California Employment Lawyers Blog

In a recent Carson employment attorney blog, managing partner Vincent Howard discussed the Obama administration's resent proposal to change the 37-year old minimum wage and overtime exemption from the Fair Labor Standards Act (FLSA) for nearly two million home care workers who care for elderly and disabled people across the country.

For years these workers have been considered as companions to the elderly, in the same category as babysitters, and the Obama administration and the U.S. Department of Labor (DOL) calls for these workers to be considered home care aides, and protected under the FLSA--to ensure that they are paid fairly for their important care giving services.

According to the DOL's posted announcement, this change will revise the companionship and FLSA's live-in home worker regulations, in order to more accurately define the responsibilities that an exempt companion performs, and in order to restrict the exemption to exempt companions who work only for the household or families using the companion's services. The DOL also proposed that third party employers, like home care agencies who staff workers, cannot claim the exemption for companionship or the overtime pay exemption for live-in home workers, even if the employee is employed both by the family and the third party.

As Howard Law's employment attorney Vincent Howard previously stated, when the FLSA protections were expanded in 1974 to include domestic service workers, these Amendments created a restricted exemption for both overtime pay and minimum wage requirements of the Act for companions and babysitters for the infirm and elderly, and created an exemption from the overtime requirement only for live-in home workers.

Continue reading "DOL Proposes Revisions to FLSA's Wage and Hour Laws for Home Care Workers" »

In wage and hour news from last week that our Vincent Howard, our Riverside labor and employment attorney has been following, President Obama and the U.S. Department of Labor (DOL) announced a plan to provide minimum wage and overtime law protections to health care workers --a decision that would increase the standard of living for around two million of these domestic employees, but could also increase the costs for the disabled and elderly.

Home health care workers have reportedly been exempt from federal wage and hour laws since 1974, when the workers were considered only as elderly companions, and placed in the same employment category as local baby sitters. But as the amount of full-time home health care workers rapidly climbed, so did the number of seniors who needed help accomplishing an array of daily functions, from bathing to dressing, and taking the correct medication, among other tasks.

President Barack Obama stated recently that it is unacceptable that health care employees are paid less and considered to be in the same category as teenage baby sitters. Obama stated that home heath care workers deserve to be paid fairly, and provide an important service that many elderly people in this country couldn't live without.

According to the Washington Post, the size of the U.S. population over the age of 65 is expected to nearly double in the next twenty years, which will lead to millions of people relying on long-term health care from these domestic workers, who currently receive no federal wage and hour protection in the workplace.

Continue reading " Obama and DOL Seek to Extend Federal Wage and Hour Laws to Home Health Care Workers" »

California Representative Lynn Woosley (D-CA) recently re-introduced the Employee Misclassification Prevention Act (EMPA) of 2011, (H.R. 3178) as our Carson, California employment lawyers blog discussed in a related labor and employment law post.

Last year, Representative Woosley was a co-sponsor of the Employee Misclassification Prevention Act of 2010 (H.R. 5107), and this new bill includes all of the original provisions of the 2010 EMPA, in order to put a stop to the employee misclassification epidemic --an illegal practice that keeps employees from their lawful right to minimum wages, overtime compensation and other important employee benefits, and deprives state and federal governments of unemployment insurance contributions, workers compensation premiums and other employment taxes.

Representative Woosley introduced the new EMPA with New Jersey Representative Rob Andrews (D-NJ) and California Representative George Miller (D-CA), to ensure that workers receive basic employment protections, and in order to help this country pay down the national debt--as Woosley claims this bill will help empower U.S. employees and invigorate the national economy.

Under the Employee Misclassification Prevention Act of 2011:

• Employers will be responsible for keeping proper and accurate records that clearly reflect each worker's status as an employee or independent contractor--with clarification that employee misclassification, whether willfully or unknowingly, violates the Fair Labor Standards Act, (FLSA).
• Penalties will be increased against employers who knowingly or unknowingly misclassify their employees and are found to be guilty of minimum wage and overtime rights violations.
• Employers will be required to inform their workers about their employee or independent contractor classification status, creating a website dedicated to employee rights aimed to educate workers about their state and federal wage and hour rights, and inform the workers to contact to the DOL if they have any questions about possible classification issues.
• The EMPA will provide workers who seek accurate classification with protection--if they experience discrimination after reporting employment misclassification.
• The act will require that states conduct regular investigations to identify employers who engage in worker misclassification, and require the U.S. Department of Labor to monitor the efforts of states to target and identify employee misclassification.
• The EMPA of 2011 will also direct states to strengthen their own employee misclassification penalties.
• The act will also permit the DOL and the IRS to refer incidents of employee misclassification to each other.

