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Sherwin A. Steffin
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Now retired, the I have, over the course of a career been an educator a university
administrator, a business owner, and an employee of organizations in the private
sector. Before being laid off in a mass Reduction in Force (RIF), I was employed
as a Senior Data Analyst. Yet, there was something very odd as I attempted to
perform the tasks specified in the job description provided at hire.
An analyst, after all, is expected to provide answers to complex questions.
Achieving this goal demands not only technical skills, but the ability to assist
clients in framing useful questions from which data can provide reliable and valid
answers. Unfortunately, a series of ignorant (unknowing, lacking knowledge)
managers found the job description so threatening, I was barred from conducting
these powerful and useful analyses, unless specifically requested by a client.
Since they didn’t know what to ask, such requests were almost never made.
Instead I was reduced to acquiring data from one source, formatting the findings
in Excel – all totally routine robotic, clerical work.
Aside from the boredom, and constant confrontations with my managers, some
will, perhaps, recognize that changing the tasks set out in my Job Description,
requiring the skills of a qualified professional worker, to what was essentially, the
work of a clerical worker, entitled me to overtime pay. A full year before being laid
off, I brought this matter (in writing) to the attention of management going all the
way to the top of my reporting chain. Any response? Absolute, total, zero. For
them, disregarding that they did not wish to hear, was the strategy of choice.
Then came a mass RIF. I, along with some 3,00 other workers, nationwide, was
laid off. Even then, there was a hook. In order to receive severance benefits, I
was required to sign a Waiver and Release. In essence, this document eliminated
my rights to take legal action in or form, against the employer,. This was pure
bluff, since, in California, as is the case in many states, an employee cannot give
up his rights to sue for back wages due.
It took me a little over two years to get full payment of the overtime wages that
were due. This book is designed to assist you in determining your rights, and
even more importantly, providing you with strategies to negotiate the very long,
often frustrating path, to receiving the wages you are owed.
In your reading, I have distinguished everything I have written in this font, while
all quotes and citations will be found in the Georgia font.
Make sure you use the links to go back or forward to links to what can sometime
be some difficult material to absorb. All links are shown in Blue Underline.
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DISCLAIMER
The author is NOT a legal professional. Before taking any action, you should
consult an attorney. All material contained herein is for informational purposes
only, and no representation is made for the accuracy of content nor
appropriateness of any recommendation contained herein
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Table of Contents
Page 4
IX. At Long Last – It’s Hearing Day! 40
A. The Hearing Room 40
B. What to expect 41
C. The written finding 42
X. Two other Possible Issues 43
A. Extending the Statute of Limitations to four years 43
B. The Waiting Time Penalty 43
XI. Other Claims 43
A. Discrimination 43
B. Harassment 44
C. Physical and mental disabilities 44
D. Safety in the workplace 45
E. Layoffs and wrongful termination 46
Appendix A - Waiver and Release (Redacted) 48
Appendix B - Plaintiff’s Hearing Brief (Redacted) 51
Appendix C – Witness Interrupted Lunch Declaration 76
Appendix D – Points and Authorities 77
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I. What will you learn from reading this book?
Are you an employee paid on a fixed salary, working many hours of overtime, for
which you are never paid? Are you consistently deprived of short rest periods, or
even a lunch, uninterrupted by demands that you respond to text messages, or
even return to your workplace without completing lunch?
As the economic horizon darkens,
thousands of workers in California
have either been laid off, received
notice of an impending reduction of
their employer’s workforce, or
wonder every day, if they soon will
become victims of the spreading
end to the work they have done for
many years.
Having won a large judgment against a former employer, the author of this
booklet will tell you how you can determine whether you are entitled to back
overtime wages, and if you are, give you a step by step process to collect these
wages from your current or past employer.
II. How do employers rip you off?
Many employers think, because their employees work with information, that they
can classify them as “Salaried - Exempt Employees.” Any employee so
classified receives a fixed annual salary. Every paycheck will be exactly the
same, no matter how many hours the employee works each week.
That classification saves employers millions of dollars a year, by the simple trick
of not paying overtime wages. Relying either on employees lack of knowledge of
either the law, or even when they know they have been wronged, how to recover
their lost wages, many companies automatically achieve this trickery by using a
job title to convince you that you are indeed doing work which entitles the
employer to classify you in this way.
Under the law, the majority of knowledge and administrative workers are both
entitled and required to be to be classified as “Salaried – Non exempt.” If you
have been the victim of such improper classification, your employer is required to
be pay you back wages for the following:
► 1.5 times your calculated hourly rate (annual salary/2080) for each hour
beyond 8 hours for any day you work(ed), or for each hour exceeding 40
hours worked in a week.
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► 2.0 times your calculated hourly rate for each hour beyond 12 worked in a
single day.
► 2.0 time your calculated hourly rate for each hour beyond 12 worked on a 7th
consecutive day
► 2.0 times your calculated hourly rate for each hour worked on a legal holiday.
► Salaried Non-Exempt personnel must also be paid for two ten-minute rest
periods within each eight hour period worked. You must be offered the
opportunity to avail yourself of these rest periods. If the employer fails to
provide these rest periods, you may add one (1) hour to the daily total worked,
for each rest period you were denied.
► The employer must offer you a minimum of one-half (1/2) hour as a lunch
period, for each five consecutive hours you work in a single day. If you are
required to respond to messages on your Blackberry, or to calls on your cell
phone, this requirement for uninterrupted lunch has been violated, and you
are entitled to be credited 1 hour of paid time for each instance when this
occurs.
Employers frequently use another subterfuge which saves them huge amounts of
money, passing their savings on costs to you. Instead of hiring you as a regular
payroll employee, they offer you work as an Independent Contractor. Doing so
saves the employer the cost of overtime to which you are entitled. It is relieved of
the need to contribute to payroll taxes, benefits, like vacation, paid leave, medical
insurance, and the payment of Workmen’s Compensation, should you be injured
at work.
Fortunately, there are many laws which protect your from these illegal
employment practices. Federal and State Law limit the conditions by which
employees may be hired as Independent Contractors. Unless the employer can
demonstrate that you meet twenty specific conditions, you must be treated as a
regular payroll employee.
III. How do I know if I am a non-exempt employee?
The Department of Labor Standards Enforcement (DLSE).is the state agency
designated by the legislature to determine whether you are properly classified as
an Exempt or Non-Exempt employee.
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All work which is legitimately classified as Exempt has one common element. In
giving guidance to those charged with the determination of your employment
classification, the State Legislature set this one common denominator to all such
positions.
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promotion or any other change of status of other employees will be given
particular weight; AND
► Who customarily and regularly exercises discretion and independent
judgment; AND
► Who is primarily engaged in duties, which meet the test of the exemption.
► An executive employee must also earn a monthly salary equivalent to no less
than two times the state minimum wage for full-time employment. Full-time
employment means 40 hours per week as defined in Labor Code Section
515(c). [See Cause of Action – Exempt]
B. Administrative Exemption
A person employed in an administrative capacity means any employee whose
duties and responsibilities involve:
► The performance of office or non-manual work directly related to management
policies or general business operations of his or her employer or his or her
employer's customers, OR
► The performance of functions in the administration of a school system, or
educational establishment or institution, or of a department or subdivision
thereof, in work directly related to the academic instruction or training carried
on therein; AND
► Who customarily and regularly exercised discretion and independent
judgment; AND
►Who regularly and directly assists a proprietor, or an employee employed in a
bona fide executive or administrative capacity, OR
► Who performs, under only general supervision, work along specialized or
technical lines requiring special training, experience, or knowledge, AND
► Who executes, under only general supervision, special assignments and
tasks, AND
► Who is primarily engaged in duties which meet the test for the exemption.
An administrative employee must also earn a monthly salary equivalent to no less
than two times the state minimum wage for full-time employment. Full-time
employment means 40 hours per week as defined in Labor Code Section 515(c).
[See Causes of Action – Administrative Exempt]
C. The Computer Exemption
As of September 2000, California recognizes an hourly computer professional
exemption for certain employees in the computer software field. As a “Computer
Employee” you are exempt from overtime pay if, and only if, all of the following
requirements are met:
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► You are primarily engaged in work that is intellectual or creative and requires
the exercise of discretion and independent judgment; AND
► You are primarily engaged (spend more than half of your time) in duties that
consist of one or more of the following:
a. The application of systems analysis techniques and procedures
including consulting with users to determine hardware, software, or
system specifications. OR
b. The design, development, documentation, analysis, creation,
testing, or modification of computer systems or programs, including
prototypes, based on and related to user or system design
specifications. OR
c. The documentation, testing, creation, or modification of computer
programs related to the design of software or hardware for
computer operating systems. AND
► You are highly skilled and proficient in the theoretical and practical application
of highly specialized information to computer systems analysis, programming,
and software engineering; Typically, to meet this requirement, you must have
a graduate degree in Computer Science or Information Technology. OR
► Your compensation is not less than $75,000 per year (the equivalent of $36.05
per hour.) [See Causes of Action – Computer Worker]
If you are working as a computer worker for a company, you don’t need a law
degree to determine whether you should be qualified as a Salary Exempt worker.
First, let’s determine whether you are, indeed in that category generally qualifying
for the classification, “Computer Worker.” Here is a list of titles and tasks which
will be instantly suspect, if classified as Exempt:
► Computer Technicians
► Software Engineer
► Customer Training Consultants
► System Administrator
► Graphic Designers
► Software Testers
► Hardware Testers
► Engineers, Administrators, Analysts Employed by any of the Gaming Industry
employers
► Systems Analysts
► Programmers
► Tech-Support
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► Computer Hardware and Software Installers
► Computer Operators
► Desktop Services
► Configuring Employees
►Bug Fixing Employees
► High Tech Employees, Computer Professionals who do not require and
advanced degree beyond a B.S. or B.A.
► Information Technology (Regardless of Title)
► Trainees or entry-level employees (Technicians to Programmers)
► Employees in computer-related occupations who have not attained the skill
and expertise necessary to work independently and without close supervision
► Employees who are engaged in operation of computers or in the manufacture,
repair, or maintenance of computer hardware and related equipment
► Engineers, drafters, machinists, or other professions whose work is highly
dependent upon or facilitated by the use of computers and computer-aided
design software, including CAD/CAM, but who are not in a computer systems
analysis or programming occupation
► Employees who write material related to computers for print or on-screen
media or who write or provide content for computer related media such as the
World Wide Web or CD-ROMS)
► Employees who create imagery for effects used in the motion picture,
television, or theatrical industry
► Employees engaged primarily in technical support and client support
If you have any doubts, go back to item 4. If your annual salary is less than
$75,000 per year, and have one of these titles, or carry out the tasks most
frequently associated with these titles, you are probably qualified to be classified
as Salaried Non-Exempt, entitled to overtime wages, now, and for three or
possibly four years in the past.
If the employer cannot meet these standards for one of these three categories,
then you are non-exempt and entitled to overtime pay and other benefits. In
this instance, you can recover wages going back three years (and in some cases.
four years) from the date your complaint is filed.
Another rich source for determining whether the work done by people with job
titles similar to your own can be found at O*Net Online, a Department of Labor
electronic publication. Exploring the descriptions of what those performing work
under various job titles will help confirm whether you indeed, have a case against
your employer.
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IV. So, how do I collect?
You are not going to do it simply by complaining to your employer. Employers
tend to have corporate personalities much like that of George W, Bush. They are
the “Deciders,” especially, when you tell them something they don’t want to hear.
Unless you have kept very accurate records of your overtime hours, the employer
is likely to brush off your complaint, by saying you have no proof that you have
worked these hours. Having classified you as a Salary Exempt worker, the
employer has no obligation to track your hours, as it does when you are Salary
Non-Exempt. You have the burden to prove that you, indeed, did work the
claimed overtime. As you will soon see, keeping written records of the hours
you work for your employer is absolutely essential to this process.
Also, unless you have been laid off already, in an age where firings and layoffs
are rampant, lodging a complaint is a quick way to hear, “Don’t let the door hit
your butt as you leave.”
If you are currently employed you will have to deal with your fears that retaliation
is inevitable. The employer will do everything to convince you that your job is at
risk, or lacking that, you will be demoted, denied promotional opportunities, or
“blackballed” with future employers. This is psychological warfare in its most
refined form.
To quote the famous lines uttered by Dirty Harry, your response will be, “Go
ahead. Make My Day!” I kid you not – Here is the section of the California Labor
Code which protects you from any retaliatory action by your employer:
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discriminated against in the terms and conditions of his or her
employment because the employee engaged in any conduct
delineated in this chapter, including the conduct described in
subdivision (k) of Section 96, and Chapter 5 (commencing
with Section 1101) of Part 3 of Division 2, or because the
employee has made a bona fide complaint or claim to the
division pursuant to this part, or because the employee has
initiated any action or notice pursuant to Section 2699 shall
be entitled to reinstatement and reimbursement for lost
wages and work benefits caused by those acts of the
employer. Any employer who willfully refuses to hire,
promote, or otherwise restore an employee or former
employee who has been determined to be eligible for rehiring
or promotion by a grievance procedure, arbitration, or
hearing authorized by law, is guilty of a misdemeanor.
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representative who meets with you at layoff time, will be sufficient to collect these
benefits.
V. Even if I am protected against retaliation, will all this be worth
it?
A. Lunch and Rest Breaks
During the period that you are classified as Exempt, the employer has no
obligation to report, or even record hours you work. You are expected to manage
your own time. Yet, as a non-Exempt employee, the employer is required keep
exact records of hours worked by each employee, and to to allow their employees
two paid rest break periods, and a minimum unpaid lunch period of at least 30
minutes in duration.
At least one DLSE office has expressed the opinion that the
penalty applies to breaks and to meal periods separately. In
other words, the DLSE may apply this rule of one hour to the
loss of either break, and then apply another one hour penalty
to the loss of the lunch period. In the event that the employee
is due multiple lunch periods in a day (i.e., from working more
than 12 hours in a day), the DLSE has informally expressed
an intention to apply yet another one hour penalty to
additional lunch periods lost.
B. A Recovery Scenario
Even without any overtime, watch as we work through a scenario showing how
much would be owed to you, just for unpaid lunch and break periods, assuming
the DLSE applies the intent expressed above.
First calculated are your “Base Rate” and overtime rates, which come from your
annual salary:
Gross Annual
Salary $50,000.00
Straight Hourly $24.04
Overtime Hourly $36.06
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“Base Rate” = Gross/2080, while, Overtime Hourly = 1.5 * Straight Time
Next, we need to calculate the number of days the average employee will work
each year.
