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A worker recently asked whether his now-former employer should have included sick time and vacation time in his final paycheck. He wrote: “I’m no longer working for [the employer] and I thought I was going to get my paid time off with my last check such as … sick time and vacation time. What happened?”
A worker recently asked whether his now-former employer should have included sick time and vacation time in his final paycheck. He wrote: “I’m no longer working for [the employer] and I thought I was going to get my paid time off with my last check such as … sick time and vacation time. What happened?”
A qualified employment lawyer would have to look over that employer’s specific policies and have more information on the circumstances to provide a more complete answer for this particular incident. However, California’s laws on the general rules for the final paycheck are the starting point.
When an employer terminates a worker without advance notice, all wages and earned but unused paid vacation are due and payable immediately.
Earned Vacation Pay Must be Included in Final Check: California does not require an employer to provide paid vacation to any of its workers. However, when a business does offer this benefit, an important rule applies. Our article “California Vacation Pay” observes: “Under California law, whenever the employment relationship ends, for any reason whatsoever, and the employee has not used all of the employee’s earned and accrued vacation hours, the employer must pay the employee these hours.”
Sick Pay May Not Have to be Included, Depending on the Specific Company Policy: California also does not require an employer to provide paid sick time to any of its workers. However, when a business does offer this benefit, another rule generally applies. Our introduction article, “California Sick Leave and Sick Pay”, states: “If such an employer does provide paid sick time, a worker has the right to take it as long he or she complies with company rules on the subject. Unlike vacation pay benefits which accrue and are payable on termination if not previously used, business can specify a “use it or lose it” policy on paid sick time, e.g., any portion of entitled sick pay an employee does not utilize in a set period (usually a calendar year) lapses and is no longer available. Typically workplace policies specify new amounts of available paid sick time for each successive annual or other period. It is up to the California employer to decide how much benefit to offer each year or other period.”
The situation may not be so clean-cut. Some workplace policies combine paid vacation days, personal days and sick days into a single “paid time off” policy. In this instance, all such days are an accruing benefit and the employer must pay the amount equal to the earned but unused days at termination. Again, it requires full review of an employer’s exact policies to give a fuller answer in specific circumstances.
For help to employers on how to structure and administer paid vacation, sick and personal day’s policies, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.
While employers are barred by federal law from knowingly employing unauthorized immigrants, companies are also barred from treating any immigrant unfairly, whether or not authorized to work in the U.S. New California laws for 2014 provide the strongest anti-retaliation protections for immigrant workers in the country. This legislation penalizes employers who threaten to report immigration status of an employee in retaliation for his/her exercising rights to complain over workplace conditions:
While employers are barred by federal law from knowingly employing unauthorized immigrants, companies are also barred from treating any immigrant unfairly, whether or not authorized to work in the U.S. New California laws for 2014 provide the strongest anti-retaliation protections for immigrant workers in the country. This legislation penalizes employers who threaten to report immigration status of an employee in retaliation for his/her exercising rights to complain over workplace conditions:
Employers should of course ensure their required I-9 procedures are in place. These new laws establish that businesses are prohibited from attempting to “leverage” any immigration or citizenship status to thwart a worker from complaining about wages or other workplace practices or conditions or to punish an employee for having done so. Worker complaints over such practices or conditions should be fielded and resolved thoroughly and professionally. Employers should ensure supervisors refrain from making any threats to use a worker’s immigration status against him or her.
For more information concerning an employer’s obligations under California or federal employment laws, contact one of our attorneys Tim Bowles or Cindy Bamforth.
The California legislature has amended the California Fair Employment and Housing Act (FEHA) to clarify that sexual harassment does not require proof of sexual desire.
The California legislature has amended the California Fair Employment and Housing Act (FEHA) to clarify that sexual harassment does not require proof of sexual desire.
The amendment overturns Kelley v. Conco Companies (2011) 196 California Appellate 4th series (Cal.App.4th) 191, a same-sex harassment decision covered in our sexual harassment training seminars. The case arose in part from a male supervisor losing his temper with Patrick Kelley, a male apprentice ironworker. The supervisor’s tirade included graphic, vulgar, and sexually explicit remarks. He told plaintiff he wanted to perform various sodomizing acts on him and that sexual intercourse with him would be better than with plaintiff’s wife. The supervisor also commented about plaintiff’s body and said he would look good wearing little girl’s clothes. Kelley later sued employer Conco and the supervisor for sexual harassment.
