California Employment Lawyers Blog

Our Orange County, California Employment Attorneys recently posted a blog discussing the introduction of the Employee Misclassification Prevention Act (EMPA), that was introduced into the House of Representatives by California Representative Lynn Woolsey (D-CA), and into the Senate by Senator Sherrod Brown, (D-OH).

California Representative Woolsey recently discussed employee misclassification in an article--stating that it is a huge problem that cheats workers out of income, robs them of their rights, is a threat to fair competition, and leaves taxpayers to deal with the problem.

In her article, Woolsey claimed that the Governmental Accountability Office estimated in 2006, that over ten million independent contractors were misclassified as employees, with at least 30 percent of these workers in California.

Woolsey stated that employee misclassification often happens because employers don't want to pay for Social Security, vacation, pensions, sick leave, and especially labor protections that employees receive, like the right to receive minimum wage and lawful overtime. Woolsey claims that the top reason that employers engage in misclassification is to dodge disability and workmen's' compensation disputes, as well as compensation premiums--so if there is an injury on the job, the worker will have no workman's compensation benefits, no income to cover the time that they can't work, and probably no health insurance--a problem affecting low-income workers across the country.

Continue reading "California Rep. Lynn Woolsey Fights Employee Misclassification with EMPA" »

A recent court case that our Anaheim, California-based Employment Lawyers have been following has reportedly alarmed the franchising industry across the country, as the case is challenging the industry understanding that franchisees are considered to be independent contractors and not employees--a topic our lawyers recently discussed in a blog.

According to the case, Coverall North America, Inc., the commercial-cleaning franchise located in Boca Raton, Florida, was sued by franchisees in 2007--who claimed that Coverall committed deceptive and unfair business practices, as well as employee misclassification in Massachusetts as well as other states. The franchisees accused Coverall of misclassifying them as "independent contractors" instead of "employees" and claim that under law, they are entitled to minimum wage rights, overtime pay, and other benefits, like unemployment and workers' compensation.

In March, a judge in a district in Boston reportedly ruled that Coverall's franchisees were essentially employees who paid a franchise fee to clean buildings--the main business of the company. The judge wrote in the his opinion that Coverall failed to establish that the franchisees were independent contractors--which violates Massachusetts state employment law.

Last week, the court reportedly issued a memorandum and order granting the workers' motion for a partial summary judgment, stating that under Massachusetts law, the franchisees were found to be employees. The implications of this decision could mean that franchises could be legally liable to for unpaid wages and benefits, including health insurance, workers' compensation, overtime payment, as well as other rights given to employees who have been misclassified as independent contractors under law.

Continue reading "Employee Misclassification Lawsuit: Franchisees Found to Be Employees Not Independent Contractors" »

As Santa Ana, California Employment Attorneys, we have been following the recent lawsuit settlement, where Teleperformance USA, a telephone call center based in Salt Lake City, Utah has paid nearly $2 million in back wages to 15,862 workers for violating overtime laws under the Fair Labor Standards Act, as well as incorrectly classifying employees--a topic our attorneys discussed in a recent blog.

This lawsuit settlement reportedly came as a result of an investigation, led by the U.S. Department of Labor's Wage and Hour Division. Labor Secretary Hilda L. Solis claimed that when employers don't pay workers their legally entitled overtime wages, the Labor Department won't hesitate to step in to enforce federal law. Solis stated that these workers are entitled to receive payments of their back wages that they earned under federal law.

According to the Department of Labor (DOL), Teleperformance USA, a company that provides customer service over the phone to companies like Verizon Wireless, Sprint Communications, and Dell Computers, among others, reportedly violated federal overtime laws by failing to compensate employees for all hours worked, by neglecting to pay for breaks that were less than 30 minutes long, and by failing to pay workers whose shifts had already started and were forced to wait for work areas to become available. A small group of employees were also reportedly misclassified as "exempt" under the FLSA.

As our attorneys reported in a recent blog entry, under the FLSA, employees should be paid no less than the federal minimum wage for all hours worked, which is currently $7.25 per hour. Workers are also required to be paid time and one-half their regular rate payments when working over 40 hours in a single week. Employers are also required to maintain accurate records or all employee wages, hours worked, as well as other conditions of employment.

