Labor Law Archives - California Labor & Employment Law

Strike! Legal Guidelines to Going on Strike

December 13, 2016 by Beck Law P.C.

Strike! The rumblings in the workplace are growing. Employees feel dissatisfied on a many fronts, and negotiations with management are not going well. Now you hear fellow employees throwing around phrases like “job action,” and “going on strike”. You feel conflicted. Although you support your fellow employees and want to resolve the issues at hand, you worry about the ramifications of participating in a strike. What, exactly, are your rights?

Your Right to Strike

The National Labor Relations Act provides that employees have the right to “…engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 13 of the NLRA specifically calls out striking as a right guaranteed to union workers. However, under certain circumstances a strike may be unlawful:

If the strike is called in support of a union unfair labor practice (such as attempting to force individuals to pay dues when they choose not to);
If the purpose of the strike is to attempt to force employers into actions that are normally outside the employee’s range of influence. An example would be if employees wanted their employer to boycott a particular brand or company. It is generally understood that employers have the right to make such decisions, with or without input from employees; but employees may not legally force their will onto employers through a strike;
When a no-strike contract exists between employers and workers, it must be adhered to unless it is related to unfair labor practices or unsafe working conditions;
Strikes timed to coincide with the end of a contract are not allowed.
Strikes that involve illegal misconduct (including blocking entryways, threatening violence, or attacking managers);
Picketing, striking, or otherwise organizing a refusal to work in any health care institution without at least 10 days’ written notice to both the institution and to the Federal Mediation and Conciliation Service.

Will I Lose My Job if I Participate in a Legal Strike?

When union workers strike, they are striking for specific objectives which fall into two categories: economic issues and matters related to unfair labor practices. Those in the latter category have stronger rights related to job reinstatement.

Economic Strikers

When individuals go on strike in order to secure better working conditions, hours, or financial remuneration, they are referred to as “economic strikers”. Employers who replace these workers with bona fide permanent workers are not required to discharge the replacement workers when the strike ends. On the other hand, if the replacement workers are not equivalent to the previous workforce, strikers are entitled to be recalled to their previous jobs.

Unfair Labor Practice Strikers

Unfair labor practices relate to employers who in some way interfere with workers’ rights to unionize or to carry out union activities. This may involve discrimination, retaliation, or punitive measures in association with union activities. A striker in this category is entitled to their job at the conclusion of the strike, regardless of the classification of replacement workers. [Read more…]

Filed Under: Blog, Employee Rights Tagged With: employee rights, Labor Law, right to strike

Gender Wage Gap – California Fair Pay Act

November 28, 2016 by Beck Law P.C.

The gender wage gap has been around for a long time, and came to the forefront with Hillary Clinton’s bid for the White House. Although Clinton lost the election, the issue she ran on is still alive and well. Are you a woman who suspects disparate wages due to gender discrimination? You need an experienced legal team to help you recoup the wages you deserve.

Gender Wage Gap in California

An analysis of California wages demonstrates that women were earning about $8,000 less per annum than men in 2012. Women of color lagged even further behind. Latina women earned only 43 cents on the dollar, Black women earned 63 cents on the dollar, and Asian women earned 72 cents on the dollar in comparison to white men. The situation has improved with time, but women on average earn just 79 cents to every dollar a man earns in this country.

Why the Gender Wage Gap?

Research indicates that women traditionally gravitate toward lower paying jobs, such as nursing and teaching. Even in professions such as marketing and technology, women actually ask for roughly $14,000 less than their male counterparts for the same job. That makes it easy for employers to offer women about 3% less than men for the exact same position.

Discrimination may play a role in wage disparities. A Cornell study concluded that when women compete for men for the same job while holding equivalent credentials. Their study corroborates with census data indicating that across industries, job functions, and educational background. Women earn significantly less than men for the same work.

Closing the Gender Wage Gap in California

This fall, Governor Jerry Brown took a step to improve matters when he signed a tough new pay equity law that will come into effect in January 2017. Supplementing state and federal laws requiring equal pay for equal work, the new California Fair Pay Act prohibits bosses from paying employees less for “substantially similar work” when their titles or locations differ. It also bans retaliation against employees who discuss their disparate salaries.

Now, more than ever, rather than differentiating pay at will, employers must apply a reasonable standard based on seniority, merits, quantity or quality of production, education, or experience. Furthermore, employers must keep accurate records of pay for three years.

