Blog

Use it or Lose it Vacation Policies in California

By Peter Levine posted in Employment Law on September 20th, 2013

Another form of wages

In California, vacation pay is considered to be another form of wages. Because they are considered wages, they cannot be taken away from an employee by any “use it or lose it” policy. However, California does not require that an employer provide its employees with either paid or unpaid vacation time.

If an employer does have an established policy, practice, or agreement to provide paid vacation, then certain restrictions are placed on the employer as to how it fulfills its obligation to provide vacation pay. Earned vacation time are considered wages, and accrue, or “vest”, as labor is performed. For example, if an employee is entitled to two weeks (10 work days) of vacation per year, after six months of work he or she will have earned five days of vacation. This type of pay accrues (adds up) as it is earned, and cannot be forfeited, even upon termination of employment, regardless of the reason for the termination.

In other states, employers have the right to set a date by which employees must take their accrued vacation. Employers can stipulate that employees who don’t take vacation by this date will forfeit the accumulated time-off. “Use it or lose it” policies should be clearly communicated to all employees in employment manuals and employees must be given a reasonable opportunity to use their time.

Plan your vacation time

Employees should make every effort to plan  time off well in advance to lessen the likelihood that they will not be able to use their time. Make every effort to cover your work if you need to take time off on short notice or as a deadline for using the time is approaching. If an employer requires you to work during a planned vacation period due to unforeseen work demands, negotiate with your supervisor for a carry-over of your time or some accommodation and ask them to put it in writing.

And, unless otherwise stipulated by a collective bargaining agreement, upon termination of employment all earned and unused vacation must be paid to the employee at his or her final rate of pay. Labor Code Section 227.3 The California Legislature, in order to ensure that vacation plans were fairly and equitably handled, provided that the Labor Commissioner was to “apply the principles of equity and fairness” in resolving vacation claims.

Domestic Worker Bill of Rights Approved by State Legislature

By Peter Levine posted in Employment Law, Unpaid Overtime on September 19th, 2013

Could mark a huge step forward for domestic worker rights

The California State Legislature has approved a bill, “AB-241,” also dubbed the Domestic Worker Bill of Rights, that could mark a huge step forward for domestic worker rights in the state and could make California the second state in the nation after New York to pass such a bill.

Introduced by Democratic Assembly member Tom Ammiano, the bill guarantees overtime pay for domestic workers who work more than nine hours per day or 45 hours per week.

“Growing up, I saw first-hand how hard domestic workers labor without basic worker protections that most of us take for granted,” said coauthor Senator Kevin de León in a press release about the passing. “My mother worked her fingers to the bone cleaning other people’s homes. I’m proud to be a coauthor for this long-overdue measure which will end the historic exclusion of this industry from overtime pay.”

The Senate has approved the bill with amendments 22-12, with the Assembly approving the changes shortly after. Governor Brown now has until October 13 to sign the bill.

Should Brown sign it, he will then convene a committee to review the success of the bill. Lawmakers will have three years to make it permanent.
Brown killed a similar bill last year, arguing that it would place an extra burden on employers, particularly with low-income, elderly or disabled individuals who need constant care.

Senate version focuses on overtime pay for workers

Initially AB-241 included other worker rights, such as meal breaks, sick days and workers’ compensation. The amended version created by the Senate focuses strictly on overtime pay.

“We obviously believe these workers should have all of these rights, but the overtime is by far the most important element we were looking for,” explained Ammiano Communications Director Carlos Alcalá. “We’re happy to go forward with the bill as it is.”

The bill has seen support across the state. In March, hundreds of housekeepers, child-care providers, as well as other domestic workers marched in protest of worker’s rights.

Ammiano’s office said that the bill “rights a historic wrong.”

“Senate passage of the Domestic Workers Bill of Rights is one more step in a movement to make sure these workers get the kind of labor protections they deserve,” wrote Ammiano. “This movement is taking place all over the country and won’t be over until domestic workers rights are spelled out in every state. When this bill gets final approval and signature, California will be a leader in that movement.”

CFPB receives complaints from workers receiving pay on debit cards

By Peter Levine posted in Employment Law, Law on September 18th, 2013

So-called payroll cards used in lieu of traditional pay methods

The Consumer Financial Protection Bureau (CFPB) has issued a bulletin as a result of recent complaints it has received from workers regarding receiving their pay on debit cards, or so-called payroll cards.

