Unpaid Internship? Not so Fast!

unpaid internsipIf you have been offered an unpaid internship and are jumping at the chance to get some experience under your belt, you should be aware that the Fair Labor Standards Act (FLSA) has something to say about it. There are multiple stipulations associated with the ability to legally contract with unpaid interns, and if the company does not meet all of them, they must pay such trainees.

FLSA requirements for an Unpaid Internship

The FLSA criteria are unflinching: All six of the following requirements must be met in order for a company to offer an unpaid internship:

  • The training involved must be comparable to that which would occur in a vocational school. In best-case scenarios, a training program will be developed with specific goals designed to help the intern gain qualifications for real-world work. Although operational tasks and duties might be part of the internship, a classroom and/or educational setting should be a part of the training involved. Ideally, the training would go hand in hand with coursework and credit or certification of some kind.
  • All training should be designed to be for the primary benefit of the intern. Duties should provide necessary and marketable skill development.
  • Interns cannot be used in lieu of regular employees. Rather, they must work under close supervision. Presumably, they would assist regular employees with critical work, but would not be entrusted with the responsibility for such tasks on their own.
  • Employers should derive no particular or specific immediate benefits by having interns on the premises, and, in fact, may actually experience some degree of slow-down in processes or outcomes for a period of time, as employees’ time will be split between training and their regular responsibilities.
  • Interns should have no guarantee of future employment with the company at the end of the internship. A written agreement stating as much should be a part of an internship agreement.
  • Both the intern and the employer must have a common understanding that wages will not be a part of the agreement. A written contract must stipulate that the training will occur with no expectation of or intention to assign wages in exchange for any work done by the intern.

Ultimately, when courts are asked to examine the legality of an unpaid internship, they tend to consider who the primary beneficiary in the arrangement is. If the intern gains substantially from the training experience, it could legally be deemed a trainee experience, and salary is not required. If the employer is the primary beneficiary and gains through the intern’s work product to a substantial degree, the intern must be viewed as an employee, and compensation is required. [Read more…]

Wage Suit – Bus Drivers Sue

wage suit - school bus driverSan Francisco bus drivers are fighting a wage suit against First Student, Inc., their employer, who allegedly underpaid them, in a breach of contract. If you find yourself in a similar situation, the assistance of a local employment attorney could prove to be useful.

Wage Suit – The Charges

The lawsuit, Humes v. First Student, Inc.,which was filed in 2015, was recently given a breath of life by the Ninth Circuit, giving the plaintiffs the opportunity to create a class action suit.  According to the Complaint, bus drivers had several issues with the company:

  • They were paid amounts below minimum wage;
  • They were not paid on schedule;
  • They were not provided with accurate statements detailing their hours and wages;
  • They were subject to unfair business practices;
  • Their oral contract was breached.

Details Behind the Wage Dispute

According to a negotiated contract, the bus drivers were promised a minimum number of hours of daily pay regardless of the number of assignments per day.  In other words, drivers were guaranteed a minimum daily wage, whether or not the buses were utilized for the full day. In addition to driving, employees were responsible for cleaning and fueling the buses.  In the event these responsibilities took more time than the hours set, they were to be paid for the additional hours worked.

In 2015, the policy for tracking hours worked changed. Employees were required to track only the hours worked that were beyond regular time. These hours were recorded in what was called an exception log.  Additionally, drivers were expected to complete a formal billing sheet, which was ultimately sent to the school district for billing purposes. Drivers believe that the record keeping led to confusion in the payroll office, resulting in their wage suit for alleged underpayment and check stub errors.

