Collect Your Final Paycheck: The California Waiting Time Penalty

Employers who terminate an employee are faced with the clear and sometimes onerous obligation to  immediately pay the employee all of their unpaid wages. Employers who fail to do so face the consequence of paying the employee the waiting time penalty for each day that the wages are not paid, in addition to the unpaid wages.  (Lab. Code §§ 201, 203.) A similar obligation is triggered when an employee suddenly quits, requiring the employer to pay all wages within 72 hours. (Id.) Both employees and employers should be cognizant of the California waiting time penalty.

What does the law actually say and how is the law applied?

There are three separate laws that describe a California employer’s obligations to pay final wages and the associated waiting time penalty for employers who fail to do so. 

First, the law makes clear, “if an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.” (Lab. Code § 201.) California courts have confirmed that this law means exactly what it says; final wages must be paid on the same day of termination. Furthermore, the employer must also pay the employee all other technical forms of wages, including paid time off (“PTO”), commissions, and bonuses.

Second, “If an employee quits his or her employment, his or her wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit.” Even if an employee abruptly quits the employer must still pay the employee their final wages within three days. Courts have clarified that an employer’s 72-hour window to pay begins only after receiving actual or constructive notice of the resignation.  (Nishiki v. Danko Meredith P.C. (2018) 25 Cal.App.5th 883, 890.)

Finally, Labor Code section 203 defines the waiting time penalty itself, “If an employer willfully fails to pay, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date; but the wages shall not continue for more than 30 days.”  This means that the waiting time penalty itself depends on the employee’s daily rate of pay.  

Courts have repeatedly interpreted the term “willfully” in Labor Code section 203 to mean that the employer “intentionally failed or refused to perform an act that was required to be done,” or “that the person knows what he is doing, intends to do what he is doing, and is a free agent.” (Nishiki v. Danko Meredith, P.C. (2018) 25 Cal.App.5th 883, 891.) In other words, to obtain the penalty the employee does not need to prove that the employer intentionally sought to defraud the employee of his or her final wages. (Nishiki v. Danko Meredith, P.C. (2018) 25 Cal.App.5th 883, 891 [The word “willful” does not imply anything blameworthy, malice toward the other party,  or an evil purpose to defraud employees of wages.”].) 

Furthermore, Courts have confirmed that ignorance of California’s sometimes draconian labor laws is not a defense. (Diaz v. Grill Concepts Services, Inc. (2018) 23 Cal.App.5th 859, 869.) Employers cannot claim as a defense that they were unaware of the final paycheck requirement. 

How is the waiting time penalty calculated? 

The amount of the waiting time penalty depends on the employee’s daily rate of pay. (Lab. Code § 203.) Calculating an employee’s daily rate of pay for purposes of the statute can be somewhat confusing, especially if the employee’s wages or hours worked fluctuate from week to week, or if the employee receives occasional commission payments. The rule of thumb, however, is that the daily rate of pay is calculated in a manner that is very favorable to the employee and assures a larger than expected waiting time penalty. The maximum waiting time penalty of thirty days will always exceed what the employee actually earned in salary or wages in any given month while employed. 

As an example, an employee who works five days per week and earns $80,000 per year in salary would have a daily rate of pay of $307.69 per day for a maximum waiting time penalty of $9,231, even though the employee’s average monthly salary was just $6,667.00.  An article that discusses the calculation of the daily rate of pay in detail may be found here.

As the statute makes clear, there is a thirty-day cap on the waiting time penalty. The waiting time penalty stops at thirty days, once the owed wages are fully paid, or once the employee files a lawsuit. (Lab. Code. § 203.)  

How do employers end up owing the waiting time penalty?

There are several common ways that employers may end up owing a waiting time penalty to their former employees. 

First, employers will not infrequently require employees to wait until the next normal pay day to give the employee their final paycheck. This approach may be appealing for the many employers who have third-party payroll companies issue pay checks, however the practice immediately triggers liability for the waiting time penalty unless the normal pay day coincidentally falls on the day of termination. 

Second, final wages are due regardless of the employee’s conduct or performance as an employee. The world’s worst employee must still be paid immediately upon termination or within 72 hours of their resignation.

Third, employers frequently end up being liable for a waiting time penalty if they misclassify their workers as salaried or “exempt” employees, if the employer allows off-the-clock work to occur, or if the employer fails to pay overtime to an hourly or “non-exempt” employee. 

To illustrate, take the hypothetical case of Jared, a former employee of Hot Dog on a Stick.  Jared is hired as a restaurant manager for Hot Dog on a Stick and is classified as a salaried or “exempt” employee earning $50,000 per year. However, Jared spends the majority of his time engaged in non-exempt duties such as frying food, squeezing lemons, and washing uniforms rather than exempt duties of hiring and managing the restaurant’s other workers. Jared also works an average of 50 hours  per week. 

When Jared is fired for theft of food, his employer correctly pays him his last and final paycheck on the actual day of termination, as calculated by his $50,000 salary. However, his final paycheck fails to include the many overtime hours that Jared should have paid all along given that he was an improperly classified exempt employee. His final paycheck therefore did not include all of Jared’s earned wages, triggering the waiting time penalty. Jared may sue his former employer for non-payment of overtime wages and also the associated waiting time penalty. 

How may an employee collect their waiting time penalty? 

Most employers do not automatically pay the associated waiting time penalty.  This means that the employee must take action to collect the penalty, either on their own or with the help of an employment law attorney.  An employee may negotiate directly with their former employer, file a civil lawsuit, or may file a claim with the Labor Commissioner. Before attempting to file any type of lawsuit, employees should contact a plaintiff’s employment law attorney to see if representation may be warranted. Most employment attorneys take such cases on contingency and will obtain a result that is greater than what the employee could obtain on his or her own. 

Have  you been recently terminated from your job? Contact the Law Office of Brian Mathias to see if you may be entitled to the California waiting time penalty. 

The Great Commission: California Employee Commission Payments

Commissions, like bonuses, are a form of incentive compensation. Incentive compensation is money paid to an employee, in addition to the employee’s salary or wage, to encourage increased performance from the employee or to retain the employee’s services for a longer period of time.

What are commissions? 

Commissions are a form of employee wages and are legally defined as “compensation paid to any person for services rendered in the sale of [an] employer’s property or services and based proportionately upon the amount or value thereof.” (Cal. Lab. Code § 204.1.) In plain English, commissions are money, stock options, or other forms of compensation issued to an employee for having met predetermined performance standards, such as the sale of the employer’s products. The predetermined performance standards are determined in advance on a contractual basis, meaning that the actual benchmarks that must be satisfied by the employee to earn the commission will vary on a case-by-case basis. 

Any contract to pay commissions must be in writing. (Cal. Lab. Code § 2751.) This contract, called a Commission’s Agreement, must describe how any commissions are calculated, when the commissions must be paid, and what benchmarks (called “conditions precedent”) the employee must satisfy in order to earn the commission. 

Commission’s Agreements can take a number of different forms. Most frequently, the employee will receive a fixed percentage on every dollar of sales made, or in the alternative, the employee may receive a fixed percentage of sales made after reaching a predetermined quota of goods sold (i.e. five percent of all products sold or 10% after $150,000.00 of goods have been sold.) 

What happens to an employee’s right to receive commissions if they are fired?

Many employers require an employee to be currently employed in order to receive a commissions payment. This is highly problematic for the employee who performs most of the expected legwork to generate a commission, but is then abruptly terminated just prior to finalizing the underlying sale, thereby depriving the employee their commission. 

The law on this particular subject is very complicated. However, a terminated employee’s right to collect a commission for work performed depends on a number of factors, including: 1) The language of the underlying written Commission’s Agreement between the employer and employee;  2) Whether the employee was terminated in violation of the California Fair Employment and Housing Act or other public policy; 3) Whether the employee was terminated for good cause, malfeasance, or theft; and 4) Whether the employer committed fraud against the employee to evade paying the employee their commission. Employees who  have been terminated in violation of the California Fair Employment and Housing Act or other public policy stand a much greater chance of being able to collect their unpaid commissions than employees who have simply been terminated for actual or perceived poor performance.   

How can employees collect an unpaid bonus or commission?

