FAMILY MEDICAL LEAVE ACT

Protecting Family Leave Rights Under the FMLA, FEHA and CFRA in California

Several state and federal laws protect employees from adverse employer action related to medical leave, family leave and time off for pregnancy and maternity. If you encounter trouble in taking advantage of your protected rights to family or medical leave, contact an employment law attorney at Blumenthal, Nordrehaug & Bhowmik for a free consultation.

We represent clients all over California on the full range of employment law claims, from wage and hour violations to workplace discrimination. Our lawyers and staff are fully committed to protecting employee interests and the right to fair treatment at work.

Call 800-568-8020 for a Free Case Evaluation

The main tools at our disposal for protecting the right to family and medical leave are the federal Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA). An additional state statute, the California Fair Employment and Housing Act (FEHA), protects employees from discrimination or adverse employer action motivated by the employee’s use of a right protected under the other laws.

If you have been on the job full-time for at least a year, you have the right to 12 weeks of unpaid leave to cover any of a number of personal or family needs:

• Personal illness or surgery
• Family member’s illness or surgery
• Physical therapy or convalescence
• Pregnancy or maternity
• Adoption

Some workers encounter problems with getting the company to agree to a period of protected leave, but it’s at least as common to run into trouble when you’re ready to return to work. Reassignments, transfers or changes in job description are often thinly veiled attempts to get you to quit. Sometimes your employer will save you the trouble and find an excuse not to let you back.

Our lawyers can help you recover damages from employers who interfere with the family leave rights of their employees all over California: Los Angeles, San Diego, San Francisco and Sacramento. To learn more about our ability to protect your rights under state or federal law, contact the California Family Rights Act attorneys at Blumenthal, Nordrehaug & Bhowmik.

Federal Overtime Rights FLSA

This page is dedicated to Overtime Pay Laws under the Fair Labor Standards Act and California Labor Code. Although this page should help employees understand some of the relevant laws, it is by no means a replacement for contacting an an employment lawyer.  Our employment lawyers offer free consultations and take qualified  individual cases and class action lawsuits on a contingency (no win, no fee) basis. 

Federal law is different than California law when it comes to employment laws. The Fair Labor Standards Act, also known as the FLSA, mandates that companies pay employees one and a half times the regular rate of pay when the employees work more than 40 hours in a workweek. The California Labor Code, in addition to requiring employers to pay employees overtime for working more than 40 hour weeks, also requires employers to pay employees one and a half times the regular rate of pay when the employee works more than 8 hours in a single day or when the employee works seven consecutive workdays in the same workweek. This difference between federal and state law is only one of many important. 

FLSA VS. LABOR CODE: MAJOR DIFFERENCES

(1) LABOR LAW BREAKS - According to Overtime Pay Laws in California, employees are entitled to a 30 minute labor law break for every 5 hours of work. Under federal law, however, there is not a labor law break provision. 

(2) UNREIMBURSED BUSINESS EXPENSES - Under the California Labor Code, employers can sue their employer for work related expenses that the employed paid for out of pocket. These are referred to business expense reimbursement laws and do not exist under the Fair Labor Standards Act. 

(3) EXEMPT VS. NON-EXEMPT EMPLOYEES -  In exempt vs. non-exempt lawsuits under California law, in order to be exempt from overtime pay laws, administrative employees must perform job duties that meet the test of the exemption more than 50% of the time, whereas under Federal overtime laws, employees must perform job duties that meet the test of the exemption a majority of the time, which does not necessarily mean 50% or more of the time. 

(4) DAMAGES & PENALTIES - Under California labor laws, employees can recover damages for the unpaid wages and additional penalties, like, waiting time penalties. Under federal law, employees can recover double damages for certain violations (often referred to as “liquidated damages”). 

Employee Options for Filing an Overtime Claim 

When employees believe that their company may have been acting in violation of their employee rights, they have 2 options if they wish to pursue an individual lawsuit or class action lawsuit.  The First option for employees is that they can contact an employment lawyer for advice about overtime pay laws. Many employment lawyers take these types of claims on a contingency fee basis. The second option for employees is to file a claim with the California Labor Board. Although both options are viable and have their pros and cons, unlike private lawyers, the California Labor Board cannot go after penalties for FLSA violations and can only extend the statute of limitations to 3 instead of 4 years. 

CONSULT WITH TOP OVERTIME PAY LAWYERS

For additional information about our approach to unfair pay practices anywhere in the state, contact the California overtime attorneys at Blumenthal, Nordrehaug & Bhowmik for a free consultation. We represent workers in individual and class action lawsuits on a contingency basis in San Diego, San Francisco, Los Angeles, Orange County, Santa Clara and throughout California.

