Recent CA Supreme Court Ruling and the Future of the Gig Economy

The career landscape continues to evolve. As workers increasingly take freelance jobs and other gigs, questions swirl about the future of worker rights. In many cases, companies have found that it’s easier to classify hard workers as independent contractors, rather than employees, in order to increase their bottom line. In many cases, the independent contractor will work as hard, if not harder, than an employee.

Worker classification affects how a company pays a person overtime and offers rest breaks.  When one thinks of independent contract work, often the first companies to come to mind include ride sharing giants Uber and Lyft. However, other companies using contract workers include restaurant delivery services, and other app-based services.

A recent CA State Supreme Court case considered the issue of independent contractors and employee misclassification and issued a ruling that came down in favor of workers.  Continue reading to learn a little more about this case, the issues explored by the State Supreme Court, and how this ruling might affect workers in the gig economy. If you feel your employer has improperly classified you as a contract worker, or hasn’t paid you proper wages, contact our office to learn how we can help.

Charles Lee Vs. Dynamex

The court case in questioninvolves a nationwide package delivery company called Dynamex, which operates multiple business centers in California. The company classifies its drivers as independent contractors rather than employees. This means that while the drivers are free to set their own schedules, they also pay for their own delivery vehicles, gas, and insurance. They also aren’t subject to state and federal laws regarding overtime and rest breaks.

California Supreme Court on DynamexDynamex negotiates the rate paid to these drivers on an individual basis. Some workers receive a flat amount per delivery, some receive a percentage of the delivery fee. Prior to 2004, Dynamex classified its drivers as employees, but decided that there was significant savings to be had in classifying drivers as independent contractors.

In 2005, a driver named Charles Lee filed suit against Dynamex arguing that the independent contractors were essentially doing the same work as they did when classified as employees.

In his lawsuit, Lee argued that Dynamex violated the labor code, misclassified employees, and failed to pay overtime.

The case began in Los Angeles Superior Court, which considered many of the subtle nuances of state law. Other drivers joined the suit, and the trial court ultimately certified a class action suit against Dynamex. The company appealed the case to the State Supreme Court hoping to reverse the lower court’s decision to certify the class action against the company. Unfortunately for Dynamex, the court sided with the drivers allowing them to proceed with their class action.

The California Supreme Court’s Ruling

In its 85-page decision, the State Supreme Court considered a number of historic employment cases examining the employee/employer relationship. At the core of the Supreme Court’s analysis were questions about how much control a company exercises over workers, as well as the definition of the words “employ” and “employer.”

In terms of company control, the court looked at a landmark case from 1989, in which an agricultural company called Borello classified its cucumber harvesters as independent “sharefarmers.” The sharefarmers would work long hours to share in some of the profits (as well as potential losses) during the harvest season. The workers felt they were improperly classified given the amount of work they did for the company.  In that case, the court ruled that the company exercised a significant amount of control over the cucumber harvesters, and as such, improperly classified them as independent.

Continuing with its analysis, the Supreme Court examined the definitions of the terms ‘employ’ and ‘employer,’ which are found in the state’s work orders. The court accepted a definition of the term employ as meaning “suffer to work.” This phrase means that when a company permits a person to work, the worker is on the clock whether the workflow is heavy or light. This means that even if an employee is sitting at his or her desk waiting for an assignment, he or she is considered to be working.

The Supreme Court accepted a definition of the term ‘employer’ as someone who “employs or exercises control over the wages, hours, or working conditions of any person.”

Dynamex had hoped that the Supreme Court wouldn’t adopt the definitions of these terms, which had been accepted by a lower court. But the Supreme Court did accept these terms, and as a result, ruled in favor of the drivers. The court ruled that under these definitions, the drivers have a common interest in proceeding with their class action suit against Dynamex.

“We conclude that under a proper understanding of the suffer or permit to work standard there is, as a matter of law, a sufficient commonality of interest within the certified class to permit the question whether such drivers are employees or independent contractors for purposes of the wage order to be litigated on a class basis.