Once a commission or bonus is earned by the employee, it essentially becomes the employee’s property. Legally, the non-payment of an earned commission is viewed no differently than the non-payment of the employee’s wages or salary.   An employee can use a variety of legal procedures to collect any unpaid commission or bonus, including a civil lawsuit, to collect their unpaid wages. If an employee prevails in a civil lawsuit against their employer to collect their unpaid commission, the employee may also be entitled ten-percent interest, court costs, the employee’s reasonable attorney’s fees, waiting time penalties, and penalties under the Labor Code Private Attorney General Act (“PAGA”.) In many instances, the penalties and attorney’s fees associated with an unpaid commission or bonus will exceed or be many times larger than the unpaid commission itself. This incentivizes aggrieved employees to vigorously enforce their rights and pursue unpaid commissions.  

Are you owed any unpaid commissions or bonuses? Contact the Law Office of Brian Mathias today. 

This is Going In Your Personnel File! All About California Employment Records.

Current and former California employees have a right to inspect certain employment records kept by their employer. These include the employee’s personnel file and payroll records. This article briefly discusses some of California’s employment record keeping requirements.

The Personnel File.

A personnel file is commonly understood as the collection of documents kept by an employer about a particular employee. California’s Labor Code states (1) what documents must be kept in a personnel file, (2) how current and former employees may request and inspect their personnel file, and (3) what penalties employers face if they refuse a lawful employee request to inspect their personnel file.  (Cal. Lab. Code § 1198.5.)

California law does not provide much guidance for what documents must actually be included in the employee’s personnel file. However, the law does specify that the file must include “records that the employer maintains related to the employee’s performance or any grievance concerning the employee.” Therefore documents such as disciplinary write-ups, records of verbal warnings, reprimands, performance improvement plans, suspensions, performance evaluations, and termination letters must be kept in the employee’s personnel file. California also states that an employee, upon request, shall be given a copy of “any signed instrument related to the obtaining or holding of employment.” (Cal. Lab. Code § 432.)  Therefore, any contracts signed by the employer and employee such as commission agreements, agreements for bonus compensation, employment contracts, signed employee handbooks, and arbitration agreements must be produced along with any request for the employee’s personnel file.

California law also provides some examples of what documents do not have to go into an employee’s personnel file including records relating to the investigation of a criminal offense and letters of reference. Law enforcement personnel also have separate rights related to the maintenance and inspection of their personnel files.

How to inspect your personnel file.

Both current and former employees have a right to inspect their own personnel files following the submission of a written request to their employer. While the law states that the inspection may be done in-person at the place of employment, the common practice is to mail or email the employee a copy of the records in lieu of an in-person inspection. Employers may elect to charge the employee for the actual reproduction costs of the personnel file (i.e. $0.10 per page).  

Importantly, employers are required to produce the personnel file for inspection within 30 days of receipt of the employee’s request.  Employers who do not permit the inspection face a $750.00 penalty. The employer may also be sued by the employee through a civil lawsuit or at the Labor Commissioner if records are not produced. Under certain circumstances, the employee may recover their attorney fees if a lawsuit was required to compel production of the personnel file.  

Payroll Records.

Payroll records are commonly referred  to as “pay stubs” and are legally referred to as  “itemized wage statements”. In contrast to personnel files, California is very strict in regard to what employee payroll information must be kept by the employer.  

California requires employers to provide an accurate and written itemized statement showing: (1) the gross wages earned (ithe amount before deductions) (2) the total hours worked by the employee, (3) the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis (the number of units sold, picked, miles driven, etc.), (4) all deductions (taxes and withholdings), (5) net wages earned (the amount after deductions are taken), (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and only the last four digits of his or her social security number or an employee identification number other than a social security number, (8) the name and address of the legal entity that is the employer; and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours (the employee’s regular hourly rate and any overtime rates). (Cal. Lab. Code § 226(a).)

The itemized wage statement must be provided to the employee semi-monthly and even more frequently in some circumstances. The failure to maintain any records or even providing the employee with inaccurate payroll information by mistake can expose the employer to very harsh penalties of up to $4,000 per employee, as well as penalties under the Labor Code Private Attorney General Act (“PAGA”).

Like personnel files, current and former employees have a right to inspect their payroll records even when the payroll records were furnished to the employee on a regular, semi-monthly basis. Employers must produce payroll records no later than 21 days of the employee’s request and employers who fail to timely produce records face a $750.00 penalty as well as paying the employee’s attorney fees.

Employees who believe they have been fired as a result of unlawful discrimination, retaliation, or harassment will often request their personnel file and payroll records shortly after their termination. If you have been terminated and would like assistance requesting and reviewing your own employment records, contact the Law Office  of Brian Mathias.

Don't Mess with My Vacation! All About California Vacation Pay Law

Don't Mess with My Vacation! California Vacation Day Law

After an employee’s salary and employer-paid health insurance, there is probably no employment perk more coveted than vacation days. An employee’s decision to apply for employment often rests on the generosity of the employer’s vacation day policy and how frequently the employee will be paid to not work at all. This article provides an overview of California’s laws and regulations for paid time off.

What is Paid Time Off?

Paid time off is commonly referred to as “PTO” or “Vacation Pay”. Legally, PTO is treated as a form of a wage; in other words, it is a benefit that belongs to the employee once it is earned.  There is no California requirement that employers provide their employees with any PTO or other form of paid vacation. This is in contrast to California paid sick leave, which must be offered to all California employees. Unlike other forms of leave, paid time off is not a form of “protected leave”, meaning the employer does not have to guarantee the employee reinstatement to their position upon their return from vacation.

Because offering paid time off is purely voluntary, an employer may legally choose to offer a certain amount of paid time off to some employees, and less to others. For instance, an employer may offer better vacation benefits based on seniority to encourage employee retention.

Which Laws Apply to Vacation Pay?

Even though the decision to offer any paid time off is voluntary, employers who choose to offer paid time off to their employees are subject to certain California laws related to the accrual and payout of vacation pay

First, paid time off that has been earned (called “vested and accrued” paid time off) is considered a form of wage or property that belongs to the employee. Just like regular money wages, any vested and accrued paid time off must be paid out upon the employee’s termination of employment. That payment must occur immediately if the termination was involuntary (i.e., a firing) and the payout must occur within 72 hours if the termination was voluntary (i.e., a resignation) (Cal. Lab. Code §§ 201-203). In contrast, unused sick time is not paid out upon the termination of employment.

Second, employers are strictly prohibited from maintaining a “use it or lose it policy” with regard to their employee’s PTO. This means that an employer cannot simply take away an employee’s PTO if it remains unused by a certain deadline. This situation frequently arises with employers who maintain a policy that prohibits the employee from transferring his or her PTO from one year of employment to the next. Any other policy that causes an employee to forfeit his or her vested and accrued paid time off violates California law.

Third, even though employers cannot revoke paid time off that has already been earned by the employee, employers are legally allowed to place a preemptive cap on the total number of vacation hours that may be earned by the employee. For instance, it is lawful for employers to maintain a vacation policy that permits employees to earn a maximum of 80 vacation hours per year. Similarly, as long as employers do not take away paid time off that has already been earned, employers may modify existing vacation policies.

Fourth, some employers offer a sick day/vacation day hybrid, sometimes called “personal days” or “floating holidays”, which may be used for both medical purposes and for the purpose of vacation. Hybrid personal days are treated as paid time off under California law and therefore must be paid out upon the termination of employment. Similarly, these hybrid personal days must offer the same or greater level of protection as regular sick-days.

Lastly, although employees have a clear legal right to eventually get paid the monetary value of their vested and accrued paid time off, employers are in the driver’s seat when it comes to allowing employees to actually use their paid time off. Generally speaking, an employer may decide when an employee may schedule their vacation, how many work days the employee may miss, and otherwise control the terms under which vacation time may be used by employees, even if the employee has available paid time off (Rhea v. General Atomics (2014) 227 Cal.App.4th 1560, 1572-1573).

What are an Employee’s Rights Related to PTO?

Employers who do not pay their former employees in a timely manner the full value of the employee’s remaining vacation pay face a legal claim for unpaid wages and associated penalties. Employees may also recover a “wait-time” penalty for any late or unpaid vacation hours (Labor Code §§ 201-203). The wait-time penalty is equal to a full-day’s wages, up to 30 days, in the case that the employee’s vested and accrued vacation pay goes unpaid by the employer (Id.) Employee’s may also recover their attorney fees in a lawsuit for unpaid vacation hours.

Do you have a question about your own vacation pay? Contact the Law Office of Brian Mathias.