Continue reading "EMPA of 2011 Aims to Stop Employee Misclassification, Invigorate National Economy" »

In a previous California employment lawyers blog entry, our Howard Law, PC attorneys discussed California Governor Jerry Brown's recent approval of Senate Bill 459, a bill that enacts stiff penalties on companies and employers who willfully engage in employment misclassification.

In similar employment misclassification news, California Representative Lynn Woosley (D-CA) recently introduced the Employee Misclassification Prevention Act of 2011 (EMPA), H.R. 3178--a bill Woosley originally co-sponsored last year, that aims to stop the illegal employment practices undermining California employees and the right to fair competition in the California workplace. Woosley stated that this act is also important in the federal government's effort to pay down the national debt, as well as playing a key role in invigorating the national economy and empowering U.S. workers.

Employee misclassification, as our Costa Mesa labor and employment attorney blog has frequently discussed, is a growing and unfair workplace practice that robs workers of important employee rights, benefits and protections, like overtime payments and minimum wage, workers' compensation, family and medical leave, rest breaks and meal periods, among other employee benefits. Employee misclassification also places honest employers at a competitive disadvantage in business, leaving taxpayers to deal with the problem.

Woosley introduced the bill, joined with California Representative George Miller (D-CA), and New Jersey Representative Rob Andrews (D-NJ). Representative Miller stated that employee misclassification is unfair to employers who obey labor and employment laws, and unfair to the workers who are stripped of their legal rights to receive basic employment protections like overtime payment, minimum wage and the right to organize. Representative Andrews discussed the importance of ensuring that working employees are given their rights, without unfair employers lining their own pockets with unpaid payroll taxes. Woosley reinforced the fact that working Americans deserve to be given their legal rights in the workplace and should not be taken advantage of at a time when this country is experiencing one of the worst economic downturns in years.

Continue reading "California Representative Lynn Woosley Re-introduces Employee Misclassification Prevention Act" »

Our Orange County, California employment lawyers blog has been focusing recently on the topic of employment misclassification in the California workplace and around the country, and how the practice of employee misclassification poses a serious risk to employees and their right to receive important employment benefits, as well as honest employers, who are trying to comply with the state and federal labor and employment laws.

Last week, in recent California employment misclassification news, California Governor Jerry Brown approved Senate Bill 459--a bill that enacts strong penalties on employers who are found to have knowingly or voluntarily misclassified workers as independent contractors.

This new employment misclassification law adds California to the growing list of states across the country that have enacted legislation to fight the misclassification of employees over the past few years. Brown's bill prohibits companies or employers from willfully engaging in misclassifying employees as independent contractors, adding harsh financial penalties with each violation.

The bill also prohibits employers from charging employees who have been misclassified as independent contractors a fee or deducting any amount from their compensation for any purpose, including for materials, goods, services, repairs, rental space, equipment maintenance or any other fees or fines arising from an individual's employment--where any of these acts would have violated the law if the employee had not been clearly misclassified.

Continue reading "CA Governor Jerry Brown Approves Bill to Increase Willful Employee Misclassification Penalties" »

In recent employment news that our Fullerton labor and employment attorneys have been following, U.S. Secretary of Labor Hilda Solis recently announced the Department of Labor's renewed and full commitment to implementing equal employment opportunity policies for all applicants and employees.

In the announcement, Solis expressed her personal effort and commitment to make the U.S. Department of Labor a model workplace, that is free from unwanted harassment and discrimination--fostering a working environment where every employee is able to fully utilize their full employment capabilities. Solis stressed the importance for the DOL to achieve, maintain and reflect a high-quality and diverse workforce at all levels of organization in the department.

According to Solis, the department's policies ensure equal protections for all applicants and employees regardless of age, race, religion, color, sex, including pregnancy, national origin, gender identity, as well as mental and physical disabilities, genetic information, and sexual orientation. Solis' statement also includes signed and updated policies that prohibit discrimination on the basis of sex, pregnancy, and gender identity.

The U.S. Department of Labor is required every year to issue a written policy stating the secretary's commitment to equal employment opportunities and the department's commitment to a workplace that is free from discrimination and harassment.