What this Means For Workers

In the simplest of terms, California’s recent Supreme Court ruling against Dynamex means that workers in that case can proceed with their class action suit. However, there are some in the legal profession that feel the ruling could have more immediate effects for California companies. A recent Los Angeles Timesarticle suggested that California employers could start questioning their employee classifications right away, even changing some classifications to avoid stiff fines. The Timesposed the question to Michael Chasalow, a professor at USC Gould School of Law.

“A huge number of businesses will be calling their lawyer saying ‘What should I do,’” Chasalow told the Times.

Are You a Worker Who’s Been Misclassified?

It’s important to note that the California Supreme Court did refer to some professions as properly classified independent contractors. The court specifically mentioned such workers as plumbing contractors and electricians. However, there are many workers out there who feel they aren’t getting the compensation they deserve because of their independent contractor status. Ride sharing companies are one area where this discussion has been heavily focused. Other app-based services might also raise some serious questions about worker classification.

If you believe you’ve been misclassified as an independent contractor, contact our office for a consultation. Many cases are taken on a contingency basis, which means the client doesn’t pay any up-front costs.

If you have questions about anything discussed on this page, or some other employment law issue, give us a call to learn how we can help you.

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Filed under Employment Contract, Verdicts

US Supreme Court Delivers Blow to Workers’ Rights, But Not All is Lost

In May 2018, the United States Supreme Court ruled on a case involving arbitration clauses that heavily favors employers. The 5-4 decision delivered yet another blow to the rights of workers who are increasingly pinched between stale wages and ever-increasing living expenses.

While the case was damaging to worker’s rights, it doesn’t mean there isn’t hope if you’ve been mistreated by an employer wielding an arbitration contract. The Supreme Court might be unwilling to protect your rights as a worker, but a good employment attorney can still determine if you have a case, and fight on your behalf.

Continue reading to learn a little about the Supreme Court’s ruling on the Federal Arbitration Act, and what it means for workers forced to sign these agreements. If you feel you’ve been the victim of an employer’s unlawful behavior, contact our office to find out how we can help.

Epic Systems Corp. v. Lewis

The US Supreme Court considered this case, in which several workers argued their employers had underpaid them. As a condition of their employment, the workers had signed arbitration agreements, which allow companies to settle employee grievances in a private setting as opposed to a court of law.

The employees maintainedthat their right to file a class action suit was protected by the National Labor Relations Act (NLRA). They specifically cited a section of the Act, which guarantees employees:

“The right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…”

The phrase “other concerted activities” is the passage that divided the court in this case.

Trump appointee Justice Neal Gorsuch, who wrote the decision for the majority, took a very narrow view of the text of the law and argued that the wording of the Act, which does protect union activity, does not specifically give workers the right to file class action lawsuits. Gorsuch also repeatedly referred to the Federal Arbitration Act (FAA), which was passed 10 years before the NLRA, and allows companies to divert court claims to an arbitration setting.

Justice Ruth Bader Ginsburg, who wrote the dissenting argument (and actually read it from the bench), suggested that the FAA is unlawful, and reminiscent of “yellow dog contracts” in which employers were once allowed to compel employees to sign agreements promising they wouldn’t join a union. She further argued that the FAA was not designed to settle disagreements between workers and companies, but rather was made to settle disputes between companies. Ginsburg eloquently argued that the NLRA was designed to protect workers who have little bargaining power when dealing with employers. She added that this protection extends to employees who wish to band together and collectively sue an employer (strength in numbers).

Alas, the court handed down its decision, which means that for now, employees who sign arbitration clauses as a condition of their employment, have little option but to abide by terms of the agreement.

What Exactly is an Arbitration Clause?

Oftentimes, when an employee is hired at a new job, he or she is handed a packet of documents, many of which require signatures. These packets frequently include a document in which the employee agrees to have any potential claim against the company heard in an arbitration proceeding.

Such a proceeding is heard by a “neutral” third party, known as an arbitrator. These folks are often retired judges and attorneys, who are paid by the company to render a decision on the claim. Unlike a court proceeding, there is no jury, and the hearing is not public. Employees may be able to request fewer evidentiary documents when making their case against the employer than they would in a court setting

Arbitration does provide certain benefits in that the costs of the proceeding are covered by the employer, and the case is often decided in a much speedier fashion than would happen in a court setting. However, there is generally no appeal process, and the final decision is legally binding.

