Category Archives: Wage & Hour

What are the Legal Implications of Quitting Your Job?

What are the legal implications of quitting your job? Can you collect unemployment? Severance? What if you have a case and you quit (vs letting them fire you), will you still be able to take action? I answer all of those questions in this video.

My office gets a lot of calls from people who quit and still want to take action. This video details the critical things that lawyers look at in this situation.

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How to Complain to Human Resources the Right Way

As with all things in life, making a complaint at work is a risk. If you complain to human resources the wrong way, you might get fired (it happens far more often than people think). That is why I took the time to make a video about the correct way to complain to HR.

This video will explain the five things you need to know before you complain about your issue at work. It also covers how HR will react to your complaint and what you should expect if they conduct an “investigation.”

If you found this to be helpful, please leave a comment below.

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What does being an “at-will employee” actually mean? Can I get fired for “any reason”?

This is a very common question. At-will employment does not mean that the company can fire you for any reason they want. That is incorrect. In this video, employment attorney Branigan Robertson explains the at-will doctrine and how it actually works.

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I’ve Been Terminated, Does My Employer Have to Give Me My Paid Time Off?

Yes. AbsolutelyCompared to some of the questions employment lawyers deal with this one has a relatively simple answer. That’s not to say, there aren’t nuances (show me a legal answer without nuance, and I’ll buy you a steak dinner). But even the nuances of this question are relatively easy for non-lawyers to grasp.

The simple answer is yes. If your employer has agreed to give you paid time off for vacation, then the unused hours you have at the time you are terminated or quit are legally treated as wages, and must be turned over to you at the time of your separation from the company (typically within 72 hours). 

Keep reading to learn a little about the specific details surrounding this question. If you believe your employer has denied you your rightful wages, or has violated California labor law in some significant way, give our office a callto schedule a consultation. 

What California Law Says About Paid Time Off

First, the bad news. California employers are not required to offer PTO to their employees. It’s a perk some companies choose to offer their workers. However, if your company does offer it, then there is a law in place that guarantees an employer can’t deny the PTO you’ve accrued at the time you quit, are terminated or are laid off. California Labor Code §227.3states the following:

“Unless otherwise provided by a collective-bargaining agreement, whenever a contract of employment or employer policy provides for paid vacations and an employee is terminated without having taken off his vested vacation time, all vested vacation shall be paid to him as wages at his final rate in accordance with such contract of employment or employer policy respecting eligibility or time served…”

Labor Code §227.3

Simply put, if the employer offers paid time off, and you’ve accrued paid time off at the time of termination, you are owed that money just as you would be other wages. 

In a perfect world, employers who part ways with their workers would always do the honorable thing and ensure that they pay everything their former employees are owed. But as anyone who visits this site knows, many employers are far from perfect. Companies often use different tactics when attempting to avoid paying their employees their accrued paid time off. 

Ways That Companies Try to Get Around Paying What They Owe

1 – Not including PTO in the final check– This is the blunt approach. But regardless of whether a worker is fired with cause, laid off, or quits, an employer is required under California law to issue the final check within 72 hours. Some employers might be of the incorrect assumption that they don’t have to include PTO in the final tally. In worst case scenarios employers know they owe this money, but hope they can exploit the employee’s ignorance to save a few bucks.

2 – Misclassifying Employees as Independent Contractors– Every week we get phone calls from employees who feel they have been misclassified as independent contractors.  Companies will often misclassify employees in an attempt to skirt overtime and other labor laws. When determining whether a contractor is in fact an employee, judges consider how much control the company exercises over the workers’ schedule. If your employer offered you paid time off, but denied it at the time of termination because you were classified as independent, you might have some evidence to suggest your employer was exercising control over your hours and you are therefore misclassified. If this sounds like your situation, contact an employment attorney to discuss your case.

3- Docking vacation days as punishment– If you accrued vacation time, you’re entitled to that time as if it were wages earned. Employers can’t take away that time due to performance issues. The only exception is if you have taken unexcused absences. These can be counted toward vacation time.

4- Capping Vacation Time– Employers are allowed to put caps on vacation time. In other words, they can state that an employee is only eligible for a maximum of 10 days’ paid vacation. They are also allowed to institute policies stating when you can take vacation time. But regardless of these rules, if you’ve been terminated or quit, you are entitled to collect the time you have accrued.

5- Use it or Lose it Policies– Some employers might claim that a worker has to use the vacation time they’ve accrued within a specific year or they lose the time at the start of the new year. This is not true. If your employer offers PTO, the time you accrued is yours at the time of termination whether it was earned last week or three years ago. This principal was settled in a 1982 State Supreme Court decision in which an employee was denied his vacation pay for the two years prior to his termination. In its decision, the court wrote:

“Case law from this state and others, as well as principles of equity and justice compel the conclusion that a proportionate right to a paid vacation “vests” as the labor is rendered. Once vested, the right is protected from forfeiture by section 227.3.”

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What Can I Do if My Boss Won’t Pay Up?

If you recently quit your job, or were fired, and your employer is trying to deny your rightfully accrued paid time off, you have options. While it might sound surprising to hear this from a legal website, sometimes the option that doesn’t involve a lawyer is the best approach. You might start by informing your employer of the law and reminding them that California employees are entitled to their accrued paid time off.