Information Required on Pay Stubs

According to Labor Code 226, particular information must be included on a worker’s pay stub, including:

  • The number of hours the employee worked during the pay period;
  • The gross earnings for the pay period;
  • Deductions from wages;
  • The net earnings for the pay period;
  • The dates of the pay period;
  • The hourly rate of pay.
Statute of Limitations

The statute of limitations for a wage suite of this nature is just four years. Nonetheless, the court has agreed to hear claims dating back to October of 2011, based on arguments presented by the plaintiff. [Read more…]

Tesla Whistleblower

Tesla WhistleblowerDid Elon Musk try to ruin a Tesla whistleblower? It seems all is not well at Tesla’s California plant, nor at its Nevada factory.  This, according to former employee Martin Tripp, who allegedly leaked information about inefficiencies and product problems.  In response to Tripp’s evaluation of conditions at the factory, it seems Elon Musk, the billionaire owner of Tesla, sought his own brand of revenge.  

Details of the Tesla Whistleblower Case

A stunning report released to the Business Insider indicated that Tesla Inc. had some serious problems. It seems the Gigafactory was having to retool or completely dump 40% of all raw materials at its battery factory due to safety issues. The result was a $150 million deficit, all due to inefficiencies in the company.  Furthermore, some unsafe batteries were purportedly making it into cars in the marketplace. When the report made it to the media, Tesla denied it, but Musk was beyond irked, according to reports. In his agitation, he assigned investigators to locate the source of the leak.

In short order, the Tesla whistleblower was identified as Martin Tripp, an assembly line worker at the Gigafactory. Tripp, a self-described idealist,  had been hoping to improve procedures.

According to Musk, Tripp was no Tesla whistleblower hero hoping to inspire improvements; he was an enemy guilty of sabotaging the company.  In fact, Musk mused about the possibility that Tripp was a spy, working with rival industries or corporations to kill the eco-friendly vehicles under design. Could Tripp be connected to the oil industry, or might he be conspiring with other auto manufacturers? Tesla had been bruised by the media coverage, and Musk was not about to let that go. He sued Tripp for $167 million.

Shortly afterward, the local sheriff contacted alleged Tesla whistleblower Trip to say that an anonymous tip had led them to his doorstep.  Someone had called in and reported that Tripp was orchestrating a mass shooting at work. Police quickly determined that Tripp posed no threat, as he was weeping and had no weapons. Tripp confided to officers that Musk frightened him. In fact, he thought it likely that Musk was the anonymous caller.

Per this article, an investigation revealed that Musk did, indeed, want to destroy Tripp. The PR department, in fact, had propagated rumors about Tripp: He was dangerous; he was involved in a conspiracy against Tesla; he was potentially homicidal.  The security team followed Tripp around, hacked his phone, and sent law enforcement down rabbit holes as they attempted to understand the issues. Tripp lost his job and left the country to get away from the nasty publicity, his life, ostensibly, ruined. [Read more…]

Mistreated Employee Lawsuits Find a Favorable Climate in California

mistreated employee lawsuitsIt appears that the current California legal climate is favorable for pursuing mistreated employee lawsuits. If a potential, current, or previous employer has discriminated against or otherwise mistreated you in California, you are in a good position to exact revenge if you so desire. That is because California is well known to be amenable to rectifying the wrongdoing of errant employers Certainly, many factors play in to California’s protective attitude toward wronged employees. The #MeToo movement brought issues related to sexual harassment and retaliation to the forefront of public discussion. Even before #MeToo hit the public airways, though, California legislators were paving the way to an even playing field for anyone involved in a workplace dispute. In fact, the American Tort Reform Foundation went so far as to say that California courts go out of their way to assign responsibility to companies in employer liability lawsuits by allowing for no-injury litigation through PAGA lawsuits, making California the most employee-friendly state in the nation.

What is PAGA?

