Tag Archives: california

by | November 4, 2012 · 4:21 pm

My Boss Doesn’t Let Me Take A Rest!

If your boss does not let you take a rest break, or forces you to work during your rest breaks, what can you do? What is owed to you? According to California Labor Code Section 226.7:

(a) No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission.

(b) If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.

Moreover, the applicable wage order to your industry likely includes language similar or identical to this (section 12):

Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof.

If you’ve been denied rest breaks, or forced to be ‘on-call’ during your rest breaks, you might have a legal claim. If you want to know more, check out my earlier post on a recent rest break case. The case, commonly known as “Brinker,” was big news because the California Supreme Court weighed in and attempted to resolve lingering questions for wage and hour lawyers all across the state. I’ve also written an entire post exclusively on rest breaks. Check out both to learn more information.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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Filed under FLSA – Fair Labor & Standards Act, Rest Breaks, Wages and Hours

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by | October 30, 2012 · 10:27 pm

Independent Contractor or Employee?

Are you an independent contractor or an employee? What is the difference?Many companies try to sidestep California’s law by hiring “independent contractors” instead of employees. If legitimate, independent contractors are not “employees” covered by the wage and hour laws, and therefore companies don’t have to pay them overtime. Legally, companies are not allowed to hire an “independent contractor” if the worker qualifies as an “employee” under California’s economic realities test.

This test looks to see whether the worker is dependent on the company to which they render their services to. In determining whether workers qualify as employees under the Fair Labor Standards Act, courts look at a number of factors, including:

  • the degree to which the employer has the right to control how the work is performed,
  • the degree to which the worker’s opportunity for profit or loss depends upon the worker’s managerial skill,
  • the worker’s personal investment in equipment, labor, or materials required for the job,
  • whether the service at issue requires a special skill,
  • the degree of permanence of the working relationship; and
  • whether the service rendered is an integral part of the employer’s business.

The importance that the court gives each factor depends on the totality of the circumstances; however, the right to control the means and manner of job performance is generally the most important consideration.

On the other hand, if the worker is classified appropriately as an independent contractor, he or she is not a “employee” under California law, and are therefore not entitled to overtime.

Sadly, abuse of this system is rampant. According to one study, tax audits done by the Economic Development Department from 2006 to 2008 show that 29% of audited employers misclassify workers as independent contractors when they should be employees. This comes from the National Employment Law Project (October 2011) Independent Contractor Misclassification Imposes Huge Costs on Workers and Federal and State Treasuries,  p. 4, 5, fn. 5.

If you have been misclassified as an independent contractor, and therefore denied overtime, give an employment attorney a call. You might be owed a lot of money.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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Filed under FLSA – Fair Labor & Standards Act, Independent Contractor, Overtime, Wages and Hours

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by | October 29, 2012 · 10:33 pm

Do Employees Get Overtime If They Are Paid A Salary?

Do employees get overtime if they are paid a salary?A common question employment lawyers get is: “I get paid a salary but I work 50, 60, 70 hours a week. Should I be paid overtime?”

As with most legal questions, the answer is far more complicated than the question. But this article attempts to outline the answer without too much legal gobbly-gook.

One of the biggest myths about overtime in California is that people who are paid a salary are never entitled to overtime.  The sad fact is that many people who are paid a salary by their employers are entitled to overtime and don’t receive it, and even more are paid hourly but don’t get any overtime because they work for dishonest companies with shady time-keeping procedures. Thus, if someone tells you that you are not entitled to overtime just because you are paid a salary, they are dead wrong.

In California, everyone is entitled to overtime pay unless they first meet one of the legal overtime exceptions. These exceptions are called “exemptions” under the law. Think of an exemption as a test: if your job passes the test your employer gets rewarded and doesn’t have to pay you overtime; however, if your job fails the exemption, then you are rewarded with overtime. I italicized “job” to emphasize that the test is dependent on your job functions, not on your personal capabilities.

Employers sometimes find it difficult pass an exemption for your job. Undeterred, many companies claim that your job meets the exemption when, in reality, it doesn’t. They do this because they don’t want to pay you the hour. It’s so much easier to pay you a salary – there are no time cards, variable monthly payments, and no overtime.

The next question becomes, what are these exemptions and does your job meet one of them? There are four major exemptions: “administrative,” “executive,” “professional,” and the “computer software professional.” If your job doesn’t meet the requirements for one of these exemptions then you are entitled to overtime pay.

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Filed under Exempt, FLSA – Fair Labor & Standards Act, Hourly or Salary?, Non-exempt, Overtime, Wages and Hours

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by | October 15, 2012 · 10:59 pm

Lisa Kudrow & Scott Howard to the California Supreme Court? Phoebe Wants to Fight.

In 2008, Lisa Kudrow (Phoebe from ‘Friends’) was dragged into court by her former manager, Scott Howard, who filed a lawsuit because she refused to pay him more than $50,000.