Remedies for Discrimination and Retaliation

Under statute, employees may recover wages plus interest and attorney’s fees. If unfairly discharged as retaliation, an employee may pursue civil action and seek reinstatement, as well as pay for lost wages and benefits, plus interest. The employee must make such a claim within one year of the perceived actions. [Read more…]

Filed Under: Blog, California Labor Law, Gender Discrimination Tagged With: gender pay gap, Labor Law, wage equality

Final Paycheck When Leaving a Job

November 16, 2016 by Beck Law P.C.

When can I expect to receive my final paycheck? Dissatisfied with your employment situation, you look for another job, providing your current employer with two weeks’ notice. You expect your final paycheck On the last day of employment along with unused vacation and sick pay. You are told, however, that payment will be deferred until the end of the pay period. So you scratch your head and wait for the check. Ten days later when it comes, the paycheck includes payment for the hours you worked, but nothing more. Where is the compensation for unused vacation and sick days?

What now? This is precisely the type of question that an experienced employment lawyer can assist with.

Was I Entitled to my Final Paycheck on the Last Day I was Employed?

In this situation, the answer is yes. The employee’s final paycheck is due within 72 hours of termination if the employee leaves without notice. The check may be picked up at the office or mailed to a designated address. If notice was given 72 hours or more prior to leaving, as in this case, the final check is due at the time of termination and at the location of the employer’s office.

What About Unused Sick Days and Vacation Days?

Earned, unused vacation pay must be included in the final payment. The same is not true for unused sick leave, however. Unless your contract says otherwise, California law does not ensure payment for these unused days.

Can Penalties Be Assessed if I am Forced to Wait for My Final Paycheck?

California law provides for employees who were discharged or who quit to be reimbursed at their daily wage for up to 30 days if an employer willfully fails to pay the earned wages in the time frame outlined. In this case, the 10 days of waiting may qualify for penalties. Also, the failure to pay out the unused vacation days may result in additional penalties. In Mamika v. Barca (1998) the court determined that the penalty would be calculated based on the monthly wage rather than at the daily rate for 30 days, which resulted in a slightly lower penalty.

Am I Entitled to Severance Pay?

California law does not require employers to provide severance pay, although many companies do have their own contractual obligations. It is important to examine your contract with regard to this matter.

Can I Collect Unemployment While Looking for a New Job?

All employers must pay unemployment insurance, which covers employees except in certain circumstances. In this case, you quit your job. Unless you can demonstrate good cause for quitting, you are likely ineligible for unemployment benefits. [Read more…]

Filed Under: Blog, Termination of Employment Tagged With: California employment attorney, final pay, Labor Law, Petaluma Final Paycheck Attorney, Santa Rosa Final Paycheck Attorney, Termination of Employment Attorney, Ukiah Final Paycheck Attorney

California Minimum Wage Hike: Is it Set in Stone?

April 7, 2016 by Beck Law P.C.

California minimum wage changes. By the year 2022, some California employers will be required to pay their workers a minimum wage of $15 per hour. Governor Jerry Brown announced on March 28, 2016 that he had reached a deal with the state legislature that will gradually increase the state’s minimum wage.

California Minimum Wage – The Specifics

Pursuant to the deal, California’s minimum wage will rise from its current rate of $10 per hour to $10.50 per hour on January 1, 2017, but only for companies with 26 or more employees. It will then climb to $11 per hour for the year of 2018, then to $12 per hour for 2019, then to $13 per hour for 2020, $14 per hour for 2021, and $15 per hour for 2022.

The minimum wage will remain at $10 per hour for companies with 25 or fewer employees until January 1, 2018. The minimum wage for those companies will climb to $11 per hour for the year of 2019, then to $12 per hour for 2020, $13 per hour for 2021, $14 per hour for 2022, and $15 per hour for 2023.

Is This California Minimum Wage Schedule Certain?

The increases are not guaranteed to take place at these times. As part of the deal, there will be two ways that the increases can be delayed.

The first way is related to the economy. At any point, the governor can “pause” an increase if the state’s economy is bad enough. This can occur if seasonally adjusted statewide job growth has been negative over the past three months, or over the past six months – and if retail sales receipts for the prior 12 months have been negative.

The second way is related to the state’s budget. The governor will be able to pause the increase if at any point in time, the current budget year, or the year after that, or the year after that, is forecasted to be in deficit when the next scheduled increase is taken into account. This is referred to as a “budget off-ramp,” and there is a specification that it may only be used twice.

