Category Archives: Wage & Hour

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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Wage Theft Affects California Workers

One of the worst acts a company can commit against its employees is the act of wage theft. People work hard, spend a majority of their lives in the service of powerful companies, and sometimes the fruits of their labor are stolen from them.

California companies use a number of sneaky tactics when it comes wage theft. Sometimes they misclassify employees, other times it’s creative bookkeeping, sometimes management simply pleads ignorance. However it happens, it’s unlawful, and employees have the right to demand compensation.

This article was written to briefly discuss the issue of wage theft as it relates to California law, as well as a recent case in which workers were denied proper payment by their employer. If you feel you’ve been a victim of wage theft, give our office a call.

California Based Restaurant Makes Headlines for the Wrong Reasons

Thanks to its business dealings with a shady subcontractor providing janitorial services, the Cheesecake Factory could find itself paying millions of dollars in employee back pay. Once touted as the unhealthiest restaurant in the US,  the company can now add wage burglar to its resume.

According to a June 2018 New York Times article, which cited sources at the California Department of Industrial Relations, Cheesecake Factory hired janitorial workers through Americlean Janitorial Services, which subcontracted with Magic Touch Commercial Cleaning (later renamed Z’s Commercial Quality Cleaning). The janitors were hired to work in restaurant locations in Orange and San Diego Counties during graveyard shifts (midnight to morning).

Workers were denied meal and rest breaks and were prohibited from leaving until kitchen managers conducted walk-through inspections of their work. These time consuming walk-throughs led to each worker racking up as much as 10 hours of overtime each week (for which they weren’t paid).

The poor treatment of the janitors eventually came to the attention of state officials, and the ensuing investigation resulted in Magic Touch Cleaning being ordered to pay the workers $3.94 million in unpaid wages and damages. Additionally, the company was ordered to pay $632,750 in penalties. If Magic Touch doesn’t pay, Cheesecake Factory and Americlean Janitorial Services will be on the hook for paying $4.9 million.

One state official noted that Magic Touch’s decision to change its name was likely an attempt by the company to evade enforcement. It was also noted that the use of contractors and subcontractors serves to confuse the chain of liability. Sometimes, the chain of liability is so confusing, workers won’t even know who their employers are.

Wage Theft in California Cheesecake Factory | Branigan Robertson

Wage Theft is a Big Problem for California Workers

In 2010, the Institute for Research on Labor and Employment University of California Los Angelespublished a report on wage theft in California. The study, conducted in conjunction with studies in Chicago and New York, surveyed 1,815 workers in Los Angeles County. Key findings included:

  • Nearly 30 percent of surveyed workers were paid less than minimum wage in the week preceding the survey.
  • 21 percent worked more than 40 hours for one employer in the previous week. Of these, 79 percent were not paid the legally required overtime pay by their employers.
  • 45.3 percent of workers who experienced pay deductions were subject to illegal work-related deductions for uniforms, work tools or transportation.

The report noted that the prevalence of these wage violations was significantly higher in Los Angeles County than they were in other study areas.

Workers Have Rights

When it comes to overtime pay, rest breaks, and pay periods, California laws are in place to protect non-exempt workers.

-On the issue of overtime, Labor Code §510 states that a day’s work is eight hours. The law further states:

“Any work in excess of eight hours in one workday, and any work in excess of 40 hours in any one workweek…shall be compensated at the rate of no less than one and one-half times the regular rate of pay.”

Rest breaks, are covered by Labor Code §512 (among other regulations). This section states that an employee working for a period of more than five hours a day must be provided a meal break of at least 30 minutes. An employee working more than 10 hours in a shift, must be given a second 30-minute meal break.

Additionally, the law provides rest break for women who are breast feeding and need to express milk, as well as for workers who require a cool down period in hot temperatures. If an employer violates these laws, workers might be entitled to compensation.

What is an Employer Entitled to if Denied Wages, Rest Breaks or Overtime?

This is a question that can best be answered in an employment attorney’s office. However, there are certain types of compensation workers can be entitled to when they win claims against their employers.

For instance, an employee might be awarded back pay. This type of award covers the wages an employee is denied due to wage theft.

Another type of award might be lost wages. This differs from back pay and often applies in situations in which an employee is wrongfully terminated. In simple terms, a person who is wrongfully terminated (perhaps for blowing the whistle on wage theft practices) and is unable to find work for a number of years, might be awarded his or her typical salary amount for each year without work. For example, a wrongfully terminated employee who makes $30,000 annually and is unable to find work for three years, could be eligible for $90,000 in lost wages.