Days in Year 364
Maximum Working
Days 260 Deductions
Vacation Days 10 250
*Legal Holidays 8 242
*Includes Friday after Thanksgiving Day
Floating Holidays 2 240
Deduct Other 0 240
Total Working
Days 240
The above assumes a 40 hour work week, all of which is worked on a five day
schedule.
Now comes the Payoff. Since you were misclassified, as an Exempt employee,
you only are responsible for completion of assignments, with your work time
indeterminate; thus, no formal offer for a Lunch period, or the two ten minute
breaks, is made. In fact, were the employer to make such an offer, this
would represent an admission that you were, in fact, viewed and classified
as a Non-Exempt employee, entitled to overtime pay!
Either way, the employer loses. If it did in fact, required (or currently requires) you
to adhere to a schedule which offered the breaks and lunch, it is an admission,
that, whatever classification it asserts, you were (or are) a Non-Exempt
employee. If it made no such offer, even if you have no record of overtime hours
worked, once established that the work you do (or did before layoff) is Non-
Exempt, the employer becomes liable for the failure to offer lunch and break
times.
Using the DLSE intent to pay for each failure (2 breaks and 1 lunch period), and
the scenario shown above, you end up with the employer owing $72.12 (3 “Base
Rate” Hourly Rate) for every day you performed non-exempt assignments. For
the 240 working day, year, using the previously calculated “Base Rate” Hourly
pay, this comes to a yearly total of $17,308, without you having to prove a single
hour of overtime work. Add to this 10% interest for causing you to wait for this
payment.
C. Overtime Pay
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Payment only for failure to offer lunch and rest breaks is a worst case scenario.
Let’s now assume that you have diligently kept time records. In that case, if you
are able to show that you were Non-Exempt, you have some substantial money
coming to you.
In our example, you worked an average of 2 hours a day overtime, for a full year.
Those hours, 2 per day x 240 days x 36.06 Overtime Hourly rate, gets you a
$17,308 judgment against your employer. When added to the award for missed
breaks and lunches, this would give you a total award of $34,616, with the only
cost to you being your preparation time.
With the automatic 10% interest penalty, this combined award could
potentially equal more than 75% of your annual base pay.
Reviewing again the benefits of taking this kind of action, here is what you may
expect from a successful action against the employer.
► Payment for failure to provide lunches and breaks (1 hour “Base Rate” for
each not permitted)
► All overtime wages due to you, for up to three or possibly four years preceding
the date of filing your claim
► 10% Interest on these overtime wages
► Potentially, 30 days regular wages, as a “Waiting Time” Penalty against the
employer, for having failed to pay your wages when they were due.
D. The Independent Contractor Scam
If you are unfamiliar with both Labor Law and Tax law, you can easily become a
victim of what, at first look, may appear to you to be a really excellent opportunity.
Instead of going through all of the formalities described above, the employer
offers to hire you as an Independent Contractor. What makes this look so
appealing is that no deductions are taken from your pay, so it looks to you as
though you are taking home almost one third more than you would if you were a
regular employee.
But, let’s look at the downside:
• You will actually pay more income tax then were you to have been a regular
employee, and under the rules set by the IRS, it must be paid on a quarterly
basis, rather than the single annual payment paid by payroll employees.
• You will receive none of the benefits offered by the employer to its regular
employees – no health care coverage, vacation, paid sick leave, family leave,
etc.
• You cannot receive Unemployment Insurance for those periods of time in
which you worked as an Independent Contractor.
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• If you suffer a job related injury, you will receive no medical payments for your
injuries. If such injury results in you being unable to work, you cannot access
disability payments.
•
E. Determining Qualification for Independent Contractor Status
There are, of course, times when it is quite appropriate that you work as an
Independent Contractor. If you are running your own business to deliver services
or products to others, than you will have one or more clients for your services.
You cannot rely on the integrity, or for that matter, the knowledge of the employer.
Instead, there is a tool available that quickly allows you to make an accurate
determination of whether you are to be paid as an Independent Contractor or as a
payroll employee.
This tool is commonly referred to as the “20 questions.” You will note that if the
answer to any but Question #16 is “Yes,” then you are improperly classified as an
Independent Contractor, and are entitled to be employed as a regular employee.
As you will note when reading this article,
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working for this employer, you will file the same wage claim, just as would be the
case if you were filing any other wage claim. [See Cause of Action – Independent
Contractor]
VI. On your own, or with others?
A. Do it Yourself
There are three separate options which you can employ to recover money owed
to you. The first of these is to pursue, without the assistance of an attorney, your
case. The California state agency you will use is the Department of Labor
Standards Enforcement (DLSE). The chief advantage of using this option is that
you get every dollar of damages awarded to you.
There is an additional advantage to pursuing your own case. If you retain an
attorney, he is going to process your claim much like that of a factory assembly
line. Your claim is taken, and with the data you provide, the attorney will most
probably use a template (usually referred to as “Boilerplate”) to prepare your
case. At the appropriate time, this Hearing Brief will be submitted, along with
evidence you have furnished, to the DLSE. This will be the foundation for the
presentation made at the formal hearing. Following this procedure works very
well, but may very well “leave money on the table,” when there are special
circumstances which can add to your award.
► Interrupted Lunches: In a world in which many are tied to their workplace by
Blackberries or cell phones, employees often are expected to respond to
messages while at lunch, even when physically away from the workplace. In a
formal 1988 DLSE Opinion Letter (see Appendix D, “Points and Authorities”),
precedent was established to entitle employees suffering such interruption, to
be entitled to a full hour’s pay for each such occurrence. [See Cause of
Action – Lunch]
► Travel Time: If you were required to travel as a part of your job, you are
entitled to add total daily hours worked for the following times, beyond the
eight hour work day for each of the following activities: [See Cause of Action –
Travel]
♦ Travel time between your home or workplace to transportation carrier
(plane, train, bus, taxi, etc.);
♦ Waiting time at airports, bus or train terminals, prior to boarding;
♦ Travel time on the plane , train, or bus;
♦ Travel time from the airport, train, or bus terminal to your lodging.
♦ All work done in preparation for, or in participation in, the remote event.
♦ Time repeating of these items necessary for return to your home.
♦ Excluded from chargeable time are meals, unless business is being
conducted, sleep time, and any personal or recreational activity, in
which you engage, without a business purpose.
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While it is true that this Do-It-Yourself option carries with it the greatest
opportunity for a maximum award, it requires you to do substantial preparation,
as well as being able to convincingly present your case, and face your opposition.
They will almost certainly be represented by a legal professional. There are many
who feel themselves ill-equipped to handle this challenge. If this is the case for
you, the next alternative is preferable.
B. Retain Legal Counsel
If, after finishing your reading of this material, you decide that the required
preparation is beyond your ability to complete, too much work, or, the prospect of
managing your presentation and defense at the Hearings described, will be more
than you feel comfortable in attempting, then you should retain an attorney to
manage your case. Typically, in wage cases, attorneys specializing in these
matters require no direct payment from you. Instead, they take a significant
percentage (from 30-50%) of the amount you win. This method is called “taking
the case on Contingency.”
Since the attorney is gambling that your case will result in an award with a value
sufficient to make his investment worthwhile, you will need to convince him that
your case has merit. To do this, you should bring as much as you have of the
following documentation to your first (almost always, free) consultation with the
attorney:
► A copy of your employment contract;
► A copy the personnel handbook issued to all employees;
► A copy of your job description; if your position title has changed during the last
three years of employment, provide copies of each of the Job Descriptions
accompanying each change in Job Title;
► Any examples of work product which demonstrate that the actual work you do
(or did) fails to meet the requirements for Exempt Classification.
► All records of time you actually spent when work was performed for the
employer;
► If you have incurred any expense for the employer which was not reimbursed,
you should provide receipts for such expense at this first meeting.
► Any written communications, either from your immediate manager, or
company wide, which address scheduling of your time, or the nature of the
actual work which you do or did while employed.
After reviewing all of these materials, as well as discussing the merits of the case
with you, you will be required to sign a Retainer Agreement, specifying the terms
and conditions of your relationship with the attorney. If the attorney requires any
payments from you directly, you should immediately end any discussion and look
for someone else to represent you.
C. The Class Action Lawsuit
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The Class Action lawsuit is to the 21st Century knowledge worker what the labor
union was to the 20th Century blue collar worker. It requires group action by a
large number of workers within a company taking concerted action to collect the
overtime wages. Someone has to start the ball rolling by enlisting a large number
of misclassified workers within the company. For example, the class might be
composed of “Computer Technicians,” “Programmers,” and System
Administrators.” Each one of these groups requires its own “Representative.”
These representatives are exactly that. They are the only named Plaintiff (the
person or persons who are the complainants) appearing in the papers filed to
begin action against the employer. Except for the named individual(s) who
represents the class, all others in the class are completely unknown to the
employer.
You are perhaps familiar with this approach to collecting overtime that is owed to
you. At first inspection, it may seem a very appealing opportunity for you to collect
on overtime wages, while at the same time, keeping your participation in this
action, hidden from your employer.
Successful actions of this kind have been taken against some of the largest
companies in the country. Wal-Mart, IBM, and State Farm Insurance, and
recently, Entertainment Arts, have all paid millions of dollars for having incorrectly
classified workers, in California, as well as other regions of the country. In the last
few months, the same complaints form the basis for a lawsuit against Apple.
All members of the class, including the named representative, are protected from
retaliation by the company. That may mean, that if you or other members of the
class were scheduled to be laid off, the company can possibly be stopped from
taking this action, because it could easily be interpreted as retaliation – for which
the penalties are very severe. Thus, if you know that layoffs are scheduled in the
next several months, you might well use this as a mechanism to delay layoffs for
you, as well as other members of the Class.
The chief advantage of approach is that it makes very few demands on most of
the participants in this action. If you re a member of the Class, it may range from
a simple notification that you can opt-out if you wish, to in some cases, answering
some written questions, and signing a Declaration that certain facts applying to
you are accurate.
However, If you are the one of a number of Class Representatives, you will be
heavily involved in recruiting other employees to join the action, providing the law
firm with evidence about the nature of the work performed by you, as well as
other members of the class, the average overtime hours worked, and other
information which may be required. In short, this is not an option for the faint-
hearted, or those lacking the needed time and energy to successfully pursue this
course of action.
The duration of this kind of lawsuit is measured in years, not months, and is by no
means a sure thing. After months of preparation, the judge hearing the case may
reject the composition of the Class, for any of a variety of reasons. Once
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accepted, it is likely to be several years before the case is either settled, or goes
to trial. If the case is won, you may wait years more as the employer appeals the
original award.
I began my attempts to collect the overtime owed to me with a co-worker, using
this Class Action approach. Both of us were going to serve as Class
Representatives. Without going into all the grisly details, this effort resulted in a
dismal failure ending with the attorney rejecting the case after months of delay,
causing us almost a full year’s delay in filing our respective individual cases.
Instead of participating in a Class Action, it may be more effective to simply
communicate your actions to your co-workers. Each can each file his or her own
individual claim. The employer has many strategies available to it to resist, and
delay a Class Action. Conversely, faced with a torrent of individual actions, it may
quickly seek to reach an acceptable settlement with each complaining employee.
Moreover, a large number of claims from employees of the same company is
certain to attract the scrutiny of the DLSE, particularly if all claims are filed with
the same local office.
VII. Obtaining the Wage Award
Whether you are going to retain an attorney or not, your first step is going to be
the same. You begin by reading these directions, filling out the form described
within, and then, mailing it to the DLSE office location most convenient for you to
be present for the Informal Conference, and the subsequent Formal Hearing.
A. Filling out the Wage Claim
For your convenience, here is a sample of each section of the Wage Claim, filled
out, as if you were had been laid off by your employer. Under the section asking
for an explanation, several variations are supplied. You should select the
explanation most applicable to your own situation. (Note that most portions
printed in Spanish have been removed for improved visual clarity.)
Part I – Address Data
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Make certain that you have filled in the two check boxes, as well as your formal
position title.
Part III – Conditions of Employment
The “Discharged” box refers to any condition in which your employment was
ended by the employer, including termination for cause, or layoff. Many
employees are currently paid by Direct Deposit, if this is/was the case for you,
insert this statement instead of checking either box. Line 3 need only be filled in if
three was a delay in receiving regular wage payments. Check the “Yes” box in the
hourly records, only if you have complete records of all hours you worked.
Part IV – Requested Award
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Break out the number of hours for which you are claim overtime wages due, as
opposed to time for unoffered breaks, and interrupted lunches. On the next line,
calculate your “Base Rate” rate, and overtime rate as was shown in the earlier
tables, and indicate how they are to be applied. After calculation of the total, this
is the “Gross Amount Claimed.” The “Amount Claimed,” which will be the same as
the gross, unless the employer has made some partial payment.
The “Brief Explanation” could contain a number of variations. Here are some of
them:
► “Misclassified as Independent Contractor.” With this kind of violation, the
Labor Commission will calculate employer tax liability, but overtime hours,
lunch and break payments should be calculated as before.
► “Breaks offered, no overtime, but lunches interrupted.” Calculate only the
number of times lunches were interrupted, and multiply this number by your
“Base Rate” rate, for the Gross Amount Claimed.
► “Misclassified as Exempt with no breaks offered, Lunches interrupted, (or not
allowed)” Multiply each occurrence by “Base Rate” Rate.
► “Misclassified as Exempt, Overtime Not Paid, No Breaks Offered, Lunches
interrupted, (or not allowed)” Calculate as shown in the example above.
B. When to File
Here are some different scenarios to help you determine when to file your claim
which exist with respect to your employment status with the company:
• You are currently employed by your company, anticipating continuing
employment: Prior to filing the complaint, notify your current manager, or HR
administrator that the employer is and has been for a period of time, in
violation of those laws relating to your compensation. Present the applicable
law, as well as the evidence showing the company to be in violation. If you are
aware of other employees similarly situated, point out the exposure that the
company is incurring. You may be able to get the company to pay the wages
owing without the necessity of taking action against them. Should you receive
any threats of retaliation, be certain to notify them of the consequences they
face should they take any adverse action against you.
• You have received notice of an impending layoff: The most appropriate
response will vary depending on the time between when you are notified, and
when the layoff takes place.