We’ve blogged about PAGA before. PAGA, or the Private Attorneys General Act, gives employees the right to sue their employers civilly for violations of the Labor Code. The process requires a submission of the complaint to LWDA (Labor and Workforce Development Agency) with the potential for an investigation of the matter. Aggrieved employees wishing to pursue civil action are authorized to do so through Labor Code 2698-2699. Some of the requirements for such legal action include:

  • Online filing with a copy of the complaint sent to the employer via certified mail;
  • Employer responses also filed online, with copies sent to the employee vie4a certified mail;
  • Paying required filing fees;
  • Waiting up to 60 days for a LWDA review;
  • Court approval of settlements, with copies of all judgments provided to LWDA.

Mistreated Employee Lawsuits – Successful Court Cases

Mistreated employee lawsuits have found juries to be sympathetic to their plight in recent years:

  • When Allstate Insurance fired a 30-year employee based on his arrest record, that employee fought back in court, ultimately being awarded nearly $3 million in compensation. While roughly one-third of the award was for wrongful termination, the rest was for defamation. But that was just the tip of the iceberg. The jury added another $16 million to the award in punitive damages, sending a clear message to the employer that wrongful termination will not be tolerated.
  • When two employees asserted that they had suffered sexual harassment from the general manager of Keyways Vineyard and Winery, things did not end there. After registering their complaint, the women experienced retaliation in the form of being removed from the weekly schedule. A jury awarded the plaintiffs $11 million.

[Read more…]

Transgender Rights – Workplace Protections

transgender rights in the workplaceTransgender rights are human rights. According to Amnesty International, transgender individuals are the recipients of casual discrimination on a daily basis. In fact, they undergo as many as 60 instances of discrimination or harassment every single day. While many of these indiscretions are made without malice, or even unknowingly (such as using a pronoun other than the one the transgender person identifies with), they still take a toll on the transgender community. California lawmakers have taken deliberate steps to provide protections for transgender workers. The goal is to reduce and even eliminate instances of harassment and/or discrimination in the workplace that is based on gender identity, sex, or gender expression. The rights of transgender individuals in the workplace are important to the health and safety of the worker, fellow employees, employers, and the business itself.

Posting the Transgender Rights Poster

All employers with one or more employees must post the California Department of Fair Employment and Housing poster regarding workplace rights for transgender individuals. The poster clarifies any questions employers and their employees may have as to some specific rights for transgender employees.

Parity in Restroom Facilities – Transgender Rights

All employees are entitled to feel safe in restrooms, locker rooms, and similar facilities. Individuals who are transitioning and/or who are transgender have particular protections when it comes to restrooms in the workplace.  

  • California standards ensure that employees are allowed to use the facilities that correspond with their gender identity.  
  • Single-occupancy restrooms must be identified as gender-neutral with signs that label the room as such.
  • It is the choice of the transgender individual whether to use a single-occupancy restroom or a general use restroom that is designated as either male or female. Employers do not have the right to force transgender individuals to use the single use facilities exclusively.

When are Transgender Rights Protections Viable?

The California Fair Employment and Housing Act provides protections from harassment and discrimination for transgender individuals, among others. These protections apply to hiring, wages, opportunities for training and promotions, lay-offs, firing, and retaliation. They protect transgender workers before, during, and after social, legal, and physical transitioning.

Social Transition

Individuals undergoing social transition may not be discriminated against for the issues such as following:

  • Changes in attire;
  • Alterations in hairstyle;
  • Preferences for different pronouns.

Physical Transition

Transgender individuals who undergo hormone therapy and/or surgery may not be discriminated against during or after therapies and treatments that change the physical body of the individual.

Legal Transition

At the culmination of the social and physical transition, transgender individuals may ultimately be required to undergo a legal name change, which may, in turn, result in updates to social security cards, driver’s licenses and other identification, birth certificates, and additional important documents. These changes should not result in workplace penalties. [Read more…]

Job Interview Questions That are Off-Limits

job interview questions off-limitsDid you know that some job interview questions are none of your new potential employer’s business? With the unemployment rate hovering right around 4% in California, looking for a job is a pretty competitive business. As employers vie to capture the most qualified and able applicants for their companies, they all too frequently delve into interview topics that are, frankly, none of their business. In fact, certain issues are so far out of the realm of acceptable inquiry that they can land the company in court. If you have suffered enquiries that are legally off-limits, a local employment lawyer can assist with next steps.

