California Employment Lawyers Blog

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" »

Our Anaheim-based employment lawyers at Howard Nassiri, PC are currently representing an individual contractor in a case against her former employer, Synergistic Resources, LLC, and Medical Marijuana Evaluation Centers (MMEC). The firm has filed a complaint for employee misclassification, wage and hour violations, wrongful termination, retaliation, unfair business practices, and other violations of California labor codes.

According to the complaint, in June of 2009, a California physician was hired as a "professional consultant" to work as an independent contractor for MMEC, a business that specializes in providing medical marijuana to patients, under the Compassionate Use Act of 1996, (Proposition 215)--the act that allows California residents to legally use and possess medical marijuana, as deemed appropriate by a physician who has determined that the patient's health would benefit from the prescription.

The physician claims that she was incorrectly hired as an "independent contractor" by MMEC to lower labor costs and maintain an unfair competitive advantage over its competitors, creating unlawful and fraudulent business practices. Our lawyers discussed the distinction between an "employee' and a "independent contractor" in a recent blog.

In the lawsuit, MMEC is being accused of creating a "sham" independent contractor relationship with the doctors they hire, by placing the operating expenses and risk responsibility on the doctors, while still exerting employer control by managing all aspects of the employment relationship--without offering the doctors any legal protection that employees have rights to under California law.

Continue reading "California Physician Sues Company for Employee Misclassification, Wrongful Termination and Retaliation" »

Our California Employment Attorneys reported in a blog earlier this month about the devastating tragedy in West Virginia, where 29 miners died after a massive mine explosion. In the shadow of these deaths and the many other preventable deaths, injuries and illnesses in the workplace that happened across the country over this past year--yesterday was proclaimed by President Obama to be Workers' Memorial Day, 2010.

Workers Memorial Day 2010, marks the 40th anniversary of Occupational Safety and Health Act of 1970, and the 39th anniversary of the creation of the National Institute for Occupational Safety and Health in the U.S. Department of Health and Human Services.

This day of observance, according to the National Institute for Occupational Safety and Health (NIOSH), is important to encourage employers, lawmakers, and the public to continually achieve better health and safety in the workplace, to prevent unnecessary disasters, and to save the valuable lives of workers around the country. The theme for this year is: "Good Jobs. Safe Jobs NOW."

According to U.S. Department of Labor, 5214 workers in this country died from occupational injuries in 2008, and every year around 49,000 deaths are attributed to work-related illnesses.

Continue reading "Safety and Health in the Workplace--Workers Memorial Day 2010" »

In a recent blog, our Orange County Labor and Employment Lawyers discussed the topic of "non-exempt" employees versus "exempt" employees in regard to employee misclassification in the workplace.

According to the Fair Labor and Standards Act (FLSA), employees can be exempt from overtime pay provisions, exempt from both overtime and minimum wage pay provisions, and exempt from the FSLA's child labor provisions.

Examples of employees who can frequently be misclassified include managers, office employees, non-manual employees, or supervisors who do not manage two or more employees and who do not spend half of their time performing managerial responsibilities, among other types of employees.

The FLSA states that commonly used exemptions in the workplace include:

• Professional, executive, administrative and outside sales employees who are paid a salary are exempt from the FLSA's minimum wage and pay provisions.
• The FSLA provides that some computer professionals who are compensated with an hourly rate of $27.63 per hour are exempt from overtime provisions
• Drivers, loaders, driver's helpers, and mechanics have an exempt status from overtime pay provisions if they are employed by a motor carrier, and as the FLSA reports, if the worker's responsibilities affect safety in operating vehicles while transporting passengers, or property in foreign or interstate commerce.
• Mechanics, salesmen and partsmen who are employed by auto dealerships are exempt from FLSA overtime provisions
• Farmworkers who work on farms that are small are both exempt from the FLSA overtime and minimum wage compensation provisions. Young workers on small farms with consent from parents are also exempt from the FLSA child labor provisions.
• Seasonal and recreational establishment workers have an exempt status from both the overtime pay and minimum wage provisions of the FLSA.
• Commissioned sales employees of service or retail establishments are exempt from overtime if more than half of the employee's earnings come from commissions and the employee averages at lease one and one-half times the minimum wage for each hour worked.