Continue reading "DOL's Wage and Hour Division Investigation Leads to Lawsuit Settlement--Teleperformance to Pay Nearly $2M in Employee Back Wages " »

Our Southern California Employment Attorneys recently discussed a class action "donning and doffing" lawsuit, in which a group employees have filed a lawsuit against Farmland Foods, alleging that the company has not paid them for the time it takes to put on ('donning') their gear before working, and take off ('doffing') their gear after the workday is over.

"Donning and doffing" wage and hour rights are based on the federal Fair Labor Standards Act (FLSA). In the 2005 Supreme Court case, IBP v. Alvarez, the high court ruled unanimously in favor of workers' rights--that they must be paid for the time spent walking to and from the place where they put on and take off their protective gear, and the place where they process the poultry or meat.

The Supreme Court decided that donning and doffing protective gear is a "principal activity" under law, and that under the FLSA, time spent donning and doffing, as well as any time walking or waiting that occurs after the worker begins his first principal work activity, and before he finishes his last work activity, is part of the worker's "continuous workday" and is compensable under law. The Court also ruled that waiting time before the very first principal activity is not compensable, unless the workers are required to report to work at a specific time.

According to the Department of Labor, the Supreme Court reached this result by reviewing and reaffirming the historic definition of "work" under the FLSA. The Court stated that it originally defined the terms "work' and "workweek" with broad strokes. "Work" had initially been defined as "physical or mental exertion" controlled or required by an employer and necessary for the benefit of the employer and his business. The Court soon after clarified that "exertion" was not necessary for an activity to constitute "work." The Court then redefined "the statutory workweek" to include "all the time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed workplace."

Continue reading "FLSA "Donning and Doffing" Wage and Hour Rights" »

In a recent blog, our California Employment Lawyers discussed a current "donning and doffing" case, where police officers in Denver are fighting for wage and hour compensation for the time it takes them to put on and take off their uniforms and equipment.

In another recent case, a group of five employees are suing Farmland Foods in a federal wage "donning and doffing" class action lawsuit--alleging that Farmland Foods has not paid them for the time it took to put on and take off safety gear, clean the gear, and walk to and from their meat processing workstations.

According to the lawsuit, the workers are required to be ready for work, wearing their protective gear, when the meat production line starts running. The workers claim that their state and federal wage and hour rights are being violated, as the company refuses to pay them for the time spent putting on the protective gear, and cleaning up at the end of the workday.

In the 2005 Supreme Court case IBP v. Alvarez, the high court ruled in favor of the meat-packing workers who claimed they should have been paid for the extra time it took to put on ('donning') the gear before working, and take off ('doffing') after the workday is over--based on the federal Fair Labor Standards Act (FLSA) that has broken new ground for workers' wage and hour rights across the nation.

Continue reading " Workers Sue Farmland Foods for Wage and Hour "Donning and Doffing" Rights in Class Action Lawsuit" »

According to the U.S. Equal Employment Opportunity Commission (EEOC), Perdue Farms, one of the nation's largest poultry producers, will pay $25,000 in an age discrimination lawsuit--after reportedly violating the Age Discrimination in Employment Act (ADEA) by denying employment to a female worker because of her age.

According to the lawsuit, filed by the EEOC, Audrey Sheftall applied for employment at a Perdue Farms facility in North Carolina when she was 66 years old. Sheftall was reportedly qualified for the position in the deboning department, and yet was refused by the company. The EEOC reports that Perdue went on to hire over 70 new employees within the month that she applied, who were all considerably younger than Sheftall--including her granddaughter who applied on the same day as her grandmother.

The Age Discrimination in Employment Act protects both employees and job applicants who are forty years of age or older from discrimination based on age. Under the ADEA it is against the law to discriminate against a person because of age in any condition of employment including, compensation, job assignments, hiring, firing, layoffs, and other terms of employment. It is also illegal to retaliate against an employee or applicant for opposing age discrimination practices.

The EEOC enforces the federal laws that prohibit discrimination in employment, and is committed to ensuring that employment applicants are considered for jobs based on actual skills and qualifications and not stereotypes based on age.

Perdue Farms operates facilities in sixteen states and employs approximately 20,000 people throughout the country. Sheftall applied for a job in a facility that reportedly processes nearly 40,000 chickens each day, to sell to retailers.

Continue reading "Poultry Producer Settles in Age Discrimination Lawsuit--Perdue Pays Applicant $25K" »

Our Santa Ana, California Employment Attorneys have been following a recent off-the-clock lawsuit involving the proper compensation of police officers for time spent putting on and taking off their uniforms.