If you’re owed a small amount of money, you also might try filing a complaint with California’s Division of Labor Standards Enforcement (DLSE).

However, as mentioned in the previous section, an employer who attempts to withhold an employee’s rightful wages, whether out of ignorance or greed, is apt to have committed other violations of employment law. It could be well worth your time and effort to discuss your employment history with an attorney, to determine whether or not there might be a legal case worth pursuing.

But it’s important to remember that employment cases are subject to statutes of limitation. Be sure to talk about your situation with an attorney sooner rather than later. Once the allotted time to file a case runs out, you lose the chance to file your case forever.If you feel your employer has taken advantage of you and violated California’s labor law, contact the office of Branigan Robertson to schedule a consultation.

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California’s Employment Laws Favor Workers in 2019

The year 2019 is shaping up to be a good year for workers in California. Several laws have gone into effect that benefit workers’ rights. Perhaps spurred on by the frustrations voiced during the MeToo movement, many of these laws strengthen existing laws dealing with sexual harassment and discrimination. Additionally, there is a raise in the minimum wage as well as overtime pay for agricultural workers. 

This article will briefly discuss some of the new changes to California employment law. If you have questions about any of these changes, or you feel you’ve been the target of harassment or some other employment violation, contact our office to schedule a consultation.

New CA Employment Laws 2019 | Branigan Robertson

The Changes, a Brief List

One – Minimum wage increase – This year, the minimum wage in California has been bumped for companies with 25 or more workers from $11 per hour to $12 per hour. Companies with fewer workers will now be required to pay their employees $10.50 per hour.

Two – Criminal History and Employment Applications – A new senate bill clarifies existing law dealing with job applicants who have criminal histories. Under current law, employers are prohibited from basing hiring decisions on a job applicant’s conviction record if that conviction has been sealed, or dismissed. There are exceptions to this law, such as if the applicant would be required to carry a firearm as part of the job.

In some cases, the employer is legally required to inquire about certain criminal histories. The new law limits these inquiries to “particular convictions” as opposed to convictions in general. A particular conviction is defined under the new law as “a conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation, or state law that contains requirements, exclusions or both, expressly based on that specific criminal conduct or category of criminal offenses.

The purpose of this law is to prevent companies from being overzealous when required to look into an applicant’s past criminal history.  

Three – Settlement Agreements and Sexual Harassment Disclosure– Lawsuit settlement agreements can no longer include provisions that prevent sexual harassment victims from disclosing factual information regarding their experiences.  This means that if an employee settles a lawsuit with a company after experiencing harassment, he or she will be free to testify about this experience. 

While the harassed person will be free to discuss the factual circumstances of the harassment, the actual settlement amount can still be kept secret by a non-disclosure clause. However, the law allows for settlement provisions that shield the identity of the sexually-harassed victim.

Four – Defamation Protection– It used to be that employees who had experienced sexual harassment and reported it could be exposed to a defamation suit. Thanks to Assembly Bill 2770, allegations of sexual harassment based on credible evidence and without malice are protected from such liability.

Five – Mandatory Sexual Harassment Training– While mandatory sexual harassment training has been in effect for years, it’s only applied to companies with 50 or more employees. The updated law has been broadened to include businesses with as few as five employees. Every two years, employees will be required to go through training. This includes one hour for non-supervisory staff, and two hours for supervisors.

Six – Agricultural Workers to Get Overtime – Prior to the passage of this law, agricultural workers were exempt from California’s overtime rules. Assembly bill 1066 will change this in phases over a period of four years. Among the immediate provisions of the law, workers who toil for more than nine and a half hours in one day (or more than 55 hours a week) must be paid time and a half for their overtime work.

By the year 2022, the law will require that agricultural workers putting in more than 12 hours in a day be paid at least double their normal hourly rate.  Additionally, persons working more than eight hours a day (more than 40 hours a week) must be paid time and a half.

Seven – Females on Boards of Directors – California law now requires that publicly-held companies with executive offices in California have at least one female director on the board.

Eight – Breastfeeding at Work – Employers are now required to make reasonable requirements to provide rooms for breastfeeding that aren’t bathrooms. 

Have Questions? – Ask an Employment Attorney

The changes to the laws discussed on this page only scratch the surface. Each law contains nuance, and most workers dealing with a bad employer require the help of a good lawyer to seek justice.

 If you believe your rights as an employee have been violated, it’s recommended you talk to a lawyer sooner than later. California’s statutes of limitation mean that a person filing a claim against an employer is always fighting the clock.

Having a good lawyer on your side might mean the difference between a check or a fair settlement for your pain and suffering. Whether you’ve dealt with wage theft, discrimination, harassment or some other employment related violation, a good lawyer will be indispensable in helping you get your life back on track. Call the office of Branigan Robertson with your questions and find out how we can help.

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Supreme Court Issues Ruling on Off the Clock Work – The De Minimis Debate

Are you an employee who’s ever wondered about the value of the minor tasks you do at work? Perhaps you’re an hourly employee who frequently finds yourself doing seemingly insignificant chores after clocking out. This might include locking doors, setting alarms, carrying trash to an outside dumpster and so forth.

