Articles Posted in Wage Violations

At the start of this year, a number of new California employment laws took effect.

Orange County Employment Lawyer Houman Fakhimi is fully aware of all the new changes, and what they will mean for both employers and employees in the coming year. Among the changes:

AB 1396, which addresses a previous challenge to California Labor Code Section 2751. The measure was found unconstitutional because it only required out-of-state employers to have written commission contracts with commissioned employees in the state, which was found to have been a violation of the Commerce Clause. As of Jan. 1, 2013, ALL employers who hire commissioned employees must have contracts (we’ll talk more about this later in the blog).

AB 2103, which addresses the issue of employers’ designation of certain workers as “salaried,” which meant they were paid a certain fixed sum for both regular and overtime hours. Following a decision in Arechiga v. Dolores Press, employers can only pay that fixed rate for hourly work. These employees must still be paid overtime for any hours worked in excess of 40 in a regular work week.

AB 1844, which addresses social media information employers can demand of workers, and can be found in California Labor Code Section 980. Essentially, it bars employers from requesting – let alone requiring – social media usernames or passwords of employees or applicants if the purpose of such action is to access the individual’s personal account or have the individual access it while the employer looks on. Further, employers can’t discipline or retaliate against employees or applicants for refusing to provide this information. The only exception would be if it is related to an investigation of misconduct or some legal violations.

AB 2674 is an update to California Labor Code Sections 226 and 1198.5. It covers the maintenance of all payroll records for at least three years, which must be made available for employee inspection. The new law enacts updated compliance timelines and revised penalties.

These are just a few of the new changes.

We’d like to explore in a little more detail the changes to commissions under AB 1396. Employers and employees must educate themselves on what this measure is going to mean for them, and what to do if your company is not already in compliance.

Basically, AB 1396 is going to require that all employers who pay commissions to their employees (we’re looking primarily at the sales industry) to enter into a written commission contract with those employees. The content of these contracts must be very specific. It must include a detailed description of the method by which commissions are figured and paid. Employers also have to provide each commissioned employee with a signed copy of that contract, and in turn get a signed receipt from the worker acknowledging this has been done.

If a contract that spells out the commissions payments expires and a new one is not enacted (yet the employee continues to work for the firm), the terms of the expired contract will apply by default until a new one is drawn up or the employment is terminated.

We understand that both employers and employees may have questions about these new laws, and we stand ready to assist employers in implementing them, as well as the rights of employees when these measures haven’t been implemented.
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Los Angeles wage violations at the Hilton Hotel near the Los Angeles International Airport has resulted in a $2.5 million settlement.

Los Angeles Employment Attorney Houman Fakhimi knows that cases like this are common, as many companies have no qualms denying workers meal and rest breaks and in some cases denying wages. Businesses are expensive to run, and companies will bank on the fact that employees often don’t understand their rights well enough to press forward with a complaint.

As one of the largest hotels in the city, not to mention being a large and successful national chain, the Hilton undoubtedly had the means to pay its workers. It simply chose to skirt the rules. Now, they will pay the price for that not only in the form of back pay and also punitive damages.

Dozens of workers at the 1,200-room hotel no Century Boulevard filed suit back in 2008, alleging violations dating back to 2004.

Among the laundry list of allegations, the hotel reportedly refused to pay its workers for the time they spent doing prep work, including putting on or taking off uniforms, which were required to be left at the hotel. Additionally, employees said they were made to fill out time sheets indicating that they took rest and meal breaks when in fact they did not.

Other allegations included that the hotel hired a large number of workers, including housekeepers and cooks, through a subcontractor in an effort to circumvent the city’s ordinance that required that those working at airport-area hotels be paid a proper living wage.

The hotel fought back, suing the city over its living wage ordinance, which required an hourly stipend of $11.55 or $10.30 if the company was also paying health benefits. The hourly minimum wage in California at the time was $8.

The ordinance was controversial at the time because it required businesses that were not contracted by the city to pay over and above the state’s minimum wage. But labor advocates had long argued that the minimum wage was not a living wage – families could not afford to feed themselves or self-sustain on that level of income.

Ultimately, the hotel, which was joined by several others, lost that case and the ordinance was upheld.

The class action suit filed by workers indicated there was actually a dual pay system. Workers hired directly by Hilton were in fact paid much higher wages than those who worked for the sub-contractor. In essence, they were being paid much less for doing the same work.