Arbitration U.S. Supreme Court Decision Epic Systems

Arbitration is on the Rise

In 2015, the New York Timeswrote an article on the recent increase in arbitration cases nationwide, which stem from a series of Supreme Court decisions. While the article focused on arbitration clauses in cell phone and other product-related contracts, it noted that employee arbitration is also on the rise. In many cases, these contracts effectively ban class action law suits against already wealthy and powerful companies.

“Some state judges have called the class-action bans a ‘get out of jail free’ card,” the Timeswrote. “Because it is nearly impossible for one individual to take on a corporation with vast resources.

Can You Refuse to Sign an Arbitration Agreement?

Of course. However, in an at-will state like California, an employer can fire you or rescind the job offer if you refuse to sign. When deciding whether to refuse to sign an arbitration agreement, you must carefully consider your value to the company. Is the employer likely to cut ties with you and find another employee who will sign without question? Or are you irreplaceable?

Are Arbitration Agreements Bullet Proof?

Not always. It’s important to remember that every case is different. If you suspect that the agreement you signed wasn’t on the level, it might be worth your time to have the document reviewed by a qualified employment attorney. There are certain factors that can render an arbitration contract void. Was the contract signed under duress? Was it signed fraudulently? Were the agreement terms unconscionable? These things could affect the validity of an arbitration agreement.

Have Questions? Contact an Employment Lawyer

If you have questions about arbitration agreements or other employment issues, contact our office for more information. If our attorneys determine you have a case, and are able to proceed with a lawsuit, you might be able to pay our attorneys on a contingency basis. This means you don’t pay out-of-pocket legal fees.

If you successfully win a claim against an employer, you could be eligible for lost wages, pain and suffering, and back pay. Give our office a call to find out how we can help.

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Filed under Employment Contract, Verdicts

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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Filed under Wage & Hour

When Employers Marginalize Workers and Break the Law

There are many reasons a disenchanted worker will walk into an employment attorney’s office for a consultation. They include religious discrimination, sexual harassment, wage theft, among others.

One common scenario we attorneys see are employees who have become marginalized in the workplace. People don’t come to us because the law was broken. They generally don’t know the law. They come to our office because they were treated like garbage. Marginalization can occur in a number of different forms and include physical isolation from coworkers, lack of recognition for an employee’s achievements, bullying, or a basic lack of respect. And while an employee can be marginalized for many different reasons, not all of them are unlawful.

In its most benign form, employee marginalization can be the result of poor management. As discussed in this Industry Week article, sometimes a manager mistakes a quiet employee for an employee lacking initiative. As a result, the employee isn’t engaged by management, or encouraged to advance within the company. While this type of treatment may be unfair, even wrong, it isn’t necessarily unlawful.

This article was written to discuss the plight of marginalized employees, as well as the legal line an employer walks when marginalizing a worker. If you believe that your employer has violated state or federal law in marginalizing you, contact our office to see how we can help.

Marginalized Worker Employment Law | Branigan Robertson

What is a Marginalized Employee?

Let’s look a hypothetical situation involving marginalization for purposes of illustration:

Picture a customer service representative named Bob, who works at a big box retailer. A friendly person, Bob’s laid-back approach to sales is appreciated by customers. While his individual sales numbers aren’t stellar, the department he works in has experienced a 15 percent boost in sales since his hiring. However, Bob’s supervisor frequently reminds him that the company doesn’t reward employees for ‘assists,’ and frequently demeans him in front of the other sales staff. One of the other sales reps, who’s numbers are slightly better than Bob’s, often gets overwhelming praise in front of staff for his performance.

When Bob complains to a store manager, his supervisor says he’s only trying to “toughen Bob up,” in order to make him better at his job. Unsatisfied with the company’s lack of response to his situation, Bob leaves the big box store for another job.

OK, so Bob has been marginalized, but did the employer break the law? Keep reading to find out.

