California Employment Lawyers Blog

In recent news that our Santa Ana, California Employment Attorneys have been following, the administration of Governor Schwarzenegger has filed a new lawsuit this week against Controller John Chiang, to force Chiang to lower wages of state workers in California to the federal minimum wage--a change that would start at the end of the month. This is another development in the ongoing and heated fight between Schwarzenegger and Chaing over the wages paid to state workers when the state budget is not yet signed.

The lawsuit reportedly seeks to make Chiang compensate California governmental workers $7.25 an hour instead of paying them with full salaries, until the governor can reach an agreement with lawmakers on how to deal with an over $19 billion deficit for the new fiscal year.

Last week Schwarzenegger was reportedly given support by a California appellate court to order cutting the pay of 240,000 state workers to the minimum wage, until the budget of the current fiscal year is signed. The administration argued that in the absence of a budget, they are bound by law to slash the wages. Back pay, claims the administration, would then be given to state workers once the budget is enacted.

This is reportedly the second time that Schwarzenegger has tried to implement this change, and Chaing claims that he won't obey the governor's demands until the California Supreme Court orders him to do so. Chaing announced this week that he will protect California workers from the "reckless executive order" of the governor.

Continue reading "Schwarzenegger's California State Worker Minimum Wage Fight Goes to Court" »

In recent news that our Riverside, California Employment Attorneys have been following, a former employee is suing Walmart for wrongful termination, after he was fired for testing positive for marijuana--a drug he was using legally for medical use.

Joseph Casias, along with the American Civil Liberties Union (ACLU), reportedly sued Walmart last week, for wrongful termination, after a mandatory drug test found marijuana in his system. According to the complaint, Walmart policy states that employees are tested for drugs when injured on the job, and after Casias injured his knee at work, he was required to take the test.

Casias, 29, was a five-year Walmart employee and recipient of the 2008 "associate of the year" award in the Battle Creek, Michigan store. He has reportedly been suffering from sinus cancer for 13 years, as well as an inoperable brain tumor that presses against his skull. After a law was passed in Michigan in 2008 approving the drug for medical use, his oncologist prescribed medical marijuana to Casias. In the complaint, Casias claims that marijuana has had a "life-changing positive effect," on him, and that he uses it to alleviate the excruciating pain that his tumor and cancer cause.

Casias has a legal prescription for medical marijuana from his doctor, and even has a state-sanctioned card stating that he can legally use the drug. He claims that he never worked at Walmart under the influence of medical marijuana, and also never asked for any accommodation from the company for his illness.

Continue reading "Walmart Employee Fired for Using Medical Marijuana Sues for Wrongful Termination" »

According to U.S. Senator Tom Harkin, (D-IA) who recently discussed the issue of employee misclassification at the U.S. Senate HELP Committee hearing, over 10.3 million workers in this country are incorrectly labeled as independent contractors--which amounts to around 7.3 percent of the nation's workforce. Harkin stated that the scope of the employee misclassification problem is "staggering." The U.S. Department of Labor (DOL) supported this statement, as a recent study found that as many as 30 percent of this country's businesses misclassify employees as independent contractors.

As our Southern California Employment Attorneys discussed in a recent blog, employee misclassification is a frequent and growing problem--as misclassified workers don't receive the same protections under our laws, like minimum wage and overtime payments, meal periods and rest breaks, tax responsibilities, safety and health laws, workers' compensation, antidiscrimination protections, along with other federal and state employment laws and regulations.

Harkin claimed that employee misclassification is also costing the state and federal governments billions of dollars in unpaid revenues, and hurting businesses who are trying to comply with the law. An employer that misclassifies workers could outbid honest and lawful employers by as much as 30 percent.

Harkin reported that in Iowa's first year of operating the Iowa misclassification program, the state uncovered 182 employers who had misclassified 1,565 workers--that totaled more than $27 million in total unreported wages, $1 million in unemployment taxes due, and unemployment penalties and interest amounting to $340,000. He claims that if state and federal agencies help to solve the problem, they can recover millions of dollars from employers who aren't paying their fair share to workers and to the individual states.

Continue reading "Senator Harkin Aims to "Level the Playing Field" to Protect Workers And Businesses from Employee Misclassification" »

Our California Labor and Employment Lawyers have been following the Supreme Court's ruling last week in an electronic workplace privacy issue case where an Ontario, California police officer claimed that his privacy rights in the workplace were violated, after a supervisor read text messages that he had sent using his work-issued pager.