Continue reading "Labor Secretary Solis Announces Continuing Commitment to Equal Employment in DOL" »

According to recent employment news, labor unions and the construction industry in Connecticut are coming together to support Senator Dick Blumenthal's (D-CT) part in co-sponsoring the new Payroll Fraud Prevention Act that aims to put a stop to employment misclassification.

As our Riverside, California employment attorneys have previously discussed, employment misclassification is a nationwide problem, where employers often misclassify workers as independent contractors, or "exempt" from overtime laws, when they are actually employees.

Many employers use employee misclassification to avoid paying minimum wage, overtime, or social security and Medicare taxes, and unemployment compensation, among other employee benefits. In other cases employers misclassify employees to have an unfair advantage by underbidding their competitors to take away their jobs.

The topic of employee misclassification came up last year during the Connecticut senate campaign with candidate Linda McMahon, the former CEO of her family's wrestling company, World Wrestling Entertainment (WWE). McMahon and WWE were investigated for engaging in employee misclassification--by classifying workers as independent contractors instead of employees both in the ring with star wrestlers, and behind the scenes.

Continue reading "Labor Unions Back Employment Misclassification and Payroll Fraud Legislation" »

According to a recent announcement made by Senator Tom Harkin (D-IA), that our attorneys discussed in a related Carson, California Employment Lawyers blog, Harkin, along with Senators Sherrod Brown (D-OH), and Richard Blumenthal (D-CT), introduced a new act into Congress--the Payroll Fraud Prevention Act--similar to the Employee Misclassification Prevention Act introduced last year.

Under the Payroll Fraud Prevention Act, the Fair Labor Standards Act (FLSA) would be expanded, and would require that employers keep accurate classification records (exempt vs. non-exempt) of every worker who performs labor and services for their company and why. Employers would also be required to explain to workers their classification status, as either employee or independent contractor, and to direct them to the U.S. Department of Labor if they suspect employee misclassification.

If an employer violates the notice requirement for employee misclassification, under the new act they would be responsible for pay penalties of up to $5,000 per worker. Triple damages would also be imposed if an employer willfully violates the minimum wage or overtime laws of the FLSA by engaging in employee misclassification. Under the act the Secretary of Labor would be responsible for creating a database informing workers about their state and federal wage and hour rights and the DOL would also conduct audits to target industries with high rates of employee misclassification.

Under the bill, employees who are frequently misclassified as exempt from overtime laws, would be given their legal right to FLSA employee benefits, like minimum wage, overtime, and unemployment compensation, and others benefits. The bill would also aim to stop employers who misclassify employees to avoid paying their fair share of taxes--as they would be committing payroll fraud.

Continue reading "New Act to Combat Employee Misclassification and Payroll Fraud" »

This week the U.S. Supreme Court will hear what has been called the largest class-action sex discrimination lawsuit in U.S. history, and one of the most important employment lawsuits in decades--brought by female employees against Wal-Mart Stores, Inc. for allegedly neglecting to pay women as much as men, and providing them with fewer opportunities for promotions.

As our attorneys discussed in a recent California employment lawyers blog, the decade-long discrimination lawsuit was originally filed in 2001 by Wal-Mart greeter, Betty Dukes, along with five other former and current Wal-Mart employees alleging sex-discrimination in the workplace based on Title VII of the Civil Rights Act.

The women reportedly filed for class certification in 2003, asking the judge to allow the case to go to trial on behalf of all women who had worked for the retail giant in the United States at any time from December of 1998--a group that is considered to include over 1.5 million former and current female Wal-mart employees.

In June of 2004, a U.S. District judge reportedly ruled that the gender discrimination lawsuit could proceed as a nationwide class-action, including women who worked at over 3,400 Wal-marts across the country. The trial was separated into two trials--one trial for the court to decide if Wal-mart was guilty of blatant sex discrimination, and another trial to decide remedies, such as back pay, damages, and injunctive relief that would require changes in company policy in regard to compensation and promotions.

In April of 2010, a San Francisco, California U.S. court of appeals upheld the judge's conclusion to handle the case as a single group rather than requiring individual lawsuit litigation. Wal-mart appealed to the Supreme Court in August of 2010, arguing that the claims involving former and current workers were too different in regard to issues and interests to process as a class-action lawsuit--urging the Supreme Court to reject the class-action status. The Supreme Court announced in December of last year, that it will decide if the class-action certification violated federal court rules for such lawsuits, employment laws, or the Constitution.