What Job Interview Questions are Off-Limits?

A number of topics should never be broached during a job interview here in California. Among some of these job interview questions are the following:

  • What is Your Marital Status? How many kids do you have? Potential employers are not allowed to ask about your family status, whether or not you are pregnant or intend to be, or in any other ways fish around into your family status.
  • What year did you graduate from high school? This question gets at a person’s age, which is not allowed under the Age Discrimination in Employment Act and the Federal Employment and Housing Act. The only exception is when an employer is confirming that minimum age requirements are being met.
  • Have you ever been convicted of a crime? It has been illegal to ask about one’s criminal history since the legislature passed AB 1008 in 2017. The law applies to any company that employs six or more employees. Specifically, employers may not:
    • Ask any questions related to criminal convictions on the application;
    • Put any weight on an applicant’s criminal history until after a conditional job offer has been put forward;
    • Consider or share any information discovered during a criminal background check relates to specific criminal activities or convictions.
  • What are you earning at your current job? In 2018, AB 168 became effective, requiring potential employers to steer clear of questions related to an applicant’s previous earnings.  Knowledge of one’s salary history may not be allowed to influence whether or not an applicant is hired or the amount of pay that is offered. The exception to this rule is when the applicant offers unsolicited information related to previous earnings, and other factors are also weighed in determining future salary.
  • Are you a citizen of the United States? Where are you from? Although seemingly innocuous, questions related to one’s background may be a way for an employer to determine an applicant’s culture or national origin. While it is acceptable to ensure that an applicant is legally entitled to work in this county, asking questions that narrow down an applicant’s background is not allowed.

[Read more…]

At-Will Employment in California and Suspicious Firings

at-will employeeIf you are an at-will employee, join the crowd. The majority of California employees are in the same situation, meaning you can leave your job whenever you choose, and employers can (mostly) fire you at any time, without ever citing a reason for the decision. However, if you suspect that you are being terminated for unlawful reasons, it may be worth pursuing legal action.

Can I be Fired if I am Doing a Good Job?

The short answer is yes. As previously stated, you can be fired any time at all, even if you are a stellar employee. Your boss is not legally required to explain the rationale behind the firing.  However, if you think there might be discrimination or other issues at play, your employer should not be allowed to hide behind the at-will statutes.

Illegal Firings of At-Will Employees

Both state and federal laws are on the books to protect workers from unlawful termination.  While you may be fired without cause, you can not be fired for reasons such as:

  • Race, religion, sexual orientation, gender identity, age, gender, pregnancy, disability, or other protected status;
  • Your political affiliations or actions away from work;
  • As retribution for reporting issues related to worker safety, sexual harassment, hostile work environment, or discrimination;
  • Because you reported illegal activity;
  • Involvement in union activities or attempting to organize workers;
  • Because you asked to take time off work to which you are legally entitled.

These are all illegal reasons to terminate an employee.

At-Will Employee Leave of Absence

Many employees do not realize that they are legally entitled to time off for certain events, even though they are at-will employees. In addition to maternity leave, employers must make reasonable accommodations for at-will workers who have disabilities impacting their mental or physical health. Furthermore, employees are protected from being fired for taking time away from the job for other important events, including:

  • Participating in military service;
  • Being called to serve on a jury or testify at a trial;
  • Caring for a seriously ill family member;
  • Voting in a statewide election (two hours).