Continue reading "FLSA Commonly Used Exemptions for Employees" »

Employee misclassification in the Southern California workplace is a frequent and growing problem in regard to violations of minimum wage and overtime payments, meal periods and rest breaks, tax responsibilities, and employee benefits, along with other federal and state employment laws and regulations, and can lead to wage and hour class action lawsuits, and hefty fines and penalties for employers if a classification is incorrectly assigned.

In the state of California, employees are generally classified as either non-exempt employees or exempt employees. Most non-exempt employees are entitled to overtime pay under the Fair Labor and Standards Act (FSLA), which is one and a half (1 ½) times their regular hourly pay rate when they work more than 40-hours in a work week. Time and a half is also required when employees work more than eight hours on the seventh consecutive work day in a week. For all hours worked over twelve in a day, employers must pay double time the regular rate, as well as double time beyond the eight hours on the seventh consecutive workday in a week. Employers often miscalculate how much overtime workers are actually owed, when working past a 40 hour work week.

Misclassification of employees can happen when an employer classifies an employee erroneously as "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. Often employee misclassification happens when an employee is directed to work in such a way that causes the employee who has been properly classified as exempt to lose his exempt status, like when employers deduct missed work time from the employee's salary, which could entitle the employee for overtime pay.

If an employee has been improperly classified as non-exempt, that worker may be entitled to overtime compensation--payment that the employee should have received during the statue of limitations period as well as penalties, interest, and the cost of legal fees.

Continue reading ""Exempt" vs. "Non Exempt" in the California Workplace" »

According to a recent Industry Scorecard from the California Workers' Compensation Institute, that our labor attorneys at HOWARD | NASSIRI, PC have been following, agricultural claims cost the California workers' compensation system $1.46 billion in loss payments.

The scorecard provides data on claims experience among agricultural workers in California for an eight-year span of time, from accident year 2000 to 2008. The study found that agricultural workers accounted for 5.5 percent of all California job injury claims, and 5.9 percent of the workers' compensation benefit payments for the state.

The report also stated that these proportions have been growing, with recent losses of jobs in other employment sectors, and that agriculture claims have increased to up to 7.7 percent of accident year 2008.

The study found that the three most common agricultural worker injury categories are:

• Strains and sprains with back problems--medical issues that do not involve the spinal cord.
• Minor injuries and wounds to the skin
• Sprains of the shoulder, knee, arm, and lower leg.

Continue reading "Agricultural Injuries and California Workers' Compensation Claims" »

In yesterday's post, our California Employment and Labor Attorneys discussed a new report released last week by the UCLA Institute for Research on Labor and Employment, that surveyed 1,815 workers in Los Angeles County in 2008, focusing on low-wage workers who were most likely to experience some form of wage and hour violation in the workplace--workers in professions like the garment industry, service industry, construction, and domestic help. Compared to Chicago or New York, low-wage workers in Los Angeles were most found most likely to be subjected to workplace violations based on pay.

According to the Los Angeles Times, the study was geared to focus on the largely immigrant workforce that is often missed in regular employment surveys--17% of all workers in Los Angeles County, or 750,000 people. In the report, 56.4% were immigrants with no documentation, a vulnerability that is often exploited by employers. Nearly 75% of the workers in the study were Hispanic, and almost 60% of the workers claimed to not have a high school education.

According to the five-year study, workplace violations are the result of employer decisions--on whether or not to pay minimum wage and overtime, to give workers lawful meal breaks, overtime pay, pay documentation, safe working conditions, or how to respond to complaints in the workplace.

The report found that small and large employers throughout Los Angeles County are violating labor laws on a regular basis, and that certain sectors of the Los Angeles economy have allegedly built business strategies that incorporate labor law violation--especially with Los Angeles workers who have no union representation, and who are employed in service or apparel industries, and construction.

Continue reading "Labor Violation in Los Angeles and the Role of Public Policy Development" »

In a recent blog, our Southern California Labor and Employment Lawyers discussed a study released by UCLA last year that surveyed over 4,000 low-wages workers in 2008 throughout Los Angeles, Chicago and New York, examining financial discrimination and systematic violations of employment and labor laws in low-wage industries.