► You suspect you are going to be laid off, but have received no formal notice of
this action: File your claim with the DLSE, as soon as you have reason to
believe that layoff is pending.
► You are given written notice 60 or more days prior to the date of layoff.
Immediately File your claim with the DLSE, Contact your HR department
and notify them of your filing, and present them with §98.6 of the Labor code
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(Retaliation), indicating that if layoff or any other punitive action is taken
against you, you will add this to your original complaint.
► You are given less than 60 days prior to the last day for which you are paid.
♦ IF your employer is laying off more than 50 employees within a 90 day
period, AND,
♦ Your Employer has employed 75 workers, in the last year AND
♦ IF your employer fails to pay all wages, accrued vacation pay, medical
coverage due, and any other benefits previously provided to that date
which is 60 days from the date of Layoff Notice, then you are entitled to
that pay and any penalties specified under the California WARN Act.
(Specifically read §1402 of the State Labor Code, for an understanding
of your rights under this Act.)
♦ File your claim, including failure to pay wages under WARN.
► At layoff, you are offered a Severance Package, subject to signing a Waiver
and Release (See Appendix A) which prohibits you from taking action against
the Company. The employer cannot enforce this agreement, since
California Law requires that you always retain the right to recover wages owed
to you. File your claim immediately after returning this signed agreement to
the employer.
VIII. The Informal Conference
After you file the Wage Claim, be prepared to wait a while before you hear from
the DLSE. This waiting period can range anywhere from one to three months. You
and the employer will both receive a notice of an Informal Conference. Although
the employer is not required to attend, you must be present, or your case will be
dismissed.
You come alone to this meeting. Seldom will the employer attend, unless it is
ready to propose a settlement of your claim. This is the time when your case is
evaluated, you can ask any questions regarding what to expect during the formal
hearing, and what you need to establish your request for compensation.
A Labor commissioner will be in attendance to evaluate your case, answer your
questions, and give you a rough estimate of when your Formal Hearing will take
place. he can also dismiss the case, if it is found to lack the required evidence
necessary to prove your case.
You can also request forms to subpoena individuals or documents necessary to
prove your case. Individuals you might wish to question at a formal hearing are
people such as your immediate manager or supervisor, customers or clients for
work you performed, or co-workers who can substantiate the nature of the work
you performed and/or your claim for overtime hours worked. Documents you can
ask for relate to establishing your salary history, copies of job descriptions, any
records of hours worked maintained by the employer, and most importantly
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copies of work product upon which the employer bases its claim that you
performed exempt work, at least 50% of time you were present at work.
After completion of this conference you should decider whether you wish to
handle the case on your own, or whether you want to retain an attorney to
represent you.
A. Finding an Attorney
Before searching for an attorney, there are some important questions you need to
ask yourself, which will help you decide whether you should pursue your case on
your own, or whether you should seek professional assistance.
► Gathering evidence and writing the Hearing Brief: At the Formal Hearing, you
will be required to present a “Hearing Brief.” The document which I prepared
for my own case is shown in full, in Appendix B, “Redacted Hearing Brief.”
Yours should follow a similar format. You will note that although not presented,
reference is made to exhibits and the Hearing Brief prepared by the
Defendant (the employer). If the preparation of a similar Brief and the
accompany exhibits appears to you to be beyond your own ability and/or will
take more time than you have to devote to it, than you will want someone else
to prepare these materials for you.
► Handling Intimidation: During the Hearing, you will (a) orally present
arguments for your case, (b) call witnesses to support your claim(s), (c)
question the defendant and any witnesses it presents, (d) be cross-examined
by the Defendant, (e) be questioned by the Labor Commissioner, and (e)
present closing arguments to summarize your claim. Not all of these will
necessarily occur, with the Commissioner determining what is allowed, and
the order of presentation. To give you some picture of the situation, my case
extended over two days, with Defendant Counsel constantly delaying
completion, with the introduction of irrelevant evidence, and making
derogatory remarks about me. Eventually, the Commissioner tired of these
tactics, and ended the hearing. Regardless of the conduct of the hearing,
many find this to be a highly intimidating experience. If this kind of situation
presents more stress, than you are prepared to handle, you will want the
assistance of someone else to represent you.
While you may not feel personally capable of managing your case, you may have
a friend, family member, co-worker, or other individual who can assist you in your
preparation, and be present at the hearing to handle your presentation, without
charging for their assistance. Be aware that if you plan to use someone as a
witness, that same individual cannot, at the same time represent you. As a
witness, they can be only be present when called to testify, and not remain after
completion of questioning.
If no such free assistance is available, it is only then that you should retain an
attorney. You will want to follow these steps:
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► If you already have an attorney that you have used in the past, talk with him to
determine whether he handles cases such as yours. Unless that is an area of
specialized practice for him, he will refer you to someone specializing in cases
like this one.
► If you have no source for referrals the Find Law is an excellent source for
listing possible attorneys for you to start with.
► There will be a substantial number of names. Give first priority to those any
who mention “Wage Cases,” or “Overtime,” in the short description appearing
under the name of each law firm. If you find multiple firms in which you are
interested, prioritize them by location, or area code appearing closest to you.
►Go to the websites of the two or three firms which have the most interest for
you. After doing so, call the top one on your list, and make an appointment for
a free consultation.
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► At that first meeting, bring all of the evidence you have gathered, so the
attorney can determine the likelihood of success, as well as additional
materials needed for the case. Along with the personal level of comfort with
the attorney, you will want to assess how progress on your case is going to be
reported, as well as the terms of the retainer agreement which is offered to
you. The more preparation you have done, greater is the opportunity for you to
negotiate the percentage of award that you will be charged. Be aware that
some of his fees will be paid by the Defendant if you win your case, so you will
want to very carefully examine the additional percentage which you will be
charged. Determine what the firm will do if you lose at the DLSE, and you wish
to appeal in Superior Court.
► Depending on your level of comfort, you can (a) sign the Retainer Agreement
at that meeting (b) take it home for a day or two to consider, or (c) decide to
interview the next law firm on your list.
► If at all possible, bring someone whose judgment you trust along with you, and
avoid making the decision without someone who you can use as a sounding
board to validate your view of the situation.
► If you do decide to use a law firm, your work is done. Your attorney will tell you
what you need to do to prepare for the Formal Hearing. The firm will proceed
to gather any additional evidence needed, and will notify the DLSE that they
are representing you. They may wish to schedule additional meetings with
you, or have you sign documents, or perhaps ask you to be present at a
Deposition, where the Defendant or other witnesses are examined. Be certain
that you follow all directions given to you.
B. Preparing for the Formal Hearing
Everything from this point on assumes you will be managing your own case,
either personally, or with the help of a non-attorney representative. While the
process is going to seem to drag on interminably, you should know that the odds
are strongly stacked in your favor. Unlike all the criminal cases you have seen
depicted in films or TV, the Defendant (the employer), is presumed guilty and
bears the burden of proof to demonstrate that it acted properly, and that your
claim either fails under the law, or the evidence that you present.
As a result, almost all but the smallest employers will be represented at the
hearing by someone from their Human Resource (HR) department, and an
attorney. Their preparation will almost always include a “Defendant’s Hearing
Brief.” This document will be formatted as a standard legal document, and will be
given to you at the hearing.
(In my own case, since the hearing was split over two dates, I was able to obtain
the Defendant’s Brief on the first day, giving me the opportunity to fully prepare
my own response, presented on the extended second day of the hearing.)
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C. Selecting witnesses
Co-workers, or former clients who either had knowledge of, were requestors of,
recipients of your work product, or former managers who made your work
assignments, are all possibilities to serve to confirm the nature of the work you
performed. At most, you should select only one or two such individuals, because
the hearing is ordinarily expected to be completed within a single day. Needless
to say, consider using only those individuals who will willingly testify on your
behalf.
In many cases, it will be inconvenient for witnesses to appear. You can substitute
for the actual presence of the witness by securing his or her Declaration. This
document simply is a signed version of what the witness would be saying at the
hearing. A Sample is shown below. These Declarations are referred to in your
Hearing Brief. (See Hearing Brief for the use of Declarations)
D. The Exhibits
Documenting your claim(s) is absolutely essential to winning your case. Each
should be sequentially numbered, so that they can be referred to in the
Hearing Brief. There are two categories of exhibits that you will want to have
available:
► Document that you should be a Regular (Taxes-withheld) employee
♦ If you have been improperly hired as an Independent Contractor, you
will use the “Twenty Question Test,” to establish that you should be paid
as a regular payroll employee. Question #1 is the most critical to
establishing an employee relationship. It asks whether you must
comply with instructions regarding when and where work is to be
performed. To establish that you received direction from the employer,
any or all of the following documents will serve to prove this answer.
♦ Any document which sets forth a daily or weekly reporting schedule,
indicating the time and/or location where work is to be performed.
♦ emails or other dated written communications from the employer setting
forth the manner or means by which work is or was to be performed, or
changes to be made in work in progress, or compensation made
contingent on modifications to be made to delivered work product.
♦ written performance evaluations making continued employment or
compensation contingent on some aspect of personal conduct.
► Document proper Non-Exempt Classification
♦ If your Employment Agreement contains any reference to you being
classified as an Exempt Worker, this section should be highlighted, and
reference made to it, in the Hearing Brief.
♦ If you were issued an Employee Handbook when hired, you my expect
that there will be a section related to the work schedules and how they
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apply to different worker classifications. Copy these sections for later
presentation.
♦ Job Description – Although the actual test of whether or not you are
exempt comes from the work you performed, if this document describes
tasks which are non-exempt, you may be spared the task of gathering
examples of work product.
♦ A sampling of Work Product which can clearly indicate that the work
you performed failed to meet the requirements for an exempt
classification. Since this work is legally is owned by the employer, you
should obtain it by subpoenaing these materials.
► Document hours for which wages are owed.
♦ A Time analysis of work product samples, used to demonstrate that
less than half of your time was devoted to Exempt work
♦ Any or all job descriptions issued to you during the period covered by
your complaint.
♦ All communications referencing scheduling, hours of work, lunch
period, or breaks.
♦ Any performance evaluations which refers to your schedule, or time
worked, whether satisfactory or not.
♦ Copies of job tickets, or requests for product production demonstrating
work to be done which is/was non-exempt. These documents should
be secured by subpoena, since they are owned by the company.
► Break periods, and uninterrupted unpaid lunch
If you were or are classified as non-exempt, and have not been offered two ten-
minute break periods during the eight hour day, and one-half hour (unpaid) of
uninterrupted lunch, you will need the following items to verify this violation
of the Labor Code.
♦ a copy of your employment contract, or Employee handbook. Failure to
list these rights can serve as proof of violation of this provision of the
Labor Code.
♦ Witness Declarations used in place of the physical presence of a
witness. Such declarations establish observations of instances when
your lunch was interrupted by “on call” requirements of the employer.
See Appendix C, “Sample Declaration.”
♦ Subpoenaed copies of work related emails or text messages sent from
your Blackberry or cell phone, during your previously established lunch
time.
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E. The Hearing Brief
Please consider this before going any further, please consider this:
Many who are reading this book are going to look at these directions for
preparing the Hearing Brief and will consider it far too much work, or beyond their
abilities to assemble the required materials. The truth is that you can win your
case, without ever writing this document.
If it is not required, why do I devote eight pages to the process of preparing this
document?
► If you are seeking an award for either the Waiting Time Penalty or an
extension of the Statute of Limitations from three to four years, this
document will be essential to your efforts to achieve this component of your
claims.
► If you are feeling intimidated by the prospect of going up against an attorney,
and presenting your case, going through this process will greatly add to your
confidence, and readiness to present your case.
► Seeing this product of your preparation sends a warning to the opposing
attorney that you are a well prepared opponent, and may have the effect of
lessening personal attacks and distracting information, when he questions
you.
Even, as will usually be case, you have not seen the Defendant’s Brief, you are
well advised to prepare your own, using the format shown in the Appendix B,
“Redacted Plaintiff’s Hearing Brief.” Besides requiring you to assemble all of your
evidence in an organized and convincing form, following the legal format shown
below, serves you as a “marketing” tool, which, when read by Labor
Commissioner, establishes your credibility as serious, well prepared, and
knowledgeable about the elements of your case.
Note: The format shown below differs significantly from the Appendix A
document. This recommended format is designed to deal with the general claims
that most will be making, along with some of the variations which may specifically
apply to your case. Appendix A was the actual Brief for a complex, and somewhat
unusual case, and is offered for reference purposes only. Here is your Title Page.
You can easily get the desired column alignment by making a two column page,
and using the Alignment tools to get words as they appear on this sample page.
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×××××××××××××××××××××××××
Much credibility rests with the formatting of the document. Tradition dictates that it
be prepared using serif based fonts. Any of the following are acceptable:
Courier, Times Roman, Century Schoolbook, or Georgia. (My personal choice is
Georgia, which is very legible, with many accepting it as aesthetically pleasing.)
×××××××××××××××××××××××××
While your document will address the specifics of your own case, it must contain
the following elements:
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make you exempt, but the actual work you did differed sufficiently from
the job description to make you Non-Exempt; Often, a change of
manager results in just such a situation, causing you to change the
nature of tasks performed, while retaining the same job title.
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♦ Format: Each Cause of Action begins as shown in the illustrative
template shown below. These are main level paragraphs and, as such,
continue sequential numbering as before.
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♦ Content: Use this section to List each violation in which your
employer engaged. Each Violation is a separate cause of Action.
Here is a list of possible Causes of Action.
♦ Improper classification of worker as Independent Contractor instead of
regular employee;
♦ Improper Classification of employee as Executive Exempt vs. Non-
Exempt Worker;
♦ Improper Classification of employee as Administrative Exempt vs. Non-
Exempt Worker;
♦ Improper Classification of employee as Computer Worker Exempt vs.
Non-Exempt Worker;
♦ Failure to offer one paid 10 minute rest period for each four
consecutive hours worked. (Remember, the employer only needs only
to give you the opportunity to take these breaks, but has no duty to
require you to use this time)
♦ Requiring that you be on duty during your unpaid lunch period, or at
times when you are otherwise not expected to engaged in paid work
activity.
♦ Failure to add travel time to regular daily on-duty hours.
♦ Unreimbursed approved business expense.