The settlement of the class action suit, which affects some 1,200 employees, was announced by a local union, which has over the last handful of years been working to unionize employees in the Los Angeles-area hospitality industry in an effort to provide greater employment protections.

A cook at the hotel said employees were often made to feel like machines. Winning the lawsuit, he said, was about more than the money. It was about justice, he said, and earning respect.
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Riverside wage violations are a growing problem, not only here but across the country.

These are issues like unpaid wages or illegal deductions or failing to pay the minimum wage or overtime.

San Bernardino Employment Attorney Houman Fakhimi understands that many times, employees simply let these things go, figuring it’s not worth it to go after them. But the truth of the matter is, this is a form of theft, and employers need to be held accountable for these actions.

One example, recently outlined by the McClatchy Newspapers’ service, was that of a home health care worker in Michigan. Her employer owed her $400 in pay, which it kept promising to pay in her next pay check. Months went by before the worker finally filed a complaint with state officials, who told her employer to either pay up or face a formal hearing. That worker is still waiting for her check.

Particularly for larger sums or instances in which the violations occurred over a period of time, it can be well worth your while to hire an experienced employment attorney in Riverside.

The fact of the matter is, more employers than ever are trying these tactics, seeing how far they can push the envelope to get away with it. The tanking economy is a big factor in all of this.

Companies all over the country are trying to cut costs and simply keep their heads above water. Couple that with the fact that fewer and fewer unions are in place to protect workers, as well as government budget cuts that result in fewer enforcement actions, and this is something that we’re likely to see rise exponentially in the next handful of months and years.

In fact, some two-thirds of low-income workers report experiencing some form of wage theft on a weekly basis. That’s according to a study three years ago involving some 4,500 low-wage workers in Chicago, New York and Los Angeles.

Broken down a little more, that’s more than $50 per week, on average, per worker. That’s a huge blow for them individually, but it adds up to have a huge impact on our overall economy. A study recently just in Houston, TX alone discovered that workers lose more than $750 every single year due to wage theft.

Part of the problem for workers is that they may not realize what wage theft actually looks like. Sometimes, it’s blatantly failing to give you pay that you’ve earned. In other cases, it’s mislabeling you as an independent contractor, so that the company can avoid paying unemployment insurance on you. That also means that if you get laid off, you have no unemployment protection. For many people, especially those living paycheck to paycheck, that can mean the difference between losing their home or slipping into bankruptcy.

And often, if you have been hit with a wage theft or wage violation, others with the company have been as well. In the case of the Michigan home health care worker, the government had received three additional complaints from other workers.

In fact, the City of Los Angeles is among several that are actually considering additional laws that would help combat wage theft.
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Orange County wage disputes are a particular problem for those who either work for small companies or individuals.

Wage Dispute Attorney Houman Fakhimi understands that nanny’s or home health care employees often fall into this category. Although what they do is still work – any way you slice it – employers have a tendency to fall into a comfort zone with these individuals being “part of the family.” And in some ways, certainly, they are and that can be one rewarding aspect of these positions. The fact of the matter is, however, this is still a job, they are still paid employees and they deserve to be treated with the same considerations under state and federal labor laws.

That is the issue for the former nanny of A-list Actress Sharon Stone. The former employee is alleging religious and racial discrimination, as well as a wage dispute. A spokesman for Stone has called the allegations frivolous and absurd, but the outcome remains to be seen.

Here’s what we know of this case so far, as reported by The Los Angeles Times, which recently obtained the civil court filling:

The nanny was first employed by the actress initially to look after one of Stone’s three children in 2006. Then in 2008, the nanny was promoted to responsibility for caring for all three children. This included an extensive amount of travel, as well as living with the actress and her family.

She remained employed with Stone’s family through February of 2011.

During those years,the complaint alleges, Stone made frequent disparaging comments about her employee’s religious beliefs as a devout Christian, forbade her from reading the Bible in her home and criticized her for attending church.

Additionally, the woman said that Stone made her feel that her Filipino heritage was somehow offensive. One example that was given was that the nanny was reportedly instructed not to speak much around the children so that the kids would not pick up her speech patterns.