A new report was released last week that is part of the same study, and focuses specifically on Los Angeles County, the home of the largest population of undocumented workers in this country. The authors describe this study as a significant effort to focus on the largely immigrant workforce that is often missed in regular surveys.

The study, entitled "Wage Theft and Workplace Violations in Los Angeles," released by the UCLA Institute for Research on Labor and Employment, surveyed 1,815 workers in Los Angeles County in 2008, all in low-wage professions, where the average worker's salary was $8 per hour. The study focused on domestic workers, garment workers, service industry employees, and construction workers, and found that compared to Chicago or New York, low-wage workers in Los Angeles County were the most likely to experience some form of pay-related violation in the workplace.

The survey also found that low wage workers are often robbed of their legal rights, by being forced to work during their breaks and off the clock, subjected to a lack of payroll documentation, stealing of tips, late pay, retaliation by employers, and being forced to work with employment-sustained injuries. According to the report, in almost every case, the rates of violation are higher in Los Angeles than the rates shown in Chicago or New York.

Continue reading "New Study Reveals More Abuse of Low-wage Workers in Los Angeles" »

As California Labor and Employment Lawyers, we have been following the new California legislation signed this week by Governor Arnold Schwarzenneger, prohibiting the denial of workers' compensation insurance benefits filed by an employee who has been attacked on the basis of race, religion or sexual orientation.

The measure, AB 1093, authored by Assemblywoman Mariko Yamada, D-Davis, was initiated by the case of Taneka Talley, the Fairfield, California employee who was stabbed to death in March 2006 while working at a Dollar Tree store.

Talley was killed by Tommy Joe Thompson, a white male, while stocking shelves at the Dollar Tree. Thompson was later arrested and convicted of the murder, and according to the San Francisco Chronicle confessed during the trial that he targeted the African-American Talley and stabbed her because of her race. Because of Thompson's testimony, Dollar Tree's insurers denied death benefits to Talley's young son, citing the attack was for racial and personal reasons.

Under California state law, employers are required to pay workers' compensation benefits to employees or their surviving families for all employment-related injuries or deaths. In this case however, the Dollar Tree decided that because the attack was motivated by personal reasons, the survivors would not be covered by insurance.

Continue reading "Governor Passes California Law Protecting Workers' Compensation in Race" »

The U.S. Equal Employment Opportunity Commission (EEOC) announced this week the approval of a consent decree by Federal District Judge Wayne Andersen, resolving the $6.2 million lawsuit against Sears, Roebuck and Co. under the Americans With Disabilities Act (ADA)--the largest ADA single lawsuit settlement amount in EEOC history.

As Orange County, California, Employment Lawyers, we have been following this case--and the EEOC's fight to uphold the American's With Disabilities Act, protecting employees from disability discrimination in the workplace.

According to the EEOC's press release, the class action lawsuit was filed in 2004, accusing Sears of providing an inflexible worker's compensation leave exhaustion policy, as well as terminating employees without attempting first to provide reasonable accommodations for their disabilities.

John Rowe, Chicago District Director for the EEOC, claimed that this class action lawsuit stemmed from a discrimination charge filed by John Bava, a former technician at Sears. Bava sustained an injury while working at an Illinois- based Sears, and took a worker's compensation leave of absence. Although still injured from the job, Bava tried to return back to work repeatedly. Instead of giving Bava a possibility for returning to work with his disability, Sears terminating his job when his worker's compensation leave expired.

John Hendrickson, Regional Attorney of Chicago District's EEOC Office, stated in the EEOC press release that prior to the trial, hundreds of employees in similar circumstances were discovered--workers who had also taken leave for disability, and were fired by Sears--not reasonably accommodated as required by ADA law. Many of these employees only discovered that they had been fired, after their discount cards were rejected while shopping at local Sears retail stores.

Along with the $6.2 million settlement, the consent decree includes an injunction against violating the ADA, as well as retaliation. Sears will also be required to change its workers compensation leave policy, provide the EEOC with written reports detailing workers compensation practices as well as ADA employer compliance, make the decree visible at Sears locations, and train all employees on ADA law.

