation.

There are termination policies that can potentially protect employers, like Texas Tech, from claims of wrongful termination. As an employer, it is important to have an established termination policy and to document all events that relate to each termination process. There are several forms to fill out and activities to execute within the termination process. When an employment relationship ends, there are numerous types of separation that can occur. In this case, Mike Leach was fired, which is an involuntary termination of an employment relationship. Fundamentally, there is no procedure that guarantees employer autonomy from wrongful discharge liability or the prevention of an employee filing a wrongful discharge action. Therefore, it is important for an employer, like Texas Tech, to consider seeking out labor law counsel before terminating an employee.

What is the Minimum Wage?

There are many different figures for the minimum wage, including federal, state, and possibly county or city depending on whether or not “living wage” ordinances have been put into place. It is very important for employees to stay in the know about these minimum wage figures so they are not taken advantage of by their employers.

Effective January 1, 2008, California’s minimum wage is now $8.00 per hour and is not expected to go up any time soon. However, this figure is quite generous compared to the federal minimum wage rate which is $7.25, effective July 24, 2009. According to the law, employers must adhere to the more restrictive rate which means they must pay the highest rate. Georgia and Wyoming have the lowest minimum wage rates at $5.15 per hour, while Minnesota and Arkansas barely exceed $6.00 per hour. Apparently these four states (the only four beneath the federal minimum wage rate) have little desire to attract employees.

As mentioned above, there are some cities and counties with different minimum wage rates due to their “living wage” ordinances. One such county is San Francisco which currently has a minimum wage of $9.92 per hour (effective January 1, 2011) and is set to rise to $10.24 per hour on January 1, 2012, due to high costs of living. Other areas with higher minimum wage rates include the counties of Los Angeles, Ventura and Santa Clara, and the cities of San Diego, Berkeley, Oakland, San Jose, and many others.

Many employers try to pay under minimum wage, which is why employees must stay informed and contact a California Attorney if their rights are being violated.

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.