According to the lawsuit filed in 2007, Denver police officers are claiming that they should be compensated for the time spent putting on and taking off their uniforms for work--otherwise known as a "donning and doffing" lawsuit. The officers claim that putting on their uniform, guns, bulletproof vests, holsters and other equipment takes time, and that they should compensated from the moment they start to dress in the uniform and put on equipment--as it is an integral part of their workday.

Lawsuits like these have reportedly been increasing around the country after the Supreme Court upheld the rights of meat-packing workers in a 2005 case, who claimed they should have been paid for the extra time it took to put on ('donning') the gear before working, and take off ('doffing') after the workday is over--based on the federal Fair Labor Standards Act (FLSA).

The police officers claim that they have been cheated out of overtime compensation for years, as the city of Denver has failed to compensate them for off-the-clock time spent for stepping into and taking off their uniforms.

Continue reading "Police Fight to Get Paid to Put On Uniform--Judge Rules Off-the-Clock Lawsuit Can Move Forward" »

In a recent blog, our Riverside, California Employment Attorneys reported on an $85 million Wal-Mart settlement from last year, involving around 3 million hourly workers in 30 states--who all sued for allegations of wage and hour law violations.

Wal-Mart made million dollar class-action headlines again today, after agreeing to another settlement--to pay former California employees as much as $86 million in a California class-action wage and hour lawsuit settlement.

According to the lawsuit, Wal-Mart Stores, Inc., the largest retailer in the world, was accused in this case of violating wage and hour laws by not compensating former workers properly under California law. Wal-Mart allegedly failed to pay the workers for overtime and vacation wages they earned before leaving the company, and neglected to pay the employee earnings in a timely manner as specified by the state of California.

The former employees accused Wal-Mart of manipulating their hourly time sheets to get out of paying overtime, as well as making them wait for days or even weeks to pay them for vacation wages after they left the company. According to employment law in California, if an employee is fired, all wages that are owed to them should be paid within 72 hours. If an employer violates that law, they can be required to pay as much as 30 days of wages to the workers.

Continue reading "California Class Action Wage and Hour Lawsuit Settlement--Wal-Mart to Pay $86 Million" »

Our California Labor and Employment Attorneys have been following the recent news story about a local contractor, arrested for violating New York State wage and hour laws and falsifying payroll documents with the State Department of Labor.

Charles Zimmer, Jr., a road construction contractor, reportedly worked with his crew on public projects including ramp, gutter and sidewalk renovations in and around the city of Binghamton and at the Greater Binghamton Airport. He is being accused of defrauding his workers out of more than $245,000 of wages by failing to pay workers wages that are legally required on public works projects, and filing certified payroll documents with the government that were false.

According to the Department of Labor's Office of Special Investigations, New York contractors are required to compensate workers on government jobs according to the prevailing wage laws and schedules--set by the Labor Department--to be properly paid for the amount of work that they do while working on public contracts. Contractors must then file certified payrolls, including the names of the workers who performed the work and how much they were compensated in benefits and wages.

After a nine-month investigation, the Broome County District Attorney and the Department of Labor reportedly found that Zimmer was reportedly only paying his workers $8-10, but should have been compensating his workers around $20-40 with added supplemental benefits that cover sick leave and vacation. Zimmer is being accused of defrauding both the workers and the government, by failing to list all of the workers at many job sites on the payrolls, failing to pay workers the prevailing wage rate on the public projects, and falsifying the payroll documents when filing with the government.

Continue reading "Contractor Accused of Cheating Workers and Government By Violating Wage and Hour Laws" »

In recent news, that our Riverside, California Employment Attorneys have been interested in, a current sexual harassment trial hoped to change history this week, as a Brooklyn lawyer attempted to use a brain scan to prove honesty in court, as the next generation of a lie detector test.

According to Wired.com, David Zevin, an attorney in Brooklyn, hoped to blaze a trail in court this week by attempting to offer a brain scan as key evidence that a witness in the trial is speaking the truth.

The brain scan in question is the fMRI scan, used instead of the polygraph test for truth telling. If admitted in court, the brain scan would be groundbreaking in regard to neuroscience's role as evidence in future courtrooms.