Ultimately, however, the nanny said she was fired in 2011 after Stone reportedly learned she had accepted the overtime she was owed. Stone’s staff reportedly paid the overtime – as required by state law – but Stone then alleged that the woman had “stolen” it and that acceptance of that money was “illegal.”

Of course, what’s important to note at this time is that we’re really getting only one side of the story. If all this is indeed true, the employment law violations are egregious.

A lot of times in cases involving celebrities, the stars will simply settle, not wanting to drum up additional publicity that would put them in a bad light.

What we’re really talking about in this case is discrimination and a wage dispute.

With regard to the discrimination, what may be difficult to prove in this regard is whether those allegations are true. Unless the nanny has some form of proof or other individuals who heard Stone say these things, it may end up being a situation of she-said-she-said. That doesn’t mean it didn’t happen, just that it can be more of a challenge for a labor law attorney to prove.

The case may actually hinge more on the issue of overtime.

California state law requires that non-exempt employees who are over the age of 18 are prohibited from working more than 8 hours a day or 40 hours in a week without overtime compensation. The law indicates that this compensation is to consist of the employee’s regular rate of pay, plus half that amount for each hour worked. If an employee works more than 12 hours in a single day, his or her pay rate is actually doubled.

If you think you may not have been paid the overtime you deserve, consult an experienced Orange County wage dispute attorney.
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In a case that could impact some current and future Santa Ana employment litigation suits, California’s Supreme Court has ordered that employers don’t have to make sure their workers take mandated lunch breaks.

Santa Ana Employment Lawyer Houman Fakhimi knows that for decades, state law has required employers to provide rest and meal breaks to workers. However, in 2001, California became one of the only states to hand down monetary penalties for companies that violate the meal and rest break laws. In fact, employers who break the law must pay affected employers one-hour’s wages for every half-hour break that was missed.

Federal law, meanwhile, doesn’t require a break.

A celebrity television chef must fork over more than $5 million after employees said he stiffed them on their tips, thereby violating the federal Capsolas v. Pasta Resources Inc. – pitted chef Mario Batali against a hot of workers who said he cheated them out of tips made specifically on wine sales.

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In the business world, companies strive to make the most amount of money they can on a given product or in whatever service the business offers and sometimes that profit comes in the form of attempts to cut back on employees’ wages.

Wage disputes in Irvine and throughout Southern California must be treated seriously because they are serious offenses. In this economy, with unemployment high and many people struggling to make ends meet, any time a company tries to cut back wages unlawfully, the worker must stand up for their rights.

Our Irvine employment lawyers understand that employees want to keep their jobs. They need to work and they don’t want to rock the boat. At the same time, employees mustn’t be scared of their employers, but rather they should fight for their rights and stand up for what is right.

Wage disputes come in many different forms and California’s employment laws provide various forms of protections for employees who may have problems being paid for work.

Starting at the beginning of 2012, California lawmakers added new protections for workers so they don’t have to deal with companies attempting to rip them off through their pay. One specific law, called the Wage Theft Protection Act, means that all newly hired employees must be provided with specific information regarding their work:

-Rate of pay -Applicable overtime rates -Food, lodging or other allowances used against minimum wage -Regular paydays -Business address and mailing address of company’s main office -Company phone number -Contact information for company’s workers’ compensation insurer -Other needed information
This is designed to provide employees with as much information as possible so that they aren’t taken by surprise when the company tries to make sudden changes or to try to show the employee they can’t earn what they should. Because of deceptive practices in the past, lawmakers have created this new law so that everything is put in writing when a person is hired so there is no confusion if bosses attempt to make changes.

Our Irvine employment lawyers believe this will be a good step toward ending some common wage disputes in our area. By making sure all the facts are put on paper up front, the employer shouldn’t be able to find any loopholes to try to make changes to pay or to try to short the worker for money that was earned on the job.

There are many more ways, however, that a company and employee can run into disputes regarding their pay. One of the biggest is whether an employee can earn overtime. One of the most common ways companies try to profit off their workers are when they classify a person as a “manager” just so they can’t earn overtime, yet they still get an hourly wage or don’t receive “management-level” benefits. Time and time again, companies try this trick until a group of workers fight back.

Illegal deductions from a paycheck or issues with bonuses are also problems that workers sometimes have with their bosses. And the only way to get a resolution is to bring it to the company’s attention. Simply allowing the problem to persist will allow it to happen over and over.
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