California Protected Leaves of Absence: Sick Leave

California’s laws regarding medical leaves of absences can be tricky to understand. For starters, have you heard of the FMLA, CFRA, FEHA, PDL, HWHFA, PSL, or PFL?  Probably not, and even most California lawyers could not begin to tell you the difference between the legal abbreviations. Assuming you knew what the abbreviations meant, do you know which protected leave applies to large employers versus small employers? Or which type of leave allows a new father to take paternity leave? What about which type of leave provides you with the right to reinstatement?

This article provides and overview of California’s sick leave laws and is part of a series discussing each type of employment leave of absence. The article discussing California’s Baby Bonding leave may be viewed here and the article discussing California’s Pregnancy Disability Leave Law may be viewed here.

What is sick leave?

Sick leave is the least protective form of a medical leave of absence available to California employees, essentially requiring employers to provide just three days of paid sick leaves per year to employees who need to miss work for a medical reason. Unlike other forms of medical leave, sick leave does not require the employee to have disability or that the employee be seriously ill.

There are two forms of sick leave in California: Kin Care and sick leave under the Healthy Workplaces Healthy Families Act (HWHFA). Although Kin Care and the HWHFA are technically separate laws, they are most easily understood as one concept and are discussed together in this article.

What is the minimum amount of sick leave that must be offered?

Only after the enactment of the HWHFA in 2015 did California require employers to offer any sick leave to their employees. Now all private and public employers must offer a minimum of 24 hours worth of paid sick leave annually -the equivalent of just three work days. While many employers offer more than the 24 hour minimum, this is voluntary and is not legally required of the employer. All but very short term or very new  employees have the right to at least some sick leave under the HWHFA.

What can employees use sick leave for?

An employee does not actually need to be ill to take sick leave under the HWHFA; only a medical reason is required to use the leave. Routine medical appointments, medical diagnoses, check-ups, and any form of preventative care are all allowable reasons to take accrued sick leave. (Cal. Lab. Code § 246.5(1)).

Both the HWHFA and Kin Care allow employees to use their own accrued sick leave to care for the medical needs of certain family members. The legally recognized family  members include children, parents, grandparents, siblings, spouses, and Registered Domestic Partners. (Cal. Lab. Code § 245(4)(c)(1-7)). Not  included among the legally protected list of family members are in-laws, girlfriends, boyfriends, fiancés, nephews, nieces, cousins, housemates, partners, or pets. (Id.)

Sick leave may also be used by an employee who is a victim of domestic violence, sexual assault, or stalking.

What must an employee do to take sick leave?

Employees only need to submit a verbal or written request to take accrued sick leave. (Cal. Lab Code § 246.5 (a)). If the reason to take the paid sick leave is foreseeable, the employee is required to provide reasonable advance notification to the employer.  (Cal. Lab Code § 246(l)). If the reason for the sick leave is unforeseeable (i.e. a sudden illness) the employee is only required to provide notice for the leave as soon is reasonably possible. (Id). Employers cannot require the employee to find a substitute or replacement employee as a precondition of taking paid sick leave. (Cal. Lab Code § 246.5 (b)).

There no requirement that employees provide their employers with a doctor’s note to verify the reason for the sick leave. (Cal. Lab Code § 246.5 (a)). Employers who require employees to provide a doctor’s note or who pry into the reason for the leave can be sued for interfering with the employee’s right to use sick leave.

What are an employer’s obligations under California’s sick leave laws?

Employers are required to grant an employee’s request to take paid sick leave if the employee has accrued sick leave available and the absence is for a legally covered purpose.

Employers are also required to document the total amount of paid sick leave on the employee’s biweekly pay-stub (sometimes called a “wage statement”). (Cal. Lab. Code § 246(i)). Unlike vacation pay or paid time off, employers do not have to pay the employee the value of the unused sick leave when the employee is fired or quits.  

What are an employee’s legal rights under California’s sick leave laws?

In short, employers cannot give their employees a hard time for taking sick leave. Employers are prohibited from denying the employee the ability to use accrued sick leave, and are prohibited from firing, threatening to fire, demote, suspend or any manner discriminating against an employee for using or attempting to use sick leave.  If an employee is fired, suspended, or otherwise discriminated against within 30 days of complaining about an unlawful sick leave practice there is a rebuttable presumption that the firing/suspension was retaliatory. (Cal. Lab. Code § 246.5(2)).

Employees may sue their employers for violating California’s sick leave law requirements and may seek monetary damages for lost wages and benefits, emotional or psychological damages (called “general damages”), as well as attorney fees and costs.

Do you have questions about California’s sick leave laws? Contact the Law Office of Brian Mathias.

California Protected Leaves of Absence: Pregnancy Disability Leave

California’s laws regarding pregnancy and medical leaves of absences can be tricky to understand. For starters, have you heard of the FMLA, CFRA, FEHA, PDL, HWHFA, or PFL?  Probably not, and even most California lawyers could not begin to tell you the difference between the legal abbreviations. Assuming you knew what the abbreviations meant, do you know which protected leave applies to large employers versus small employers? Or which type of leave allows a new father to take paternity leave?

This article series will discuss each type of protected leave in detail. This article provides an overview of California’s Pregnancy Disability Leave Law (called “PDL” or “PDLL” for short). A separate article discussing California’s Baby Bonding leave may be viewed here.

What is Pregnancy Disability Leave?

Pregnancy Disability Leave is one of several types of “legally protected” maternity and/or pregnancy leaves of absences available to California employees. A leave of absence is “legally protected” if an employer is prohibited from interfering with an employee who exercises her right to take and use the protected leave (i.e. protected from termination).

A pregnancy disability leave lasts up to four months, one month longer than another common type of pregnancy-related leave of absence through the California Family Rights Act (“CFRA”). The employee may use the four months continuously, or in smaller increments of time totaling four months called “intermittent leave”. An employer is not required to continue paying the employee her wage or salary while the employee is on leave. However, the employer must continue the employee’s employer-provided health insurance and must reinstate the employee to her old position and rate-of-pay upon returning from her leave of absence.

Even though a Pregnancy Disability Leave is unpaid by the employer, an employee with a pregnancy disability may qualify simultaneously for a form of public assistance offered by the State of California called Paid Family Leave or “PFL”, a different law entirely from PDL, where the employee is paid a portion of their normal wages for up to ten weeks.

Who Gets to Take Pregnancy Disability Leave?

An employee’s right to take a Pregnancy Disability Leave requires their employer to be a “covered employer” and also requires that the employee is an “eligible female employee” permitted to take the leave. (2 C.C.R. 11035 (g)).

The most unique aspect of California’s Pregnancy Disability Leave law is that most private employers are covered employers required to provide leave if the employee is eligible. An employer is required to provide PDL if they have five or more employees. (2 C.C.R. 11035 (h).) The five employees can be part-time or full-time. If the total number of employees fluctuates during the course of the year prior to the employee’s requested leave, an averaging method is used to calculate the total number of employees. All California governmental entities are covered employers. (2 C.C.R. 11035 (h).)

An employee is an “eligible female employee” entitled to take PDL if they are an employee who is “disabled by pregnancy, childbirth, or a related medical condition”. (Cal. Gov't. Code § 12945). Importantly, there is no length of service requirement for an employee to be eligible for PDL. In contrast, other forms of pregnancy and medical leave required the employee to have been employed for a minimum of one year and to have worked for 1,250 hours in the past twelve months, excluding new employees. Under California’s PDL law, even brand-new employees must be provided with the leave if they are otherwise eligible. Spouses and fathers are not protected under California’s PDL law.

What Types of Medical Conditions Qualify Under PDL?

Being pregnant does not automatically qualify an employee as eligible to take PDL. The employee must be disabled by pregnancy, childbirth, or a related medical condition. Being “disabled” by pregnancy, childbirth, or a related medical condition means that in the opinion of a medical care provider, the employee is unable to perform one or more “essential functions” of their position. (Cal. Gov't. Code § 12945 (a); 2 C.C.R. 11035 (d).) An essential function of the employee’s position is an integral or critical job component, in contrast to a marginal or occasional job requirement.