The Effects of Marginalization on Morale

A person whose work is valued less by an employer while coworkers are praised and encouraged might experience a wide range of emotions, including discouragement, depression or hopelessness. In short, it’s not a good work situation.

The question that one often asks in this situation, is whether or not an employer who marginalizes a worker has violated the law. In Bob’s case, the answer is no. No laws were broken. Not all cases of employee marginalization are unlawful. It may be cruel, bad business, or just plain wrong, but an employee who’s experienced workplace marginalization may not have a strong case against the employer.

But your situation may be different. And this is what you need to pay close attention too. Keep reading to learn a little about what laws were designed to protect marginalized employees.

What the Law Says About Marginalized Workers

Both state and federal laws exist that are designed to protect workers. Even though California is an at-will employment state, which means an employer is usually free to terminate a worker for any reason, the law prohibits termination, discrimination, or marginalization in certain cases.

For instance, the Fair Employment and Housing Act §12940(a), which closely mirrors federal law, states that it is unlawful employment practice:

“For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person, or to refuse to select the person for a training program leading to employment, or to bar or discharge the person for employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”

So, if we look at the example of our friend Bob from the previous section, an employment attorney would have to consider several factors to determine whether or not he had a strong case. For instance: was Bob’s employer marginalizing him because of his skin color, religious beliefs or sexual orientation? Any of these would be discrimination and we have detailed pages and videos on each.

Was Bob the openly gay employee in his department? Did straight employees receive advancements or bonuses while performing the same duties as Bob? Did Bob’s supervisor make slurs or use sexually inappropriate language when referring to Bob (hostile work environment)?

These and other issues would need to be explored in order to determine whether or not Bob’s marginalization was unlawful.

Whistleblowers Are Also Protected

A whistleblower is an employee who notifies the authorities of workplace violations of law. Under California Labor Code, it is unlawful for a company to retaliate against an employee who has called attention to such violations. Not surprisingly, a common company response to a whistleblower is to isolate and marginalize that employee, perhaps in the hope that the employee will simply quit.

Make no mistake, if a company uses marginalizing tactics to retaliate against an employee because he or she blew the whistle on illegal company activity, the retaliation is unlawful.

Do You Feel You Were Treated Unlawfully by an Employer?

It’s a sad fact of employment. Some companies tend to treat their workers abysmally. This can be for several reasons: misguided attempts to spur production, poor management skills, a lack of regard for workers, or something more nefarious (and unlawful) such as personal prejudice against protected classes.

If you’ve experienced marginalization at work, it could be well worth your time and effort to discuss the specifics of your case with an employment lawyer. While it’s true that many cases of employee marginalization are not unlawful, a good lawyer will be able to look at the facts of the case and decide whether or not legal action should be pursued.

Contacting a Lawyer

A person who successfully pursues a claim against an employer engaged in employee marginalization can potentially benefit financially. In California, marginalized employees may be entitled to:

  • Lost wages
  • Back pay
  • Pain and suffering
  • Punitive damages

Employment attorneys representing workers often take cases on a contingency basis. This means the client doesn’t pay up front fees, but rather the attorney is paid with proceeds from the judgment or settlement. If you have questions about any of the topics covered on this page, or other employment law issues, contact our employee rights office to schedule a consultation.

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Filed under Discrimination, Harassment

The Psychology of Sexual Harassment – It’s About Power

Ask any employment lawyer to speak about the sexual harassment cases they handle, and chances are good they’ll tell you most claims are filed by women against men. But if you’re the type of person who prefers the rigor of numbers and not mere anecdotal evidence, the statistics also show what most of us know already—women are all too commonly the targets of sexual harassment. While this is an unfortunate fact, and a sad reflection on our society at large, it also overshadows the issue of men, who sometimes also, experience sexual abuse.

A USA Today article published December 18, which looked at the issue of why men don’t file sexual harassment claims, cited federal statistics showing that slightly more than 16 percent of sexual harassment claims were filed by men. The overwhelming majority of claims, more than 80 percent, are filed by women. The reasons for this could be analyzed endlessly by social psychologists and other experts, but there are basic factors that offer some explanation.

