California Employment Lawyers Blog

As we reported in a recent Anaheim, California employment lawyer blog, in the state of New York, Governor David Paterson signed the Construction Industry Fair Play Act into law this week, to target employee misclassification within the construction industry. Under the new act, any contractor who knowingly misclassifies an employee will be subject to criminal and civil penalties.

The law states that individual workers who perform services for an employer are presumed to be employees unless they are proven to be an independent business entity, by meeting certain criteria. The law also contains a test with twelve parts to determine whether an employer is considered a "separate business entity" from the contractor for which it provides a service.

According to a recent press release from Governor Paterson, studies show that employers misclassify around 15 to 25 percent of New York State construction workers as independent contractors or "exempt." As our Carson labor attorneys have reported in a previous blog, employee misclassification can happen as a result of incorrectly labeling employees as independent contractors or by paying them entirely off the books--denying the workers' benefits and protections under state and federal law. This not only hurts employees, but it deprives the government of tax revenue, and is unfair to employers who play by the wage and hour rules and regulations, by classifying their workers correctly.

Paterson showed evidence of employment misclassification on a recent construction site in New York State, where 12 of the reported 21 contractors claimed to have 211 employers who were classified correctly as independent contractors. By incorrectly classifying these workers, the employers violated the law by neglecting to pay over $80,000 in unemployment insurance taxes. On the same site, a painting contractor had more than 50 painters who were reportedly misclassified as independent contractors.

Continue reading "NY Governor Signs Employee Misclassification Act into Law" »

In yesterday's blog, our Riverside, California employment attorneys discussed new legislation passed recently in states across the country like Connecticut, New York, and Pennsylvania, where criminal and civil penalties are being imposed on employers for engaging in employee misclassification, by intentionally classifying their employees as independent contractors or "exempt," meaning that the employee is not entitled to overtime pay or other wage and hour benefits that are usually available to non-exempt employees.

Earlier this year, Governor Jodi Rell of Connecticut signed Public Act No. 10-12 into law, implementing the recommendations of the Joint Force Commission on Employee Misclassification, and the Employee Misclassification Act (EMPA). The act increases criminal and civil penalties on employers for misclassifying employers as independent contractors, and became effective as of October 1, 2010.

In Connecticut, any employer who engages in employee misclassification is liable for a civil penalty of $300 for each violation. The EMPA reportedly increases that civil penalty to $300 per day for each violation. Also, any employer who engages in employment misclassification with intent to harm, defraud or deceive the State of Connecticut, in regard to workers' compensation insurance payments, can be guilty of a class D felony and can be subject to a stop work order issued by the Labor commissioner. Any employer who violates a stop work order will also be liable for a civil penalty of $1,000 per day for each violation.

In New York State, Governor David Paterson introduced the Construction Industry Fair Play Act in August, to be signed into law today, on October 26, 2010. Under this act, employers who violate the law willfully, and engage in employee misclassification of its employees, are subject to up to $2,500 in civil penalties for each employee for the first violation, and up to $5,000 for each misclassified worker for the second violation within a five-year period of time. Employers could also be prosecuted criminally, receiving a misdemeanor, for violating the Fair Play Act, with possible penalties of up to 30 days in prison, and up to a $25,000 fine, as well as debarment from Public Work for up to one year for the first violation. Any following misdemeanor offenses could lead to up to 60 days in prison and a $50,000 fine, also with debarment from doing Public Work for an up to five-year period.

Continue reading "Criminal Penalties Imposed on Employers for Employee Misclassification" »

In a recent blog, our Anaheim-based employment lawyers reported on employee misclassication, a nationwide problem affecting workers who are misclassified as "exempt" instead of "non-exempt" by employers, often to avoid complying with state and federal wage and hour laws, like paying overtime, providing minimum wage, rest breaks or meal periods, and workers' compensation, among other benefits.

Earlier this year, as our Irvine, California labor attorneys also discussed in a blog, the Employee Misclassification Prevention Act (EMPA), was introduced into the Senate by Senator Sherrod Brown (D-OH), with a companion legislation introduced into the House of Representatives by U.S. Representative Lynn Woolsey (D-CA). The EMPA, would amend the Fair Labor Standards Act of 1938, and ensure that misclassified workers have access to these fair labor standards, worker safeguards, and worker's compensation benefits, by penalizing employers who attempt to incorrectly classify employees as independent contractors.