At-Will Employee – Suspicions After Being Fired

Let us say you are an at-will employee and fired for no reason, or for a reason that you believe is invalid. If you think you were fired for an illegal reason, what should you do? At Beck Law P.C., we handle cases like this more often than you might think. If we take on your case, in preparing to fight back, there are some specific steps we can and will take, including:

  • Collecting and examining written employment policies and procedures;
  • Documenting issues that you believe are at the root of the termination. These include dates, names, and details about conversations you have had with management and fellow employees. For instance, if you think you are being fired based on age discrimination, what comments or events have occurred that substantiate your theory, and when did they occur?
  • Assembling any physical evidence to support your claim, including emails, texts, MEMOs, and so forth.
  • Interviewing witnesses to the issues.

[Read more…]

Labor Strikes: an Uneasy Choice

labor strikesA number of California workers have faced of late some tough decisions with regard to their employment and labor strikes. Should they support fellow employees who wish to strike, or should they cross the picket line to continue working at their jobs? If you need help understanding the ramifications of either choice, a local employment lawyer is a good source for answers.

Local Calls for Labor Strikes

Strikes by workers are nothing new in this country, and Californians today are seeing several examples of employees fighting for improved wages, better working conditions, and a stronger voice in the workplace through organized strikes, such as:

  • University of California workers staged a three-day strike in hopes of increasing wages and reducing wage inequities. Service workers, security personnel, gardeners, and custodians across a score of California campuses stood on picket lines in an attempt to gain public support and leverage in contract negotiations after AFSCME Local 3299 and university officials were unable to reach an agreement.
  • California Nurses who are part of the CAN/NNU union have been part of a strike involving Kaiser, Oakland Children’s, and Sutter Hospitals.
  • The six day Los Angeles teachers strike just ended yesterday and teachers are back on the job today. A new agreement was reached with the School District for among other items, a 6% raise and the promise of a gradual reduction of class size.

Questions About Labor Strikes

Going on strike is no small matter. Contemplating such an action as a group is a weighty thing, and the stakes are no less significant for every single individual who is confronted with such a decision. The questions surrounding a strike often include the following:

Do Labor Strikes really ever accomplish anything?

Yes and No. Sometimes, striking does not result in wage gains or other benefits in any measurable way, but sometimes it does. Always, it could be argued, it brings attention to the issues and impacts public opinion, which, in turn, could sway policy-makers and employers.

Are Labor Strikes Legal?

Yes. However, strikers may not engage in misconduct, including:

  • Blocking individuals from coming or going into a location;
  • Threatening those who do not wish to join the strike;
  • Attacking employers, managers, or spokespersons on the other side.

Can anyone go on strike anytime?

No. There are rules to striking. The purpose of the strike must be lawful (it can not be to compel an employer to do something that is contrary to state or federal law), and the timing of the strike must comply with legal regulations. Additional restraints are attached to certain groups. For example, striking at a health care facility requires a minimum of 10 days written notice.

Can you be fired and replaced for participating in labor strikes?  

The National Labor Relations Act gives employees the right to strike in order to attempt to secure improved working conditions, wages, and benefits. Strikers, generally speaking, are entitled to be reinstated to their jobs at the end of the strike.

Will striking put you on a targeted list by management?

Maybe.  However, this would put your employer in hot water. [Read more…]

Government Shutdown – Do’s and Don’ts for Furloughed Employees

partial government shutdownIf you are a federal employee who has been furloughed due to the partial federal government shutdown, you are likely frustrated by your situation. During the government shutdown, there are some definite do’s and don’ts of which you should be aware:

During Government Shutdown Do…

  • Understand that your paycheck is not guaranteed at the end of the shutdown. Congress must vote on whether or not employees will receive back pay for the period during which they were furloughed.
  • Feel free to make health insurance claims during the furlough. Your benefits through the Federal Employees Health Benefits program continue even if premium payments are late.  The employee portion of your premiums will be accumulated and tacked on to your checks once they start rolling in again.
  • Consider yourself continuously employed in terms of years of service for retirement. A break in service will not be a factor until or unless the shutdown lasts at least six months in one calendar year. (Let’s hope that is not a bridge you have to cross!)
  • Consider filing for unemployment benefits. Eligibility is based on your being unemployed due to no fault of your own. While furloughed, you are still considered an employee of the federal government, but since you are not collecting a check, you may qualify. Make sure you understand the requirements that go along with receiving this support.
  • Seek a second job—with caution. There are strict ethics rules that apply to federal employees and outside work, which are still in effect during the furlough. You could jeopardize your federal job if you violate those rules.
  • Feel free to contact your members of Congress to express your views on the federal government shutdown. Freedom of speech is still alive and it is your right to express your concerns as a furloughed government employee, without fear of retribution.

During Government Shutdown Don’t…

  • Don’t volunteer to go into the office even though you are not getting paid. You are not permitted to perform any job-related tasks during a federal shutdown. Period.
  • Don’t make the mistake of thinking you can take your annual leave or paid time off during the furlough. The Antideficiency Act prohibits using paid leave at this time, even if that leave was previously scheduled.  
  • Do not anticipate growth in your federal retirement plan. Payments cease during a furlough, meaning neither employee contributions or agency matches will be made. On a positive note, if congress does issue back-pay when the furlough ends, these payments can be made retroactively.
  • Don’t use your government-issue cell phone or laptop except to check in on the status of the furlough.

[Read more…]

New Laws Boost  Women in California Workplaces

women in californiaWomen in California in the workplace have been given greater protections and opportunities in 2019 by the California legislature. 2019 brings with it a number of new laws that will impact California businesses and their employees. In particular, female workers have been given greater protections and opportunities by the California legislature. As a worker, if you find that your boss is not willing to comply with the new regulations, getting an experienced and effective labor lawyer on your side can make a significant difference.

Women Take the Lead

The Governor signed SB 826, requiring all companies that are publicly traded in California to include women on their boards. The bill specifies that such companies must have at least one female on their boards by the close of 2019, and those with five members are required to have two women by the time 2021 wraps up. Half of directors on six-person boards must be female by that deadline.

Harassment Legislation – Women in California

Governor Brown signed SB 1343 into law, requiring that any business with five or more employees provide training related to sexual harassment – what it is, how to prevent it, and how to report it. Such training must occur before the end of 2019, and is required every couple of years from then on. This will impact a number of small businesses, since mandatory training was previously required only for businesses employing at least 50 workers. The California Department of Fair Employment and Housing (DFEH) has been directed to created necessary training materials which can be loaned out for training sessions. Employers may choose a number of ways to deliver the training:

  • In small groups;
  • By department;
  • Company-wide;
  • In another format that makes sense.

Additionally, AB1870 extends the time limit victims have to file a charge with DFEH to three years, a substantial increase over the previous limit of one year.  This applies to any harassment related to prohibited conduct against protected classes based on gender, race, culture, age, sexual orientation, or religion.

Confidentiality Restrictions

SB 820 shuts down provisions for confidentiality that have previously been included in settlements in sexual harassment or sexual discrimination cases.  Although discrimination and harassment are not restricted to one gender, women experience the lion’s share of such behavior, and will be the biggest benefactors of the new law. However, it is not retroactive, so only those cases that reach a settlement starting in January of 2019 are required to comply with the new law.

Women in California – Accommodating New Mothers

Another piece of legislation that will impact many women in California on the job is AB 1976.  This law, which aligns with federal regulations, requires businesses to provide an appropriate area that is not a bathroom in which lactating women can be accommodated.   [Read more…]

Disclaimer

The information on this website should not be considered to be legal advice, nor construed to be the formation of any manner of attorney client relationship. Prior to taking any form of legal action, please consult with an attorney experienced in the appropriate area of law germane to your situation. Case results and testimonials presented on www.californialaborandemploymentlaw.net or any of its related websites are germane to the facts present for each individual case and is not a promise of similar outcomes for any other cases. This website is not intended to solicit clients for matters outside of the State of California.