Failure to Pay Wages Due is is next to last in the Causes of Action. Here, you
summarize the total overtime and “Base Rate” hours for which wages are due
for each cause of action, and refer to the Spreadsheet as an exhibit, which
details all “Base Rate” and overtime wages, due. Use separate paragraphs for
each type of Wages not paid; thus, overtime wages, “Base Rate” due for
interrupted lunches or lunch not offered, as well as a separate paragraph for
breaks not offered. Additional paragraphs should be directed at any
unreimbursed business expenses.
• III. PROOFS FOR CAUSES OF ACTION -- To this point in the Brief, you have
alleged (made claims) that you were entitled to overtime and/or other wages,
because your employer violated California Labor Law, or otherwise incorrectly
calculated wages due to you. In this section of the Brief, you are going to
present your proof that these claims are valid. The following list the elements
you can use to prove your case.
► Independent Contractor vs. Regular Employee: As discussed earlier many
employers will try to evade their obligations by classifying you as an
Independent Contractor. To establish that you have been incorrectly classified,
simply refer to those questions in the 20 Question list which requires that you
be treated as a regular employee.
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► Job Description: In most cases you will be given a job description, as you
begin each position within the company. It may have been given to you during
your application interview, or as you are oriented by your manager to the work
that was expected of you. While your claim for Non-Exempt status rests with
the actual tasks you performed, if your job description sets out non-exempt
tasks, this makes your claim considerably easier to prove. This document
among your first numbered exhibits.
► Proof of Actual Work Performed: This is a key element in proving that you
were incorrectly classified. There are a number of tools you can use to prove
this:
♦ Samples of Work Product: This is the most powerful demonstration you
can show to demonstrate that you were non-exempt. As but one
example, if you were required to compile or present raw data, or fill out
forms, samples of these assignments serve to demonstrates that such
work was routine, and required no special skills, nor, most importantly
required no use of “independent judgment and discretion.” Any work
which is regularly repetitive (such as a quarterly sales report), uses pre-
constructed templates, is non-exempt.
♦ Job Tickets: many companies have established job ticketing systems,
which determine work to be performed by the recipient. Sample of
these tickets can be used to establish the exact nature of the work
performed.
♦ Communications from management: Emails or hard-copy memoranda
which either order non-exempt work assignments to be performed, or
require specific working schedules are
♦ Refer to Witnesses: Refer to the expected testimony of the one or two
“live” witnesses who have made themselves available to you at the
hearing, by an advance description of the contribution that they will be
making to your overall case. If you have secured declarations from
witnesses these should be included in the numbered exhibits.
► Proof of Unreimbursed Business Expenses: If you have kept careful records of
all expenses incurred on behalf of the employer, you may be pleasantly
surprised to find that a significant amount is due to you. You must have
receipts for any purchases, credit card billings, and accurate mileage records
for any use of your personal car or truck.
♦ Round trip mileage from your home to workplace, at times outside your
regular schedule of work is chargeable. If, for example, you had to
return to the workplace, after going home, or were called in to work on
a day in addition to your regular schedule, the round trip mileage can
be billed at IRS allowed rates, for the year in which such trips occurred.
♦ Trips from your regular workplace, to offsite locations, and return
mileage to the workplace can be claimed.
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♦ If you drove from home to an offsite location on a regularly scheduled
workday, the difference in mileage between home to offsite location
minus distance to regular workplace can be charged.
♦ Cost of meals taken on days worked outside of your regular schedule.
• IV. USE OF POINTS AND AUTHORITIES – To this point in your listing of
Causes of Action, your writing has been directed at proving your claims that
your employer either performed or failed to perform some action. There is a
second requirement which must appear in each of the Causes; establishing
that the Employer acted or failed to act, in violation of a law, regulation or
policy.
You will at this point be wondering why you are expected to deal with this.
After all, the commissioner hearing your case should certainly be familiar with
the law which applies. Right? Not really. There are a number of reasons why
is essential that you cite the applicable laws, regulations or opinions which tie
your evidence to a violation of law, or argue for an expansion of one of your
claims
► Your use of applicable law gives great credibility to your claims. It
demonstrates that you have taken the time to carefully consider and prepare
your claim.
► Like everyone else hearing officers forget, or at times need to be reminded of,
the specific rule or regulation applying to your Cause of Action.
► New regulations and procedures are constantly occurring. Not every hearing
officer will be immediately informed of every change, and such changes may
well directly impact on your claim.
Thus each Cause of Action should reference any and all legal decisions which
apply to it. These are inserted within the paragraphs which establish each
claim. Here is an example of how you would integrate a citation within your
discussion of an issue. In this example, the writer is arguing for expanding the
Statute of Limitations on wage cases from three to four years.
A full guide to Wage and Hour Legal Citations is provided in Appendix D,
“Points and Authorities.”
• V. PAYMENT CLAIMED – In this section you provide the hearing officer with a
calculation of the hours due to you as a result your proof of the violations
engaged in by your employer.
In this section, you need to explain or review the circumstances which lead to
the calculations which follow. There should be explanation for each category
of claim that you are making. Overtime, lack of breaks, working through , or
interrupted lunches.
To present the actual hours and amounts due, use the these Excel
spreadsheets. After opening the sheet, this sample, download, and save
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as an Excel Worksheet. You will make a separate sheet for each year for
which you are claiming overtime.
For those filing from this point in 2009, 2006 is the earliest year which can be
covered under the three year Statute of limitations. If, for example, your claim
is received at a DLSE office on January 20,2009, you can only make claims
for the week of January 21, 2006.
Begin the Week column, for each year in which you are making a claim, by
beginning with the Monday of the week in which the 1st of January occurs.
Those weeks for which you are making no claim will simply have a “0” entered
in each of the cells prior to the allowed date.
In this sample we are assuming that you worked two hours overtime for every
regular day worked, that you were not offered the opportunity for 2 ten-minute
break periods, and that you either had to work through your lunch, or were
interrupted with employer duties during lunch an average of twice a week.
If you have kept careful record, you can easily sum the categories for each
week. Those records should be a part of the exhibits you reference in the
narrative paragraphs described above.
If you have not kept actual records, you can still construct these sheets,
estimating the average number of overtime hours worked. If you have made a
credible case for your claims. As you inspect the sample, note that not very
week shows the same number of overtime, break or lunch hours. That is
because, in this sample, your hours are reduced for weeks in which holidays
occur, as well as a two week period in which a vacation was taken. If you re
constructing your own sheet, be certain to properly reflect these periods
when you have no hours to claim.
• VI. REQUEST FOR RECOVERY OF MONEY DUE – This is the final step.
You have presented everything you need to establish the violations, made
specific the claims arising from them, presented evidence to prove your claims
to be accurate, and provided a numeric calculations as the basis to request
recovery for of wages owed to you. In this, the final section of the Hearing
Brief, you make your formal request for the recovery of wages owed to you.
► Your request will be formatted as in the example shown below. Be certain that
the paragraph numbering continues from the last paragraph of the HOURS
DUE section of the Brief.
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► If there are unreimbursed expenses, each category of these will have been
included in your causes of action, and the recovery for which you are asking
will be listed in this section.
► Skipping to the end, you end with a statement apply to All Causes of Action.
► Finally, you will sign and date the Brief, with the format appearing as:
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F. Putting it all together
You have done a great deal of work in assembling the materials necessary to
make your case. Before the hearing, there is one last task remaining –
assembling everything into loose leaf notebooks. At the top of the documents is a
copy of the Hearing Brief, (if you have written it) followed, in order by the
numbered exhibits. You may wish to separate documents with tabbed separators.
The more professional looking is your presentation, the better your chances for
winning your case.
One copy is for the defendant, one, to the Labor Commissioner, with the last one
kept for yourself.
IX. At Long Last – It’s Hearing Day!
A. The Hearing Room
Unlike a courtroom, the hearing will be far more informal, with what happens in
the hearing room completely under the control of the commissioner hearing your
case. Present in the hearing room will be (usually only one) representative from
your employer, and almost always, an attorney representing the employer. If you
have an attorney, or have brought a friend or associate to be your representative,
they will be present throughout the hearing.
Any witnesses you have asked to testify for you, as well as witnesses for the
defendant, will be present at the start of the hearing. The commissioner will swear
in everyone present, and then ask all witnesses to wait in the reception area, until
called to testify.
You will ordinarily be seated at a table to the commissioner’s left, with the
defendant(s) at his right. As soon as you are sworn in, hand a copy of your
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documents to the commissioner, and then to the defendant’s counsel, or
representative.
B. What to expect
If you have observed a courtroom trial, you may recall that the proceedings follow
a very formal, fixed order of events. Not only is the order of events followed, the
rules for what evidence is accepted follow very strict rule of procedure. This is not
the case for this hearing.
While the presiding commissioner will generally follow the same order as in a
courtroom, he has much more latitude to get the information he requires to make
a ruling. He can hear or accept evidence which he believes is relevant, or useful
to making his ruling; there is no court reporter present. Instead the proceedings
are tape recorded. There is no public record, as with a courtroom trial. There are
no objections to testimony by attorneys.
Most importantly, for the most part, it is the commissioner who will ask the
questions. In most instances, both sides will be given the opportunity to cross
examine witnesses, if a request is made, but this is entirely at the determination
of the hearing officer.
You can expect to present your case first. Plan on doing a short, to-the-point
presentation, explaining your reasons for making your claims (the Causes of
Action). If there is anything complicated, refer the commissioner directly to the
pages in your Brief, and/or the Exhibit numbers which address the issue. Your
emphasis must be on the labor laws which the employer has violated, with clear
testimony describing how they have done so.
The commissioner will do everything possible to make you feel comfortable, and
assist you in helping him to understand your position. S/he will end the hearing
when s/he has heard everything s/he feels necessary to make his ruling.
One question you should be prepared to answer is the following, which is likely to
be asked of both sides: “If you lose this case, will you appeal?” Unless you
believe that the commissioner has failed in some important respect to get all the
necessary information, your chances of winning an appeal, are very limited. You
are likely not to get every dollar you asked for, but the cost of recovering some
additional fraction of your request is simply not worth it. The employer will
ordinarily respond, “Yes,” but seldom follows through.
Here’s why. If they appeal, your attorney fees will be paid by the DLSE, while they
will have to absorb all the costs of doing so. Even more important, by the time
someone is given the rank of a Labor Commissioner, s/he makes decisions that
the courts are unlikely to reverse. The advantage to saying “No,” is that if both
sides agree, you are likely to get an oral decision before you leave the hearing
room.
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C. The written finding
The decision reached by the commissioner is set forth in a written decision,
copies of which you and the employer will be mailed. While the procedures say
that you should expect this decision within 10 days of the hearing, don’t expect it
that soon. Like every other California administrative agency, current budget
problems have left the DLSE short-handed, with long delays, between hearing
and issue of the judgment. Before calling to inquire, you should wait at least three
months. If you have not heard by then, there will be a phone number provided so
that you can inquire about the status of the decision.
► Contents of the Finding
♦ The Decision: The first item will indicate who won the hearing - you or
the employer.
♦ The Commissioners Opinion: In this section you will find the basis by
which the decision was reached. Each of your claims will usually be
separately discussed.
♦ The Award: If the decision goes to you, there will be a calculation of the total
award ordered to be paid by the defendant.
► Payment Order
♦ Included within the finding will be directions for payment. If you have
won, the Defendant is given a time to pay, or give notice to the DLSE
of its intent to appeal the finding.
♦ If the Defendant chooses to appeal, the DLSE will provide you with its
own attorney (at no cost to you). In effect, the defendant is no longer
defending your claims, but rather defending a decision of the State of
California.
♦ Should this occur, there will be a completely new trial, in a California
Superior Court. While you will almost certainly ultimately win, count on
waiting another two or three years before an ward is made.
► Collection of the Payment
♦ The defendant is given a fixed time to pay. If it fails to pay the ordered
amount by the date set, the DLSE will do its own collection, since
again, this is not you, but the State of California that is the creditor.
There can be considerable delay in the payment process, but usually it
happens within 30 days of receiving the order.
♦ After the check is received by the DLSE, and clears, payment is
recorded, and DLSE cuts a new check to you. Again, do not expect
immediate payment. You will be notified that payment has been
received, but remember, the payment clerks are just like the rest of the
drones who work for any state agency, having no incentive to move
faster than a snails.
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♦ There is a nice bonus for you. Since the employer makes the check
payable to the DLSE, it issues no tax information. Nor does the DLSE
withhold or report taxes due, since you have never authorized it to do
so. Therefore, your award ends up being tax-free!
X. Two other Possible Issues
From my own experience in pursuing my claim, as well as later informal
conversations with DLSE employees I think this is an accurate picture of what
portion of possible claims you will end up collecting.
• The DLSE, and all of the apparatus of the California Labor Commission is
largely “Employee Friendly.” This is to say, that recognizing that you are not a
trained attorney, the DLSE will lean in the direction of accepting your basic
claims, if backed by credible evidence.
• On the other hand, there are two possible extensions of your claim that are
very difficult to achieve, but definitely worth the effort, because if granted, they
will substantially add to your award.
A. Extending the Statute of Limitations to Four Years
If your claim extends backward, more than three years from the date that your
filing is accepted, your award could potentially be increased by as much as 25%.
To get this fourth year allowed, you must prove that your employer failed to pay
wages due for the purpose of reducing its costs to improve it’s competitive
position, thus violating the Unfair Competition Law (UCL). This is a very difficult
to prove, but if you are interested, a full discussion of prosecution of this claim is
found in Appendix D.
B. The Waiting Time Penalty
Award of a waiting time penalty results in payment to you of 30 days wages at the
“Base Rate” rate, as well as the monetary value of all benefits to which you are
entitled, whether currently employed, or having been laid off.
Regardless of the claim that your are making, you and the employer are
considered to have a “legitimate business dispute.” In essence, the assumption is
made that your claim arises out of differing interpretations of the governing labor
law.
If you want to make a claim for this penalty, you must prove that instead of a mere
dispute, the employer has knowingly violated the law, as it applies to you. As with
the UCL, look to Appendix D for a full discussion of this issue.
XI. Other Claims
The central focus of this book is directed at recovering wages resulting from
improper classification as an exempt employee. Beyond the scope of what has
been covered here are several other categories where the employer violates your
rights, or fails to protect you from what has come to be called the “hostile
workplace.” These are offered to you, so that you can be aware of protections you
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have when these actions occur. If you believe that any or all of these apply to
you, you should consult an attorney for assistance in remedying these issues.
A. Discrimination
Discrimination occurs throughout the entire continuum of workplace
environments. It ranges in time from denial of employment to differential
treatment while on the job, to ending employment for other than reasons of
economic necessity, or the contribution made by to the worker to the purposes of
the employer.