According to Iowa Senator Tom Harkin, who is also the Senate Health, Education, Labor and Pensions Committee Chairman, employee misclassification robs employees of important labor protections, and cheats the federal and state governments out of tax revenues. The list of states fighting the practice of employee misclassification is rapidly growing, with state legislation being passed to eliminate the misclassification of workers by imposing criminal penalties on employers who intentionally classify their employees as "independent contractors, or "exempt."

In May of this year, Connecticut Governor Jodi Rell signed into law the Public Act No. 10-12, implementing EMPA recommendations. The act increases criminal and civil penalties on employers for misclassifying employers as independent contractors, and became effective on October 1, 2010. Other states imposing criminal penalties for employee misclassification include New York, Pennsylvania, Nebraska, Delaware, New Jersey and Maryland, and Illinois, among others.

Continue reading "New State Legislation Holds Employers Accountable for Employee Misclassification " »

In a recent blog, our Riverside employment attorneys discussed a wage and hour lawsuit filed against celebrity chef Mario Batali's New York restaurant, Del Posto, for allegedly violating wage and hour laws, by depriving employees from tips and other compensation from banquet work at the restaurant.

Freddy Richards, a waiter at Del Posto for almost four years, making nearly $50,000 a year working at the restaurant, claimed that employees were aware that they were not receiving tips that were owed to them, but were too scared to report it.

This Del Posto lawsuit reportedly comes after a six-month negotiation attempt with Mario Batali, and partner Joseph Bastianich, of the Batali-Bastianich Hospitality Group, with the advocacy group, the Restaurant Opportunities Center of New York (ROC-NY).

This is one of nine recent wage and hour campaigns, launched by ROC-NY, against other high profile New York restaurant establishments. The advocacy group claims to have achieved millions of dollars in wage and hour settlements in these cases.

This wage and hour lawsuit also follows two similar suits against the Batali-Bastianich Hospitality group--one involving two Babbo restaurant employees, which seeks to be a class action suit including around 20 plaintiffs at over twelve restaurants, as well as a lawsuit filed against one of Batali's California restaurants.

Continue reading " High-profile Celebrity Restaurateurs Hit with Wage and Hour Lawsuits " »

According to an article from last week's Wall Street Journal that our Santa Ana labor attorneys have been following, twenty-seven former and current workers at Del Posto, famous Chef Mario Batali's well-known New York restaurant, filed a wage and hour lawsuit last week, seeking back wages and tips that the restaurant allegedly owes them.

The wage and hour lawsuit reportedly accuses the restaurant's management of violating wage and hour laws, by depriving employees from tips and service charges from banquets at the restaurant. This suit is reportedly part of a wider campaign, launched by the advocacy group, the Restaurant Opportunities Center of New York (ROC-NY), against the Italian restaurant. The group has waged nine campaigns against other famous New York restaurateurs like Alan Stilman of Smith & Wollensky, and Daniel Boulud, reportedly securing millions of dollars in employee settlements.

ROC-NY was originally formed in 2001 to provide support to displaced workers after the terrorist attacks on 2001, and according to Jeffrey Mansfield, an organizer with the advocacy group, there will be protests outside the Manhattan restaurant until the company negotiates with workers to resolve their wage and hour issues. Mansfield claims this isn't just about getting money--it is about fighting for changes in the workplace.

The lawsuit alleges that every night the management was taking 8-9% for wine sales out of the tip pool. Banquet workers were also reportedly forced to receive a flat pay rate, and did not directly receive a service charge of a 23%, which deprived them of gratuity that they might have possibly received.

Del Posto is also being accused of violating state law requiring employees to receive an extra hour of compensation if they work for 10 or more hours in a single day. Employees were also not given payment for laundering required uniforms. The employees are seeking unpaid tips and wages, liquidated damages, and interest, as well as attorney's fees.

Continue reading "Chef Mario Batali's Del Posto Sued for Back Wages and Tips" »

In recent news that our Riverside employment attorneys have been following, the U.S. Equal Employment Commission has filed a disability discrimination lawsuit against Human Development, Inc. (RHD), for violating the Americans with Disabilities Act (ADA) of 1990, by firing an employee because of her disability--obesity.

According to the lawsuit, Lisa Harrison started working for the company in 1999, helping the children of drug-addicted mothers going through addiction treatment. Harrison was a Prevention and Intervention Specialist, and claimed that she was fired in the fall of 2007, because of discrimination against her severe obesity. Harrison reportedly died before the EEOC filed the lawsuit.