The Psychology of Sexual Harassment

You’ve probably heard it said before that sexual harassment and assault has less to do with the act of sex and more with power. A quick look at the distribution of gender and power in the workplace might give some insight to one of the driving forces behind sexual harassment.

Speaking to USA Today about this issue, Abigail Saguy, a professor of sociology and gender studies at UCLA explained, “One of the reasons it is men who harass women, and sometimes other men, is that this is about power and overwhelmingly (workplace) upper management is male, so the positions of power are disproportionately occupied by men and the bottom is disproportionately occupied by women.”

When it comes to the type of person that harasses others, psychologist Ellen Hendriksen examined several years of research on the issue and pointed out several traits common in harassers. These include: Moral disengagement, working in a male-dominated field, hostile attitudes toward women, and a cluster of psychological characteristics known as the “dark triad.”

These involve an individual who is limited in his capacity for empathy and holds a strong need for the admiration of others. As Hendriksen point out in her article, when these traits combine in a person “you essentially get a gleeful enthusiasm for exploitation, deception, and manipulation combined with a callous blindness to the feelings of others, all tied together with a bow of grandiosity.” She adds, “In other words, a perfect recipe for sexual harassment.”

To learn more about a hostile work environment, as compared to sexual harassment, click on the appropriate link.

Women Are Frequent Targets, But Men Can Suffer as Well

While it’s a sad commentary on the state of our society that so many women are forced to file claims against their male coworkers, another unfortunate facet to the issue is that the men who genuinely deal with harassment of their own are often overlooked.  In many cases, a man who is harassed, be it by a female or male coworker, will just endure the behavior rather than report it. An employment attorney interviewed by USA Today pointed to the male ego as a possible hindrance to more men filing harassment claims.

“Pride gets in the way,” the attorney said. “Most good plaintiffs’ attorneys who handle discrimination and harassment claims take on female to male harassment and the same laws apply. It’s just a matter of whether the men who are victims want to come forward.”

Whatever Your Situation, Harassment is Wrong, Fight Back

Regardless of whether you are a man or woman, if you’ve experienced harassment, you have the right to file a claim against your harasser. This is best done with the aid and guidance of a qualified employment attorney. Harassment can include a wide range of behaviors including unwanted: comments, sexual advances, jokes, epithets, as well as comments about a person’s pregnancy status, sexual identity or orientation. Requests for sexual favors in return for career advancement also falls under the state’s harassment laws and is known as quid pro quo harassment.

In addition to protecting employees from these behaviors, state and federal laws also protect workers who speak out against harassment and standup for fellow employees. In other words, it is unlawful for an employer to retaliate against an employee who blows the whistle on sexual harassment in the workplace. Retaliation can include demotion, suspension, termination or other punishments.

Those who file claims against harassers might be eligible to recover lost wages, back pay, pain and suffering damages, and in some cases, punitive damages.

If you’ve experienced harassment, or retaliation stemming from harassment, contact a qualified employment attorney to help you explore your options. It could be well worth your time and effort to fight back. If you are looking for a page on marginalization of employees, read this post.

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Filed under Harassment

Parental Leave Expands for California Workers

California workers with blossoming families got an extra bit of good news this month. On October 12, Governor Jerry Brown signed a new law expanding the state’s leave of absence rules so that more workers can spend time and bond with their newborn babies. The law, which will take effect January 2018, expands the California Family Rights Act (CFRA) to cover smaller businesses with fewer employees.

While the FMLA/CFRA have long provided job-protected time off for workers in order to spend time with newborns, until now, it’s only applied to companies with at least 50 employees.  The new law expands leave protection to California workers employed by companies with 20 to 49 workers. This is a huge deal for women seeking to take maternity leave but who work for smaller employers.

According to an article published on October 12 by the Orange County Register, the expansion will cover 16 percent of the state’s labor force that had heretofore been neglected by existing law.

“This is a great victory for working parents and children in California,” said the bill’s author, Senator Hannah-Beth Jackson. “With more parents struggling to balance work and family responsibilities…no one should have to choose between caring for their newborn and keeping their job.”