Continue reading "U.S. Supreme Court to Hear Wal-mart Sex-Bias Discrimination Lawsuit " »

Our Fullerton, California employment attorneys have been closely watching the U.S. Supreme Court's decision announced this week in the anti-retaliation lawsuit, Kasten v. Saint-Gobain Performance Plastics Corp.--a decision that proves to be a huge victory for workers across the country.

According to the original lawsuit, employee Kevin Kasten sued his employer, Sant-Gobain Performance Plastics Corporation, under the Fair Labor Standards Act of 1938, which provides employment rules on minimum wage, overtime pay and maximum hours and prohibits employers from firing employees out of retaliation, for filing a complaint.

Kasten claimed in his retaliation lawsuit that he was discharged from the company after he complained orally about the company's practice of placing timeclocks in an area that kept workers from receiving credit and compensation for the time spend donning and doffing--or taking on and off their protective work gear, as well as walking to work areas. According to the Supreme Court decision, Saint-Gobain was found to have violated the FLSA's wage and hour requirements for the timeclock placement.

The highest court's decision also agreed with the U.S. Department of Labor--that an employee who complains in an oral manner about not receiving payment for all hours worked, as opposed to a complaining in a written manner, is protected from retaliation. This decision will also protect workers who complain orally under a variety of other whistleblower statutes administered by the Department of Labor.

Continue reading "Supreme Court Supports Workers in Wage and Hour Decision " »

California Governor Jerry Brown recently agreed to drop the high-profile lawsuit filed last year filed by former Governor Schwarzenegger to force Controller Jon Chiang to lower the wages of around 200 of California's state employees to the federal minimum wage during a budget impasse.

As our Long Beach labor and employment attorneys discussed last year, the lawsuit reportedly sought to make Chiang compensate California governmental workers with $7.25 an hour instead of paying them with their full salaries, until Schwarzenegger could reach an agreement with the state lawmakers on how to deal with the hefty $19 billion deficient for the fiscal year. Back pay, according to the former administration, would have been given back to the workers once the budget was enacted.

Chiang argued last year that the California computer payroll system of the state was so out of date that it would have been impossible to follow Schwarzenegger's order, and that the lowering the employees' wages would violate California wage and hour laws and lead to taxpayer fines and damages.

Last week Brown decided to abandon the case, stating that after already costing the state $928,000 at the end of 2010, it was going to be an expensive and protracted trial.

Continue reading " California Governor Jerry Brown Drops Schwarzenegger's Minimum Wage Fight" »

In a recent California electronic privacy ruling that our labor and employment attorneys based in Orange County, California have been following, according to a 3-0 decision by a California court of appeals last week, e-mails between a client and attorney are not considered confidential and privileged if the e-mails are written by the client from a work e-mail account.

In the ruling, the Third Appellate District Court in Sacramento agreed to uphold the previous decision against Gina M. Holmes, who sued her employer, Petrovich Development Company, for allegedly being subjected to sexual harassment, retaliation, wrongful termination and violation of privacy, as well as emotional distress. Holmes reportedly claimed that her employer became hostile shortly after she was hired as a secretary in 2004, when the employer discovered that Holmes was pregnant.

According to Wired, Holmes e-mailed her attorney from her work e-mail account to discuss legal action. After filing an employment lawsuit against the company, her e-mail correspondence with her attorney was reportedly introduced during the trial to show that Holmes did not suffer severe emotional distress, but was frustrated and only filed the legal action under the advisement of her attorney. The appeals court found that Holmes' e-mails to her attorney were not confidential because the company had a written policy stating that company e-mail was not private and could be audited at any time.

In a related blog covering a Supreme Court ruling on electronic privacy in the workplace that our attorneys recently discussed, an Ontario, California police officer claimed that his privacy rights were violated in the workplace after his supervisor read personal text messages that the officer had sent using his work-issued pager.

Continue reading "Electronic Privacy in the Workplace: CA Court Rules Attorney-client Privilege Does Not Protect Work E-mail" »

In recent news that our Chino Hills labor and employment attorneys have been following, the Supreme Court discussed retaliation ban limits this week in a case involving Eric Thompson, the fiancé of a female worker in the company who was fired days after the worker filed a sex-discrimination complaint against their mutual employer, North American Stainless plant in Kentucky.

