IT’S another year, another chance to make things right. In these uncertain economic times, some employers may attempt to cut costs to bolster profits. Cost-cutting to curb wastefulness may be necessary. However, cutting corners at the expense of employee rights may be illegal. Employees who want to protect themselves by being more vigilant of their rights in the workplace may want to pay attention to the following:
Overtime – The actual overtime compensation is computed at 1.5 times the employee’s regular rate (“time and a half”) and is multiplied by the number of hours in excess of 8 hours per day or 40 hours per week. Overtime hours that exceed 12 hours per day or exceed 8 hours on the seventh consecutive work day are computed 2 times the regular rate (“double time”). Overtime hours must be paid to the employee no later than the next pay period after the overtime was incurred.
Meal Breaks – California law mandates that an employee must receive an uninterrupted 30-minute meal break for every 5 hours of work. ‘Uninterrupted’ means the employee must be relieved of all duty during the 30-minute meal break. If the employee is working while eating, the employee is still considered “on-the-job” and the 30 minutes is counted as time worked. Simply being able to eat is not enough. The employee should stop working for the 30-minute duration. Employees not provided meal breaks are entitled to an additional 1 hour’s pay at the employee’s regular rate. Working during a meal break may also trigger an overtime issue.
Rest Breaks – Rest breaks must be authorized in 10-minute duration for every 4 hours of work, or a major fraction of 4 hours. A rest break need not be authorized for employees whose total daily work time is less than three and one-half (3 ½) hours. Unlike the meal period, the time allotted for rest period is counted as minutes or hours worked. Employees who are not provided a rest break are entitled to an additional 1 hour’s pay at the employee’s regular rate.
Disability Discrimination – California law prohibits discrimination based on disability or medical condition. An employer may not refuse to hire, train, or promote an employee based on disability. An employer may not terminate an employee or discriminate against the employee in compensation or other conditions of employment based on the employee’s disability or medical condition. If a disabled employee is unable to perform his or her old duties, the employer must engage in a timely, good faith interactive process in response to the disabled employee’s request for reasonable accommodation.
“Independent Contractor” Misclassification – Even if the worker has agreed to be classified as an independent contractor or has agreed to receive a 1099, this does not mean that the worker has been correctly classified as an independent contractor. The independent contractor status is determined by law, not by the parties’ agreement. Independent contractors are not employees and, therefore, do not have the same rights and protections that employees enjoy. It is to the worker’s benefit, that he or she be correctly classified and treated as an employee. Misclassifying a worker as an independent contractor may deny the worker the proper compensation and benefits due to him or her.
Illegal Employer Retaliation – An employer may not retaliate against an employee in some manner (for example, by firing, suspending, demoting or assigning to a less advantageous position) because the employee complained about an employer’s violation of a labor right, or reported the employer to government agencies for violating state or federal laws. California’s anti-retaliation laws allow employees to pursue remedies against a retaliating employer, including the right to recover damages and attorneys’ fees or to seek injunction against the employer’s retaliation.
When Leaving Employment – The employer must immediately pay all compensation due, including wages for all hours worked, overtime pay, pay for missed meal and rest breaks, and pay for unused vacation time (if any). “Use it or lose it” vacation pay policies are illegal. If the employee resigned from work, the employer must pay all compensation due within 72 hours of the resignation. If the employee gave more than 72 hours’ notice of resignation, then all compensation due must be paid on the last day of work.
* * *
C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the followaing areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayas law.com or contact his office by telephone at (818) 291-0088.
(Advertising Supplement)
| < Prev | Next > |
|---|