In the early 1990’s, Howard and Kudrow entered into an oral agreement for Howard to act as Kudrow’s personal manager. Kudrow agreed to pay Howard 10% of whatever she earned. In 1994, Kudrow landed the role of “Phoebe” on the television show “Friends.” Amazingly, for the last 18 episodes in 2004, Kudrow made $1 million an episode, plus 1 1/4 % of the show’s “backend” earnings.

So, what is the dispute about? Well, after Kudrow terminated Howard as her personal manager, she stopped paying him. Which seems completely fine except that the custom and practice in the entertainment industry at the time was for a personal manager to be paid post-termination commissions on the services that their clients rendered when the personal manager was representing them.

Currently, the two parties are bickering over when an expert should have been admitted. A Los Angeles County Superior Court barred Howard from admitting an experts testimony, and granted Kudrow summary judgment. The appeals court reversed Wednesday, saying Bauer should be allowed to testify on remand. Now, Kudrow may appeal it to the California Supreme Court.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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by | October 14, 2012 · 12:36 am

Sexual Harassment Series #3: Moran v. Qwest Communications

For today’s post I thought I would highlight a recent sexual harassment case: Moran v. Quest Communications. In this case the jury awarded the plaintiff, Amy Moran, $4,292,710.

Let’s outline the facts in detail. I’ve copied and pasted much of it from an online copy of the appellate decision. I want to highlight the kind of behavior that qualifies as sexual harassment. Although a new trial has been ordered on some aspects of the verdict, this case highlights what a jury can do for a sexually harassed employee.

Moran joined Qwest (which is now CenturyLink) in early 2006. She was hired in a sales position and was compensated in base salary plus commission. By mid 2006 her managing boss had been replaced by Dennis Sherwood.

Sherwood seems like a disaster of a boss. He had received sexual harassment training at previous jobs and, according to an appellate brief, “recognized such harassment as a serious issue.” In a previous job, Sherwood tried to start an intimate relationship with a subordinate employee while she was a candidate for hire and after she was hired.

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by | September 13, 2012 · 12:25 pm

California’s Lawsuit Environment and the OC Register

I love reading my local news. The Orange County Register does a good job covering local business affairs. Jan Norman, covering small business, is a fantastic reporter. She is objective and fair. But I have a little beef with her recent article, “Business survey ranks Calif. 47th in lawsuit climate.”

The article is about a survey conducted by the U.S. Chamber Institute of Legal Reform (ILR), a national lobby group for big business. According to ILR’s website:

The (ILR) is a national campaign, representing the nation’s business community, with the critical mission of making America’s legal system simpler, fairer and faster for everyone.

Further down the page it states:

ILR aims to neutralize plaintiff trial lawyers’ excessive influence over the legal and political systems.

This is a ridiculous position. Plaintiff lawyers are consistently the underdogs representing the little guys. In general, they don’t have millions of dollars to throw at cases like the lawyers who were surveyed by ILR. Moreover, plaintiff lawyers don’t have the lobbying power that Corporate America has in Federal and State legislatures.

Read more after the jump….

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Filed under Class Actions, Lawsuits & Lawyers, Wages and Hours

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by | September 12, 2012 · 11:47 am

Pregnancy Series #3 – Maternity Leave – What You Should Know About California Law

Maternity Leave, California, FMLA, CFRAIf you just found out that you are pregnant let me be the first person in the Internet world to say, “Congrats!” There is nothing more exciting that expecting a child. I know this from experience. My wife and I just had our first daughter and I want to jump for joy. I couldn’t be happier.

But if you’re a working woman this might be daunting. What does your pregnancy mean for your job? It obviously means you must take time off for doctor visits, pregnancy classes, labor, and recovery. But how much time can you take off? What protections does California law afford?

Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA) are the laws at issue. The FMLA, in combination with the CFRA, provides California working mothers with the best maternity leave rights in the nation.

Read more after the jump…. Continue reading →

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Filed under CFRA - California Family Rights Act, Employee Benefits, Family & Medical Leave, FMLA - Family & Medical Leave Act, Health Benefits, Health Care, Leaving a Job, Maternity Leave, Pregnancy, Sex Discrimination

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by | February 3, 2011 · 11:51 am

Employee Duty of Loyalty

Orange County, CA – What is the duty of loyalty?  Does it apply to a employee?  Employer?  What is California’s rule regarding the duty of loyalty?

These are all extremely valuable questions for both the employer and the employee to have answers to.  First, the employee duty of loyalty basically means this: An employer has the right to the undivided loyalty of its employees. The duty of loyalty is breached and may give rise to a tort cause of action on behalf of the employer when the employee takes action hostile to the employer’s best interests.  Stokes v. Dole Nut Co. (1995) 41 CA4th 285, 295.

What on earth does that mean?  It means that an employee isn’t supposed to compete with his or her employer while he or she is employed.

Well, what does “compete” mean?  Easy answers after the jump….

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