Stuart Ishimaru, the EEOC's acting chairman stated that this case proves that after nearly twenty years of the ADA enactment, the rights of individuals with disabilities in the workplace are still compromised. He also claimed that this record-setting settlement sends a strong message that the EEOC will protect workers' rights and advance equal employment opportunities for disabled individuals.

Sears, Roebuck to Pay $6.2 Million for Disability Bias, EEOC Press Release, September 29, 2009

EEOC Reaches $6.2M Disability Settlement with Sears, Business Insurance.com, September 29, 2009

Sears Roebuck Agrees to Record $6.2M ADA Settlement with EEOC, ADA Journal.com, September 29, 2009

Related Web Resources:

EEOC

Americans With Disabilities Act of 1990, As Amended (ADA)

Continue reading "Sears, Roebuck Settles in Record $6.2 Million Disability Discrimination Lawsuit with EEOC" »

Low-wage workers in Los Angeles, California are routinely paid less than minimum wage, denied overtime compensation and access to workman's compensation, a recent study revealed. The survey uncovered systematic violations of employment and labor laws in low-wage industries throughout Los Angeles, Chicago and New York.

The study, "Broken Laws, Unprotected Workers," was released last week and surveyed over 4,000 low-wages workers in 2008, exposing serious financial discrimination as well as violations of the very rights most Americans take for granted--the right to receive minimum wage, overtime compensation, health and safety protection in the workplace, and the right to be treated fairly.

Funded by the Joyce, Haynes, Ford, and Russell Sage foundations, the mission of the survey was to obtain statistically accurate estimates of violations in low-wage industries often overlooked by standard surveys--reaching the "front-line" workers who cover a population of around 1.64 million workers, or fifteen percent of the workforce in Los Angeles, Chicago and New York.

The survey was based on interviews with 4,387 workers in a wide variety of low-wage industries including apparel manufacturing, private households, construction, food service, car washes, and childcare. Thirty-nine percent of the workers were illegal immigrants, thirty percent were U.S. born citizens, and thirty-one percent were legal immigrants.

According to the surprising results, sixty-eight percent of workers experienced at least one pay-related violation in the previous workweek. The average worker in a low-wage industry, who earns $339 per week, is reportedly robbed of $51 each week by employers committing wage violations. Assuming a full-time, full-year work schedule, the low-wage worker estimates a loss of $2,634 a year--a theft of wages equaling fifteen percent.

Labor Secretary Hilda L. Solis discussed the findings with the New York Times, stating that this disregard of federal labor standards was inexcusable--that these laws are, "designed to protect the neediest among us." Solis is staffing over 250 additional investigators to get to the bottom of the wage-and-hour issue. She claimed that the Department of Labor will not rest until employers follow the law, and each worker is compensated and treated fairly.

The report reveals a magnitude of wage violations--employers paying less than minimum wage, demanding off-the-clock-work, refusing payment for overtime hours, and persuading employees not to file for workman's compensation.

• In California, Illinois and New York, workers are required to receive documentation of their earnings used to verify the legality and accuracy of payment. The study found that fifty-seven percent of workers had not received mandatory pay documents.

• Only eight percent of workers who were seriously injured in the workplace filed for compensation to receive medical treatment. One-third of the injured paid for the healthcare bills themselves to avoid getting fired, whereas twenty-three percent used insurance.

• Over a quarter of workers who worked more than forty hours weren't compensated for the time during the previous week. Of these, seventy-six percent of workers were not paid the legally required rate by their employers. Over two-thirds of workers were forced to work through their legally entitled lunch breaks.

• Twelve percent of workers who received tips, claimed that employers or supervisors had stolen their tips, which is illegal.

• Only one in five workers reported complaints to employers last year, and of these, forty-three percent experienced one or more forms of illegal retaliation as a result--firing, suspension, or threats to call immigration. Another twenty percent of workers who experienced dangerous working conditions or wage violations reported that they did not issue complaints out of fear of losing their job.

• Women were much more likely, according to the report, to endure a minimum wage violation than men, with female illegal immigrants at the highest rate. African-American workers born in the United States had a violation rate that tripled that of whites.