Age, gender, sexual preference, race, religious affiliation (or lack thereof), and
political afflation all have been used to deny employment, restrict job progress or
advancement, justify selective layoff, and cause wrongful terminations.
B. Harassment
Bullying by a manager or supervisor is only one of a variety of behaviors which
you can use to establish as harassment. Sexual harassment by manager or co-
worker is among the most commonly understood elements of this larger category.
Beyond this, however, there are a number of situations commonly occurring in the
workplace which, while less discussed, nonetheless constitute harassment:
• Speech or behavior of others causing you personal discomfort, or distress in
the workplace, after you have requested that it stop.
• Discrimination by others based upon your age, gender, sexual preference,
race, religious affiliation (or lack thereof), or political afflation.
• Speech or actions by others which interferes with the performance of your
assigned tasks, or opportunities for advancement.
• Defamatory (spoken or written) remarks directed at you, by others, regardless
of their position in the employer organization.
Any or all of these constitute the creation of a hostile work environment. In such
circumstances, you not only have an absolute right to bring an end to this activity,
but also to be awarded monetary damages for having to put up with this
harassment.
C. Physical and mental disabilities
While it is generally recognized that employers have a duty to hire and make
reasonable accommodations for those suffering physical disabilities, far less
better known or practiced by employers is that same level of attention directed at
those with mental disabilities.
Mental disability is most frequently thought of as being characterized by difficulty
in learning, remembering, or concentrating. While the employer has no obligation
to hire those not capable of performing required tasks, it does have the obligation
to provide equal opportunity to those suffering these disabilities for positions they
are capable of successfully performing.
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Far more subtle are what are generally identified as “personality disorders.”
Many, if not most, employers expect and often demand that all employees be
congenial, friendly, and courteous in their interactions with co-workers and
managers. This, in spite of the fact that there are many positions which require
limited or no interaction with others. There is an almost mythical expectation that
workers will be loyal to the company, “team players,” and expected to direct
energy toward fostering the company’s core values and beliefs.
There are many employees perfectly capable of productively delivering the tasks
specified in their job description, who, for a variety of reasons, are just not very
skilled in interpersonal interactions. A host of factors can enter into this equation,
not the least of these are disabilities such as Asperger’s Disease, Clinical
Depression, Adult Attention and Hyperactivity Disorder (ADHD), as well as
Tourette’s syndrome. Awareness of such disabilities varies widely among those
who suffer from them.
Yet, those who have these disabilities often are seen by co-workers as:
• Avoiding interactions with co-workers.
• Exhibiting irritability and short tempered behavior.
• Demonstrating arrogance and rudeness to others.
• Being impatient and unwilling to assist those perceived as lacking in
competence.
Complicating the situation is that the employee may be unaware s/he is suffering
from these as well as other similar disabilities. S/he may often be perceived as
being “a loner,” odd, or eccentric, to be avoided whenever possible.
Consequences can range from poor performance reviews, negative entries in the
employee’s personnel record, restricted promotional opportunities, all the way to
termination. The Americans with Disabilities Act of 1990 requires that employers
make “reasonable accommodations,” for those with physical disabilities, so long
as they can make a productive contribution to the business of the employer.
D. Safety in the workplace
For those working in the typical business office environment, safety in the
workplace is seldom given more than passing consideration. At the other end of
this continuum are professions which inherently have physical risks ranging from
moderate to extreme, associated with the performance of required tasks.
Yet, no matter what work performed, when leaving home each morning, almost all
expect that they will return in the same condition, that night. Unfortunately, every
day, hundreds of workers sustain work related injuries, some fraction of which are
lethal.
Federal and State governments have built a substantial legal infrastructure to
insure that employers maintain minimum health and safety standards to protect
all employees. Employers have an absolute duty to follow these standards, with
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employees having both the right to expect these standards to be followed, and a
duty to report violations. Employees reporting such violations are specifically
protected from any retaliation by the employer.
E. Layoffs and wrongful termination
While many employees are aware that their employer is violating some or any of
the rights described above, the ultimate nuclear weapon in the employer’s
arsenal is termination. By a great majority, workers are employed under the
provisions of an “At Will” contract. In essence, this means that you can quit work
at any time, and the employer can end its employment relationship with you
“for any or no reason…”
Under these conditions, employees are understandably hesitant to “rock the
boat,” even when they know precisely how their rights have been violated, and
have clear and convincing evidence of these violations.
Below are some of the reasons that have caused employees to be wrongfully
terminated, terminated, in which case complaints can be successfully brought:
Violation of a state or Federal discrimination law
Violation of rights granted by the First Amendment to the U.S. Constitution
Violation of the employer's own discharge policy
Breach of an explicit or implied contract of employment or an employer-union
collective bargaining agreement (contract law)
In breach of the covenant of good faith and fair dealing
According to the constructive discharge doctrine
Because the employee would not break a law (public policy)
Under the guise of a false statement of fact
For jury duty (Judiciary and Judicial Procedure Act)
Additionally, it might be wrongful termination if an employer discharged an
employee in retaliation for:
► Reasonably exercising employee rights under relevant employment and labor
laws
► Reasonably exercising union rights
► Legitimately taking leave under the Family and Medical Leave Act
► Serving in the military reserve (Uniformed Services Employment and
Reemployment Rights Act)
► Whistleblowing
Off Duty Activity As but one example, employee lawful behavior outside of the
workplace, has, at times impacted on whether or not an employee can be
discharged. A current California case, dealing with termination of an employee
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legally using marijuana for medical purposes in California is illustrative of
state-specific issues being considered by the courts.
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Appendix A - Waiver and Release (Redacted)
Page 47
employment with and/or separation from employment with the Company and/or
any of the other Releasees, other than a claim to challenge the validity of this
Waiver and Release Agreement under ADEA.
3. I further agree that I shall not in any manner, engage; either directly or
indirectly, in any conduct that might reflect negatively or adversely upon, or make
any statements disparaging of, any of the Releasees.
4. I further acknowledge and agree that if I breach the provisions of paragraph 2
or 3 above, then (i) the Company shall be entitled to apply for and receive an
injunction to restrain any such breach, (ii) the Company shall not be obligated to
continue payment of the supplemental pay continuation and supplemental
benefits to me, (iii) I shall be obligated to pay to the Company its costs and
expenses in enforcing this Waiver and Release Agreement and defending against
such lawsuit (including court costs, expenses and reasonable legal fees), and (iv)
as an alternative to (iii), at the Company's option, I shall be obligated upon
demand to repay to the Company all but $100 of the severance pay and severance
benefits paid or made available to me. I further agree that the foregoing covenants
in this paragraph 4 shall not affect the validity of this Waiver and Release
Agreement and shall not be deemed to be a penalty or a forfeiture.
5. I further waive my right to any monetary recovery should any federal, state or
local administrative agency pursue any claims on my behalf arising out of or
related to my employment with and/or separation from employment with the
Company and/or any of the other Releasees.
6. I further waive, release, and discharge Releasees from any reinstatement rights
which I have or could have and I acknowledge that I have not suffered any on-the-
job injury for which I have not already filed a claim.
7. I acknowledge that I have been given at least 45 days to consider this Waiver
and Release Agreement thoroughly and I was encouraged to consult with my
personal attorney, if desired, before signing below.
8. I understand that I may revoke this Waiver and Release Agreement within
seven days after its signing, and that any revocation must be made in writing and
submitted within such seven day period to the Benefits Administrative
Committee. I further understand that if I revoke this Waiver and Release
Agreement, I shall not receive any supplemental pay continuation or
supplemental benefits.
9. J also understand that the severance pay and severance benefits that I will
receive in exchange for signing and not later revoking this Waiver and Release
Agreement are in addition to anything of value to which I already am entitled.
I FURTHER UNDERSTAND THAT THIS WAIVER AND RELEASE
AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN
CLAIMS TO DATE INCLUDING KNOWN AND UNKNOWN CLAIMS UNDER
THE FEDERAL AGE DISCRIMINATION IN EMPLOYMENT ACT, AND I
EXPRESSLY WAIVE MY RIGHTS, IF ANY, ARISING UNDER CALIFORNIA
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CODE OF CIVIL PROCEDURE SECTION 1542, UNDERSTANDING AND
ACKNOWLEDGING THAT SECTION 1542 OTHERWISE PROVIDES AS
FOLLOWS:
“A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if known by
him must have materially affected his settlement with the debtor.”
11. I acknowledge and agree that if any provision of this Waiver and Release
Agreement is found, held or deemed by a court of competent jurisdiction to be
void, unlawful or unenforceable under any applicable statute or controlling law,
the remainder of this Waiver and Release Agreement shall continue in full force
and effect.
12. I further acknowledge and agree that I have carefully read and fully
understand all of the provisions of this Waiver and Release Agreement and that I
voluntarily enter into this Waiver and Release Agreement by signing below.
Date
********** '
Date
*******************, Inc.
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Appendix B Plaintiff’s Hearing Brief (Redacted)
Page 50
I. INTRODUCTION
November 13, 2001, and November 15, 20001, to April 15, 2003,
in those categories which met the standards making him exempt under
basis; (2) paid more than the minimum required salary to qualify for
this exemption; (3) was engaged and assured that his work would
(5) would be performed only under general supervision with work being
experience, or knowledge; and (6) more than 50% of his time would be
exempt tasks.
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3. During the periods above described, Plaintiff had four different managers,
to a greater or lesser degree, meeting at all times conditions (1) and (2).
may well argue that the claims represented in the total summation of
with professional colleagues via personal email all comprised the efforts
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engaged in during the time that Plaintiff viewed himself as an exempt
govern its operations. Such questions as, how many calls would come to
such calls during a given period? There were many departments and
just such questions. Yet, because the data did not lend itself to analysis
employed, which they were not), Plaintiff for the entire period of his
apply tool which would lead to just such accuracy of forecasts. Since
during the regular working day, this work was conducted by the
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Plaintiff at home in the evenings, on weekends, and at times during
6.) Since there was no one, with whom Plaintiff was acquainted who
time taken for face to face meetings, to the processing of a high volume
hour weeks. Much of this work was either done in Plaintiff’s home, in
did not Willfully fail to pay Plaintiff overtime wages, but had a good
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noticed via personal service to the company on July 8, 2002. During the
entire time from the filing of that notice to the exit interview held with
this process have a higher chance for objective evaluation of the issues
at hand.
an exempt employee, his wages being more than twice the minimum
wage.
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would involve office or non-manual work directly related to
13. Plaintiff acknowledges that during the period covered by his claim that he,
at times engaged in some tasks that fully qualify under the criteria for
15. Plaintiff regularly was assigned each task, it’s deadline, and the form in
deadline, his only recourse was to convince the person making the
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16. In Defendant’s Brief, ( p. 1, L 15) Defendant specified that “In order to be
performed only under general supervision with work being done along
knowledge.”
17. If Plaintiff’s claims set forth in 12 above, are found to be accurate, it then
the issuance of that order, until at least such time as that policy may
was controlled by other than himself, from March 20, 2002 until on or
by the Plaintiff.
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19. Absent the availability of an outside objective witness with statistical
one having the requisite skills to do so, we are left with the development
20.Conceptual Density: There are three obvious and readily discernable levels
oriented report.
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spent by the statistician, in assessing the variable(s) to be extracted,
and the methods best employed to answer the requestor’s question.
What is most important to consider in assessing the degree to which
Plaintiff engaged in these tasks is the number of requests made
requesting the answer to some specific question(s).
c. Interpreted Data: When the requestor of a statistical report is
trained and sophisticated with respect to the results presented, very
little interpretation need be provided; yet, of the few requests that
were submitted for Processed Data, almost none of the requestors
could simply look at the results and proceed from there. Instead, the
Plaintiff found it necessary to engage in verbal “handholding,” to
guide the requestor to the answer(s) he was seeking. This took
perhaps the most time of all to clarify and make useful the report
being reviewed.
d. Time on Task: There are some metrics which the Commissioner may
find useful in assessing the time necessary to prepare such
documentation of results. P2 of this Brief contains 485 words.
Assume a maximum of 10 pages of pure textual explanation in a
complex report, which would then be approximately 5,000 words of
content. Using common dictation software, which the Plaintiff has
available to him (DragonWare, Naturally Speaking, v8.0), which
processes at a maximum of 180 WPM processing capability, straight
dictation would then take some 28 minutes. Assume a tripling of
that time, allowing for the Plaintiff’s “thinking and planning” of
what was going to be said. Of the kinds of processing utilized by the
Plaintiff to produce the charts, graphs, and tables described above,
and given a maximum of 10 such displays, with 5 minutes of
preparation required for each, one gets a total a maximum of 2.5
hours for the preparation of a complex Interpreted Report. (Witness
will testify that he prepared the bulk of raw data at Plaintiff’s
instructions, so no time is assumed for Plaintiff’s assumption of this
element of preparation.)
C.Multiple counsel have found merit in Plaintiff’s Claims
21. That the Plaintiff was aware of its potential for recovery of overtime wages
was received by him, Plaintiff was assured that the addressee would be
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given a copy. Whether this was in fact done, is unknown. Yet, while
any legal action beyond the notification which had been made.
about the outstanding issues relative to the overtime issue. He was told
the decision as to whether it was to his benefit to sign the Waiver and
Release Agreement.
25. In the week following the layoff, Complainant, and co-worker *********
actions might be taken against defendant, and the attendant risks, were
we to sign the Waiver and Release Agreement, and then pursue any
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26. Counsel expressed the view that (1) the Waiver and Release Agreement was
27. From April 2003, to October 2003, counsel engaged in preparation for the
filing of a Class Action suit against the defendant. On October 11, 2003,
difficulties in reaching all plaintiffs, since most, if not all were no longer
certain tort violations, this new counsel advised that he could not take
these cases until “Right to Sue” releases were obtained from the state
29. By the time these releases were obtained, it was late Spring, 2004.
which was thereafter timely filed. Yet, what the Labor Commissioner is
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asked to consider is that multiple counsel have each reviewed the
having merit.
negotiations to resolve issues (1) and (2) after receiving written notice
31. Yet Defendant persists in introducing statements which are demeaning and
issues.