The Kelley appeals court held the defendant employer and supervisor not liable as plaintiff failed to prove “sexual intent,” i.e., there was no evidence that the heterosexual male supervisor sexually desired the male plaintiff. “The mere fact that words may have sexual content or connotations, or discuss sex is not sufficient to establish sexual harassment.” Id. at 205.
Singleton v. U.S. Gypsum Co. (2006) 140 Cal.App. 4th 1547, another California appeals court case we have covered in training seminars conflicted directly with this Kelley decision. In Singleton, the court found an employer could be liable for same-sex harassment as such conduct did not have to be motivated by sexual desire.
California Government Code section 12940(j)(4)(c) is now amended to resolve this split in legal authority, adding the sentence: “Sexually harassing conduct need not be motivated by sexual desire.”
This FEHA amendment underscores the need for employers to provide harassment prevention training and education to all California supervisors and to take all complaints of offensive behavior seriously, including same-gender harassment allegations.
To schedule an on-site training session with one of our firm’s attorneys Tim Bowles or Cindy Bamforth, or to seek our guidance on management’s handling or prevention of sexual harassment complaints, visit our website or contact the Law Offices of Timothy Bowles directly at (626) 583-6600.
On our article“Caring for Caregivers,”a recent visitor to ourwebsiteasked: “How much is housing and meal value [in my area] for a private household worker under California Wage Order 15?” As in every area of employment law, the answer of course depends on the circumstances.
On our article “Caring for Caregivers,” a recent visitor to our website asked: “How much is housing and meal value [in my area] for a private household worker under California Wage Order 15?” As in every area of employment law, the answer of course depends on the circumstances.
California regulates the wages and hours of workers through a series of 17 “Wage Orders,” published by the Industrial Welfare Commission (IWC). An employer must know which of these Wage Orders applies to its particular business or its particular types of employees. For instance, Wage Order 1 covers most manufacturing companies, Wage Order 2 covers “personal service” companies (e.g., beauty salons, health clubs), and Wage Order 4 covers most “white collar” office workers. An IWC pamphlet, available on-line and current to 2013, provides detailed descriptions of all such orders.
Wage Order 15 covers employees engaged in so-called “household occupations,” services related to the care of people or premises in a private household. These include housekeepers, cooks, and home caregivers.
Employing such workers involves special rules not present in most other industries, in part complicated by whether the worker is “live-in” or “non-live-in.” See the “Caring for Caregivers” article for more of the requirements.
When Live-In Household Workers Must be Paid Overtime, Special Rules: Wage Order 15 specifies household workers who reside on the employer’s premises for at least 120 hours per week or spend five consecutive days or nights per week residing on the employer’s premises are normally exempt from overtime requirements (but not minimum wage).
However, Wage Order 15 also requires employers provide live-in employees at least 12 hours free of duty each day, with an additional three or more hours free during each 12-hour work span. Live-in employees that work during such free hours are entitled to overtime at 1.5x times their regular rate of pay. (For calculating “regular rate,” see our blog “Working Overtime in California.”
Wage Order 15 also specifies that when a live-in employee works more than five days in any one workweek without a day off of not less than 24 consecutive hours (except in specially defined emergencies), the employer must pay overtime at 1.5x regular rate up through nine hours worked in the sixth and seventh days and 2.0x regular rate for any hours worked over nine in the sixth and seventh days.
Wage Order 15 specifies different overtime rules for non-live-in household workers, akin to the daily and weekly overtime rules for workers in many other industries. Again, see, “Working Overtime in California.”
Room and Board for Household Workers: An employer and household worker may agree in writing to satisfy at least a portion of the minimum wage requirement by crediting the value of meals and lodging the employer provides to that employee.