The deal will also introduce sick leave for in-home supportive services workers. In July 2018, in-home supportive services workers will be guaranteed one sick day. A second sick day will be added in the first July following the implementation of a $13 per hour minimum wage for businesses with 26 or more employees. A third sick day will be added after the minimum wage rises to $15 per hour. [Read more…]

Filed Under: Wage and Hour Law Tagged With: Disability Discrimination Law Offices Lakeport, Labor Law, Lake County Wage and Hour Law Office, Mendocino County Wage and Hour Law Office, minimum wage, Petaluma Wage and Hour Law Office, Santa Rosa Wage and Hour Law Office, Sebastopol Wage and Hour Law Office, Sonoma County Wage and Hour Law Office, Ukiah Wage and Hour Law Office

Employee Searches and Overtime Law – Employment Law

December 4, 2015 by Beck Law P.C.

Employee searches and overtime law. Imagine you work in a store that has had problems with employees stealing valuable merchandise. The store now has a policy that when an employee leaves at the end of a workday, any bags that he or she brought into the store will be searched. As such, after you punch out at the conclusion of each shift, you wait while a security guard goes through your bags.

When you were hired, you signed a contract allowing the store to search your bags. But you think it is unfair that you are not being paid for the time you spend waiting while the searches take place. Do you have a valid labor complaint?

According to the U.S. District Court for the Northern District of California, the answer is no. In Frlekin v. Apple, the Court recently dismissed a class-action suit filed by Apple employees who sued Apple for compensation for occasions when Apple searched their bags and verified ownership of their electronic devices. The employees argued that the time during which the searches took place should be considered “hours worked” under the standards of Wage Order 4.

Required Activities vs. Optional Activities

The Court sided with Apple and granted summary judgment, holding that the searches did not constitute hours worked. The court applied the traditional test of the control theory of liability, which takes into account whether the employer restrained the actions of an employee, and whether the employee has no plausible way to avoid the activity. The ruling states that while the plaintiffs demonstrated that Apple restrained their actions during the searches, the second prong of the test was not satisfied because the employees could avoid the searches if they did not bring bags into the stores where they worked, and thus the searches were optional.

The Court cited other cases such as Overton v. Walt Disney Co., in which employers were not required to pay for time spent by employees off the clock. Overton involved a Disney employee who sought compensation for time on a shuttle bus that carried him from an off-site parking lot to Disneyland’s employee entrance. The complaint was rejected because the worker had other options for getting to the employee entrance, such as walking from the parking lot, which was a mile away. The ruling rejected the employee’s argument that the shuttle bus was the only practical method of transportation.

In Frlekin, the Court also pointed out that none of the plaintiffs argued that they brought bags to work based on special needs – even though the class notice invited members with special needs to assert such a claim. The Court held that the plaintiffs were all in a position to freely choose to not bring bags to work.

Overtime Law and Wage and Hour Claims

If you are facing any type of wage and hour claim, or you are considering filing one, the employment and labor law attorneys at Beck Law P.C. in Santa Rosa can help. They serve clients in Santa Rosa, Petaluma, Ukiah, and all of the North Bay Area counties.

Filed Under: Blog, Overtime Violations Tagged With: employment law, Labor Law, lakeport, overtime, petaluma, santa rosa, ukiah, wage suit

Social Security Disability and the Americans With Disabilities Act

August 21, 2015 by Beck Law P.C.

Social Security disability and the Americans With Disabilities Act. The Americans With Disabilities Act (ADA) requires many employers to provide reasonable accommodations for employees with disabilities. It also prohibits employers from discriminating against qualified individuals with disabilities. Many people are familiar with the basic provisions of the ADA, without actually understanding how it defines the term “disability.”

One likely source of confusion is the Social Security Disability program, which has a very different standard for determining who is disabled. Social Security Disability provides benefits for individuals who have worked in the past, but are no longer able to work because of disabilities. Anyone who has applied for Social Security Disability benefits can tell you that the Social Security Administration has extremely strict standards for qualification.

What many people don’t realize is that not all government agencies use the same standard for what constitutes a disability – and the ADA’s standards for a disability are far less strict than those of the Social Security Administration. In order to qualify for Social Security Disability benefits, an applicant must demonstrate that their disability is so severe that it prevents them from working altogether. The ADA, on the other hand, applies to people who are capable of working, so its definition is far broader.

The Language of the Americans With Disabilities Act

Under Section 12102 the ADA, the term “disability” means, with respect to an individual:

A physical or mental impairment that substantially limits one or more of an individual’s “major life activities”;
A record of such an impairment; or
Being regarded as having such an impairment.

The expression “major life activities” includes a wide variety of activities, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, thinking and working.