California provides a non-exhaustive list of example medical conditions that may qualify for PDL; remember that some of these medical conditions arise after the birth of a child when the employee is no longer pregnant: severe morning sickness, prenatal or postnatal care, bed rest, gestational diabetes, pregnancy-induced hypertension, preeclampsia; post-partum depression, actual childbirth or recovery from childbirth, loss or end of pregnancy, and medical complications with lactation or breastfeeding. (2 C.C.R. 11035(d)(f).) Although women experiencing “normal pregnancies” are not eligible for PDL, given that actual child birth is a protected medical condition, all pregnant women who give birth will be eligible at least once during their pregnancy.

To complicate matters, an eligible employee under California’s Pregnancy Disability Leave law may also qualify for other forms of legally protected leave.

What Must an Employee do to Take Pregnancy Disability Leave?

Assuming the employer is a covered employer and that the employee is eligible to take leave, the employee is next required to provide timely verbal- or written-notice sufficient to make the employer aware that the employee needs pregnancy disability leave. (2 C.C.R. 11050). Typically, the notice is provided in the form of a written note from a medical provider (i.e. a doctor’s note). Notice is considered “timely” if provided within 30-days before the leave is to commence. However, if providing less than thirty-days’ notice is not possible, for instance, due to a sudden medical diagnosis, the employee must only provide notice to the employer “as soon as practicable”.

If required by an employer, the employee must provide a medical certification to their employer confirming that they are disabled by pregnancy, stating the accommodations required by the employee, and providing the estimated duration of the leave. (2 C.C.R. 11050). An employer has a very limited ability to pry further into the medical details of an employee’s pregnancy disability or otherwise challenge the medical certification. Id.

What are a Covered Employer’s Obligations Under California’s Pregnancy Disability Leave Law?

Employers covered by California’s PDL have clear but very rigorous obligations with regard to employees who are disabled by pregnancy, employees who request and/or take a Pregnancy Disability Leave, and employees who are returning from a protected Pregnancy Disability Leave.

Employers do not have to continue paying the employee’s salary or wages during the Pregnancy Disability Leave, however, employees may apply accrued paid time-off (“PTO”) towards the absence if they choose to do so. Employers must, however, continue any employer-provided health care coverage for an employee while she is on a Pregnancy Disability Leave.

An employer’s clearest obligation under California’s Pregnancy Disability Leave law is to reinstate the employee to her old position and rate-of-pay upon returning from the leave. In other words, after the employee returns from her four-month leave, the employee must be given her exact job back or a virtually identical position that she held prior to the disability leave in terms of pay, benefits, working conditions, schedule, and status. (2 C.C.R. 11035 (i)(j).) There are very limited exceptions and defenses available to employers who do not reinstate their employees after returning from leave.

Lastly, employers are required to provide a specific form of written notice to their employees regarding the employee’s rights to take Pregnancy Disability Leave. This obligation is triggered when the employer learns that the employee is pregnant or when the employer learns that the employee needs a Pregnancy Disability Leave. (2 C.C.R. 11051).

What Are an Employee’s Legal Rights Under California’s PDL law?

Employers are prohibited from interfering with, or retaliating against, an employee who exercises their rights to take Pregnancy Disability Leave or who attempts to exercise those rights. Unlawful “interference” includes refusing to reinstate an employee at the end of a protected leave or refusing to grant a Pregnancy Disability Leave altogether.

Employees may sue their employers for violating California’s Pregnancy Disability Leave law and may seek monetary damages for lost wages and benefits, emotional or psychological damages (called “general damages”), as well as attorney fees and costs.

Do you have questions about California’s Pregnancy Disability Leave law? Contact the Law Office of Brian Mathias.

What Are Your Rights as an Independent Contractor?

The term “independent contractor” is commonly understood as a person, who is not an employee, who provides labor or services to another person or company. While an employee is understood to be under the control, guidance, and authority of an employer, by contrast an independent contractor is generally understood to be an actually independent person in business for themselves.

In California, the rights of an independent contractor depend on whether they have been properly classified under the law as an independent contractor, or in the alternative, if they have been misclassified and are in-fact an employee. There are potentially very severe repercussions for misclassifying an employee, even if the misclassification was unintentional. Misclassifying an employee as an independent contractor can trigger stiff overtime wage obligations, taxation, and withholding liabilities, and protections against unlawful termination under the California Fair Employment and Housing Act (called the “FEHA”). For instance, a properly classified independent contractor is not entitled to overtime, even if they work longer than 8 hours per day or 40 hours per week. Similarly, since a properly classified independent contractor is not an employee, they by definition cannot have their employment terminated—let alone, unlawfully terminated—in violation of the independent contractor’s civil rights under the FEHA. Every year it generally gets tougher for an employer to properly claim their workers are independent contractors; California wants workers to be classified as employees and not as independent contractors.

It is therefore critical to have a basic understanding of how California determines whether a person providing labor to another is properly classified as an independent contractor, or is in-fact an employee.

How is an Independent Contractor Defined in California?

To complicate matters, California does not have a traditional definition of “independent contractor”. First, California has a general presumption that “any person rendering service for another, other than as an independent contractor, is presumed to be an employee.” (Cal. Lab. Code § 3357). It is assumed that a person providing services to another is an employee; it’s then up to the employer to prove that the worker is an independent contractor.

Remembering the general presumption, California typically uses two multi-factor balancing tests called the “ABC Test” and the “Borrello factors” to determine if a person has been properly classified as an independent contractor. The new “ABC Test” is thought to be more favorable to employees than the older “Borrello factors”, and the underlying employment issues dictate which test is used.

What are some of the factors courts look at?

This article does not discuss or list all the underlying factors in both tests. However, here are some of the more important factors courts look at and how they are applied.

The level of employee control. Both independent contractor tests look at whether the person hiring the contractor (called the “principal”) has the right to control the manner and means by which the worker accomplishes the work. In other words, the worker must be free from the control and direction of the person hiring them and mostly make their own decisions about how to get the job done. The more of a principal’s rules, policies, and procedures the independent contractor must follow, the more likely it is they are actually an employee. Independent contractors who must report to a specific place of work each day, who must work a schedule set by the principal, or who must wear a company uniform are probably not true independent contractors.

Whether the worker performs labor outside the usual course of the hiring entity’s business. Both tests look closely at what type of labor and function the worker is performing for the principal and how integral that employee’s work is to the principal’s business. For example, at a restaurant the jobs of cooking and preparing food, waiting tables, and washing dishes are integral to its core purpose of making and selling food. It would be difficult to argue that workers performing those functions are proper independent contractors. On the contrary, the function of repairing computers is not integral to the operation of a restaurant, even if computers are incidentally used in the operation of the business. Therefore, a worker hired periodically to repair the restaurant’s computers may very well be an independent contractor.

Whether the worker is engaged in an independently established trade or occupation of the same nature as the work performed. Both tests look to whether the worker is actually an independent business person, or on the contrary, whether they work exclusively for the principal as an employee would. In other words, does the independent contractor hold him or herself out to the public at-large as being able to perform the same type of work? For example, a tech consultant with their own LLC, website, business cards, and a long list of current clients would likely be a true independent contractor. On the contrary, an in-house tech support worker who only performs services for a single company and does not hold themselves out as a separate business is likely to be classified as an employee.

Independent Contractor Myths

Employers will frequently assert that if an employee uses their own tools they are automatically independent contractors. This is not the case. Whether or not a worker supplies their own “instrumentalities and tools” is just one factor in the multi-factor independent contractor test. Furthermore, to the extent that a worker provides their own tools, courts will determine how much investment the employee has in those tools (i.e. the cost of those tools). A restaurant chef that brings his own knife to work each day would not automatically be classified as an independent contractor, especially, if that same chef worked for one restaurant on a full-time basis and cooked a menu to the restaurant’s owners’ specifications.

Employers often over-rely on a contract with the worker, sometimes called an Independent Contractor Agreement. In these agreements, the worker and the principal agree in-writing, sometimes from the beginning of their relationship, that the worker will be designated as an independent contractor. These types of agreements are often void as contrary to California public policy, especially if minimum wage and overtime allegations are at issue. Even if the contract is not automatically void, the parties’ belief that they are in-fact creating an employer-employee relationship or principal-independent contractor relationship is just one factor in a multi-factor balancing test to determine the worker’s classification.