According to a 2011 survey done by Federal Deposit Insurance Corp. nearly 4 million U.S. households, or 3.2 percent, have someone who receives wages via a payroll card. The cards are often used by people who do not have bank accounts.

Complaints from workers received included fees for withdrawing cash and checking card balances. Critics of these cards are reporting that the high fees on the cards mean that some workers are essentially making less than minimum wage.

The agency said that by law workers must be able to choose how they receive their wages and that companies cannot require employees to receive their pay this way and that there must be other options. If they choose to be paid with payroll cards, they are entitled to various protections such as disclosure of fees.

McDonald’s challenged for use of payroll cards

A woman who worked at a McDonald’s in northeastern Pennsylvania recently filed a class-action lawsuit challenging the company’s use of payroll cards.
Attorneys for the restaurant owners have said the debit cards are “the functional equivalent” of cash or checks and that the employees consented to the method of payment.

The consumer agency states it has received reports of companies, especially in the retail and food-service industries, paying wages only through debit cards, rather than offering payment options. The agency said it has the authority to enforce the law against anyone in violation, including employers as well as the banks that issue payroll cards.

“The bureau intends to use its enforcement authority to stop violations before they grow into systemic problems,” it said. The CFPB is doing what it can to ensure that the companies comply with the consumer-protection laws for the employees.

Hello world!

By Scott posted in Uncategorized on September 17th, 2013

Welcome to WordPress. This is your first post. Edit or delete it, then start blogging!

Women’s Track Coach Alleges Discrimination

By Peter Levine posted in Discrimination, Employment Law on September 17th, 2013

Suspended for a Prior Relationship

Former Texas women’s track and field coach Bev Kearney, who alleged discrimination based on gender, race and retaliation in an official charge last spring, has not yet filed a lawsuit against the university but likely will within the next month. Coach Kearney won six national titles in track at UT.

Kearney was suspended when school officials discovered she had had a relationship with a student some ten years prior. Kearney alleges she was disciplined for an offense for which other coaches have not suffered similar discipline. Kearney resigned after she claims she was told by school officials they were prepared to fire her.

Case Depends on Similar Offenses

Her case will depend on the extent to which she can show other coaches or other staff members committed the same or similar offense and were then treated more leniently.

The employee must show 1) the comparator is truly comparable, and 2) the offense is the same or similar. And, her case has another twist. The fact she resigned adds another twist. The law recognizes that some situations are so intolerable that a person feels they must quit, but, the situation must be so bad that a person’s health is at stake, or the treatment is so degrading. Under Title VII, a person is not entitled to any remedies if s/he voluntarily quits.

There will surely be an issue regarding the extent to which her termination was truly imminent or likely.

After six months, an employee can ask the EEOC for permission to file suit. The 180-day anniversary of Kearney’s initial complaint with the Equal Employment Opportunity Commission and the Texas Workforce Commission has now passed. In that document, she said she was “subjected to a severely hostile work environment” and former coach intends to sue soon.

UT officials have said they disagree with the allegations in her claim of discrimination, but said they would review them “thoroughly.”

Construction Workers to Receive Unpaid Wages After 6 Years

By Peter Levine posted in Employment Law on September 16th, 2013

Workers Were Not Paid Pevailing Wages

2,051 construction workers, who were employed by Hensel Phelps Construction Company and 172 subcontractors, will now finally receive the wages they are owed for working on the 1,190-room Hilton San Diego Bayfront Hotel from 2006 to 2008.

California Labor Commissioner Julie A. Su announced that $8,072,273 in unpaid prevailing wages has been collected on behalf of the workers in the Commission’s latest sweep to hold contractors and subcontractors accountable for labor law violations in California.

The workers were responsible for almost every aspect of the project; including a wide variety of tasks ranging from foundation drilling to concrete pouring to erection of steel, and even landscaping. Christine Baker, director of the state’s Department of Industrial Relations, determined that the project was a public work because it was paid for out of public funds due to a $46.5 million rent credit provided by the Port of San Diego, which leased the land to the hotel owner.

The San Diego Superior Court issued a writ of mandate reversing the determination of Baker and finding the project was not a public work. The California Court of Appeal for the Fourth Appellate District reversed the trial court and affirmed Baker’s decision.