“Plaintiff devoted his time primarily to exempt staff functions although his
conduct made him ineffective in performing such duties.” The effectiveness of the
Plaintiff in the performance of his duties has no bearing on any of the issues
under consideration. Plaintiff makes no claim for wrongful termination, nor any
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other tort which may have been committed by Defendant, this not being the
proper venue for any such claim to be adjudicated (Defendant Hearing Brief, p. 7,
L-1-2).
“Unfortunately, that was a severe problem for Plaintiff and another analyst,
. Plaintiff would frequently ‘talk down’ to people which was reflected on many
performance reviews. Plaintiff was also counseled for calling certain employees
p. 7, L-14-17)
33. The accuracy of such alleged statements does not even bear a response. All
conversations.
34. Plaintiff has no problem in admitting to the general sense of the image
portrayed of him. Plaintiff was known for his readiness to voice his
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worked, when he publicly labeled an earlier supervisor as a “Thought
managers.
35. Yet, none of his commentary impacted upon the assessment of the
through the company, until a single manager (the one to whom the
36. Had the Defendant found such behavior rising to the level of
37. Given that Defendant has made no linkage between Plaintiff’s verbal
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a. As an attempt to influence the perception of the Plaintiff as being
undeserving of an award for overtime work.
b. little evidence to counter the Plaintiff’s claims, as an attempt to
place distracting “Straw Men” material to substitute for the lack of
probative material.
c. As an attempt to delay and extend the hearing time, such that not all
relevant material can be introduced
E. Potential for Personal Animosity of Defendant Witness
Towards the Plaintiff, influencing Testimony
38.Three years have elapsed since Plaintiff and Defendant had any
39. Along with many contentious meetings held with , during the
which could well have engendered in her feelings of dislike and anger
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her have been exceedingly negative, and we find her to be the center of
17) Whether any action resulted from this comment, it would naturally
31, 2002, the recipient was alleged to have been taking ‘excessive
time for lunch and breaks...’” Offered as the sole proof for that
allegation, was the fact that on a given day, Plaintiff had made 22 key
key swipes is accurate, and even if the inference that the number in
warning, she asserted that the source for this element was advice
provided by .
42. “One would expect that for such questions, Managers will rely on the
here are found valid, that process has been severely compromised to the
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43. Taken together, if all were found to be correct upon investigation,
44. Yet, there is more appearing in the Plaintiff’s Exhibit 5. “By oral and
written direction, that all employees under her supervision shall adhere
the spirit and the intent of the Federal Fair Labor Standards Act
(FLSA), The California Industrial Standards and Wages Act (IWS), and
has further violated the spirit and intent of the law by assigning duties
verbal and written directives, such that a claim for accrued overtime
45. Such a claim, if found to be correct, would certainly give rise to the
company, in that she had failed to properly ascertain and insure the
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46. As the Commissioner evaluates the testimony of , he is asked to
47. Defendant claims, and Commissioner has preliminarily ruled that any
overtime claimed prior to July 7, 2001 is null and void as a result of the
three year Statute of Limitations set forth in the California Code of Civil
Procedure.
Co., __ Cal. 4th __, 96 Cal. Rptr. 2d 518 (June 5, 2000), the Court held,
this case, the Court held that the four-year statute of limitations in the
pay, despite the fact that the Code of Civil Procedure would otherwise
49. While Plaintiff is by no means an expert in labor law, that Defendant was
eight months; (2) was warned in that notice that if it was indeed in
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violation, such violation might well apply to substantial numbers of
allocated for breaks (which are paid) and for lunch which is unpaid.
location, such as the building and room to which the employee was
52. Lacking such specification, the Plaintiff would be fully compliant if he were
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of the department (Defendant’s first Manager, and a departmental
week.
Plaintiff often could not be reached.” (Defendant Brief, p.8, L17-18). All
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directory. Several modes of communication were available to any
reach the Plaintiff’s phone from his desk, so if a call was expected while
, or he could refer the caller to the Plaintiff’s cell phone number; (2)
Plaintiff carried a company issued and listed cell phone, which was
turned on at all times, during the working day; (3) Plaintiff had a
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spent in moving from one workspace to another; (4) Applications research,
engaged in specifically to improve some aspect of employee or company
performance, whether done at the workplace or elsewhere. The criterion
would be that if copyrightable or patentable, such rights would be assigned
to the company as “work for hire.”
D. Determining the Aggregate Hours Worked by the
Plaintiff in the Performance of his Job-Related Duties
56. For each week the Commissioner will calculate the total of the hours used
that week. Ideally, that number would be derived from the sum of
both total hours and the Exempt to Non Exempt Ratio and the
assess how many requests coming to the Plaintiff were exempt or non-
activity which came to the Plaintiff nor even the proportion of Exempt
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of hours in tasks associated with activity engaged in, by both exempt
equally true for the case presented by the Plaintiff. Thus, it appears to
Plaintiff the decision must rest with the credibility and coherence of the
evidence presented by both parties. The following are the factors the
hand.
warning that some action might take place, after being presented with
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response, they could easily have readied themselves for potential
of the Plaintiff, were derived from second and third hand sources whose
60.One assumes that if the Defendant were truly interested in bringing all
V. CONCLUSION
61. For the reasons set forth above, and as to be further established at the
in full.
By:________________
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Appendix C – Witness Interrupted Lunch Declaration
DECLARATION
lunch together.
receiving and thereafter responding to either cell phone calls or text messages.
____________ (Signature)
Name_______________(Printed)
Dated_____________ [RETURN]
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Appendix D – Points and Authorities
This Appendix is designed to give you a very complete view of the laws,
regulations and opinions that impact, not only the collection of wages due.
Beyond payment of wages due, as you have noted above, there are many other
situations which affect you, not only while you are at work, but which at times, can
intrude and interfere with your personal life, while away from your employment.
We begin with the State of California agencies, which are there to protect and
assist you from your predatory employer.
As you will note in the figure below, the State of California has created a number
of administrative agencies, each designed to assist you in processing your
complaints against your employer.
► Department of Labor Standards Enforcement (DLSE): For many, if not most,
of the claims you will have against your employer, this is the California agency
which you will use to present a claim for unpaid wages, and as well as claims
for retaliation and/or discrimination.
► Department of Fair Employment and Housing (DFEH): While the DLSE is a
primary source for processing discrimination claims, when there is a likelihood
that an attorney is going to be required to properly pursue your complaint, or
when there are multiple elements (e.g., wages and discrimination) then this is
the agency best suited to either resolve the issues, or authorize you the “Right
to Sue,” necessary before you can pursue your case
► Division of Occupational Safety and Health (DOSH): The Cal/OSHA
enforcement unit has jurisdiction over every employment and place of
employment in California which is necessary to adequately enforce and
administer all occupational safety and health standards and regulations. This
Division insures that worker’s rights to a safe workplace environment are fully
protected.
► Employment Development Department (EDD): This department is best known
by California employees. It accepts claims for, and makes payments to those
who qualify for Unemployment Insurance. When non job-related illness or
injury makes work impossible, it provides payment for up to a full year to those
suffering disabilities, through a Disability Insurance Program. Job placement
assistance is provided to those who are handicapped, but are capable of
working. Special needs groups such as high-school dropouts, older workers,
and military veterans all have the opportunity to get career assistance from
this agency.
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**************************************
Below is an overview of how various laws and agencies interact to implement the
protections described above.
FEDERAL LAW
IWC Enforcement
Employee begins Handbook
EDD DFEH CAL OSHA
here
DLSE
CALIFORNIA COURTS
Attorney
Represents District Courts Appeal Courts Supreme Court
Employee
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federal law. For Your convenience we have pulled the sections relevant to
matters related to wages earned and due.
► CFR 29 -- PART 531--WAGE PAYMENTS
► CFR 29 PART 541--DEFINING AND DELIMITING THE EXEMPTIONS FOR
EXECUTIVE, ADMINISTRATIVE, PROFESSIONAL, COMPUTER AND
OUTSIDE SALES EMPLOYEES
► CFR 29 -- PART 548 -- AUTHORIZATION OF ESTABLISHED BASIC RATES
FOR COMPUTING OVERTIME PAY
► CFR 29 -- PART 578--MINIMUM WAGE AND OVERTIME VIOLATIONS--
CIVIL MONEY PENALTIES
California Enforcement of Labor Law
► California Labor Code: While all of the federal material lays the foundation for
state laws, it is the California Labor Code upon which all DLSE decisions are
based. Below is shown a table listing all of the laws (beyond that of overtime)
upon which you can take action, if they have been violated by your employer.
Some of these require action in Superior Court, rather than with the DLSE.
► The DLSE Enforcement Manual: Rather than referring to this code, often
difficult to translate into specific action, these laws have been translated into
The DLSE enforcement Manual. After loading this 308 page document, your
first response is likely to be, “Why in the world would I want to plow through all
of this!” Here’s why. The Table of Contents begins on Page 8 and continues on
for another 12 pages. Every item is a potential violation which, if committed by
your employer, you can collect on using the DLSE. For each in which you find
the employer to have violated, make it a Cause of Action in your Hearing Brief,
and then go for a demand for the allowed recovery. In fact, if you find a
substantial number of violations, send your completed Hearing Brief to the
employer, before filing with the DLSE. You may be pleasantly surprised to find
that they make a settlement offer, rather than go through, what, for them, will
be an expensive defense to your claims.
► Opinion Letters: Frequently, Plaintiff attorneys find that they are confronted
with some novel, unexpected situation, which is not immediately clarified in
any of the above documentation. Prior to making a claim, either they, or
hearing officers will ask of an opinion on the issue from the Labor
Commission. Whenever such opinions are requested, the results of the
Opinions, are codified in the Labor Commission Opinion Letters.
► Wage Orders: While almost all readers of this book will be engaged in work
which is classified as among the Professional, Technical, Clerical,
Mechanical and Similar Occupations, (Wage Order #4) there are many
who work in occupations not so designated. The 16 occupational wage orders
have been prepared to deal with the specialized needs of these occupational
variants. Open the list to see whether any of them applies to your case.
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► Employment Law Blogs: Employment Law is a hot topic for many for the many
attorneys specializing in this practice area. Here are a few of them upon which
I have relied in the writing of this book, and which you may find to be of
interest:
♦ California Labor & Employment Law Blog
♦ California Labor and Employment Defense Blog
♦ Jottings By An Employer's Lawyer
♦ Labor Employment Law Blog
♦ Storm's California Employment Law
♦ Wage Law
♦ What's New in Employment Law?
► Articles of Interest: Click to look at three issues that are of importance – New
ruling on reimbursement for employee use of personal vehicle, Restrictions on
negative references from past employers, and Statute of Limitations on
various categories of claims made by employees.
The California Labor Code
96 (k)
98.6 (a) Retaliation for employee complaint
98.6 (b) Reinstatement
98.6 (c)(1) Discrimination against complainant
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work has been performed
209 Unpaid wages earned during or before strike action
212 No substitution for Pay
221 Kickbacks to employer, Unlawful
222.5 No fee to employee for required medical
examinations
226(a) Pay Stub Requirements
227 Health or Benefit Fraud by Employer a Felony
227.3 Unused vacation due as wages at termination
Employee Protections
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1101 Employee free to engage in political activity
1102, Employee protected from retaliation for political
activity
1102.5 Protection for Whistleblowers
1174 (c)/(d) Employment Records
1194 Minimum Wage
1198.5 Records available to employee
2802 Expense Reimbursement
2806 Medical insurance cancellation
2929(b) No discharge from garnishment
3095 Discrimination illegal
6310 Occupational safety complaint protection
6311 No discharge for refusal to do unsafe work
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continue for more than 30 days.
Suit may be filed for these penalties at any time before
the expiration of the statute of limitations on an action
for the wages from which the penalties arise.
203.1 Penalty to If an employer pays an employee in the regular course of
employer for bounced employment or in accordance with Section 201, 201.5,
checks 201.7, or 202 any wages or fringe benefits, or both, by
check, draft or voucher, which check, draft or voucher is
subsequently refused payment because the employer or
maker has no account with the bank, institution, or
person on which the instrument is drawn, or has
insufficient funds in the account upon which the
instrument is drawn at the time of its presentation, so
long as the same is presented within 30 days of receipt
by the employee of the check, draft or voucher, those
wages or fringe benefits, or both, shall continue
as a penalty from the due date thereof at the
same rate until paid or until an action is
commenced.
204 (a) Time limits All wages, other than those mentioned in Section 201,
and calendaring of 202, 204.1, or 204.2, earned by any person in any
wage payments employment are due and payable twice during
each calendar month, on days designated in advance
by the employer as the regular paydays.
Labor performed between the 1st and 15th days,
inclusive, of any calendar month shall be paid for
between the 16th and the 26th day of the month during
which the labor was performed, and labor performed
between the 16th and the last day, inclusive, of any
calendar month, shall be paid for between the 1st and
10th day of the following month. However, salaries of
executive, administrative, and professional employees of
employers covered by the Fair Labor Standards Act, as
set forth pursuant to Section 13(a)(1) of the Fair Labor
Standards Act, as amended through March 1, 1969, in
Part 541 of Title 29 of the Code of Federal Regulations,
as that part now reads or may be amended to read at any
time hereafter, may be paid once a month on or
before the 26th day of the month during which
the labor was performed if the entire month's
salaries, including the unearned portion
between the date of payment and the last day of
the month, are paid at that time
204 (b) (1) Overtime Notwithstanding any other provision of this section, all
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wages must be paid by wages earned for labor in excess of the normal work
following payday period shall be paid no later than the payday for the next
regular payroll period.
206 Wage disputes (a) In case of a dispute over wages, the employer shall
pay, without condition and within the time set
by this article, all wages, or parts thereof,
conceded by him to be due, leaving to the employee
all remedies he might otherwise be entitled to as to any
balance claimed.
(b) If, after an investigation and hearing, the Labor
Commissioner has determined the validity of any
employee's claim for wages, the claim is due and payable
within 10 days after receipt of notice by the employer
that such wages are due. Any employer having the
ability to pay who willfully fails to pay such wages within
10 days shall, in addition to any other applicable
penalty, pay treble the amount of any damages accruing
to the employee as a direct and foreseeable consequence
of such failure to pay
206.5. Release of No employer shall require the execution of any release of
Wage Claims any claim or right on account of wages due, or to become
Prohibited due, or made as an advance on wages to be earned,
unless payment of such wages has been made. Any
release required or executed in violation of the
provisions of this section shall be null and void as
between the employer and the employee and the
violation of the provisions of this section shall be a
misdemeanor.
