California Employment Lawyers Blog

In recent news that our Fullerton, California labor and employment attorneys have been following, the City of Los Angeles lost a disability discrimination lawsuit, after a Court of Appeal upheld a $1.5 million judgment against the city, for failing to grant an officer of the Los Angeles Police Department (LAPD), Rory Cuiellette, reasonable accommodation, after he was disabled by a job injury.

According to the lawsuit, after Cuiellette was injured, a worker's compensation proceeding gave him a 100% permanent disability rating. Cuiellette was allowed to resume work by his doctor, as long as he worked in a position of light-duty, with administrative work only--a position typically reserved for accommodating disabled officers. After five days working as a permanent light-duty desk, the LAPD realized that Cuiellette had been granted the 100% disability rating by workman's compensation, at which point his employment was terminated and he was told to go home.

Cuiellette then filed a lawsuit against the City, claiming disability discrimination and failure to reasonably accommodate an employee--a violation of the FEHA, the California Fair Employment and Housing Act, among other employment claims.

In a recent news release, our Riverside employment attorneys learned that a jury awarded Cuiellette $1,571,500, and after three different appeals, the court reaffirmed the jury award in Cuiellette's favor--rejecting the City's stance that he was unable to perform the duties of a police officer with or without reasonable accommodations. Substantial evidence also supported the court's finding that the City of Los Angeles violated the FEHA when it sent Cuiellette home based on the 100% disability rating, and when it failed to reasonably accommodate the officer in his light-duty assignment.

Continue reading "$1.5 Million Judgment Upheld in LAPD Disability Discrimination Lawsuit" »

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" »

As our Anaheim labor and employment attorneys have previously written in a blog, according to the Fair Labor and Standards Act (FLSA) and California law, employees can be exempt from overtime and minimum wage compensation, with "white collar" exemptions, making administrative, professional, and executive employees exempt, as well as outside sales and some computer employees.

Whether an employee is "exempt" or "non-exempt" is a very important issue in California overtime law, as our Carson employment lawyers covered in a related blog. When an employer erroneously classifies an employee as exempt, the employee is wrongfully denied overtime pay or other wage and hour benefits that are usually available to non-exempt employees--resulting in employee misclassification.

In related news, a California judge in Alameda County recently certified a class of around 3,000 Oracle Corporation employees who accused the company of employee misclassification, by incorrectly classifying them as "exempt" from overtime compensation.

The Oracle employees in the class action lawsuit reportedly are made up of technical analysts, quality assurance analysts or developers, and project managers for Oracle and Peoplesoft, the company Oracle purchased in 2005. The plaintiffs' claim that Oracle violated the California Labor Code by neglecting to pay overtime wages to the employees and failing to give them meal breaks.

Continue reading "California Judge Certifies Class of Employees in Oracle Wage and Hour Lawsuit" »

In recent wage and hour legislation that our Anaheim labor and employment attorneys have been following, Illinois Congressman Phil Hare introduced the Wage Theft Prevention and Community Partnership Act in September, which authorizes the United States Department of Labor (DOL) to create a competitive grant program to help combat wage theft--the illegal practice plaguing the U.S. workplace, where workers are not being properly paid by employers for all of their work.

Wage theft is rampant across the country, leaving millions of American workers vulnerable to financial insecurity, and according to Congressman Hare, this bill helps expand the work of enforcement agencies and community organizations to educate workers about their employment rights and what remedies are there to help them. Hare claims that wage theft hurts workers, cheats the U.S. Treasury out of tax dollars owed, and is unfair to honest employers who are put at a competitive disadvantage by respecting wage and hour laws.

Wage theft includes violations of wage and hour laws, including not paying minimum wage, failing to compensate workers with overtime, demanding that employees work off the clock, engaging in employee misclassification to avoid paying overtime and minimum wage, as well as FICA tax, and failing to pay workers final paychecks, or paychecks at all.

As our Santa Ana employment attorneys discussed in a recent blog, a groundbreaking study of low-wage workers in Los Angeles, Chicago and New York, conducted by UCLA and published last year, found systematic violations of wage and hour laws in low-wage industries. The study found that 15% of worker's wages are robbed from workers each week. The Wage Theft Prevention and Community Partnership Grant Program would reportedly give important resources to legal clinics, work centers, and other groups locally, to help educate workers who have been victims of wage theft.

Continue reading "Congressman Hare Introduces Bill to Prevent Wage Theft" »

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 " »

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" »

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" »

In yesterday's blog, our Santa Ana employment lawyers discussed the recent news that FedEx will pay over $3 million to the Attorney General of Massachusetts, who accused the shipping company of failing to properly classify their drivers--leading FedEx to make smaller state payments in payroll, unemployment assistance, and workers' compensation.