However, the employer may not set a “market value” for such credits but must follow the specific chart provided in Wage Order 15. For lodging, the credits may not be more than:
If the employer utilizes the “two-thirds ordinary rental value” measurement for the value of lodging, this could of course vary depending on where the live-in arrangement is located. Such employer would thus have to take care to document the basis of its calculations, including current consumer price index rates for comparable housing. Of course, just paying the $381.20/month or $563.90/month would be the safer avenue, even if those levels happened to exceed the applicable “two-thirds ordinary rental value.”
Under Wage Order 15, the meal credits may not be more than:
The definitions and rules for household workers in California have many other aspects.Our firm’s attorneys Tim Bowles or Cindy Bamforth can assist employers with such questions or issues.
United Parcel Service, Inc. (UPS) essentially “won” an age discrimination case when a California jury awarded an ex-employee only $27,280 in damages. That relative victory was short-lived, erased by the trial judge awarding the worker $700,000 for her attorney fees. The appeals court recently upheld this decision.Muniz v. United Parcel Service, Inc. (9th Cir. 2013) 738 F.3d 214.
United Parcel Service, Inc. (UPS) essentially “won” an age discrimination case when a California jury awarded an ex-employee only $27,280 in damages. That relative victory was short-lived, erased by the trial judge awarding the worker $700,000 for her attorney fees. The appeals court recently upheld this decision. Muniz v. United Parcel Service, Inc. (9th Cir. 2013) 738 F.3d 214.
Kim Muniz sued employer UPS alleging, in part, that supervisor Ron Meyer demoted her based on gender and age discrimination and retaliation in violation of California’s Fair Employment and Housing Act (FEHA), California Government Code 12900 and following sections. UPS argued it had promoted Muniz beyond her level of competence and Meyer was simply the first to recognize Muniz’s failings.
The jury found Muniz’s gender wrongfully motivated UPS to demote her and was a substantial factor in causing her harm. However, while Muniz requested damages totaling over $700,000, the jury only awarded her $27,280 — $9,990 for lost earnings, $7,300 for past medical expenses and $9,990 for past non-economic losses.
Both sides claimed victory and sought payment from the other for attorney fees under FEHA, Government Code section 12965(b). The court found Muniz the prevailing party, at which point she requested $2,000,000 in attorneys’ fees (some 73 times the damages award). The district court judge then awarded her some $700,000, or 26 times the jury’s damage award.
UPS appealed the $700,000 assessment, claiming Muniz didn’t deserve that much after her very limited success at trial. However, the appeals court was unsympathetic, ruling that “a trial court does not under California law abuse its discretion simply by awarding fees in an amount higher, even very much higher, than the damage awarded, where successful litigation causes conduct which the FEHA was enacted to deter [to be] exposed and corrected.’”
This case underscores that employers must consider the possibility of attorney fee awards to prevailing employees in FEHA discrimination cases even if the worker’s claims appear to be relatively weak. Of course, to reduce the potential for employee claims as much as possible, employers should take effective measures to prevent unlawful workplace conduct. Employers should also always promptly and thoroughly investigate all complaints of discrimination, harassment or retaliation and take effective remedial action as necessary. Company managers must always act as part of the solution to any such claim and, whether out of neglect or other ill-advised reaction, never place themselves in a position where they can be perceived as part of the problem.
For more information or assistance, please contact the Law Offices of Timothy Bowles, 626-583-6600 or visit our website at Law Offices of Timothy Bowles.
Despite staffing cuts, hiring freezes and sequestration woes, the U.S. Equal Employment Opportunity Commission (EEOC) recovered a record $372.1 million for its private sector workplace discrimination charges — $6.7 million more than it recovered the year prior.
Despite staffing cuts, hiring freezes and sequestration woes, the U.S. Equal Employment Opportunity Commission (EEOC) recovered a record $372.1 million for its private sector workplace discrimination charges — $6.7 million more than it recovered the year prior.
The EEOC enforces federal anti-discrimination in employment laws. According to the EEOC’s Fiscal Year 2013 Performance and Accountability Report (PAR), the EEOC received a 93,727 private sector discrimination charges. Although some 6,000 less than the prior three years, it still ranks among the agency’s top five.