It can also refer to what the ADA calls “the operation of a major bodily function.” Section 12102 includes the following examples: “Functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

It is important to note that, as stated in the third bullet above, an individual can be protected by the ADA even if he or she does not have a disability that meets these requirements. The ADA prohibits discrimination based on the belief that an individual has a disability. This means that, for example, if an employer incorrectly assumes that an applicant for a typist position is HIV-positive, and refuses to hire him or her on that basis, this would violate the ADA, regardless of whether the employee actually is HIV-positive. If the applicant was regarded as having a disability, and was denied the job on that basis, then it does not matter whether the employer’s assumption was correct.

Violations of the Americans With Disabilities Act

If an employer has discriminated against you on the basis of a disability (or perceived disability), or is refusing to provide you with reasonable accommodations, you may have a valid ADA claim.

You may also have recourse at the state level. California has its own laws prohibiting discrimination, which are some of the strictest in the country. If you live or work in the Santa Rosa, Petaluma, Ukiah or Lakeport area, contact our experienced labor law attorneys at Beck Law P.C., to schedule a consultation and learn more about your legal options.

Filed Under: Americans With Disabilities Act Tagged With: Labor Attorney, Labor Law, Labor Lawyer, Lakeport Labor Attorney, Petaluma Labor Attorney, Santa Rosa employment law attorney, Santa Rosa Employment Lawyer, Ukiah Employment Lawyer

Are Waistlines Rising Along With Increased Employee Payroll Taxes? Survey Says Yes!

October 19, 2013 by Beck Law P.C.

A survey by Harris Interactive for the American Institute of CPAs indicates that the 2013 increase in employee payroll taxes has created tremendous stress on employers and employees alike. Of course it is obvious that paying more in payroll taxes means an employee takes less money home to their families; however, the stress of how to make ends meet is taking its toll in other ways as well: particularly in employee health and relationships.

Many Americans are feeling tremendous financial stress in this economy and, accordingly, it is taking great toll on their waistlines, their sleep patterns and their friendships. The Harris survey, conducted on behalf of the American Institute of CPAs asked “1,011 U.S. adults to name all the ways financial stress is affecting their lives. Of those who rated their financial stress as “very” or “somewhat high,” nearly half (47%) said they are sleeping less, while 43% said they have less patience with friends or are seeing them less often; and 31% are eating more junk food or gaining weight.”

The survey seems like it is confirming what most Americans are feeling, and comes as common sense. Junk food is cheap. Eating fresh fruits and vegetables is becoming more costly. And, it appears there is less time to grow a garden, should one have a plot of ground in which to do so. Americans are working harder and longer hours than ever before. After a working mom picks up her kids from day care, at 6:00 at night, and it is near payday, she may have only $15 that has to stretch a few days – the solution she may choose – McDonalds, Taco Bell, or the like. After doing homework and baths with the kids and getting them to sleep, does she have time to meet with friends? There would be no time for that. Finally, she could sleep a lot sounder if she had $200 to last until the next pay check, instead of $15.

AICPA National CPA Financial Literacy Commission chairman Ernie Almonte commented: “Mounting money pressures are making Americans cranky, tired and unhealthy. This can lead to a double whammy, with ensuing physical and emotional stress potentially leading to higher long-term costs. Americans must find ways to cope with money stress even when financial challenges seem daunting.”

Filed Under: Blog, California Labor Law Tagged With: Labor Law, Petaluma Labor Attorney, Santa Rosa Labor Attorney, Ukiah Labor Attorney

Small Businesses Risk $100 Per Day Obamacare Fine

October 3, 2013 by Beck Law P.C.

Even though many of us do not quite understand the rules of Obamacare, or what we will be offering our employees, it is no excuse according to the Department of Labor. Small business owners who were led to believe that they could “ease” into the Obamacare transition in 2015, and perhaps thought they had time to absorb the rules and guidelines, may be in for an expensive wake-up call next month.

$100 Per Day Obamacare Fine

Beginning Oct. 1, all businesses with at least one employee and $500,000 in annual revenue must notify all employees by letter about the Affordable Care Act’s health-care exchanges, or face up to a $100-per-day fine. The requirement applies to any business regulated under the Fair Labor Standards Act, which is mostly all businesses, regardless of size.

In addition whenever you hire a new employee, you have 14 days in which to give them all the most current information regarding their healthcare options under the Affordable Care Act’s market exchanges, according to the Department of Labor, or penalties and fines will accrue. In order to get the model notice that must be sent to all employees, visit the Department of Labor website and download the pdf.

Filed Under: Employment Law, News Tagged With: Affordable care act, Labor Law

California Labor and Employment Law Update – Human Trafficking

June 17, 2013 by Beck Law P.C.

As taxpayers around the country scramble to meet the April 15th tax deadline, a California labor and employment law deadline has already come and gone.