This is reportedly the first Supreme Court decision considering privacy rights of employees who send text messages in the workplace--an important case, as the decision affects more than 20 million local, state, and federal government employees who spend time conducting business on cell phones or sending text messages and emails on devices provided by their employers. The issue in this case was whether the Fourth Amendment's ban on "unreasonable searches" can limit a public employer's right to search.

In the case, Sergeant Jeff Quon, a SWAT team officer, received a pager from the City of Ontario, to be used for sending work text messages. The city paid for the text and pager plan, which included a 25,000 characters per month limit, as well the wireless service fees. Any texts after this would accrue overage fees.

Quon claims that he was told he could use the pager for personal messages as long as he covered the cost--so when he started exceeding the text message limits, he personally paid the overage fees and charges. But after a few months of receiving overage bills, Quon's boss Chief Lloyd Scharf reportedly decided to order transcripts of the text messages and perform an "audit" to see whether the character limit should be raised, and to see if Quon was wasting time texting personal messages when he should have been working.

Continue reading "Supreme Court Sides with Employers on Texting Privacy Rules in the Workplace" »

As Santa Ana Labor and Employment Attorneys, we have been following the U.S. Department of Labor's (DOL) announcement this week, that a total of $1.8 million in funding, as part of the Women in Apprenticeship and Nontraditional Occupations Grant program (WANTO)--was given to six organizations in California, New York, Illinois, Ohio, Maryland, and Pennsylvania, to encourage women to pursue career opportunities in non-traditional fields.

In these grant funded projects, women will be trained by community-based organizations to enter careers in many non-traditional areas--like manufacturing and the construction industry. Women will be given educational opportunities to train and prepare for different and non-traditional occupational roles--including carpenter, plumber, welder, construction worker, electrician, cement-mason, machinist, and painter or plasterer, among others. Female workers will also have to opportunity to go to programs geared toward networking and mentoring, and receive advice on job placement, in an environment that supports and advances women in non-traditional careers.

The DOL's Women's Bureau is dedicated to ensure opportunities for American women who aim to achieve their potential, with equal opportunity in the workplace. The WB and the Employment and Training Administration's (ETA) Office of Apprentice (OA) work together to administer the WANTO grant program--with the main purpose of increasing the number of women entering and remaining in apprenticeships having to do with non-traditional occupations. With grant funding, community-based organizations are able to provide technical assistance to help employers and labor unions place women in the right occupational apprenticeships.

Sara Manzano-Diaz, the director of the DOL's Women's Bureau (WB) claims that as women make up a critical part of this country's workforce, these grants recognize that there is a need for more talented women to enter occupations in lucrative and non-traditions industries. The grants will reportedly also provide female workers with important training opportunities and connections with established Registered Apprenticeship programs, to prepare them for long and successful careers, that are free from employment bias or discrimination based on sex.

Continue reading "DOL Announces $1.8M in Grants to Support Female Workers" »

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" »

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" »

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" »

As California Employment and Labor Lawyers, we have been following the recent news of a landmark settlement that tested the 2004 addition to the California labor code, where a contractor will compensate subcontractors for depriving the workers of social security, unemployment insurance, and disability contributions.

Tidy Building Services, Inc., a New Orleans-based company, has agreed to pay $100,000 to the state of California to compensate employees who worked in janitorial services in Los Angeles and San Diego Counties, after reportedly not providing proper funding to subcontractors to ensure that employees received the full benefit of employment regulations and laws. As part of the settlement, over one hundred employees will receive anywhere between $100 and $2,000 each in compensation.

California Labor Commissioner Angela Bradstreet filed the complaint in 2008, and this is the first lawsuit where Labor Code section 2810 has been enforced--making it unlawful to subcontract janitorial or other services without providing enough funding to allow the subcontractor to comply with California laws and regulations. Employees who experience violations of this California labor code are entitled to receive damages.

In 2004, Labor Code section 2810 became law, in an effort to address specific problems low wage workers were experiencing in the employment areas of construction, janitorial services, security, farm labor, and garment industries--where violations of wage and hour laws are more prevalent, and exploitation of low wage workers is often due to language barrier and immigrant status.

Continue reading "California Labor Commissioner Enforces Labor Code 2810 in Landmark Janitorial Settlement " »

As Southern California Employment and Labor Lawyers, we have been following the news announced last week that Dolly Gee, an attorney in Los Angeles, California is on her way to becoming the first Chinese-American female U.S. District Court Judge.

Gee was nominated by President Barack Obama, and her nomination was confirmed by the Senate on Christmas Eve of last week.