In some cases, an employee who experiences wage theft or denial of rest breaks might be eligible for pain and suffering damages, and less commonly, punitive damages.

Wage Theft? Contact an Employment Attorney

There may be as many different ways for a company to cheat workers as there are workers in the world. Sadly, companies get away with unlawful behavior every day. But if you believe you’ve been denied your rightful wages, or have suffered some other workplace injustice, you might be able to seek compensation with the help of a good employment attorney.

It’s important to remember that the clock starts ticking once a violation has occurred. Generally speaking, a worker has a limited time frame in which to file a claim against a company following a wage theft violation. For public employees, this time frame is shorter. Whatever your case, it’s better to contact an attorney sooner than later.

Regardless of whether you’re a janitorial worker, a waitress, or a computer programmer, we know you work hard, and that you deserve to be properly compensated. If your employer has denied you your proper wages, then your employer has violated state law. If you have questions about wage theft, or some other area of employment law, contact the office of Branigan Robertson, to see what he can do for you.

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New Supreme Court Formula for Calculating Hourly, Overtime, and Bonus Pay Favors Employees

Before delving into the meat of this post, a heads up: there will be some math-related concepts discussed. If you’re good at math, congratulations — you may be visiting this page because you’ve concluded your boss has incorrectly figured your hourly, bonus and overtime pay. If you’re not good at math, some of the calculations discussed in this post may be a little confusing. But take heart—you don’t have to be Einstein to suspect your employer of creative or shady accounting.

A Court Ruling Changes the Way Some Wages are Calculated

In defense of payroll accountants, there are times when calculating an hourly employee’s wages at the end of the work week can be deceptively difficult. This is particularly true when bonuses and overtime pay are involved and questions remain unclear as how to calculate the employee’s regular rate of pay. If an employee isn’t careful in double checking company arithmetic, it can be easy for the paycheck to come up short. And when checks come up short over a long period of time, the amount of back pay can add up.

This article discusses a recent state Supreme Court ruling, which examined differing guidelines (federal and state) regarding the calculation of hourly, bonus and overtime pay.

Happily, the California Supreme Court weighed in on this topic and issued a ruling slightly favoring non-exempt hourly employees. The court’s decision may even entitle some workers to back pay.

Continue reading to learn about the case in question: Alvarado v. Dart Container Corporation. If you believe you’re owed back pay in light of the ruling, or if you believe your employer has erred in some other way, contact our office for more information.

Alvarado v. Dart Container Corporation

The California Supreme Court ruled on this case on March 5, 2018. The case was filed by an hourly wage employee named Hector Alvarado, who worked in a factory producing food service products. A full-time employee, Alvarado, and other workers were offered a flat-sum $15 ”attendance” bonus (in addition to their hourly rate and overtime rate) as an incentive to work Saturday or Sunday shifts. The bonus was given when employees worked a full shift on Saturday or Sunday and was given regardless of whether the employee worked in excess of the normal work shift.

Calculating Overtime Bonus Pay Regular Rate | Alvarado v. Dart

Two Different Formulas, One Preferred by the Company, The Other by Employees

Alvarado claimed that the company improperly computed his overtime pay under California Labor Codes §510 and 1194.

The company had one calculation preference, Alvarado had another. The difference between the two calculations came down to whether or not the bonus was applied to all hours worked (overtime and regular), or only to non-overtime hours. The court explained the situation as follows:

“The attendance bonus must be factored into an employee’s regular rate of pay so that the employee’s overtime pay rate (generally, 1.5 times the regular rate of pay) reflects all the forms of regular compensation that the employee earned.”

The company preferred the following formula for calculating the employee base rate of pay:

  • The company would multiply the number of overtime hours the employee worked in the pay period by the employee’s normal hourly rate.
  • The employer would add the total hourly pay for non-overtime work as well as the non-hourly attendance bonus. (This calculation results in a figure the company considers to be the base rate of pay).
  • The Employer would then multiply the regular rate of pay by the total number of overtime hours, and then divide the amount in half. (This results in the overtime premium).
  • Employer would add base hourly pay to the overtime premium.