Repercussions for Misclassifying Independent Contractors

In California, employees of all types have a multitude of rights and protections, including but not limited to, the right to overtime pay, rest and meal breaks, reimbursement for expenses, and protection against unlawful discrimination in employment, including termination in violation of the California Fair Employment and Housing Act. While a properly classified independent contractor is typically limited to the rights under their contract, a misclassified independent contractor has the same rights and remedies as any employee. A misclassified independent contractor may therefore sue their former employer for wrongful termination and many other common wage-and-hour violations, albeit after establishing their misclassification. Employer’s often face tax consequences from misclassification of independent contractors, including claims from California’s Employment Development Department (called “the EDD”) if the misclassified independent contractor seeks unemployment benefits after their termination.

Do you believe you are an independent contractor who has been misclassified? Call the Law Office of Brian Mathias.  

What is an “interactive process” in employment?

In short, an interactive process is the legally required discussion between employer and employee that comes into play when an employee actually has – or is perceived by the employer to have – a physical or mental health condition that makes working difficult (legally called a “disability”).

Legally an interactive process is described as a timely, good-faith, and flexible dialogue between an employer and an employee to identify and assess actual and/or potential “reasonable accommodations” for the disabled employee. A reasonable accommodation is a modification to workplace practices, procedures, or equipment that allows the employee to perform the essential functions of the employee’s job. An employer is legally obligated to provide a reasonable accommodation unless doing so would constitute an “undue burden”, which can be a very difficult standard to meet. If an employee cannot perform the essential functions of their job, even with reasonable accommodations, the employee may be terminated because of their disability. However, if the employee can perform the essential functions of their job, with or without reasonable accommodation, the employee must remain employed and his or her termination would violate California’s prohibition of against disability discrimination.  

To better understand the concept of an interactive process, know that California’s public policy is to keep injured workers in the workforce unless it would be very difficult for their employer to accommodate them. To effectuate this public policy, California requires employers and employees to discuss what potential adjustments or modifications to the job may keep the injured employee working, despite the disability. The requirement of a good-faith interactive process helps assure that employers make the right decision when terminating any disabled employees and that any solutions short of termination may have been duly considered by the employer.

An employer has a very rigorous obligation to have a “timely and good-faith” interactive process with their disabled employees. Any employer with five or more employees can be sued under the California Fair Employment and Housing Act (called “the FEHA” and pronounced “fee-hah”) for failing to engage in an interactive process with their employees.

Employers – both big and small, government and private sector – frequently botch the interactive process. Here are several common ways that employers get the interactive process wrong:

Not Informing the Employee of the Purpose of the Interactive Process Meeting. It is common for employers to hold ambush-style interactive process meetings with their disabled employees. In these instances, the employee is not told what the meeting is about in advance; merely that the employee is required to show up for a meeting, usually with Human Resources. The employee is then asked, on-the-spot, to provide any accommodations or else be terminated.

Conducting an interactive process in this manner deprives the employee of any meaningful context for the interactive process, including that they may be terminated because of their disability if no accommodations are ultimately identified. Ambush-style interactive process meetings also deprive the employee of any ability to prepare in advance for the meeting by speaking with their own medical providers, reviewing medical documentation, and reviewing what their own actual or perceived work limitations are.

Delaying or Rushing the Interactive Process. A lawful interactive process must be “timely”. It follows that the process cannot be unreasonably delayed, nor rushed once it is initiated. When the employee requests an accommodation, or when the employer otherwise believes the employee is disabled, the interactive process must be initiated. Employers cannot lawfully set up disabled employees for failure by delaying an interactive process with the employee, and thereby delaying any requested accommodations that allow the job to be performed successfully.

Similarly, employers frequently try to satisfy their rigorous obligations under the FEHA by attempting to complete the interactive process with a single short meeting or discussion with the employee. The interactive process is not intended to be a “one-and-done” meeting, but a good-faith, problem-solving process that takes as long is required to identify effective accommodations. After reasonable accommodations are identified, they must be tried out to assess their overall effectiveness, and if ineffective, the accommodations need to be adjusted via one or more additional interactive process discussions..

Not Understanding the Employee’s Precise Medical Limitations. As part of the interactive process the employer is required to identify the employee’s precise medical limitations and identify how those medical limitations actually impact the employee’s underlying job.

Too frequently, employers will rush the process without understanding what the employee’s actual medical conditions are, such as terms used in a doctor’s notes or workers’ compensation reports (i.e. “PQME Reports”). Failing to identify the precise limitations often cause employers to over-exaggerate the gravity and seriousness of sometimes very minor medical limitations that do not at all affect employee job performance. Firing an employee based upon incorrect and exaggerated beliefs constitutes disability discrimination, even if the employer’s express motive was to protect the employee from future injury.

Not Understanding the Actual Job Functions. Disabled employees are often terminated when their actual health limitations do not actually impact their ability to work. For example, it is likely unimportant that an administrative assistant or office worker - has a 30-pound lifting limitation, a typically sedentary position that does not require any heavy lifting.

Employers will frequently fail to identify what the underlying job physically actually requires of their disabled employee during the interactive process, causing the employer to terminate based off bad information. This situation typically arises when executive level employees, such as Human Resource officers or workers’ compensation insurance adjusters, decide to terminate without knowing what the employee’s job actually entails (called “the essential functions”), typically after relying upon a generic, outdated, or inaccurate job description. The same employees are terminated without the employer actually speaking with the employee or the employee’s immediate supervisor about what is physically required of the employee.

Not Offering Any Employer-Provided Accommodations. The interactive process is intended to be a two-way street. Both the employer and the employee must participate in the process in good-faith. Employers too frequently will place the burden of identifying potential accommodations entirely on the employee. Merely asking the employee if any reasonable accommodations exist will not likely satisfy the employers rigorous obligations under the FEHA, especially in the context of a rushed interactive process. Further, if the employee cannot continue to perform their current job with or without accommodations, employers are required to provide the employee with any open, vacant, and funded positions (called a “reassignment accommodation”). The employer must then consider whether the disabled employee can perform the essential functions of those open, vacant and funded positions with or without accommodations.

  Has your employer botched your interactive process? Call the Law Office of Brian Mathias.

The Big Limited Liability Exception for Unpaid Wages: Labor Code Section 558.1

Corporations and LLCs are highly attractive business entities for employers because of their limited liability protection. Generally speaking, this means that the actual shareholders, officers, and directors who operate and own the underlying business are not personally on the hook for the company’s debts and obligations. Rather, the underlying company -as a separate and distinct entity- is responsible for its own debts and obligations.

California has a very large exception to corporate limited liability when it comes to unpaid wages, late paid wages, and other common wage-and-hour violations through California Labor Code Section 558.1. This short but very  powerful law was enacted to combat wage theft by corporate employers who try to terminate their business to evade their obligation to pay wages.

Section 558.1 states that any employer (such as a corporate employer) or other person acting on behalf of an employer may be held liable as the employer for a violation of six of the most common unlawful wage violations. The section goes on to clarify that “other person” means a natural person who is an owner, director, officer, or managing agent of the employer. Thus, individual owners, directors, and agents are on the hook for labor code violations by the corporate-employer.

Some of the most common California Labor Code violations are included within the purview of this new law, exposing actual business owners to liability for a company’s unlawful conduct:

1) California Labor Code Section 203 requires employees to be immediately paid their complete and full wages upon an involuntary termination or within  72 hours of their resignation. If payment is not received within those times the employer and/or the person acting on behalf of the employer, owes a penalty called the “waiting time penalty” equal to a full day’s wages, for up to 30-days.

2) California Labor Code Section 226 requires that employers furnish a semi-monthly pay stub that accurately lists the number of hours worked, the employee’s pay rate, any deductions, and the name and address of the employer.

3) California Labor Code Section 226.7 requires employers to provide non-exempt employees with a paid  ten-minute rest break every four hours, and an unpaid thirty-minute meal break every five hours worked.

4 & 5) California Labor Code Sections 1193.6 and 1194 require that all employees be paid at least a minimum wage and that non-exempt employees be paid overtime if more than eight hours of work are performed in a day or if more than forty hours of work are performed in a single week.

6) California Labor Code Section 2802 codifies that employers cannot pass-off regular costs of doing business onto employees and requires that employers reimburse employees for all necessary employment expenses (i.e. cell phone use, travel expenses, etc.)   