The EEOC has continued to focus on systemic enforcement, targeting unlawful patterns, practices or policies which broadly impact an industry, profession, company or geographic area. Systemic practices include discriminatory barriers in recruitment and hiring; discriminatory restricted access to management training programs and to high level jobs; exclusion of qualified women from traditionally male dominated fields of work; unlawful pre-employment inquiries aimed at detecting disabilities; and age discrimination by reductions in a workforce.
The EEOC reports 300 systemic investigations in fiscal 2013 resulting in 63 settlements or conciliation agreements totaling some $40 million. Agency lawsuits filed for systemic enforcement represented over 20 percent of all active suits in that 2013, the largest proportion since tracking started in 2006. The EEOC also obtained more than $160.9 million in monetary benefits for complaining employees through mediation resolutions, the second highest level in the agency’s history.
If you as employer don’t wish to contribute to any further groundbreaking statistics, we can help. For more information concerning California or federal employment laws, contact one of our attorneys Tim Bowles or Cindy Bamforth.
The California Assembly passed earlier this year the “Healthy Workplaces, Healthy Families Act of 2014” (Assembly Bill [AB] 1522), sending it over to the Senate for consideration. If passed into law, the measure would mandate all employers to provide at least three paid sick days per calendar year to all workers who qualify. There is currently no sick pay requirement under federal or California law.Seeour article,Don’t get Sick of Sick Pay – An Overview of California Paid Sick Leave.
The California Assembly passed earlier this year the “Healthy Workplaces, Healthy Families Act of 2014” (Assembly Bill [AB] 1522), sending it over to the Senate for consideration. If passed into law, the measure would mandate all employers to provide at least three paid sick days per calendar year to all workers who qualify. There is currently no sick pay requirement under federal or California law. See our article, Don’t get Sick of Sick Pay – An Overview of California Paid Sick Leave.
This is the Legislature’s third attempt to enact such a law (previously in 2008 and 2011). In its current form, AB 1522 would direct that eligible workers earn (accrue) at least one hour of paid sick leave for every 30 hours worked and may start using such benefits after three months of employment.
The California Labor Federation, AFL-CIO supports AB 1522 contending it will guarantee “every California worker paid time off to recover from illness, care for a sick family member, or bond with a new baby. AB 1522 also protects workers claiming this benefit from employer retaliation.” While observing that many employers already voluntarily offer non-accruing sick leave to full-time workers, the California Chamber of Commerce’s objects to the bill for its creating a “huge burden” on employers through required expansion of benefits to temporary, seasonal, and part-time employees.
Connecticut is currently the only state that requires paid sick day benefits. Several cities, including New York, Washington, D.C., Portland, Seattle and San Francisco, mandate such benefits.
There are economic risks for an employer who misclassifies a worker who should be employed as an independent contractor. A wide range of California and federal agencies have the power to impose back taxes, interest and penalties upon companies who unsuccessfully attempt the tactic.
There are economic risks for an employer who misclassifies a worker who should be employed as an independent contractor. A wide range of California and federal agencies have the power to impose back taxes, interest and penalties upon companies who unsuccessfully attempt the tactic.
California placed greater deterrents on the practice in 2012. Labor Code sections 226.8 and 2753 permit certain officials or a court to impose civil penalties between $5,000 and $25,000 for each instance of willful misclassification against both employers and any individual adviser (other than a lawyer) who “knowingly advises an employer to treat an individual as an independent contractor to avoid employee status”.
The agency or court directing such payment must also direct the business or person to post a notice on its website for one year, specifying that the company has violated the law, has had to change its business practices in order to cease doing so, and that employees who believe they were also misclassified may contact the Labor and Workforce Development Agency. See also, “Personal Liability and Mandatory On-Line Flogging for Misclassifying Employees as Independent Contractors.”
Boiled down, employers can impose their oversight and control over an employee’s daily production while independent contractors are, well, independent, free to provide services to the hiring party by any means the contractor chooses. However, there are never any absolutes. Determination of “employed” or “contracted” status is an exercise in comparing and balancing many factors, sometimes conflicting, on the degree and manner of control. Two recent California appeals court decisions illustrate how this is always a case-by-case proposition.