Employment Agreements and Contracts FAQ

Are California Compete Agreements Valid in the Employment Context? 

An employer cannot lawfully make the signing of an employment agreement, which contains an unenforceable covenant not to compete, a condition of continued employment, even if such agreement contains choice of law or severability provisions which would enable the employer to enforce the other provisions of the employment agreement. An employer’s termination of an employee who refuses to sign such an agreement constitutes a wrongful termination in violation of public policy. The California Business & Profession Code invalidates provisions in employment contracts prohibiting an employee from working for a competitor after completion of his employment, or imposing a penalty if he does so, unless they are necessary to protect the employer’s trade secrets. However, a covenant not to compete in an employment agreement will not be viewed as a violation of California law if the covenant not to compete is necessary to protect the employer’s trade secrets since companies have the right to protect proprietary and property rights which are subject to protection under the law of unfair competition. If a contract is capable of two constructions, courts are bound to give such an interpretation as will make it lawful, operative, definite, reasonable and capable of being carried into effect.

What if my Employer Verbally Promised Me that My Employment is Not Subject to the At-Will Rule in California?

When employees sign an employment agreement with their company, as a general rule, the terms of the agreement are usually binding on both the employer and the employee as long as their is consideration, an offer and acceptance. If an employer subsequently promises an employee something that is not included in the employment agreement, the promise does not necessarily become part of the contract due to the parole evidence rule. Under the parole evidence rule, anything that happens or is promised out of the contract is excluded. However, this can be overcome when the contract is ambigous as to certain terms. Ambiguities in employment agreements are construed against the party that drafted the employment contract, which is usually the employer. If the agreement is silent as to the at-will employment relationship, then it may be possible to present the evidence of the employer’s promise. Contact our employment law office today for a free consultation about whether or not you are an at-will employee.

ATT & ARISE CLASS ACTION LAWSUIT

On March 28, 2011, the employment lawyers at Blumenthal, Nordrehaug & Bhowmik filed a class action lawsuit against Arise and AT&T alleging that the companies violated overtime pay laws by classifying at home call center employees as exempt vs. non-exempt from overtime pay laws. The class action lawsuit against AT&T and Arise is currently pending int he Northern District of California as Perry v. AT&T and Arise, Case No. CV111498JCS.

Class Action Lawsuits

Join Your Voice With Others in a Class Action Lawsuit

If you have a legitimate claim against your employer for violating federal and state wage-and-hour laws, you are probably not alone at your company. Many businesses find it quite profitable to engage in illegal practices, knowing that employees won’t notice or will be too afraid to complain. By joining in an employment class action lawsuit, you add your voice to many other co-workers facing the same problem.

For an employment class action lawsuit to proceed, a judge must first certify that enough evidence exists to show that all plaintiffs have suffered financial damages for a similar violation. Companies facing certified class action employment lawsuits know they must show up at the negotiating table with full and fair offers for compensation, or else they face significant damages awarded by juries.

Free Consultation ▪ No Attorney Fees Unless You Recover Compensation

Blumenthal, Nordrehaug & Bhowmik has extensive experience representing workers in employment class action litigation. If you think your employer is violating wage or labor laws in any of the following areas, please call us right away:

• Restricting independent contractor rights
• Misclassification of hourly and salaried employees
• Overtime pay
• Vacation pay and time-off benefits
• Expense reimbursement
• Minimum wage laws
• Inaccurate wage statements
• Severance package and release agreements

Our firm also handles employee law issues that involve the following:

• Discrimination
• Sexual harassment
• Wrongful termination

These can be handled as employment class action or individual claims

Free Consultation ▪ No Attorney Fees Unless You Recover Compensation

Our lawyers will discuss your claim during a free consultation and we handle the majority of employment class action litigation cases on a contingency basis. That means you will not pay attorney fees unless we help you recover compensation.

Extra Service Award Payments

If you initiate an employment class action litigation claim, you are typically eligible to receive extra compensation called a service award. Our firm has an excellent record of getting high *service awards for our clients.

Don’t Be Afraid of Retaliation

Because employers believe they can underpay employees who fear retaliation, they also believe they can get away with that practice. This is not true. We can hold these companies accountable under laws created to protect workers who report violations.

We represent clients in Los Angeles, San Diego, Orange County, San Francisco and Santa Clara, and throughout California. Contact us to schedule a free consultation with one of our lawyers.