The EEOC claims in the lawsuit that because of her obesity, RHD found Harrison substantially limited in a number of major life activities, that included walking. The EEOC lawsuit claimed that Harrison was able to perform all of the necessary functions of her position. Her private interests in the lawsuit will reportedly be represented by her estate.

As our Carson, California employment lawyers have discussed in a previous blog, Title I of the Americans with Disabilities Act of 1990 prevents private employers, local and state governments, employment agencies, and labor unions from engaging in discrimination against qualified individuals with disabilities in hiring, job advancement, job application compensation, employment training, firing, and other employment terms, conditions, and privileges. The ADA also requires that employers make reasonable accommodations for job applicants and workers with disabilities.

Continue reading "Human Development, Inc. Sued by EEOC for Discriminating Against an Obese Employee" »

Our Orange County employment lawyers at Howard Law, PC, are currently representing a female employee in a racial discrimination lawsuit against her former employer, Ralphs Grocery Company. The plaintiff has filed a complaint against the company for racial harassment, discrimination, retaliation, and wrongful termination.

Prior to her termination, the plaintiff had been an employee of Ralphs since the mid-1980's, receiving high performance reviews for her work. In 2007, the plaintiff began working in Val Verde, California, as the manager of store's bakery department, where she also received high performance reviews--the most recent coming days before her abrupt wrongful termination.

According to the complaint, in June of 2009, a misunderstanding occurred in the bakery department, with an accidental donation of old bakery items to charity that had a resale value of less than $10. At Ralphs, unsold bakery items are marked down and placed on a rack, for a one-day sale period. If they don't sell, they are scanned as "stales," and can be donated to charities. When the plaintiff's husband came to pick up old bakery items for charity donation, the plaintiff reminded a colleague to properly scan the items. The colleague reportedly first scanned the items to the mark down rack, and then immediately scanned them again as "stales," before handing them to the plaintiff's husband.

The California plaintiff's employment was terminated by the Ralphs' store manager and the HR manager over the incident, without a thorough investigation into the facts, claiming that the plaintiff caused her colleague to donate the old bakery items, instead of placing the items on the markdown rack for a one day sale. The plaintiff believes that Ralphs' true motive for termination is due to her race--as she is African American.

Continue reading "Ralphs' Employee Sues for Racial Discrimination, Harassment and Wrongful Termination" »

In recent wage and hour news that our Santa Ana employment attorneys have been following, the U.S. Labor Department (DOL) has recently recovered over $485,000 in a wage and hour settlement for employees who work and have worked for dollar stores in New York City from June of 2006 to May of this year.

The lawsuit was reportedly filed last year against various dollar and 99 cent stores and owners in New York City. The defendants are being accused of failing to pay employees according to the Fair Labor Standards Act (FLSA) wage and hour law requirements, even after previous DOL investigations of individual establishments brought attention to the laws. The DOL reportedly took further legal action against the defendants because many reportedly claimed to operate single store establishments, while actually operating retail enterprises with many locations around the city, failing to compensate their employees properly, and violating the FLSA.

According to the FLSA wage and hour laws, covered employees must be paid according to the federal minimum wage of $7.25 per hour, as well as one and one half times their regular pay rates for any time worked over 40 hours per week. Employers are also required by FLSA law to maintain accurate records of wages, all hours worked, and other conditions of employment, and prohibits employers from engaging in retaliation against employees who stand up for their rights.

The DOL filed the lawsuit after discovering evidence of wage and hour violations after workers in the companies' retail stores were being paid hourly wages that were less than the federal minimum wage, and were required to work over 40 hours without receiving proper compensation. The employers also allegedly failed to keep accurate records of their employees' activity, in regard to wages paid, hours worked, and other conditions of employment.

Continue reading "DOL Recovers Over $485K in Back Wages for New York City Dollar Store Workers" »

In recent employment news that our that our Santa Ana employment attorneys have been following, The U.S. Equal Employment Commission (EEOC) recently filed a lawsuit against an industrial subcontractor based in Mississippi, alleging that the company was in violation of Title VII of the Civil Rights Act of 1964, by firing a female employee out of retaliation, after she came forward about experiencing sexual harassment in the workplace.

According to the lawsuit, Analytic Stress Relieving, Inc. (ASRI) terminated Ashley Maygar's employment after she complained that her acting supervisor and another employee treated her with sexually suggestive and unwanted behavior.