After receiving her law degree from UCLA in 1984, Dolly Gee has specialized in employment and labor law. President Clinton appointed Gee in 1994 to serve as an arbitrator and mediator in disputes between labor unions and federal agencies. According to the Los Angeles Times, Gee was nominated for the federal bench in 1999, but Clinton's term ended without a confirmation for her in the Senate.

Senator Barbara Boxer, (D-California) claimed that Gee personifies the American Dream. She has used her position and her career as an influential Los Angeles employment and labor attorney to promote racial tolerance in the workplace, and to fight against discrimination.

Continue reading "Los Angeles Attorney Confirmed as First Female Chinese-American Judge on Federal Bench" »

In a previous blog from October, our California Labor and Employment Lawyers discussed the Obama administration's initiative to create equal employment federal job opportunities for individuals with disabilities --opportunities that welcome the special abilities of all qualified employees and help them to grow to their fullest employment potential.

Obama proclaimed October, National Disability Employment Awareness Month, and called upon the Federal Government, the nation's largest employer, to set a positive example and implement new employment practices and policies to increase opportunities for disabled workers.

In advancing Obama's campaign to increase the federal hiring of disabled employees, The U.S. Equal Employment Opportunity Commission, (EEOC) has released a new set of guidelines to promote individuals with disabilities--made specifically for each participant in the federal hiring process in a clear, simple and straightforward way.

The EEOC-issued guides are called the five "ABCs of Schedule A" guides, and are made for applicants with disabilities, hiring managers, human resources professionals, service providers, disability program managers and selective placement coordinators. According to Christine M. Griffin, Acting Vice Chair for EEOC, agencies have to work harder to encourage the participation of individuals with severe disabilities in the federal workplace, as the participation rates are rapidly declining.

Continue reading "Guides to Promote Federal Hiring of Workers with Disabilities" »

In a post from last week, our Anaheim, California Employment Attorneys discussed the recent passing of The Genetic Information Nondiscrimination Act of 2008 (GINA)--the new law banning discrimination based on genetic information in the workplace, and the use of genetic information with health insurance.

Genetic information is defined as the information about an individual's genetic testing as well as the genetic testing and medical history of an individual's family. Information involving the disease, condition, or disorder of an individual's family members is considered genetic information because it is used to determine the likelihood of whether someone has an increased risk of developing a potential health problem in the future.

Title I of GINA addresses the use of genetic information with health insurers and group plans--where a person's genetic makeup cannot be used against them for the basis of denying coverage and setting insurance rate premiums or deductibles based on genetic information. The Departments of Labor, Health and Human Services and the Treasury are responsible for issuing all regulations for Title I.

Under Title II of GINA, it is illegal for employers to discriminate based on genetic information with any aspect of employment, from hiring, paying, promoting, layoffs or firing. Genetic testing is not allowed by employers, and employees cannot be forced to reveal the medical histories of their family--as genetic information does not inform an employer about an employee's work abilities. Title II of GINA bans the use of genetic information to make decisions based on employment, and limits the employer's accessibility and disclosure of an individual's genetic information.

Continue reading "EEOC enforces GINA--Workplace Discrimination Based on Genetic Information is Illegal" »

As California Employment and Labor Attorneys, we have been following the passing of the most comprehensive federal anti-discrimination law in almost 20 years--The Genetic Information Nondiscrimination Act of 2008 (GINA)--that prohibits employers from genetic testing, or discriminating in the workplace based on genetic makeup.

According to the new law, it is illegal for employers to hire, fire, pay, give promotions, layoffs, or any other terms or conditions of employment based on genetic information. Employers are prohibited from requesting genetic testing, or demanding employees to disclose family medical histories--because genetic information does not inform the employer about a person's ability to work. It is also illegal with this new law to fire, harass, or retaliate against an applicant or employee who participates in a discrimination proceeding or lawsuit.

Under GINA, health insurers and group plans are also unable to use a person's genetic makeup against them, for the basis of denying coverage or setting insurance rate premiums or deductibles based on possible genetic predispositions, like heart disease, breast cancer, or Parkinson's disease. The law also bans heath plans from rewarding employees for giving family medical information and histories when filling out questionnaires on health risk.

The federal government has not placed an act into motion with such comprehensive employment protections since the passage of the Americans With Disabilities Act of 1990. Stuart J. Ishimaru, acting chairman of the EEOC, stated in a press release that GINA reaffirms the American labor principle that all workers have the right to be judged according to their ability to do the job, and that an employee should not be denied a job or treated unfairly in the workplace due to genetic predisposition.

Continue reading "Historic Anti-Discrimination Law Bans Genetic Discrimination" »