Alvarado, preferred a different calculation. His method involved the following:

  • Calculating overtime compensation in relation to the hourly wages.
  • Calculating the overtime compensation in relation to the bonus’s per hour rate, then multiplying that value by 1.5 and adding the number of overtime hours worked.
  • Combining the overtime amounts to obtain the total overtime compensation.

Alvarado’s calculation was slightly more favorable to workers than the company calculation.

How the Court Ruled

When arguing its case in front of the court, Dart Corporation maintained the court should look to a precedent-setting federal case which stated:

“Where a bonus payment is considered a part of the regular rate at which an employee is employed, it must be included in computing his regular hourly rate of pay and overtime compensation.”

Alvarado argued that a state case, relying on the California Division of Labor Standards Enforcement (DLSE) should guide the court’s opinion. The DLSE method factored “a flat sum bonus into overtime compensation.”

The Supreme Court, ultimately ruled in favor of Alvarado, and deemed the DLSE method of factoring the flat sum into overtime compensation to be appropriate. The court ruling was applied retroactively, which means employers could be on the hook for back pay.

Confused? Contact an Employment Attorney

If you’ve been confused by the calculations and legalese thrown around in this post, don’t despair. Even employment attorneys must focus intently while reading supreme court decisions to keep from going cross eyed. It’s important that you pay attention to your instincts, particularly if you have concerns about how your employer figures your rate of pay. If your employer has paid you hourly, overtime and bonus pay in the past, it could be worth your effort to discuss your case with a qualified attorney and find out if you might be eligible for back pay.

As an added incentive, many employment attorneys (including those at our office) don’t charge for an initial consultation. Often, cases are taken on a contingency basis, which means the client doesn’t pay out-of-pocket legal fees. Rather, the employment attorney is paid with a portion of the settlement or judgment at the conclusion of your case.

If you have questions about any of the topics discussed in this post, or any other employment- related issue, contact the office of Branigan Robertson for more information.

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Tough Times for California’s Truckers – Work Breaks

For years, drivers in the trucking industry have had to contend with government regulators as well as powerful corporate interests who have no compunction about making rules that largely favor companies. Anyone who works in the trucking industry has at one time or another, dealt with a less than ethical employer, or at least knows another driver who has. Unfortunately, these rules not only affect driver’s wallets, but also driver safety—as well as the safety of other drivers on the road. Namely, here we’re talking about the break laws being changed.

New Federal Legislation on Breaks?

An article published Thursday in the Mercury News took a closer look at federal legislation, currently under consideration, that could have wide-ranging effects on the breaks truck drivers statewide would be entitled to. Under current state law, California’s truck drivers are entitled to 30-minute breaks for every five hours of work, as well as a 10-minute break for every four hours of work. It’s worth noting that California truckers are entitled to more breaks than other drivers in most other states. I’ve written about trucker meal & rest breaks in the past.

However, legislation written by U.S. Congressman Jeff Denham, a Republican representing California’s 10th Congressional District, currently making its way through Congress, seeks to prevent states from setting their own rules for truck drivers’ hours. Instead, a federal standard would be applied. The federal regulation would allow drivers only a 30-minute rest break after eight hours of driving.

California Trucker Work Breaks | Branigan Robertson

 

The People Behind the Federal Regulation

Not surprisingly, some of the interests vocally supporting the rule are those that either work for the benefit the trucking companies, or the companies themselves.

Speaking to the Mercury News, Joe Rajkovacz, an executive with the Western States Trucking Association bemoaned the California laws that offer more benefits to drivers than other states. “It is beyond belief that we can live in a country where every state you cross can decide when a driver has to take a break, “Rajkovacz said, adding that this legislation change is among the top priorities for the trucking industry.

So much for states’ rights.

While not all California truck drivers may oppose this proposed rule change, it isn’t the only issue facing truckers that should be a cause for concern.

Lawsuits, Lawyers & Frustration

A recent year-long investigation by USA Today, found that 1,150 short haul truckers, many of whom are classified as independent contractors operating near the ports of Long Beach and Los Angeles, have filed suits against trucking companies in civil court or with the California Labor Commission.

The investigation found that many short-haul truckers lease their rigs from employers, and as a result are leveraged into what can best be described as indentured servitude. Such treatment included forcing drivers to work up to 20 hours per day, withholding payment, and requiring drivers to falsify inspection reports tracking the hours they spent on the road.