In Bain v. Tax Reducers, Inc. (2013) 219 Cal.App.4th 110, the California Court of Appeal found that an accountant working for a tax preparation and bookkeeping firm was an employee and not an independent contractor as the company had classed him. The court noted the firm required the accountant to:
• attend staff meetings;
• have his work reviewed before it went to clients;
• do administrative functions and fill out time sheets like employees did;
• do work the firm assigned to him; and
• work the hours the company established.
The court also pointed out that:
• the accountant had no other clients,
• he primarily used supplies and equipment provided by the company,
• the company marketed him as its worker and he did not market himself,
• he was at-will,
• he performed a function central to the firm’s services to the public,
• the firm reimbursed his expenses,
• he did not invoice the company,
• he did not use subcontractors or his own employees to do any of the work.
In contrast, in Beaumont-Jacques v. Farmers Group, Inc. (2013) 217 Cal.App.4th 1138, another California Court of Appeal panel found that a district manager for a group of related insurance companies was an independent contractor. The manager hired agents, who had to be approved by the company, and she trained and motivated the agents to sell the company’s products. Most importantly, the court found that even though she had to follow the company’s “‘normal business practice’ and ‘goals and objectives,’” the company did not control “to any meaningful degree the means by which [she] performed and accomplished her duties as a district manager.”
The court also observed that the manager:
• determined her own schedule, including hours, breaks, and vacations;
• hired and supervised her own staff and withheld taxes for them;
• she did administrative functions in her own office; and
• paid her own costs, such as a lease, telephone and office supplies, and deducted them on her tax return, which she filed as an independent contractor.
The court found her properly classified as an independent contractor even though she was required to and did prepare reports and attend meetings of district managers.
As a relatively few pennies of prevention is clearly more sensible than the many thousands that it may cost to resolve a classification gone wrong, businesses should confirm any contractor relationship is soundly defined and justified as independent in practice. For assistance, please contact attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also, “Independent Contractors and Employees Avoiding Misclassification of Hired Workers in California.”
Copyright infringement has two sides: a) protecting your own copyrighted material and b) avoiding violations of another’s copyrighted work.
Copyright infringement has two sides: a) protecting your own copyrighted material and b) avoiding violations of another’s copyrighted work.
The U.S. Copyright Act, section 106, gives a copyright owner exclusive rights to the control of an original work, including reproducing it, publicly displaying it, publicly performing it, making derivative works, and selling, leasing or licensing it to others. Infringement occurs when someone uses another’s work or part of it in these and other ways without the owner’s permission.
To prove copyright infringement, in the simplest terms, the owner must show that he or she owns the copyright to the work in question and that the infringing item is a copy of the original. Copy does not necessarily mean an exact duplicate. The owner can prove this element by showing that the “copy” is substantially similar to the owner’s original and that the infringer had access to the original. If the alleged infringer came up with the same idea independently and created a similar work without any access to that original, there may not be an infringement.
Sometimes the analysis is simple. For example, if you wrote a book, another’s publication of the identical text under a different name and cover would clearly be copyright infringement. Unauthorized use of another’s original photo for the cover of a music album or a secret video recording from the audience of a first run movie for production of pirated DVDs are also examples.
The situation may be less than clear-cut if, for instance, you and another happen to each write original music which sounds similar for a few notes or bars. Two individuals painting the same landscape with similarities in treatment may also be possible trouble, but then again, may not. For some real-life close-calls, see the blog “5 famous copyright infringement cases (and what you can learn).”
The livelihoods of copyright lawyers depend on accurately analyzing such scenarios. However, while an experienced practitioner can and will offer his or her perception of whether similar works present a potential infringement, experts inevitably will differ in more complex cases.
If is of course far preferable to consult a copyright attorney over potential infringements before any “cease and desist” letter or, worse, a lawsuit arises from another copyright holder. If you need help with such issues, you can contact our Of Counsel attorney, Helena Kobrin.
Related articles: The Annals of Copyright Number 1, When in Doubt, Choose Contract Over Lunch (on the importance of written agreements for the use of copyrighted material) and The Annals of Copyright Number 2, You May Have a Copyrighted Work and Don’t Know It (on the definition of a copyrighted work).