To illustrate the power of this law, imagine the following hypothetical of Jared vs. Acme Mechanics Incorporated, a California corporation. Jared works as an auto mechanic for  Acme Mechanics, Inc. a small California corporation solely owned and operated by Mike, Acme’s CEO. Jared works for Acme, Inc. for a number of months, but Acme, Inc repeatedly delays payment and then stops paying Jared altogether. Acme Inc. then goes out of business without paying Jared any of his  last month’s wages. Jared may file a lawsuit against both Acme, Inc. and also against Mike as Acme’s owner, director and managing agent for his unpaid wages. Mike, the sole owner and CEO may be personally liable under 558.1, even though Acme Mechanics Inc is no longer in business and lacks assets, greatly increasing Jared’s chances of actually recovering his unpaid wages.

Do you have a claim for late or unpaid wages? Contact Law Office of Brian Mathias.

Legal Myths Debunked: Circumstantial Evidence & Hearsay

1. Circumstantial Evidence Can Be Just As Powerful As Direct Evidence

If you regularly watch legal television shows or movies, you are probably familiar with the phrase “circumstantial evidence”. The phrase is almost invariably used in legal dramas to imply that evidence is weak, or even to imply that circumstantial evidence is not true evidence at all.  For example, in a criminal courtroom drama you may hear something along the lines of, “Ladies and gentlemen of the jury, you must find my client not guilty because the prosecution has only offered circumstantial evidence that he committed murder.”

The legal reality is totally different; circumstantial evidence or “indirect evidence” is extremely common and it can be just as powerful as direct evidence when proving a case. In fact, one of the first things you will be instructed as a juror is, “As far as the law is concerned it makes no difference whether evidence is direct or indirect…” (California Civil Jury Instruction 202 “Direct and Indirect Evidence”).

So what is circumstantial evidence? For starters, the counterpart of circumstantial evidence, called “direct evidence”, is evidence that can prove a fact by itself, without the juror having to rely on any other fact or inference. To illustrate imagine that a lawyer asks a witness during trial whether or not it rained in Santa Cruz on Monday, October 23, 2017, and the witness responds, “I saw it rain in Santa Cruz on October 23, 2017. I saw water falling out of the sky and felt it land on my face.” The witness personally saw the rain and felt it land on him. No inference was necessary; it’s direct evidence of rain.

Circumstantial evidence is indirect and requires a reasonable or logical inference or deduction. To illustrate circumstantial evidence imagine the same question about whether or not it rained in Santa Cruz on Monday, October 23, but the witness responds, “I didn’t personally see it rain because I was working inside all day. However, I saw my co-workers come into the office soaking wet with umbrellas and rain jackets. When I drove home that evening, there were puddles on the road.” The witness just provided circumstantial or indirect evidence that it rained because the witness did not personally see it rain. However, the witness saw other people with umbrellas, rain jackets, and saw puddles on the ground; all logical and reasonable deductions that it had rained that day. 

Circumstantial evidence is extremely common, and is probably far more common than direct evidence in most cases. For example in an employment pregnancy discrimination case an employee will probably never be able to offer direct evidence of an employer’s discriminatory motive, (i.e., the business owner’s testimony, in court, “Yes. I fired Lucy because she’s pregnant! I can’t stand pregnant women!”) However, the same employee may be able to provide lots of powerful circumstantial evidence of discrimination, such as the short proximity of time between Lucy’s termination and the employer’s initial awareness of the pregnancy, the employee’s positive performance history and history of promotions, the employer’s deviation personnel policies allowing pregnancy leave and prohibiting discrimination, and testimony from other terminated pregnant employees who were also fired by the same boss; all are powerful and circumstantial forms of evidence.   Don’t balk if you hear evidence characterized as circumstantial.

2. Hearsay Is Often Times Admissible Evidence

Most non-lawyers understand that there is a legal concept called “hearsay” and understand there is an evidentiary prohibition against admitting hearsay into evidence. While it is true that there is a general prohibition against hearsay, there are dozens of exceptions to the general rule which allows hearsay as evidence. In fact, the exceptions are so numerous and so common that the exceptions to hearsay nearly swallow up the rule against it.  

The topic of hearsay evidence is a complicated one, however, the legal definition is simple “Evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter asserted”. In other words, 1) the statement being offered as evidence was said out of court, and 2) the statement is now being offered in court as factually true.

To illustrate hearsay, imagine the same hypothetical as earlier, where a lawyer asks a witness during trial whether or not it rained in Santa Cruz on Monday, October 23, 2017, and the witness responds,  “I didn’t personally see it rain because I was working inside all day. However, my co-worker came into the office told me that it had rained all morning.”  Objection! Hearsay! The witness has offered an out of court statement from his co-worker (“that it had rained all morning”), which is now being offered for the truth of the matter asserted, (that it rained in Santa Cruz on Monday, October 23, 2017).

Remember, however, that there are dozens of exceptions to the rule against hearsay. Just because something is hearsay, do not assume that an exception would not apply and that it would still be inadmissible in court.  The same statement could be admitted into evidence under one or more exceptions to the rule against hearsay.

3. Testimonial Evidence Is Powerful Evidence

There are several categories of evidence in California including, documentary evidence (writings), demonstrative evidence (demonstrations), real evidence (objects), and testimonial evidence (statements given under oath with personal knowledge of the subject matter).

Terminated employees typically do not have access to evidence other than their own testimony about what happened. This is because terminated employees are usually terminated abruptly and are instantly denied access to the emails, calendars, notes, and other documents that refute their employer’s allegations. However, many employees incorrectly assume that their own testimony is inherently inadmissible and not helpful. An employee’s own testimony about their performance or the circumstances of their termination can be extremely powerful evidence. Just because you are terminated does not mean that you lack evidence to prove your case.

Similarly, once a lawsuit is filed employees have access to a very powerful right called “discovery” which is the court-compelled sharing of relevant information. Thus, terminated employees regain the right to relevant documents and other evidence once a lawsuit has been filed.

Brian Mathias represents exclusively employees in all aspects of California employment law. Do you have a question about California employment law or the evidence required to prove a case? Contact www.BrianMathiasLaw.com

Baby Power: The Huge New Employee-Parental Rights Law In California

Are you or will you be a new parent? Do you work for an employer with 20-49 employees? Start the countdown. In less than 90 days California’s brand new, and much more expansive protected parental leave of absence law will come into effect on January 1, 2018. No surprise, this law protects and expands the rights of employees, not employers; this is California, after all.

What does the new law do and how is it different than the old law?

The new law makes an addition to the California Family Rights Act (“CFRA” and pronounced “cee frah”) which allows certain employees to take a legally protected, unpaid 12-week leave of absence from work (called “protected leave”) to bond with a new baby or adopted child. The 12-weeks of leave  may be taken as one uninterrupted block of time, or may be taken in smaller bites of time called “intermittent leave”. The law applies to both moms and dads.

Formerly, CFRA applied to employees who work for employers who have 50 or more employees (this mirrors the federal government's version of a similar law called the Family Medical Leave Act (“FMLA”). Read more about the old law here.  Now, CFRA has expanded by requiring employers with just 20-49 employees to provide the same protected leave of absence to new parents. The same law will now apply to smaller employers and cover three-million additional workers in California.  

What does the employee have to do?

There are essentially three requirements for employees to receive a protected parental leave of absence under CFRA.

First, the employee must have worked for the same employer for at least one year, and worked at least 1,250 hours in the past twelve months. Brand new employees are not covered under the new law, however, employees at or near the one-year mark may sue their employer for anticipatorily interfering with their right to protected leave in the right circumstances.

Second, the protected leave of absence must be for the purpose of bonding within a new child within one year of the child’s birth, adoption, or foster care placement. The new expanded leave law does not protect employees who need time off work to care for their own illness or  the illness of a family member; only employers of 50 or more employees must provide that protection to employees.  

Third, employees must request the parental leave from their employers. Employees should never rely on the employer to offer the leave.

What does the employer have to do?

First and foremost, employers are required to reinstate their employees to the same job or a comparable job when they return from the parental leave. Remember, the power behind the new law, and all of CFRA/ FMLA, is the right to return the same job when the leave of absence is over.

Employers cannot terminate the employee’s medical insurance during the 12 week protected leave of absence. However, if an employee refuses to return to work after the leave is over the employer can recover the amount of the insurance premiums from the employee.

Importantly, the leave of absence is unpaid, as are all other CFRA-FMLA absences. However, employees must be allowed to apply their accrued PTO or sick time to the leave of absence.

What should an employee do and what can the  and employee do or sue for?