208 Pay to be made at Every employee who is discharged shall be paid at the
location of place of discharge, and every employee who quits shall
termination, or where be paid at the office or agency of the employer in the
work has been county where the employee has been performing labor.
performed All payments shall be made in the manner provided by
law.
209 Unpaid wages In the event of any strike, the unpaid wages earned by
earned during or striking employees shall become due and payable on the
before strike action next regular pay day, and the payment or settlement
thereof shall include all amounts due the striking
employees without abatement or reduction. The
employer shall return to each striking employee any
deposit, money, or other guaranty required by him from
the employee for the faithful performance of the duties
of the employment.
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212 No substitution (a) No person, or agent or officer thereof, shall issue in
for Pay payment of wages due, or to become due, or as an
advance on wages to be earned:
(1) Any order, check, draft, note, memorandum, or
other acknowledgment of indebtedness, unless it is
negotiable and payable in cash, on demand, without
discount, at some established place of business in the
state, the name and address of which must appear on
the instrument, and at the time of its issuance and for a
reasonable time thereafter, which must be at least 30
days, the maker or drawer has sufficient funds in, or
credit, arrangement, or understanding with the drawee
for its payment.
(2) Any scrip, coupon, cards, or other thing
redeemable, in merchandise or purporting to be payable
or redeemable otherwise than in money.
221 Kickbacks to It shall be unlawful for any employer to collect or receive
employer, Unlawful from an employee any part of wages theretofore paid by
said employer to said employee.
222.5 No fee to 222.5. No person shall withhold or deduct from the
employee for required compensation of any employee, or require any
medical examinations prospective employee or applicant for employment to
pay, any fee for, or cost of, any pre-employment
medical or physical examination taken as a
condition of employment, nor shall any person
withhold or deduct from the compensation of any
employee, or require any employee to pay any fee for, or
costs of, medical or physical examinations required by
any law or regulation of federal, state or local
governments or agencies thereof.
226a Pay Stub 226. (a) Every employer shall, semimonthly or at the
Requirements time of each payment of wages, furnish each of his or her
employees, either as a detachable part of the check,
draft, or voucher paying the employee's wages, or
separately when wages are paid by personal check or
cash, an accurate itemized statement in writing showing
(1) gross wages earned,
(2) total hours worked by the employee, except for any
employee whose compensation is solely based on a
salary and who is exempt from payment of overtime
under subdivision (a) of Section 515 or any applicable
order of the Industrial Welfare Commission,
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(3) the number of piece-rate units earned and any
applicable piece rate if the employee is paid on a piece-
rate basis,
(4) all deductions, provided that all deductions made on
written orders of the employee may be aggregated and
shown as one item,
(5) net wages earned,
(6) the inclusive dates of the period for which the
employee is paid,
(7) the name of the employee and his or her social
security number, except that by January 1, 2008, only
the last four digits of his or her social security number or
an employee identification number other than a social
security number may be shown on the itemized
statement,
(8) the name and address of the legal entity that is the
employer, and
(9) all applicable hourly rates in effect during the pay
period and the corresponding number of hours worked
at each hourly rate by the employee. The deductions
made from payments of wages shall be recorded in ink
or other indelible form, properly dated, showing the
month, day, and year, and a copy of the statement or a
record of the deductions shall be kept on file by the
employer for at least three years at the place of
employment or at a central location within the State of
California.
227 Health or Benefit Whenever an employer has agreed with any employee to
Fraud by Employer a make payments to a health or welfare fund, pension
Felony fund or vacation plan, or other such plan for the benefit
of the employees, or a negotiated industrial promotion
fund, or has entered into a collective bargaining
agreement providing for such payments, it shall be
unlawful for such an employer willfully or with
intent to defraud to fail to make the payments
required by the terms of any such agreement. A
violation of any provision of this section where the
amount the employer failed to pay into the fund or funds
exceeds five hundred dollars ($500) shall be
punishable by imprisonment in the state prison
for a period of not more than five years or in the
county jail for a period of not more than one
year, by a fine of not more than one thousand
Page 85
dollars ($1,000), or by both such imprisonment
and fine. All other violations shall be punishable as a
misdemeanor.
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not feasible.
(2) When an unscheduled absence occurs, the
employer shall not take any action against the employee
if the employee, within a reasonable time after the
absence, provides a certification to the employer. .
230(e) (e) Any employee who is discharged, threatened with
Reinstatement and discharge, demoted, suspended, or in any other manner
wages for emergency discriminated or retaliated against in the terms and
time-off conditions of employment by his or her employer
because the employee has taken time off for a purpose
set forth in subdivision (a), (b), or (c) shall be entitled
to reinstatement and reimbursement for lost
wages and work benefits caused by the acts of
the employer. Any employer who willfully
refuses to rehire, promote, or otherwise restore
an employee or former employee who has been
determined to be eligible for rehiring or
promotion by a grievance procedure or hearing
authorized by law is guilty of a misdemeanor. .
Page 87
mother, stepmother, father, or stepfather.
(2) "Registered domestic partner" means a domestic
partner, as defined in Section 297 of the Family Code,
and registered pursuant to Part 2 (commencing with
Section 298) of Division 2.5 of the Family Code.
(3) "Victim" means a person against whom one of the
following crimes has been committed:
(A) A violent felony, as defined in subdivision (c) of
Section 667.5 of the Penal Code.
(B) A serious felony, as defined in subdivision (c) of
Section 1192.7 of the Penal Code.(a)
230.7 Time-off for a) No employer shall discharge or in any manner
appearance at child’s discriminate against an employee who is the parent or
school guardian of a pupil for taking time off to appear in the
school of a pupil pursuant to a request made under
Section 48900.1 of the Education Code, if the employee,
prior to taking the time off, gives reasonable notice to
the employer that he or she is requested to appear in the
school.
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232 Wage Disclosure No employer may do any of the following:
(a) Require, as a condition of employment, that an
employee refrain from disclosing the amount of his or
her wages.
(b) Require an employee to sign a waiver or other
document that purports to deny the employee the right
to disclose the amount of his or her wages.
(c) Discharge, formally discipline, or otherwise
discriminate against an employee who discloses the
amount of his or her wages.
232.5 Disclose No employer may do any of the following:
working conditions (a) Require, as a condition of employment, that an
employee refrain from disclosing information about the
employer's working conditions.
(b) Require an employee to sign a waiver or other
document that purports to deny the employee the right
to disclose information about the employer's working
conditions.
(c) Discharge, formally discipline, or otherwise
discriminate against an employee who discloses
information about the employer's working conditions.
233(a) Illness of Any employer who provides sick leave for employees
child, parent, spouse, shall permit an employee to use in any calendar year the
or domestic partner employee's accrued and available sick leave entitlement,
in an amount not less than the sick leave that would be
accrued during six months at the employee's then
current rate of entitlement, to attend to an illness of a
child, parent, spouse, or domestic partner of the
employee. All conditions and restrictions placed by the
employer upon the use by an employee of sick leave also
shall apply to the use by an employee of sick leave to
attend to an illness of his or her child, parent, spouse, or
domestic partner.
234 Retaliation for 234. An employer absence control policy that counts
time taken to attend to sick leave taken pursuant to Section 233 as an absence
those defined in that may lead to or result in discipline, discharge,
233(a) demotion, or suspension is a per se violation of Section
233. An employee working under this policy is entitled
to appropriate legal and equitable relief pursuant to
Section 233.
351 Payment of No employer or agent shall collect, take, or receive any
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gratuities gratuity or a part thereof that is paid, given to, or left for
an employee by a patron, or deduct any amount from
wages due an employee on account of a gratuity, or
require an employee to credit the amount, or any part
thereof, of a gratuity against and as a part of the wages
due the employee from the employer. Every gratuity is
hereby declared to be the sole property of the employee
or employees to whom it was paid, given, or left for.
An employer that permits patrons to pay gratuities by
credit card shall pay the employees the full amount of
the gratuity that the patron indicated on the credit card
slip, without any deductions for any credit card payment
processing fees or costs that may be charged to the
employer by the credit card company. Payment of
gratuities made by patrons using credit cards shall be
made to the employees not later than the next regular
payday following the date the patron authorized the
credit card payment.
432.2. No Polygraph (a) No employer shall demand or require any applicant
as a condition of for employment or prospective employment or any
employment, employee to submit to or take a polygraph, lie detector
including exceptions or similar test or examination as a condition of
employment or continued employment.
The prohibition of this section does not apply to the
federal government or any agency thereof or the state
government or any agency or local subdivision thereof,
including, but not limited to, counties, cities and
counties, cities, districts, authorities, and agencies.
(b) No employer shall request any person to take such
a test, or administer such a test, without first advising
the person in writing at the time the test is to be
administered of the rights guaranteed by this section.
432.5 Agreement for No employer, or agent, manager, superintendent, or
unlawful conduct, officer thereof, shall require any employee or applicant
prohibited for employment to agree, in writing, to any term or
condition which is known by such employer, or agent,
manager, superintendent, or officer thereof to be
prohibited by law..
432.7 Disclosure of (a) No employer, whether a public agency or private
arrest without individual or corporation, shall ask an applicant for
conviction, prohibited employment to disclose, through any written form or
verbally, information concerning an arrest or detention
that did not result in conviction, or information
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concerning a referral to, and participation in, any
pretrial or post-trial diversion program, nor shall any
employer seek from any source whatsoever, or utilize, as
a factor in determining any condition of employment
including hiring, promotion, termination, or any
apprenticeship training program or any other training
program leading to employment, any record of arrest or
detention that did not result in conviction, or any record
regarding a referral to, and participation in, any pretrial
or post-trial diversion program.
As used in this section, a conviction shall include a plea,
verdict, or finding of guilt regardless of whether
sentence is imposed by the court. Nothing in this
section shall prevent an employer from asking
an employee or applicant for employment about
an arrest for which the employee or applicant is
out on bail or on his or her own recognizance
pending trial.
435 Employer . (a) No employer may cause an audio or video
recording of employee recording to be made of an employee in a restroom,
in restrooms or locker locker room, or room designated by an employer for
rooms, prohibited changing clothes, unless authorized by court order.
450 No employer, or agent or officer thereof, or other
person, may compel or coerce any employee, or
Required purchase of applicant for employment, to patronize his or her
employer products or employer, or any other person, in the purchase of any
services thing of value.
510(a) Definition of Eight hours of labor constitutes a day's work. Any work
Overtime in excess of eight hours in one workday and any work in
excess of 40 hours in any one workweek and the first
eight hours worked on the seventh day of work in any
one workweek shall be compensated at the rate
of no less than one and one-half times the
regular rate of pay for an employee.
Any work in excess of 12 hours in one day shall be
compensated at the rate of no less than twice the regular
rate of pay for an employee. In addition, any work in
excess of eight hours on any seventh day of a workweek
shall be compensated at the rate of no less than twice the
regular rate of pay of an employee.
Nothing in this section requires an employer to combine
more than one rate of overtime compensation in order
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to calculate the amount to be paid to an employee for
any hour of overtime work.
512(a) Meal period 512. (a) An employer may not employ an employee for a
required work period of more than five hours per day without
providing the employee with a meal period of not less
than 30 minutes, except that if the total work period per
day of the employee is no more than six hours, the meal
period may be waived by mutual consent of both the
employer and employee.
An employer may not employ an employee for a work
period of more than 10 hours per day without providing
the employee with a second meal period of not less than
30 minutes, except that if the total hours worked is no
more than 12 hours, the second meal period may be
waived by mutual consent of the employer and the
employee only if the first meal period was not waived.
970. .Fraudulent No person, or agent or officer thereof, directly or
incentive to relocate indirectly, shall influence, persuade, or engage any
person to change from one place to another in this State
or from any place outside to any place within the State,
or from any place within the State to any place outside,
for the purpose of working in any branch of labor,
through or by means of knowingly false representations,
whether spoken, written, or advertised in printed form,
concerning either:
(a) The kind, character, or existence of such work;
(b) The length of time such work will last, or the
compensation therefor;
(c) The sanitary or housing conditions relating to or
surrounding the work; (d) The existence or
nonexistence of any strike, lockout, or other labor
dispute affecting it and pending between the proposed
employer and the persons then or last engaged in the
performance of the labor for which the employee is
sought.
973 Employment If any person advertises for, or seeks employees by
during a strike means of newspapers, posters, letters, or otherwise, or
solicits or communicates by letter or otherwise with
persons to work for him or the person for whom he is
acting, or to work at any shop, plant, or establishment
while a strike, lockout, or other trade dispute is still in
active progress at such shop, plant, or establishment, he
shall plainly and explicitly mention in such
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advertisement or oral or written solicitations or
communications that a strike, lockout, or other labor
disturbance exists.
The person inserting any such advertisement,
solicitation, or communication in a newspaper, on a
poster, or otherwise, shall insert in such advertisement,
solicitation or communication his own name and, if he is
representing another, the name of the person he is
representing and at whose direction and under whose
authority he is inserting the advertisement, solicitation
or communication.
The appearance of this name in connection with such
advertisement, solicitation or communication is prima
facie evidence as to the person responsible for the
advertisement, solicitation or communication.
976 Use of No person shall publish or cause to be published any
Misleading offers of advertisement, solicitation or communication in any
compensation or newspaper, poster or letter, offering employment as a
earnings salesman, broker or agent, whether as an employee or
independent contractor, which advertisement,
solicitation or communication (a) is willfully designed to
mislead any person as to compensation or commissions
which may be earned; or (b) falsely represents the
compensation or commissions which may be earned.
1021 Penalty for Any person who does not hold a valid state contractor's
hiring without license issued pursuant to Chapter 9 (commencing with
Contractor’s License Section 7000) of Division 3 of the Business and
Professions Code, and who employs any worker to
perform services for which a license is required, shall be
subject to a civil penalty in the amount of two hundred
dollars ($200) per employee for each day of
employment.
The civil penalties provided for by this section are in
addition to any other penalty provided by law.
1101 Employee free No employer shall make, adopt, or enforce any rule,
to engage in political regulation, or policy:
activity (a) Forbidding or preventing employees from engaging
or participating in politics or from becoming candidates
for public office.
(b) Controlling or directing, or tending to control or
direct the political activities or affiliations of employees.
1102 Employee No employer shall coerce or influence or attempt to
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protected from coerce or influence his employees through or by means
retaliation for political of threat of discharge or loss of employment to adopt or
activity follow or refrain from adopting or following any
particular course or line of political action or political
activity.