Governor Brown back in September of 2012 signed into law SB 1193 which adds section 52.6 to the Civil Code relating to human trafficking. SB 1193 requires specified businesses to post an 8.5″ x 11″ notice, on or before April 1, 2013, that contains information about organizations that provide services to eliminate slavery and human trafficking. The Department of Justice will develop a model notice that complies with the requirements of SB 1193 and make the model notice available. This notice will also be made available on HRCalifornia after the Department of Justice has created it.

Here is a summary of the Public Notice Requirements

The following is a summary of the requirements set forth by Senate Bill 1193. This summary is not a regulation as defined by the California Administrative Procedure Act (Gov. Code § 11340.5) and does not constitute an agency interpretation of Civil Code § 52.6.

1. Who Must Post a Public Notice

Civil Code § 52.6 mandates that the following businesses post the notice:

On-sale general public premises licensees under the Alcoholic Beverage Control Act (Division 9 (commencing with Section 23000) of the Business and Professions Code).
Adult or sexually oriented businesses, as defined in subdivision (a) of Section 318.5 of the Penal Code.
Primary airports, as defined in Section 47102(16) of Title 49 of the United States Code.
Intercity passenger rail or light rail stations.
Bus stations.
Truck stops. For purposes of this section, “truck stop” means a privately owned and operated facility that provides food, fuel, shower or other sanitary facilities, and lawful overnight truck parking.
Emergency rooms within general acute care hospitals.
Urgent care centers.
Farm labor contractors, as defined in subdivision (b) of Section 1682 of the Labor Code.
Privately operated job recruitment centers.
Roadside rest areas.
Businesses or establishments that offer massage or bodywork services for compensation and are not described in paragraph (1) of subdivision (b) of Section 4612 of the Business and Professions Code.

2. Where Must the Public Notice Be Posted

Civil Code § 52.6 requires that a specified business or other establishment must post the notice in a conspicuous place near the public entrance of the establishment or in another conspicuous location in clear view of the public and employees where similar notices are customarily posted.

3. What the Public Notice Must Say

Civil Code § 52.6 requires that the public notice to be posted must be at least 8.5 inches by 11 inches and written in size 16 font. Additionally, the public notice must state:

“If you or someone you know is being forced to engage in any activity and cannot leave — whether it is commercial sex, housework, farm work, construction, factory, retail, or restaurant work, or any other activity — call the National Human Trafficking Resource Center at 1-888-373-7888 or the California Coalition to Abolish Slavery and Trafficking (CAST) at 1-888-KEY-2-FRE(EDOM) or 1-888-539-2373 to access help and services. Victims of slavery and human trafficking are protected under United States and California law.

The hotlines are:

Available 24 hours a day, 7 days a week.
Toll-free.
Operated by nonprofit, nongovernmental organizations.
Anonymous and confidential.
Accessible in more than 160 languages.
Able to provide help, referral to services, training, and general information.”

4. What Languages the Public Notices Must Contain

The specified businesses and other establishments must post the notice in English, Spanish, and in one other language that is the most widely spoken language in the business or establishment’s location (and for which translation is mandated by the Voting Rights Act, 42 U.S.C. § 1973, et seq.). For those counties where a language other than English or Spanish is the most widely spoken language, Civil Code § 52.6 does not require the public notice to be printed in the non-English and non-Spanish language.

5. The Attorney General’s Model Public Notice

The Attorney General of California has developed a “model notice” available for download on the California Department of Justice’s Internet website as of March 27, 2013. The model notice is available in English and Spanish. The Attorney General has also provided a list of counties in which a third language other than English and Spanish is the most widely spoken language.

6. Liability and Penalty for Failing to Post the Public Notice

Civil Code § 52.6(e) creates civil liability for a business or establishment that fails to comply with the posting requirement. The penalty for violating this law is $500 for a first offense and $1,000 for each subsequent offense.

If you have any questions on the Human Trafficking posting, please contact the California Attorney General’s Office, Victims’ Services Unit.

Filed Under: Employment Law, News Tagged With: Labor Law

Human Trafficking Notice Posting Required of Certain Businesses

June 15, 2013 by Beck Law P.C.

A human trafficking notice must be posted at bus stations, truck stops and several other types of businesses.

SB 1193 requires specified businesses to post an 8.5″ x 11″ notice, on or before April 1, 2013, that contains information about organizations that provide services to eliminate slavery and human trafficking. The Department of Justice will develop a model notice that complies with the requirements of SB 1193 and make the model notice available. This notice will also be made available on HRCalifornia after the Department of Justice has created it.

Summary of Human Trafficking Notice Requirements