“This office will vigorously enforce prevailing wage law to collect all of the wages owed to workers,” said Labor Commissioner Julie A. Su. “Prevailing wage laws help ensure that public dollars are used to fund quality construction and good jobs that can support families in California.”

Unpaid wages exceed $8 million

A third party administrator will be paid by Hensel Phelps Construction Company to handle claims for the $8,072,273 owed to the workers. In addition, Hansel will help defray the investigation costs by paying an additional $400,000 to the Labor Commissioner.

The Labor Commissioner’s office reported that last year, more wages and penalties were assessed on public works jobs than any year since 2002.

If you feel your employer has not complied with prevailing wage laws, or has withheld wages from you, it’s important that you look into your legal options with a lawyer who can help.

Overtime Wages: Personal Assistant To A Pop Star

By Peter Levine posted in Employment Law, Unpaid Overtime on September 13th, 2013

Available throughout each hour of the day

A onetime roommate and friend of Lady Gaga (listed in the litigation under her birth name – Stefani Germanotta) is claiming that she was cheated out of her overtime wages after serving as the pop star’s personal assistant for more than a year.

The judge, U.S. District Judge Paul Gardephe said both sides agree she was expected to be available as needed throughout each hour of each day. Gardephe ruled that Jennifer O’Neill’s “on-call” time potentially qualifies for overtime compensation.

Gardephe noted that lawyers said Lady Gaga and O’Neill frequently slept in the same bed while on tour because O’Neill was required to address Lady Gaga’s needs throughout the night, and thus never had her own hotel room.

“Every day is a work day for her, so every day is a work day for the rest of us,” she said. “There is no, ‘We’re going to stay in, we’re going to sleep.’ There is no, ‘Let’s put on sweatpants and go out to the movies and be girlfriends.’ It doesn’t work like that,” O’Neill said.

“You don’t get a schedule”

In her deposition testimony, Lady Gaga had testified: “You don’t get a schedule. You don’t get a schedule that is like you punch in and you can play … at your desk for four hours and then you punch out at the end of the day. This is when I need you, you’re available.”

O’Neill testified she was responsible for sometimes monitoring the singer’s email and telephone communications and for handling all her luggage – generally 20 bags – including clothing, accessories, makeup and toiletries. She was also responsible for making sure that “special food” was available at every location and for Gaga’s schedule.

She said she assisted with costume changes during performances and was responsible afterwards for arranging ice packs, tea and a shower, along with dinner and an exit from the venue.

The judge noted that the women met after Lady Gaga moved into O’Neill’s apartment building on the Lower East Side of Manhattan before 2008, when they became roommates and friends. O’Neill was offered a position as her personal assistant because they were friends and she had experience in the music industry, court papers said.

As with all cases, it will be up to a jury to decide whether Gaga’s demands left Jennifer O’Neill any personal time or whether she was on call 24 hours a day, seven days a week, as she is claiming.

Breastfeeding in the Workplace

By Peter Levine posted in Employment Law, Law on September 12th, 2013

Health professionals and public health officials promote breastfeeding to improve infant health. Breast milk contains antibodies that protect infants from bacteria and viruses. Breastfed children have fewer ear, respiratory and urinary tract infections and have diarrhea less often. Breastfeeding also provides long-term preventative effects for the mother, including an earlier return to pre-pregnancy weight and a reduced risk of pre-menopausal breast cancer and osteoporosis.

Fair Labor Standards Act (FLSA) requires breaks for mothers

It’s important for both employers and employees to be aware that the Fair Labor Standards Act (FLSA) requires breaks for mothers to express breast milk during the workday. Breastfeeding requires supportive environments, including workplaces.

A provision of the FLSA requires employers to provide a reasonable amount of break time, as well as a private and clean space to express milk as frequently as needed and wanted by a nursing mother, for up to one year following the birth of the child. Here are some other requirements:

– The space must be shielded from view and free from intrusion by coworkers or the public.
– The use of a bathroom is not an acceptable space to provide to nursing mothers expressing milk.
– Nursing employees must have access to this space each time they need to express milk.
– The frequency of breaks needed to express breast milk as well as the duration of each break depends on several factors and may vary.