As employment attorneys in Orange County, California, we reported in a recent blog that Title VII of the Civil Rights Act protects employees from discrimination in the workplace based on sex, race, color, national origin and religion, with hiring, firing, promotions, training, harassment, benefits, or wage discussions. Title VII also makes it illegal to retaliate against an employee who complains about discrimination, files a discrimination charge, or engages in a lawsuit or investigation involving discrimination.

Delner Franklin-Thomas, the district director for the EEOC's district office in Birmingham, claimed that when an employee believes he or she is being subjected to sexual misconduct in the workplace, according to Title VII, the individual has the right to seek relief from the employer, without experiencing retaliation.

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the federal laws that protect employees or job applicants from discrimination based on a person's sex, race, religion, color, or national origin.

Howard Law, PC represents employees who have experienced sex discrimination and are seeking recovery. Our team of experienced Orange County labor & employment attorneys are committed to protecting your employment rights. Contact us today.

EEOC Accuses Gulfport-Based Industrial Subcontractor of Retaliation, EEOC Press Release, October 12, 2010

Related Web Resources:

U.S. Equal Employment Opportunity Commission, (EEOC)

Title VII of the Civil Rights Act of 1964, (EEOC)

As Carson, California employment attorneys, we have recently read about an audit performed in Missouri, that held the state's labor officials responsible for identifying fewer cases of employee misclassification than every U.S. state besides Iowa, during periodic checks from 2005 to 2009.

According to Businessweek, Missouri has long fallen behind other states in tracking down employers who misclassify workers as independent contractors instead of employees, to avoid paying taxes, workman's compensation payments, and other employee benefits. The Department of Labor and Industrial Relations reportedly found the national average to be 1.36 misclassified worker per check, where the average in Missouri was 0.14 per check.

The Missouri state labor officials claim to have been working for over two years to identify more workers who have been misclassified, by expanding their staff and changing procedures. The Missouri labor department director Larry Rebman stated that the number of misclassified workers identified by the department has increased from 180 in 2008 to over 2,300 in 2010, and that collections have doubled. Rebman also claimed that the labor department is leveling the playing field by finding the employers who are cheating the employment system.

As our Riverside employment attorneys have reported in a recent blog, when an employer engages in employee misclassification, workers not only miss out on important employment benefits like workers' compensation and social security, but they can also pay higher taxes on income. The state can also lose money.

Continue reading "Missouri Falls Behind Other U.S. States in Indentifying Employee Misclassification" »

In recent news that our Riverside employment attorneys have been following, twenty-eight scientists who work at the Jet Propulsion Lab (JPL) in southern California, challenged the government's use of background investigations in the Supreme Court last week, on the government's right to question intimate details about their personal lives.

According to the Los Angeles Times, Robert M. Nelson, the lead plaintiff in the case, who has worked as a space scientist at JPL for over 30 years, filed a lawsuit with his colleagues in federal court against NASA, the National Aeronautics and Space Administration, for violating its contractor's privacy.

The scientists are reportedly employed by the California Institute of Technology, which runs JPL under a NASA contract, and filed the suit after NASA asked for new background checks to investigate the long-term independent contractors. The JPL contractors stated in their case that NASA's investigations into the intimate details of their personal lives, such as sexual tendencies, drug usage, health, and finances, were humiliating to their professional integrity.

The contractors claim that because they are "low risk" employees, and their duties are not involved with classified or secret materials, this type of personal invasion is not necessary. The U.S. 9th Circuit Court of Appeals reportedly ruled in favor of the contractors, claiming that these questions were in violation of their privacy rights.

Continue reading "Privacy Issues of NASA Scientists Debated in the Supreme Court" »

Last week, California Attorney General Jerry Brown filed a $6.6 million lawsuit against the owners of eight Southern California car washes, for the alleged pattern of comprehensive worker exploitation.

This lawsuit stems from a five-month investigation of eight car washes located in Irvine, California, as well as Laguna Hills, Santa Monica, Venice, Folsom, and Fair Oaks. Over 80 employees of the car washes told investigators that they were regularly denied minimum wage and overtime compensation, meal and rest breaks, were forced to deal with falsified workers' records, and the withholding of wages owed to workers who were either fired, or who quit.

Employees also claimed that they were frequently told to report to work, where they would have to wait until business picked up, without being paid. Often workers' paychecks reportedly could not be cashed because of the company's lack of funds. The car washes also reportedly operated for years without proper licenses from the Labor Commissioner.

As our Santa Ana employment attorneys read in the Attorney General's press release, Brown's lawsuit seeks $6.6 million in lost wages and civil penalties from Dipu Haque Sikder, who reportedly launched the operation, as well as an injunction to prevent the defendants from similar wage and hour violations in the future.