In this writer’s experience, large employers already frequently underestimate their rigorous obligations under the CFRA and FMLA. Both laws are complicated and are very demanding on employers. Moreover,  the expanded new law takes effect so quickly and covers so many additional smaller employers that it will catch many employers flat-footed. This will result in a tremendous amount of new litigation in California for violation of the parental leave law.

Notably, employers do not need to intentionally deprive an employee of their right to protected leave to be liable under the law. A simple bureaucratic or administrative mistake or ignorance of the law can expose an employer to very large legal claims.

Employers who fail to reinstate employees after the parental leave, or who interfere with the employee’s right to leave, or who take any adverse or retaliatory action against employees for exercising this new right can get sued by the employee. CFRA retaliation or interference claims include damages for lost income, punitive damages, as well as the plaintiff-employee’s attorney fees.

Employees who sense that their employer is interfering with their right to protected parental leave, or who have been refused reinstatement, should contact a plaintiff’s employment lawyer as soon as possible.

Is your employer of 20 or more employees allowing you to take a twelve-week leave of absence to care for a new child? If “no”, contact the Law Office of Brian Mathias. 

Give Me A Tip: Golden State Employee Gratuities

The practice of giving employee gratuities or “tipping” allegedly originated from the 17th century English practice called “To Improved Promptitude” or “TIP”. As the story goes, bar patrons would slip waiters a coin to speed up delivery of their  drinks. The practice has now changed so that the tip is given at the end of the service and not the beginning. And now, California law has quite a bit to say on the issue of tipping. Here are five things to know about employee gratuities in California.

1. The Gratuity is the Exclusive  Property of the Employee

California law clearly states that the tip belongs to the employee, not the employer,
“Every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid…” Labor Code Section 351.

This raises two common legal issues. First, it is unlawful (both civilly and criminally) for the employer to take any part of the tip that was left for the employee. Employers cannot require their employees to share their tips with the employer. One-hundred percent of any tip must go to the employee.

Next, it is legal under specific circumstances for employers to require employees to share their tips with other employees, called “tip pooling”. However, managers, certain supervisors, and owners cannot share in the pooled tips, even  if those persons participated in the table service of the customer.

2. Minimum Wage Must Still Be Paid

People are often surprised to learn that California employees who receive regular tips, such as waiters, must still be paid at least minimum wage before tips. This requirement applies no matter how much  the employee is tipped on a given day. For example, a  waitress could receive $100.00 in tips over the course of an hour and the  employer must also pay at least minimum wage of $10.50 per hour. It is illegal to pay employees exclusively in tips.

California’s employee-friendly tip law is in the minority. Most states and the federal government allow employers to credit or offset the applicable minimum wage if the employee receives tips at work. Furthermore, roughly 40% of the states only require a base wage of just $2.13 per hour for tipped employees; the rest of the wage may come from tips.

3. Employers Cannot Deduct Credit Card Fees

Issues with employee tips increasingly arise as more and more people pay by credit card. Employers are expressly prohibited from deducting any credit card transaction fees from tips. For example, if a customer pays a gratuity of $5.00 and a $20.00 bar tab by credit card, and the employer pays a $1.00 transaction fee to the credit card processor, the employer is not allowed to require the employee to pay the twenty-cent pro rata share of the credit card fees. All of the credit card fees must be paid by the employer.

This law is a good example of how California wage laws can be very favorable to employees and burdensome for employers.

4. Tipped Employees Must (Usually) Get Rest and Lunch Breaks

Tipped employees (like waitresses, hair stylists, bartenders, valets) often work jobs that are classified as “non-exempt”, meaning that the employees are entitled to a paid, duty-free rest break every four hours of  work and an unpaid, duty-free lunch break (called a “meal period”) for every five hours of work. Click here to read an article that explains the difference between “non-exempt” and “exempt” jobs.

In the hustle and bustle of a restaurant, it can be easy for employers to overlook their rigorous obligations to allow for the opportunity for breaks under California law.

5. Employers Can Be Sued For Violations

Employers who even unknowingly violate California’s gratuity laws can face a variety of legal claims. This includes minimum wage violations, tip theft “conversion”, and violation of California’s tip laws. Employers with 20 or more employees who violate these laws may be sued as a part of a class action lawsuit, or under California’s Private  Attorney General Act (called “PAGA” and pronounced “pah gah” by lawyers).

Are you a tipped employee in California? Do you have questions or concerns about how your  tips  are being handled by your employer? Contact the Law Office of Brian Mathias.

Mueller v. Taylor Swift Part II: More Legal Takes for Non-Lawyers

Taylor Swift won her legal case brought by fired DJ David Mueller Mueller who sued the singer after she and her employees allegedly told Mueller’s employer that Mueller, “grabbed [Taylor Swift’s] buttocks beneath her dress” during a photo shoot. A professional photograph of the moment in question can be viewed here.

Mueller sued Taylor Swift for defamation and “tortious interference with his employment contract”; that is, that Taylor Swift’s allegation about the butt grab was fabricated, that she wrongfully pressured the radio station to fire him, causing Mr. Mueller three-million dollars in damage. In response, Taylor Swift counter-sued Mr. Mueller for assault and battery (the intentional, harmful and/or offensive touching of her person without her consent). Taylor Swift won and was awarded $1.00, as she had requested.

There have been lots of neat legal takes since the publication of Part One of this article:

5.      Taylor Swift Won “Summary Judgment”

At the end of Muller’s presentation of his evidence supporting his claims against Taylor Swift for tortious interference with his employment contract (called his “case-in-chief”), Taylor Swift submitted a “motion for summary judgment”. In short, a motion for summary judgment (called a “MSJ” by lawyers) is an argument that in light of all the evidence, that there is no longer any dispute on the facts and therefore one person must automatically win. If a motion for summary judgment is granted, the “moving party” (here, Taylor Swift) automatic wins the issue and the jury does not get to decide the claim.

In this case, Taylor Swift argued that even after Mueller’s presentation of evidence, the undisputed evidence was that she did not personally influence Mueller’s termination of employment. In other words, Taylor Swift did not cause Mueller to be terminated. The MSJ victory was a mixed bag for Swift because Mueller’s claims against Taylor Swift’s mother and employees still went to the jury and were not automatically won. Even after the MSJ victory, Taylor Swift could have still been found “vicariously liable” for the acts of her employees (the legal principal of "respondeat superior"). In other words, Taylor Swift was still on the financial hook for any wrongdoing…assuming Mr. Mueller prevailed. Swift’s claims for assault and battery against Mueller still went forward after she won MSJ.  

This was Taylor Swift’s second summary judgment victory. The first summary judgment motion tossed out Mr. Mueller’s claim for defamation (the publication of a disparaging statement that causes reputational harm) for not being filed within the legal deadline or “statute of limitations.”

California employees should note that motions for summary judgment are extremely common in employment discrimination, wrongful termination claims, and wage-and-hour class actions. Motions for summary judgments are always big consequential battles involving lots of legal work and preparation.

6.      Mr. Mueller’s Attorney Took A Big Gamble in Closing Argument

Closing arguments (both sides’ final arguments to summarize their version of the case for the jury) were dramatic. Mueller’s (male) lawyer argued that Taylor Swift’s visible reaction was not consistent with a person who had just had her butt grabbed. Commenting on the photo Muller’s attorney said, “Look at her face, is that the face of someone who just had her butt grabbed? Is that the face of someone who is upset?” Muller’s attorney made a big gamble in making this argument because the eight person jury, six of whom were female, may have found it offensive.

The attorney’s inference –while arguably plausible- assumes that all persons would have a uniform, split-second visible reaction when being groped on camera. For example, some people may react in immediate visible disgust, while other people may freeze in absolute panic and shock, others still may have a delayed reaction caused from absolute disbelief of Mueller's outrageous behavior.  Similarly, Taylor Swift testified that she did not want to draw immediate negative attention and spoil the entire event for the rest of her fans at the photo shoot.  Moreover, why would Swift –now a proven victim of a sexual assault- want to compound the already horrible experience and go through additional public humiliation in the media after creating a scene? Swift's testimony is also consistent with the fact that it was Muller who initiated the lawsuit against Swift.

It is common for jurors to be interviewed by lawyers after a verdict is reached. It will be interesting to see how the jury reacted to Muller’s closing arguments and if it had any influence.