1102.5 Protection (a) An employer may not make, adopt, or enforce any
for Whistleblowers rule, regulation, or policy preventing an employee from
disclosing information to a government or law
enforcement agency, where the employee has reasonable
cause to believe that the information discloses a
violation of state or federal statute, or a violation or
noncompliance with a state or federal rule or regulation.
(b) An employer may not retaliate against an employee
for disclosing information to a government or law
enforcement agency, where the employee has reasonable
cause to believe that the information discloses a
violation of state or federal statute, or a violation or
noncompliance with a state or federal rule or regulation.
(c) An employer may not retaliate against an employee
for refusing to participate in an activity that would result
in a violation of state or federal statute, or a violation or
noncompliance with a state or federal rule or regulation.
(d) An employer may not retaliate against an employee
for having exercised his or her rights under subdivision
(a), (b), or (c) in any former employment.
(e) A report made by an employee of a government
agency to his or her employer is a disclosure of
information to a government or law enforcement agency
pursuant to subdivisions (a) and (b).
(f) In addition to other penalties, an employer that is a
corporation or limited liability company is liable for a
civil penalty not exceeding ten thousand dollars
($10,000) for each violation of this section..
1174(c)/(d) 1174. Every person employing labor in this state shall:
Employment Records (c) Keep a record showing the names and addresses of
all employees employed and the ages of all minors.
(d) Keep, at a central location in the state or at the
plants or establishments at which employees are
employed, payroll records showing the hours worked
daily by and the wages paid to, and the number of piece-
rate units earned by and any applicable piece rate paid
to, employees employed at the respective plants or
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establishments.
These records shall be kept in accordance with rules
established for this purpose by the commission, but in
any case shall be kept on file for not less than two years.
1194 Minimum Wage . (a) Notwithstanding any agreement to work for a
lesser wage, any employee receiving less than the legal
minimum wage or the legal overtime compensation
applicable to the employee is entitled to recover in a civil
action the unpaid balance of the full amount of this
minimum wage or overtime compensation, including
interest thereon, reasonable attorney's fees, and costs of
suit.
(b) The amendments made to this section by Chapter
825 of the Statutes of 1991 shall apply only to civil
actions commenced on or after January 1, 1992.
1198.5 Records . (a) Every employee has the right to inspect the
available to employee personnel records that the employer maintains relating
to the employee's performance or to any grievance
concerning the employee.
(b) The employer shall make the contents of those
personnel records available to the employee at
reasonable intervals and at reasonable times. Except as
provided in paragraph (3) of subdivision
(c), the employer shall not be required to make those
personnel records available at a time when the employee
is actually required to render service to the employer.
(c) The employer shall do one of the following:
(1) Keep a copy of each employee's personnel records
at the place where the employee reports to work.
(2) Make the employee's personnel records available at
the place where the employee reports to work within a
reasonable period of time following an employee's
request.
(3) Permit the employee to inspect the personnel
records at the location where the employer stores the
personnel records, with no loss of compensation to the
employee.
(d) The requirements of this section shall not apply to:
(1) Records relating to the investigation of a possible
criminal offense.
Page 95
(2) Letters of reference.
(3) Ratings, reports, or records that were:
(A) Obtained prior to the employee's employment.
(B) Prepared by identifiable examination committee
members.
(C) Obtained in connection with a promotional
examination .
2802 Expense (a) An employer shall indemnify his or her employee
Reimbursement for all necessary expenditures or losses incurred by the
employee in direct consequence of the discharge of his
or her duties, or of his or her obedience to the directions
of the employer, even though unlawful, unless the
employee, at the time of obeying the directions, believed
them to be unlawful.
(b) All awards made by a court or by the Division of
Labor Standards Enforcement for reimbursement of
necessary expenditures under this section shall carry
interest at the same rate as judgments in civil actions.
Interest shall accrue from the date on which the
employee incurred the necessary expenditure or loss.
(c) For purposes of this section, the term "necessary
expenditures or losses" shall include all reasonable
costs, including, but not limited to, attorney's fees
incurred by the employee enforcing the rights granted by
this section
2806 Medical (a) No employer, whether private or public, shall
insurance cancellation discontinue coverage for medical, surgical, or hospital
benefits for employees unless the employer has notified
and advised all covered employees in writing of any
discontinuation of coverage, inclusive of nonrenewal
and cancellation, but not inclusive of employment
termination or cases in which substitute coverage has
been provided, at least 15 days in advance of such
discontinuation.
(b) If coverage is provided by a third party, failure of
the employer to give the necessary notice shall not
require the third party to continue the coverage beyond
the date it would otherwise terminate.
(c) This section shall not apply to any employee
welfare benefit plan that is subject to the Employee
Retirement Income Security Act of 1974.
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2929(b) No (b) No employer may discharge any employee by
discharge from reason of the fact that the garnishment of his wages has
garnishment been threatened. No employer may discharge any
employee by reason of the fact that his wages have been
subjected to garnishment for the payment of one
judgment
A provision of a contract of employment that provides
an employee with less protection than is provided by this
subdivision is against public policy and void.
3095 Discrimination Every person who willfully discriminates in any
illegal recruitment or apprenticeship program on any basis
listed in subdivision (a) of Section 12940 of the
Government Code, as those bases are defined in
Sections 12926 and 12926.1 of the Government Code,
except as otherwise provided in Section 12940 of the
Government Code, is guilty of a misdemeanor
punishable by a fine of not more than one thousand
dollars ($1,000) or by imprisonment for not more than
six months, or both.
6310 Occupational (a) No person shall discharge or in any manner
safety complaint discriminate against any employee because the
protection employee has done any of the following:
(1) Made any oral or written complaint to the division,
other governmental agencies having statutory
responsibility for or assisting the division with reference
to employee safety or health, his or her employer, or his
or her representative.
(2) Instituted or caused to be instituted any proceeding
under or relating to his or her rights or has testified or is
about to testify in the proceeding or because of the
exercise by the employee on behalf of himself, herself, or
others of any rights afforded him or her.
(3) Participated in an occupational health and safety
committee established pursuant to Section 6401.7.
(b) Any employee who is discharged, threatened with
discharge, demoted, suspended, or in any other manner
discriminated against in the terms and conditions of
employment by his or her employer because the
employee has made a bona fide oral or written
complaint to the division, other governmental agencies
having statutory responsibility for or assisting the
division with reference to employee safety or health, his
or her employer, or his or her representative, of unsafe
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working conditions, or work practices, in his or her
employment or place of employment, or has participated
in an employer-employee occupational health and safety
committee, shall be entitled to reinstatement and
reimbursement for lost wages and work benefits caused
by the acts of the employer.
Any employer who willfully refuses to rehire, promote,
or otherwise restore an employee or former employee
who has been determined to be eligible for rehiring or
promotion by a grievance procedure, arbitration, or
hearing authorized by law, is guilty of a misdemeanor.
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6311 No discharge for No employee shall be laid off or discharged for refusing
refusal to do unsafe to perform work in the performance of which this code,
work including Section 6400, any occupational safety or
health standard or any safety order of the division or
standards board will be violated, where the violation
would create a real and apparent hazard to the employee
or his or her fellow employees.
Any employee who is laid off or discharged in violation
of this section or is otherwise not paid because he or she
refused to perform work in the performance of which
this code, any occupational safety or health standard or
any safety order of the division or standards board will
be violated and where the violation would create a real
and apparent hazard to the employee or his or her fellow
employees shall have a right of action for wages for the
time the employee is without work as a result of the
layoff or discharge.
These labor laws become the basis for the procedures used by the DLSE.
Articles of Interest
Source: California Labor & Employment Blog – Wage Issues
Required Reimbursement for Employee Mileage Will Increase on July 1,2008
July 1 will be a day of change for California employers with employees who drive
as part of their duties. Not only will such employees be required to utilize hands
free devices when operating cell phones while driving (see our June 20 post on
this subject), employers will also have to pay more to employees to properly
reimburse them for their driving costs.
Section 2802 of the California Labor Code requires all California employers
to reimburse their employees for all costs incurred in performing their duties,
including driving and transportation costs (other than regular commuting). The
California Labor Commissioner has taken the position that any employer who
reimburses at less than the IRS mileage rate will have to prove that the actual
expenses are less than the going rate or be subject to liability for the difference.
In almost all cases, we recommend that California employers reimburse at the
standard IRS mileage rate to minimize liability under section 2802 for driving
expenses.
The IRS just announced that it will increase the standard mileage reimbursement
rate to 58.5 cents per mile for the period July 1 through Dec. 31. The current
mileage rate is 50.5 cents per mile. This eight cent increase represents an
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increase of almost sixteen percent (16%) and is the largest jump in mileage rates
in recent history. Obviously it is fueled by the increasing cost of gasoline.
California employers should review their expense reimbursement policies and
consider making modifications before the end of the month.
Source: Q&A: Restrictions on Bad References by Former
Employers
The Law in California
Many Californians believe that it is illegal for employers to say anything negative
about them after they leave. However, this is just not the case. It is completely
legal for an employer to say anything they want about a former employee as long
as it is true.
This might seem like an easy test, but when you consider some of the things that
employers say, such as “she wasn’t a very hard worker” or “she is lazy,” whether or
not something is “true” becomes hard to judge.
This is why many companies just prohibit any comments about former
employees’ performance altogether. California employees who sue because former
employers misrepresented something to potential employers can
recover triple damages.
Possible Solutions
The problem you have is you do not know if your employer is truly saying negative
things about you, what they are saying, or who is saying it. These are all facts you
need to know before you decide what to do.
One easy way to find out this information is to have a friend or relative call your
old employer and pretend to be a potential new employer. Your friend can ask
whether they recommend you, whether you are eligible for rehire, if there is
anything they should know about you, etc.
Another method is to use a reference-checking service. These services employ
court reporters who call former employers posing as a potential new employer
and type out every word that is said. After the call is concluded, they sign an
affidavit testifying to the transcript’s authenticity and send you a full report.
If you strongly suspect that your former employer is bad-mouthing you, this
might be the way to go because the affidavit can be used to sue your former boss
or the company for defamation or misrepresentation.
The best reference check service I have used is Documented Reference Check
(DRC), which you can visit at www.BadReferences.com. There is a fee for their
services, but it is always good to know whether a former employer is bad-
mouthing you behind your back.
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Common Statutes of Limitation
A “statute of limitation” is the time within which a lawsuit or claim must be
filed. “Civil actions, without exception, can only be commenced within the periods
prescribed in this title, after the cause of action shall have accrued, unless where,
in special cases, a different limitation is prescribed by statute.” California Code of
Civil Procedure Section 312. While there may be instances wherein the statute of
limitations is tolled, missing a statute of limitations can have dire
consequences. If a claim or lawsuit is not timely filed, the plaintiff may be barred
from pursuing his or her claims.
One reader asked for a list of common statutes of limitation in employment
litigation. So, here goes my list (Beware - Statutes of Limitation may differ from
state to state. The Statutes of Limitation listed below apply in California):
Discrimination/Harassment/Retaliation under California’s Fair Employment and
Housing Act (age, race, sex, disability, national origin, etc.) - Claims must be
initially filed with the Department of Fair Employment and Housing
within one year of the discrimination/harassment/retaliation. Once
the DFEH issues a Right to Sue Notice, the claimant has one year to file a case in
court.
Discrimination/Harassment/Retaliation under Title VII, ADEA and ADA (age,
race, sex, disability, national origin, etc.) - In California, claims must be
initially filed with the Equal Employment Opportunity Commission
within three hundred days (other jurisdictions it may be as little as
one hundred-eighty days). Once the EEOC issues a Right to Sue Notice, the
claimant has ninety days to file a case in federal court.
Breach of Contract - If the contract is written, the lawsuit must be filed
within four years of when the breach occurred. If the contract is oral or
implied-in-fact, it must be filed within two years of the breach.
Unpaid Overtime, Minimum Wage, Meal and Rest Breaks - Claims must be
filed with the Labor Commissioner or in court within three years of
when the wages were earned. This means, if the employee has worked
more than three years, the employee may lose a portion of the claims he or
she could have brought earlier. In court, many plaintiff’s counsel include a cause
of action under Business and Professions Code Section 17200 to extend the
statute of limitations by an additional year. Effectively, this gives employees
up to four years to file a wage claim in court (not with the Labor
Commissioner, though).
Wage Claims Based on Breach of Contract - Must be filed within either four
years or two years, depending on whether the contract is written or
oral or implied-in-fact.
Vacation Pay - There is currently a split in authority as to when the statute of
limitations on vacation pay claims begins to run. In Sequeira v. Rincon-Vitova
Insectaries, Inc. (1995) 32 Cal.App.4th 632, the court held that the statute of
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limitations begins to run when the vacation pay is earned. Therefore an employee
who had accrued 12 years of vacation pay under a written employment agreement
could recover only the portion accrued during the 4 years preceding termination.
Later, in Church v. Jamison (2000) 143 Cal.App.4th 1568, the court held that the
statute of limitations does not begin to run until the employee
is terminated because Labor Code Section 227.3 says, “all vested vacation shall be
paid … as wages” to a terminated employee.
Waiting Time Penalties Under Labor Code Section 203 - A claim for just the
penalty must be filed within one year of the termination. A claim seeking both the
penalty and the underlying wage must be filed within the time frame to bring a
suit based on the underlying wage. There is some discussion that recent
interpretations regarding the statute of limitations for meal and rest breaks
claims would extend the statute of limitations to three years even if the penalty
alone is sought. To my knowledge this specific issue has not been address
since Murphy v. Kenneth Cole.
Termination in Violation of Public Policy (aka Tameny Claim) - Claims must be
filed in court within two years of the wrongful termination
California Government Tort Claims - Some claims against the State of California
or other public agencies must be presented to the government agency in a
particular format before filing the claim in court. Such claims usually must be
presented to the government agency within six months.
Defamation (libel/slander) - Lawsuits must be filed within one year from when it
was determined that the defamatory statements were made.
Fraud - The lawsuit must be filed within three years of when the aggrieved party
discovers the facts constituting the fraud or mistake.
Family Medical Leave Act - Any action must be filed within 2 years after the
violation, or within 3 years if the violation was willful.
California Equal Pay Act - Court actions for wage discrimination claims (i.e., the
opposite sex is paid a higher wage based on gender) within two years for most
actions, and three years if the violation was willful. While there is no
administrative exhaustion requirement, claims may alternatively file a claim with
the State Labor Commissioner within 6 months of the violation.
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