In other recent news, the Attorney General of Kentucky, Jack Conway, is also accusing the shipping company of employee misclassification, contending that FedEx misclassifies its drivers to dodge paying taxes. Conway alleges in the lawsuit that FedEx wrongly classifies drivers as independent contractors, instead of employees, and that this misclassification unfairly denies the workers protections from wage and hour violations, workers' compensation insurance, and unemployment insurance.

Attorney General Conway's lawsuit asks the court to force FedEx into reclassifying the drivers as employees and not independent contractors. The lawsuit also seeks penalties if FedEx violates Kentucky's consumer-protection and unemployment-compensation statues, and if FedEx fails to remit withholding taxes from the drivers' paid wages.

According to the Courier-Journal, FedEx's strategy for classifying drivers as independent contractors has led to in-depth criticism and legal action, claiming that FedEx's employment strategy saves money by denying drivers their legally entitled employee benefits. FedEx reportedly has around 500 drivers in the state of Kentucky, and this suit is seeking back payments of at least $10 million that would go back to 2000.

Continue reading " Attorney General Jack Conway Slaps FedEx with Employee Misclassification Lawsuit" »

As employment lawyers in Anaheim, California, we have been following the recent wage and hour ruling by a U.S. District Court Judge in Indiana, who found ground drivers for FedEx to be independent contractors, not employees under Kansas law.

FedEx drivers in states across the country have been accusing FedEx of employee misclassification, for classifying them as "independent contractors" and not "employees," and allegedly violating their wage and hour rights. The lawsuit was reportedly brought by drivers working in Kansas, and is part of a larger lawsuit that covers around 30,000 ground drivers in 40 states.

In a California wage and hour ruling from 2007, surrounding the misclassification of FedEx Ground Drivers, a California Court of Appeal reportedly upheld a trial court's decision that found FedEx Ground drivers to be employees, and not independent contractors--a topic that our Anaheim employment attorneys covered in a recent blog. The ground drivers were then entitled to receive around $11 million in damages for about 200 drivers.

U.S. District Court Judge Robert Miller's recent ruling reportedly shocked drivers, as it is in direct conflict with the 2007 California appellate decision. Judge Miller also sent similar cases back to their original courts, in around twelve other states, for more consideration.

Continue reading "Judge Finds FedEx Drivers to be Independent Contractors and Not Employees--Drivers Pledge to Appeal Employee Misclassification" »

As our Anaheim, California employment attorneys have discussed recently in a blog, according to California wage and hour laws, as defined by the California Department of Industrial Relations' Division of Labor Standards Enforcement (DLSE), in the state of California, a nonexempt employee of 18 years or older, or any 16-year-old or 17-year-old minor employee who is not legally required to attend school and is not legally prohibited from working, cannot work for over 8 hours in a single day of work, or more than 40 hours in any week of work, unless they receive overtime compensation of one and one-half times their regular pay rate for any hours worked beyond 8 hours in a workday and beyond 40 hours in a week of work.

The DLSE laws state that a workday equals 8 hours of work, and an employee who works over 8 hours in a workday or over 6 days in a workweek is only permitted to do so if:

• The employee is paid no less than one and one-half times their regular pay rate in overtime for every hour worked beyond 8 hours, up to and including 12 hours in a single day of work, and for the primary 8 hours worked on the 7th consecutive workday in a week of work.
• The employee is paid no less than twice their regular pay rate in overtime for every hour worked in beyond 12 hours in a single workday and for every hour worked beyond 8 hours during the 7th consecutive workday in a week of work.

There are also a number of overtime law exemptions that employees and employers should be aware of. An "exemption" means that the overtime law is not applicable to a specific classification of employees and differs from the overtime laws stated in the above paragraph.

Continue reading "California DLSE Overtime Laws and Employee Misclassification" »

Several former employees of an auto plant that was shut down recently in California, sued the plant and its parent company, Toyota Motor Corp. yesterday, stating that they were denied access to fair and comprehensive severance agreements, because employment-sustained injuries kept the employees from working prior to the closure.

The New United Motor Manufacturing Inc., or Nummi, was established in 1984 as a business venture between Toyota and General Motors, in Freemont, California. The lawsuit claims that Nummi and Toyota Motor Corp., allegedly engaged in discrimination against disabled and injured workers because they were classified as ineligible to receive comprehensive severance packages if they weren't consistently working for the six-month period prior to the close of the factory.

According to the lawsuit, many Toyota car and truck assembly workers, who were laid-off, but worked consistently prior to the plant's closing, received a monetary settlement of around $21,175 each, plus a bonus payment that averaged to around $32,000 depending on the number of years they dedicated to the plant.

These agreements were reportedly not available, or were only partially available to workers on leave for disability from the plant, and unable to work prior to the plant closure. This reportedly constituted a major loss for those disabled workers, some of whom had worked at the plant for 25 years, and had been injured within the final six months. Many funds for retraining and employment services were also not available to these workers.

Continue reading "Workers Sue Toyota for Disability Discrimination and Full Severance" »

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 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" »