Annette Bernhart, an author of the study and policy co-director of the National Employment Law Project estimated on NPR that in a given week, around 1.1 million workers in the three major cities experience at least one violation with payment. That estimates nearly $56 million of lost wages in one week. This income is lost--money stolen from families, communities, and government. "This problem is not going away," Bernhard said, "if anything, we think it's just going to escalate"

The authors of the study advise that the best solution for preventing workplace violation is to educate workers about workplace rights, to make sure the workers have access to legal resources, to improve government monitoring of the workplace, and encourage workers not to have fear over employer retaliation--a sound plan for legal immigrants and U.S. residents, however difficult for illegal immigrants. The authors stated that any policy initiative aimed to reform workplace violations must also place national immigration reform at the top of the list, ensuring equal protection with the enforcement of employment and labor laws.

This study was published by the Institute for Research on Labor and Employment at the University of California at Los Angeles, the National Employment Law Project, and the Center for Urban Economic Development at the University of Illinois at Chicago.

Low-Wage Workers Are Often Cheated, Study Says, New York Times, September 1, 2009

Solis Pledges Employment Law Crackdown, ForexTV.com, September 2, 3009

How the Lowest Paid Workers Get Ripped Off, U.S. News and World Report, September 3, 2009

Low-Wage Workers Suffer Financial Discrimination, NPR, September 3, 2009

Working Without Laws, The Nation/NPR, September 8, 2009

Related Web Resources:

U.S. Department of Labor

OSHA

Continue reading "Financial Discrimination for Low-wage Workers in Los Angeles" »

The California-based Company RPI Coating, Inc., Xcel Energy, and Public Service Company of Colorado, were indicted last week by a federal grand jury for violating workplace health and safety regulations that led to the deaths of five workers at a hydro-electric plant near Georgetown, Colorado, in October 2007.

Public Service Company of Colorado and Xcel Energy operate the hydro-electric plant, and hired RPI Coating, Inc. to re-line a 4,000-foot pipe, or penstock. The five men, employed by RPI were re-lining the pipe with a flammable epoxy liner when a fire erupted, blocking the escape route, and trapping the working men inside the tunnel. The men reportedly died within an hour due to asphyxiation after inhaling the carbon monoxide released from the fire.

The grand jury in Denver ruled that the five deaths were caused by a violation of the Occupational Safety and Health Administration's (OSHA) workplace health and safety regulations--resulting in a fire, as well as the inability to effectively rescue the workers.

The Denver Post reported that all of the defendants including both president and vice president of RFI, Philippe Goutagny and James Thompson, were aware of the serious safety and health risks involved in the operation of the re-lining project. Even with the knowledge of these risks, a required confined-space permit needed for safety was not obtained. The employees were also not informed of the immediate danger with any posted signs.

The grand jury alleged that the companies were aware of previous incidents that posed threat to the employees, and failed to protect the men from potential danger by not obtaining a proper permit for the project. The indictment also accused the defendants of failing to conduct proper safety rescue evacuation plans for the men in case of immediate danger.

According to CNN, Greg Baxter, OSHA's Regional Administrator in Denver, claimed that if the defendants had properly followed their health and safety procedures, this catastrophic event could have been avoided.

RPI Coating, Inc., Xcel Energy, Inc., and Public Service Company of Colorado, are all charged with violating OSHA regulation on five counts, and for causing death--punishable by a maximum fine of $500,000.

RPI's James Thompson and Philippe Goutagny face the same charges, and with a conviction, could each be charged with up to $250,000 fines on five counts, and sentenced to a maximum of six months in prison.

Indictments in Deaths of Five Workers, The Denver Daily News, August 31, 2009

Xcel Energy, 2 Firms, 2 Men Indicted in 5 Colorado Deaths, CNN Money.com, August 28, 2009

Xcel Energy and Others Indicted for OHSA Violations That Caused Deaths, Workerscompensation.com/PR Newswire, August 20, 2009

Indictments Issued Over '07 Georgetown Plant Deaths, Denver Post.com, August 28, 2009

Related Web Resources:

OSHA

Continue reading "California-based Company Indicted for OSHA Violations Causing Death of Five Workers" »