While a few minor assignments done after one shift might not seem significant, these moments spent in service of the company add up over a period of days, weeks and years. The California Supreme Court took up the question of this type of work after a Starbucks manager named Douglas Troester, along with a group of employees, sued the company claiming they were denied payment for after-shift work. The court specifically looked the legal doctrine of “de minimis” work, a Latin term referring to matters too small for the law to concern itself with.  In a boost for worker’s rights, the court sided with the employees.

This article was written to discuss the court’s decision, and how it might apply to workers statewide. If you feel you’ve been denied your rightful wages, or have been otherwise treated unlawfully by your employer, contact attorney Branigan Robertsonto schedule a consultation.

Douglas Troester v Starbucks Corporation, A Brief Recap

Starbuck’s store manager Doug Troester, along with several non-managerial employees, filed suit against the coffee giant Starbucks in August of 2012 in Los Angeles Superior Court. Troester’s complaint alleged that between mid 2009 and October 2010, he and his co-plaintiffs performed tasks after closing time for which they weren’t paid.

Troester was able to provide evidence of his activities at closing time thanks to Starbuck’s tracking software, which required him to clock out at the end of every shift. After clocking out, Troester would initiate a “close out” procedure on a separate terminal in the store’s back office. This procedure would transmit daily sales information to Starbuck’s corporate headquarters. After this, Troester would set the store’s alarm, exit the building and lock the door. On occasion, and in line with Starbuck’s company policy, he would walk other employees to their car for safety. He also submitted evidence that he occasionally let employees back inside the store to retrieve items they’d left behind. There were also times when the store had to be unlocked to retrieve patio furniture that had been left outside. It was determined that during this period, Troester’s unpaid wages added up to 12 hours and 50 minutes, which at the current rate of pay came out to $102.67.

Starbucks removed the case to federal court, and the court ruled in favor of the company. While the court agreed that Troester did in fact work hours for which he wasn’t paid, the court relied on a legal doctrine known as de minimis — a matter too small for the law to concern itself with. In other words, $102.67 wasn’t worth the court’s consideration.

Troester appealed the case, and the US Court of Appeals for the Ninth Circuit asked that the California Supreme Courtto consider the question of whether de minimis doctrine applies to unpaid wage claims under California’s Labor Code.

State Supreme Court Takes the Case, Rules in Favor of Workers

The State Supreme Court, which rendered its 7-0 decision in July 2018, based its ruling on provisions of the Labor Codeas well as the state’s 18 wage orders. In considering these two factors, Justice Goodwin Liu noted that the law’s purpose is “protection of employees — particularly given the extent of legislative concern about working conditions, wages and hours when the Legislature enacted key portions of the Labor Code.”

In examining Wage Order number 5, which encompasses the housekeeping industry, and includes Starbucks, the court noted that work hours are defined as the time during which the employer knew or should have known the employee was working on its behalf.

Citing the Wage Order’s wording which requires employees to be compensated for all time worked, the court concluded that the de minimis doctrine, “has no application under the circumstances presented.”

Some of Liu’s strongest wording focused on the idea that off-the-clock work was viewed as a trifle at all:

“As the facts here demonstrate, a few extra minutes of work each day can add up. According to the Ninth Circuit, Troester is seeking payment for 12 hours and 50 minutes of compensable work over a 17-month period, which amounts to $102.67 at a wage of $8 per hour. That’s enough to pay a utility bill, buy a week of groceries, or cover a month of bus fares. What Starbucks calls “de minimis” is not de minimis at all to many ordinary people who work for hourly wages.”

The court’s ruling stated that an employer may not evade its obligation to pay employees who work off the clock on a regular basis by “invoking the de minimis doctrine.”

What this Means for Workers

For California employees who have worked off the clock at regular intervals for an extended period of time, this ruling could potentially mean a chunk of back pay is owed them. While Federal courts are empowered to rely on de minimis doctrine in similar matters, in California, the Supreme Court has made it clear this doctrine doesn’t fly. Larger companies that encourage off clock work among many employees could potentially be exposed to liability via class action law suits.

At the very least, this is a ruling that all hourly employees should be aware of when calculating their weekly pay. While it’s not worth the strain and effort of filing a complaint over a couple minutes worked after shift, it might be worth discussing the situation with your employer, particularly if it happens with any regularity.

If You Have Questions About Wages, Contact an Employment Attorney

If you’ve read this article and wonder if perhaps your employer has failed to pay you your rightful wages, it’s important to remember that there are a number of different situations in which an employer might deny a worker his or her proper wages. Some of these might relate to discrimination, while others might involve blatant greed. An employment attorney can help you figure out which laws may have been violated. But it’s important to remember that the clock starts ticking the moment an employer violates the law. You usually have a limited amount of time to file a complaint. If you have questions, it could be well worth your time and effort to discuss your situation with a professional who understand the tricks that companies pull to deny workers their rightful compensation. Contact the office of Branigan Robertsonto discuss your situation and find out how he can help.

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