Termination Payment

§ 201. Discharge of employee; Immediate payment; Seasonal employment

(a) If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately. An employer who lays off a group of employees by reason of the termination of seasonal employment in the curing, canning, or drying of any variety of perishable fruit, fish or vegetables, shall be deemed to have made immediate payment when the wages of said employees are paid within a reasonable time as necessary for computation and payment thereof; provided, however, that the reasonable time shall not exceed 72 hours, and further provided that payment shall be made by mail to any employee who so requests and designates a mailing address therefor. 

(b) Notwithstanding any other provision of law, the state employer shall be deemed to have made an immediate payment of wages under this section for any unused or accumulated vacation, annual leave, holiday leave, or time off to which the employee is entitled by reason of previous overtime work where compensating time off was given by the appointing power, provided, at least five workdays prior to his or her final day of employment, the employee submits a written election to his or her appointing power authorizing the state employer to tender payment for any or all leave to be contributed on a pretax basis to the employee’s account in a state-sponsored supplemental retirement plan as described under Sections 401(k), 403(b), or 457 of the Internal Revenue Code provided the plan allows those contributions. The contribution shall be tendered for payment to the employee’s 401(k), 403(b), or 457 plan account no later than 45 days after the employee’s discharge from employment. Nothing in this section is intended to authorize contributions in excess of the annual deferral limits imposed under federal and state law or the provisions of the supplemental retirement plan itself. 

(c) Notwithstanding any other provision of law, when the state employer discharges an employee, the employee may, at least five workdays prior to his or her final day of employment, submit a written election to his or her appointing power authorizing the state employer to defer into the next calendar year payment of any or all of the employee’s unused or accumulated vacation, annual leave, holiday leave, or time off to which the employee is entitled by reason of previous overtime work where compensating time off was given by the appointing power. To qualify for the deferral of payment under this section, only that portion of leave that extends past the November pay period for state employees shall be deferred into the next calendar year. An employee electing to defer payment into the next calendar year under this section may do any of the following: 

(1) Contribute the entire payment to his or her 401(k), 403(b), or 457 plan account. 

(2) Contribute any portion of the deferred payment to his or her 401(k), 403(b), or 457 plan account and receive cash payment for the remaining noncontributed unused leave. 

(3) Receive a lump-sum payment for all of the deferred unused leave as described above. Payments shall be tendered under this section no later than February 1 in the year following the employee’s last day of employment. Nothing in this section is intended to authorize contributions in excess of the annual deferral limits imposed under federal and state law or the provisions of the supplemental retirement plan itself.

Payments shall be tendered under this section no later than February 1 in the year following the employee’s last day of employment. Nothing in this section is intended to authorize contributions in excess of the annual deferral limits imposed under federal and state law or the provisions of the supplemental retirement plan itself.

Failing to Pay Wages at Employment Termination

If Your Employer Owes You, We Will Make Them Pay

Under California law, if you leave a company for involuntary reasons, your employer must pay you in full the day of your separation. You final paycheck must include all pay for reimbursed business expenses and unused vacation and time off. If you resign voluntarily, the waiting time for your final paycheck is not to exceed 72 hours.

Waiting-Time Penalties Are Serious

If your former employer has exceeding the waiting time for paying you all money owed, it might be following an illegal practice of delaying payments. There are other former employees who have the same legitimate legal issue.

Free Consultation ▪ No Attorney Fees Unless You Recover Compensation

Blumenthal, Nordrehaug & Bhowmik helps California workers fight illegal wage practices in class action lawsuits. We have a strong record of successfully fighting companies of all sizes. The time to step forward to talk to an experienced class action litigation attorney is as soon as your employer misses the required date. If you are the first to start a successful class action lawsuit, you may be entitled to receive a significant service award in addition to the compensation you are owed.

You Are Entitled to Earned Wages Plus a Waiting-Time Penalty

Contact us for a free consultation about the waiting-time penalty and any wages you are owed by your former employer. We focus on all wage and hour issues, including:

• Unpaid wages
• Vacation pay and time off
• Severance and release agreements
• Failure to issue accurate wage statements
• Business expense reimbursement

Should You File by Yourself or as Part of a Class Action Lawsuit?

By starting or joining a class action lawsuit, you add your voice to others. The evidence for a favorable settlement or jury award is more powerful and the money damages are often increased substantially.

Our lawyers represent clients in Los Angeles, San Diego, Orange County, San Francisco, Santa Clara and throughout California. Call our offices or contact us by e-mail to arrange a free consultation.