According to the original lawsuit, Miriam Regalado, who is now married to Thompson, filed a charge with the U.S. Equal Employment Opportunity Commission (EEOC) alleging that she was discriminated against by her supervisors at the steel manufacturing plant because of her gender. Regalado held the rare position of being a female supervisor at the company and alleged that she had been demoted twice and wasn't receiving the same pay raises as the men in her position, based on her gender.

Three weeks after the EEOC revealed Regalado's sex-discrimination charge to North American Stainless, Thompson, who worked as a metallurgical engineer, was fired from his job.

Thompson reportedly complained to the EEOC that his employment had been terminated based on retaliation to punish his fiancée for filing a sex-discrimination complaint, and to discourage others from making similar discrimination complaints. But Thompson's lawsuit was thrown out of the federal courts because the federal law reportedly does not permit a claim of retaliation by a plaintiff who did not engage in opposing the unlawful employment practice.

The debate discussed whether anyone outside of the person who endured the discrimination can sue under federal discrimination laws. As our Anaheim labor and employment attorneys discussed in a recent blog, under Title VII of the Civil Rights Act of 1964, it is against the law for an employer to retaliate against an employee for filing a sex-discrimination claim. Title VII also prohibits employers from retaliating against an employee who provides factual information that supports another employee's discrimination claim.

Continue reading "Retaliation Ban Limits Discussed by Supreme Court" »

In a related blog, our Carson labor and employment attorneys discussed recent wage and hour legislature introduced by Congressman Phil Hare, called the Wage Theft Prevention and Community Partnership Act, aimed to fight the occurrence of wage theft in the workplace--where employees are being robbed of their hard earned wages by not being paid properly for their work.

In the State of California, Governor Schwarzenegger recently vetoed two bills that aimed to fight employers from engaging in wage theft. According to the Los Angeles Times, the first wage theft measure, supported by the California Rural Legal Assistance Foundation, would have penalized employers who neglect to pay workers all of their wages within 90 days after their employment ends, with a new misdemeanor crime. The second wage theft bill would have reportedly increased the maximum damage amount that an employee could receive in a wage-type legal issue or state enforcement action.

The bills were reportedly introduced after a UCLA study, that our Santa Ana labor and employment attorneys discussed in a recent blog, found that wage theft costs workers in Los Angeles County around $26 million every week. The groundbreaking study, released last year, found that workers in Los Angeles, Chicago and New York, experienced massive wage and hour law violations in low-wage industries. The UCLA study found that 15% of low-income worker's wages are taken from the workers each week.

Mark Schacht, the California Rural Legal Assistance Foundation's deputy director, stated that Schwarzenegger and his Chamber of Commerce allies know that these vetoes continue to defend the illegal practice of wage theft in California. In his messages about the vetoes, Schwarzenegger reportedly claimed that both bills were not needed.

Continue reading "Schwarzenegger Vetoes Two California Wage Theft Bills" »

In a recent blog, our Riverside employment attorneys discussed the introduction of the Wage Theft Prevention and Community Partnership Act into Congress by Illinois Congressman Phil Hare in September, to combat the practice of "wage theft" and systematic pay-related labor and employment violations in low-wage professions across the country.

Yesterday, in Los Angeles, California, as well as other U.S. cities, low-income workers and wage and hour activists staged a National Day of Action Against Wage Theft. The Los Angeles rally was held in front of Los Angeles City Hall, in an effort to focus attention on low-workers like domestic workers, garment workers, service industry employees, taxi drivers, and day laborers, among others, who are robbed of wages that they are legally entitled to. The activists were organized by Interfaith Worker Justice and supported by labor groups across the country.

As our Fullerton employment attorneys reported in a recent blog, wage theft is a huge problem, as revealed in a 2009 study performed by researchers at UCLA called "Broken Laws, Unprotected Workers," that surveyed more than 4,000 low-wages workers and exposed comprehensive financial discrimination. Low-wage workers in Los Angeles, California were found to be routinely paid less than minimum wage, denied overtime compensation and access to workman's compensation.

The study claimed that low-wage workers often lose around 15% of income per week that they are legally entitled to because employers cheat them out of their salaries. Other violations include refusing to pay overtime that is legally required, forcing laborers to work off the clock, employee misclassification, and workers not receiving their last paychecks, or not being paid at all.

Continue reading "Los Angeles Workers and Activists Rally at City Hall to Protest Wage Theft" »