Zevin is representing female employee Cynette Wilson in a sexual harassment and retaliation lawsuit. Wilson was reportedly harassed in a sexual manner on the job, and complained to the temp agency that placed her, named CoreStaff Support Services. Wilson claims that after complaining about the harassment, she stopped receiving the best temporary assignments out of retaliation. Another CoreStaff worker reportedly overheard the supervisor state that Wilson should stop receiving temporary job assignments because of her sexual harassment complaint.

Continue reading "Lawyer Attempts to Use Brain Scan as Evidence in Sexual Harassment and Retaliation Case" »

Our Southern California Employment Attorneys have been following the recent California Supreme Court discussion on Proposition 209, questioning the topic of affirmative action in California employment contracts.

According to the Los Angeles Times, the California Supreme Court recently debated the constitutionality of Proposition 209, also known as the California Civil Rights Initiative, which was the California ballot proposal approved in 1996 that amended the California Constitution to prohibit state, local governments, public universities, colleges, schools, districts, or any other governmental institutions from discriminating against or giving preferential treatment to any individual or group in public employment, education or public contracting on the basis of sex, race, color, ethnicity, or national original.

During the hearing, the high court questioned the reach of Proposition 209, and whether the affirmative action ban in government should be limited. Certain court members were reportedly interested in permitting some form of affirmative action in addressing the continuing problem of discrimination in the California workplace.

The high court is currently reviewing an ordinance in San Francisco that gives companies operated by minorities and women an employment advantage with city contracting. Even though Prop 209's constitutionality was upheld by the nation's 9th Circuit Court of Appeal, the California Supreme Court is not restricted by the ruling of the circuit court.

Continue reading "Affirmative Action Ban Debated in California Supreme Court--Should Women and Minorities have Employment Preferences?" »

In yesterday's blog, our employment attorneys based in Orange County, California, discussed Senator Sherrod Brown's introduction of the Employee Misclassification Prevention Act (EMPA) into the Senate last month.

According to Iowa Senator Tom Harkin (D-IA), who is also Chairman of the Senate Health, Education, Labor and Pensions Committee, employee misclassification is a problem that not only cheats workers out of important labor protections like wage and hour rights, the right to overtime pay, and the right to workman's' compensation, it cheats the state and federal government out of tax revenues.

Harkin claims that when employers misclassify employees, state and local governments are undermined, which increases costs for taxpayers or reduced services for the public. Attorney General for Ohio, Rich Cordray claims Ohio was documented in a study as losing nearly $160 million per year for employee misclassification. President Obama's Administration claims that if employers kept better records on classification over the next ten years, $7 billion could be potentially raised.

Senator Brown states that the EMPA would significantly reduce the prevalence of employee misclassification by:

• Ensuring that employers keep accurate records reflecting the status of each worker as an "employee" or a "non-employee."
• Requiring that employers notify workers of their employment classification, as an "employee" or "non-employee."
• Creating a website for employees that would inform workers about their state and federal wage and hour rights.
• Providing protection to workers who experience discrimination because they seek accurate classification from their employers.
• Making employers aware that misclassifying workers violates the Fair Labor Standards Act.
• Increasing employer penalties when employees are misclassified, or when employers are found to have violated employee's minimum wage and overtime rights.

Continue reading "New Legislation to Reduce Employee Misclassification" »

Our Orange County Employment Lawyers have been following the recent announcement of the Employee Misclassification Prevention Act, that was introduced into the Senate recently by Senator Sherrod Brown, (D-OH), after the companion legislation was introduced into the House of Representatives by California Representative Lynn Woolsey (D-CA).

The act would amend the Fair Labor Standards Act from 1938 and require that employers keep accurate records of "non-employees" or "independent contractors" who work for payment. This act will penalize employers who attempt to incorrectly classify "employees" as "non-employees."

According to Senator Brown, tens of thousands of employers misclassify their workers as independent contractors, making employees ineligible for benefits like wage and hour rights, overtime, workers' compensation and unemployment insurance. Employees who are misclassified are also not protected by health and safety laws, or anti-discrimination laws.

This act would reportedly prevent workers from being incorrectly classified as independent contractors and would give them the lawful protection and employee benefits that they have legally earned. The Employee Misclassification Prevention Act would reportedly help ensure that employees have access to health and safety protections in the workplace, fair labor standards, and unemployment and workers' compensation benefits.

Continue reading "Brown Introduces Employee Misclassification Prevention Act in Senate" »