CA Parental Leave Expansion Bill

What the Expansion Offers

The new expansion will specifically allow employees to take up to 12 weeks of job-protected leave in order to bond with newborn children, newly adopted children, or a recently placed foster child. This means an employer cannot fire, fine, suspend or otherwise discriminate against an employee for exercising their right to parental leave – that would be pregnancy discrimination.

While the law doesn’t require the employer to provide the employee’s salary during the leave, the employer is prohibited from refusing to maintain or pay health coverage supplied under a group plan during the leave.

Who Qualifies?

In order for an employee to qualify under the new act, just like under FMLA or CFRA, he or she must meet the following requirements:

  • Have Been Employed by the Company for More than 12 Months
  • Have at Least 1,250 Hours of Service with the Employer During the Previous 12 Months

What Happens if an Employee is Denied Leave?

While the expansion has yet to go into effect, an employee who is denied their rightful leave under the law will have a number of different options. A good attorney will look at the facts of the case and seek the best outcome for the client. This could involve seeking lost wages, back pay, pain and suffering damages and possibly punitive damages.

An employee who wins their case might be reinstated at their job if wrongfully terminated, or entitled to monetary compensation. If you have questions about changes to the family leave law, or some other employment issue, contact this office for more information.

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Filed under Pregnancy

False Promises of Employment – Fraud in the Inducement

This page is about fraudulent hiring. It details California’s employment laws on when employers tell prospective employees false promises in the hiring process – to induce them (trick them) into quitting their current job for a new one. These types of intentional misrepresentations (fraudulent inducement) are extremely common. But so are negligent misrepresentations – where an employer is reckless with the truth to the prospective employee’s detriment.

You are sitting around after work when you receive a phone call. It is the HR hiring manager for a business in San Francisco and they are looking for someone just like you. You love San Francisco and they are offering you 10% above your current salary, and you will be their new Vice-President of Operations. So you sell your LA home and move to SF. Upon arrival, you are handed a mop, a bucket and told you will be making minimum wage. Surely this cannot be legal? This is an extreme example, but it happens. People move for a job and it is not what they were sold on.

The below video and the rest of this article presents the legal basics of fraudulent inducement. Make sure you read the rest of this page after watching the video!

Fraudulent Inducement Attorney

First and foremost, there are two ways that fraudulent inducement can occur: intentionally and negligently. The difference between the two is as simple as the job offeror knowing that he or she is lying to you versus recklessly ignoring the truth of the information he or she is giving to you. If in the scenario above the HR manager knew that they were going to pay you minimum wage and have you mopping floors despite providing a description resembling a VP of Operations position, it is intentional. If the HR Manager honestly believed that you would be the VP of Operations, but should have known that was not going to be the case, then it may be negligently induced.

What do the Courts Look at in False Promise Cases

To figure out if you were induced into taking the job, the court is going to look at several things:

  1. Did the defendant tell you that an important fact was true (i.e. “You’ll be paid 10% above what you are currently make.”)?
  2. Was this information false?
  3. Did the defendant know it was false information and say it anyways, or did they honestly believe it was true despite having no reason to know?
  4. Did the defendant intend for you to rely on that information in making your decision?
  5. Did you rely on that information in making your decision and was it a big factor?

People have very different ideas of what is an “important fact,” and rightfully so, so California Labor Code § 970 has cleared this up for us. Important facts recognized include the kind, character, or existence of work; the length of employment, compensation, the sanitary or housing conditions surrounding the work, and any labor disputes that are represented (or not for that matter!).

Did you Move? CA Labor Code § 970 is Powerful

Fraud in the Inducement, False Promises of Employment, Employment Lawyer

It becomes especially egregious when an employee moves from one location to another to take a job based on false promises. LC § 970-972 directly address this problem. If an employer induces someone to move based on false promises, that employer may be liable for double damages and guilty of committing a misdemeanor.

Though fraudulent inducement is not as common as discrimination, harassment, or a variety of other claims, it is still a huge hassle for someone who comes across it. People have uprooted their entire lives, changed their kids’ school, and usually have left a job, because they trusted their new employer. If you feel as though you have been given misrepresentations about a job you recently changed locations for, you should to contact a good employment lawyer as soon as possible.

 

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