Some drivers, exhausted and unable to continue with the work, saw their trucks repossessed by the companies when they sought to drive elsewhere. While these disturbing incidents certainly aren’t representative of the experiences of all drivers statewide, there’s no denying that there are a lot of bad actors in positions of power the trucking industry.

While drivers who are classified as independent contractors may be subject to different rules regarding payment, they still have rights — as do full time drivers.

Unfortunately, a driver who believes he or she has experienced discrimination, been denied rightful rest breaks or pay, or is forced to violate safety regulations, will often hesitate to discuss their situation with a lawyer out of fear of retaliation. But it’s important to remember that employers are not privy to conversations between attorneys and clients.

A good attorney should be able to listen to the circumstances of a driver’s work situation, and quickly determine whether or not a case can be filed. In some cases drivers may be entitled to back pay, as well as lost wages, and occasionally, punitive damages are sought.

If you are employed as a truck driver and believe your employer has violated your rights as a worker, consult a qualified attorney to consider your options.

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Convalescent Homes and Overtime Violations

All too often, when stories of employers who fail to pay overtime pop up in the media, the victims end up being workers in convalescent homes. It’s a sad state of affairs for the people who have chosen to work so hard toward the care of society’s elderly and vulnerable citizens. Stories abound of convalescent and other care workers being forced by employers to log long hours, being denied lawful rest breaks, and having overtime wages withheld or denied altogether.

Nursing Home Overtime Abuse Example

For an example of the issues workers face regarding overtime, one need look no further than last week’s superior court ruling involving five caregivers in a Northern California convalescent home.

In that case, the five workers went to the California Labor Commissioner with complaints that they had been withheld wages for overtime work.  The workers argued they virtually worked 24-hours a day while covering evening shifts. The home’s owner, Lynn Ventura, who spoke to the Daily Republic, said the caregivers were free to do what they wanted during the time they were required to be on site and presumably not technically working. She argued that the workers held personal birthday parties and invited guests to the homes they were working in, presumably a justification for withholding overtime wages.

But a hearing officer at the Labor Commissioner’s office disagreed, and in February of 2017 ordered Ventura to pay the employees a total of $483,495. Ventura appealed the commissioner’s decision, which led to last week’s dismissal by a Solano Superior Court judge. The workers are now in a position to collect their lost wages.

Sadly however, the worker’s attorney Richard Taguinod, suggested the road to recovering the money could still be a difficult one. The process will involve going to the county sheriff and filing a writ of execution for levy of future income. That is not a fun process.

“The sheriff, in turn, will ask for her bank accounts of the care homes, and by law, we can only get 25 percent of the monthly income of the care homes until the caregivers all are paid the full amount of award due each of them,” Taguinod said.

Why Does This Happen So Often in Convalescent Homes?

Why this type of employment issue seems to be so prevalent in the nursing home care industry is a broad question, no doubt with several complex reasons. However, Taguinod noted that part of the reason could stem from the fact that so many immigrants seek employment in this particular industry. It’s no secret that immigrant communities are often targeted for financial and other crimes.

“Those most prone to abuse are the undocumented caregivers who do not have close friends or relatives they can seek shelter with if they decide to sue their employers,” Taguinod said.

He also suggested that many convalescent homeowners know what they’re doing when they deny their employees rightful wages.

“I almost want to believe that their mindset is that when they settle their cases with the caregivers, they can do so with a smaller amount than what they would have properly compensated them,” Taguinod said.

While Taguinod makes some good points about the sad state of employment in the care industry, rather than discourage workers, it should be a call to those who have been denied their rightful wages to fight back.

How to Get Unpaid Overtime

It’s important to remember that employment lawyers like Mr. Robertson in California typically take cases on contingency. This means they will usually examine a client’s case for free, and if a decision to file a lawsuit is made, the attorney won’t usually be paid until a settlement is reached. It is also totally free to contact the Labor Commissioner (commonly known as the “labor board”).

If you are an employee of a convalescent home or other health care facility, and have been denied proper overtime compensation, or have encountered some other workplace violation (denied rest breaks, patient safety, whistleblower retaliation, etc.) it might be well worth your time to contact a qualified employment attorney and determine whether or not you have a strong case.

A worker who wins a judgment against an employer could be eligible to recover back pay in addition to lost wages. In some rare cases, punitive damages, which are designed to prevent employers from engaging in certain behaviors in the future, may also be awarded.

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