The Labor Department’s Wage and Hour Division has published an employee rights card that outlines the FLSA’s basic requirements and break laws and also includes a list of resources where additional information can be found. It also includes a QR code that can be scanned with a smartphone and shares how to file a complaint with the division in case a woman feels her rights have been violated.

This year the Labor Department is celebrating the 75th anniversary of the Fair Labor Standards Act. The FLSA was passed in an effort to end oppressive child labor as well as establish minimum labor standards regarding workers’ “wages and hours.” The “nursing mothers” provision is just one way the FLSA has evolved over the decades to protect and strengthen an ever-changing and growing workforce.

Facebook Post Leads to Workplace Suspension

By Peter Levine posted in Employment Law on September 11th, 2013

According to multiple reports Tori Christina Jenkins, a black waitress at a Red Lobster in Franklin, Tenn., was allegedly left a racist message via a receipt after serving two customers. Rather than leaving a gratuity the customer apparently wrote, “None n**ger” in the tip section. Jenkins posted a screen shot of the receipt on Facebook and was then suspended by her employer.

According to her Facebook page, Jenkins has worked at Red Lobster in Franklin since December 2012. Both Jenkins and her father posted the screen shot of the message to Facebook. Her father noted that he hopes it will make people more aware “[t]hat we still have much ignorance to overcome.” Since posting the receipt Jenkins has received an out-pouring of support.

Suspension was company’s “standard procedure”

Red Lobster spokesman Mike Bernstein, citing the company’s “standard procedures,” said in an email that the company has temporarily suspended Jenkins with pay as a result of the incident. In this case the violation is for publicly posting a receipt. But Bernstein emphasized that Jenkins has not missed a single day of work because of her suspension and is still scheduled to work this week as usual.

Bernstein added that Red Lobster is “extremely disturbed” by the situation and is currently investigating to determine exactly what happened.

“We take this extremely seriously,” he wrote. “This kind of language is completely disgusting and has no place in our restaurant or anywhere else, and we are committed to getting to the bottom of what happened as quickly as possible.”

Jenkins has since pulled down the photo of the offensive receipt.

San Francisco Giants Pay Thousands in Back Wages

By Peter Levine posted in Employment Law, Unpaid Overtime on September 10th, 2013

Violations of the Fair Labor Standards Act

Major League Baseball’s San Francisco Giants have paid nearly $545,000 in back wages and damages to 74 clubhouse and administrative employees for violations of minimum wage, overtime and record-keeping laws after the Department of Labor investigated the team’s practices regarding pay for their clubhouse and administrative workers.

The investigation from the Wage and Hour Division found that, over three-year time period, the team violated the Fair Labor Standards Act’s minimum wage, overtime, and record-keeping laws.

The employment agreement for clubhouse workers stipulated that they would make $55 for working 5.5 hours a day. According to the investigation they were actually working 12 to 15 hours.

It was found that the club also improperly classified some employees in a way that enabled them to avoid paying overtime. And they failed to pay overtime, or paid too little overtime to some administrative staffer.

“I am encouraged that the Giants acted to resolve this issue, but it was disappointing to learn that clubhouse workers providing services to high-paid sports stars weren’t making enough to meet the basic requirements of minimum-wage law,” Susana Blanco, the director of the San Francisco District Office of Labor’s Wage and Hour Division, said in a statement.

“The San Francisco Giants worked cooperatively with the Department of Labor in conducting a comprehensive review of our payroll records to identify and address any possible issues of concern,” said Staci Slaughter, a spokeswoman for the Giants. “The matter was resolved and reported on several months ago.”

The Giants entered into an agreement with the DOL to ensure future compliance with the law. The DOL will also work with Major League Baseball to ensure that all other teams are complying with these laws.

This settlement comes at a prominent time for wage theft issues. Claims of wage theft have increased 400 percent since 2000. More than two-thirds of low-income workers have experienced wage theft violations according to a 2009 report.

Let's Get Started
Schedule a Free Consultation

3+7 =

I have read and understand the disclaimer

Call Us (323) 934-1234

Office Location
Follow Phillips Lerner, A Law Corporation on Twitter Connect with Phillips Lerner, A Law Corporation on Facebook. Linked In Profile for Phillips Lerner, A Law Corporation YouTube
We provide legal services & no cost consultations to individuals in the following languages, Spanish, Chinese, Vietnamese