Continue reading "Attorney General Brown Files Lawsuit Against Eight California Car Washes for $6M" »

In a recent class-action wage and hour lawsuit that our Orange County employment attorneys have been following, Ashley Furniture Industries are being sued by around 3,000 hourly employees at the company's Berks County, Pennsylvania facility, who have worked for the company over the past four years.

According to the complaint, the workers are accusing the furniture company of violating Pennsylvania minimum wage laws on a daily basis over the past four years. The suit accuses Ashley Furniture of violating labor laws by failing to pay workers for every hour in the workday, for failure to correctly calculate and compensate accurate overtime pay, failure to pay hourly employees to work through rest and meal breaks, for requiring employees to engage in off the clock work, and for failure to pay hourly workers the accurate incentive pay rates according to company policy.

The complaint identifies three plaintiffs, who represent the class-action group that has allegedly been subjected to these wage and hour violations over the past four years. The suit also alleges that even after an audit by the Department of Labor, the company refused to correct the systematic wage and hour violations.

In Orange County, California, Howard Law, PC represents employees in class action wage and hour lawsuits, who have been wrongfully deprived of wages and are seeking recovery. Call today for a free consultation with our Anaheim labor and employment attorneys, at 1-800-872-5925.

Furniture Firm Failed to Pay Wages, Overtime, Lawsuit Claims, Reading Eagle.com, September 18, 2010

Hourly Workers File Lawsuit Against Ashley Furniture, bctv.org, September 17, 2010

Related Web Resources:

Department of Labor (DOL): Wage and Hour Division (WHD)

In recent high-profile news that our Anaheim employment attorneys have been following, last week, gubernatorial candidate Meg Whitman was accused of mistreatment and California wage and hour violations by her Mexican-born nanny and housekeeper from 2000 to 2009, Nicky Diaz Santillan. The startling piece of news that surfaced in the allegations, is that Diaz is an illegal immigrant. Whitman is being accused of employing the nanny and housekeeper for nine years, aware of her immigration status the entire time. Diaz is being represented by high-profile attorney Gloria Allred.

The news reportedly broke last week, after the first televised debate between Whitman, former CEO of eBay, and Democratic Attorney General Jerry Brown--in which Whitman argued that employers in California must be made accountable for the hiring of workers who are undocumented. Whitman dismisses Diaz's allegations as partisan sabotage, a late-campaign attack, with Gloria Allred, a Democratic donor at the helm.

The allegations claim that Whitman never asked Diaz if she was able to work legally in the country when she hired her to work as a housekeeper for fifteen hours a week, at $23 an hour. As Diaz's hours and responsibilities reportedly increased, she claims that she was treated harshly, and not compensated for years of working overtime hours.

Whitman reportedly denied knowing about Diaz's legal status, as Diaz originally provided a fake Social Security number and statement affirming her legal residency status to a placement agency. Diaz reportedly came to Whitman in 2009, and confessed that she was an illegal worker, with falsified papers. Whitman then fired Diaz, stating that it was a very difficult decision.

Continue reading "Whitman Accused of Wage and Hour Violations, and Employing Illegal Housekeeper" »

Our Riverside labor and employment attorneys have been following the recent release of a survey by the Chinese Progressive Association entitled, Check, Please!," that reveals that workers in San Francisco's Chinatown are regularly paid less than minimum wage.

According to the report, conducted by the immigrant-rights group over a period of two years, over 400 workers in Chinatown were surveyed--over half of which claimed wage theft. The report claimed that over fifty percent of workers make less than minimum wage, currently $9.79 per hour in San Francisco. Other results found that while forty percent of workers worked overtime, nearly eighty percent of the surveyed workers were not compensated for the extra hours worked. The report found that ninety-five perfect of the workers do not receive a living wage.

This high report of minimum wage theft with workers in Chinatown restaurants surpasses the reports of wage theft from a study earlier this year, that our Orange County employment lawyers reported on in a blog, finding almost 30% of low wage workers surveyed in Los Angeles, California were paid less than minimum wage.

According to the San Francisco Chronicle, George Friday, director of the Labor Department's wage and hour division in San Francisco, claimed that certain industries are more prone to wage violations, like restaurants, agriculture, and home health care, among others. Workers who are immigrants, or who have limited English language skills are especially vulnerable.

Continue reading " Survey Reveals Wage Theft in Chinatown Restaurants" »