7.      The Jury Deliberated for Under Four Hours

The jury deliberated for less than four hours before reaching a decision (“verdict”) against Mueller, and wrapped up the same day as closing argument. This is interesting because some juries will take several days or even much longer when deciding a case (called “deliberating”). Generally speaking, it is very bad for plaintiffs (in this case, Mueller) if the jury deliberates for just a few hours before reaching a verdict. This is frequently a sign that the Plaintiff will lose. 

The quick jury deliberation was also an indication that that there was probably not a lot of disagreement among the jurors on essential facts, including the disputed issue of Mr. Mueller’s credibility. As predicted in Part One of this article, Swift’s attorney latched onto Mr. Mueller’s destruction of a secret recording in closing argument, referring to him as a, “Story telling evidence destroyer.”  

Lastly, the fact that the jury reached a verdict the same day as closing argument may be an indication that the jury wanted to finish the case and go home rather than come back for an additional day of deliberation. It is generally bad for plaintiffs when jurors are eager to go home because it is often easier to simply find in favor of the defendant.  

8.      The Plaintiff Wants to Take A Polygraph

Mueller is still adamant that he did not inappropriately grab Taylor Swift and he has stated that he can pass a polygraph (lie detector) test to establish his innocence. Readers may be surprised to learn that, with some exceptions, that polygraph tests are generally inadmissible in federal court as unreliable scientific evidence. Absent an agreement with Swift’s lawyers (called a “stipulation”) Mueller probably would not have had a chance to enter polygraph results into evidence even if he had taken one.

Even if Mueller takes and passes a polygraph test, it will be too little too late. The legal principal of res judicata (pronounced “rez joodi kata”) would bar Mueller from re-litigating his claims against Swift. In other words, plaintiffs are not allowed multiple bites at the apple. Mueller is also barred from presenting new evidence, including polygraph results, if he appeals the verdict.

Celebrity trials like Mueller v. Swift  always get a lot of publicity. But most of the time the interesting legal issues never make the headlines!

Brian Mathias is a California plaintiff’s employment lawyer and a former assistant professor of constitutional law in Santa Cruz, California. Brian represents employees in all aspects of employment law including discrimination, wrongful termination, unpaid overtime, and class action litigation. www.brianmathiaslaw.com

It’s a Boy! Unraveling California’s Pregnancy-in-Employment Laws

California’s laws surrounding pregnancy leave and pregnancy discrimination are tricky for employees, human resources, and lawyers alike. For starters, have you heard of the FMLA, CFRA, FEHA, PDL, or PFL? Probably not, and even most California lawyers could not begin to tell you the difference between the legal abbreviations.

Pregnancy employment laws are complicated with many nuances, lots of pages of detail, overlap and conflict with other laws, and regular legislative updates. However they may be easily understood by viewing them in the big picture.  

First, California’s public policy is to keep pregnant women and new parents in the workforce. California has written a variety of laws and regulations to implement this public policy. The laws are written for the benefit of employees, they are many times burdensome for employers, and when the laws are ambiguous they are generally applied in favor of the employee.

Second, California law has three different types of protections for pregnant women: 1) a general prohibitation against pregnancy discrimination; 2) an allowance for job protection during a leave of absence for pregnancy, childbirth, or baby bonding (called “protected leave”); and 3) wage and income replacement for missed work.

1. Anti-Discrimination/ Wrongful Terminations:

California’s Fair Employment and Housing Act (abbreviated “FEHA” and pronounced “fee ha”) prohibits workplace discrimination or “wrongful termination” on the basis of pregnancy status. This means that an employer of five or more employees cannot fire or demote a pregnant person because of their pregnancy status.  In other words, employers cannot fire an employee because they are pregnant. This includes, in many instances, terminating a pregnant employee because the employer believes the employee would be harming their unborn child by continuing to work.

Similarly, it is a myth that a pregnant employee cannot be subjected to discipline, terminated, written up for poor performance, or otherwise fired while pregnant.  Again, the law prohibits the termination of a pregnant employee when the termination is “substantially motivated” because of the pregnancy status.  A termination or other adverse employment action not related to the pregnancy may be lawful.

Click here to read an example of what may qualify as a wrongful termination based on pregnancy status. 

2. Job Protection and Protected Leave of Absenses

California’s public policy is implemented by allowing for a period of protected time off work, called “protected leave” or a "leave of absence" so that pregnant women may address medical complications during their pregnancy and so new parents may bond with their newborn children. These laws are addressed by the California Family Rights Act (abbreviated “CFRA” and pronounced “cee frah”) and its federal counterpart (the Family & Medical Leave Act or “FMLA). The power behind CFRA and FMLA is that they require employers to hold open the employee’s job for at least 12 weeks and then “reinstate” the employee to their old position when they return to work. 

Protected leave only applies to large employers who have fifty or more employees. Similarly, the employee must have worked for their employer for one year or more in order to qualify for leave. New employees are generally not given protected leave.

 “Baby bonding” is a part of the CFRA and it serves the public policy of allowing new parents (both moms and dads) to take time off work to care for their newborn children. A CFRA/FMLA eligible employee may take up to 12 weeks of unpaid leave for baby bonding. Similarly, the 12 weeks of leave may be taken as one uninterrupted block of time, or may take it in smaller bites of time, called “intermittent leave”.

California law prohibits employers from retaliating against employees who ask for or take protected leave, and also prohibit employers from interfering with an employee while they take protected leave.

A pregnant mother may qualify for an additional four months of protected leave called“Pregnancy Disability Leave” (or “PDL”) in the event they suffer medical complications during their pregnancy, such as the need for bed rest, severe morning sickness, prenatal care, and other complications arising from pregnancy. Not all pregnant women will qualify for this leave, only those that suffer a medical complication or disability during pregnancy.

This leave is in addition to the leave allowed by CFRA or the FMLA; therefore, an employee that qualifies for PDL and CFRA/FMLA may take seven months of protected leave. Unlike the CFRA or FMLA, employers of five or more employees must allow for PDL and there is no minimum one-year work requirement for the employee.

3. Wage and Income Replacement

Lastly, while California's laws prohibiting discrimination against pregnant women and allowing for protected leave are generally strong, California laws that provide for wage replacement for new moms and dads are generally weak.

While CFRA prohibits employers from terminating health insurance of an employee on protected leave, there is no requirement that the employer keep paying them their regular wages and salary. In other words, a new parent that takes 12 weeks of baby bonding leave will not be paid any actual money.

California’s Employment Development Department or “EDD” (in this writer’s opinion, the most unruly, slow, and horrible bureaucracy in California) does provide some wage replacement to employees who take time off work to bond with a new child, called “Paid Family Leave” or “PFL”.

The problem is that PFL does not pay very much. It only pays four weeks pre-pregnancy if you are considered “disabled” by your pregnancy, and only six or eight weeks after delivery to recover from childbirth or bond with a newchild. Moreover, the employee is only paid about 50% of their normal wages, and in any event no more than $1,173.00 per week.

 Are you a Santa Cruz or Monterey County employee facing challenges at work because of your pregnancy? Contact the Law Office of Brian Mathias

Mueller v. Taylor Swift: The Legal Take for Non-Lawyers

As many pop music fans are aware, Taylor Swift got sued. Former radio DJ David Mueller was terminated after he allegedly, “grabbed Taylor Swift’s buttocks beneath her dress” during a photo shoot at a June 2013 event. A professional photograph captures the very moment in question and can be viewed here. Mr. Mueller denies ever grabbing Taylor Swift.  

Mueller then sued Taylor Swift for defamation and “tortious interference with his employment contract” for three million dollars; that is, that Taylor Swift’s allegation about the butt grab was fabricated, that she wrongfully pressured the radio station to fire him, causing Mr. Mueller three-million dollars in damage.

In response, Taylor Swift counter-sued Mr. Mueller for assault and battery (the intentional, harmful and/or offensive touching of her person without her consent). Taylor Swift is only seeking $1.00 in nominal damages, but is seeking attorney fees and punitive damages. The trial is underway now.

1.       First Legal Take: The Wheels of Justice Turn Slowly

It has taken over four years for this matter to go to trial. The alleged assault and battery occurred in June 2013. Now, over four year later, in August 2017, the trial is underway. There are a variety of circumstances that can delay trial. However, it is common in California for trials to occur years after the underlying legal dispute and injury occurs.  Appeals of any verdict, which are also common, will further delay the finality of any jury verdict by additional years. The wheels of justice do turn slowly.

2.       Second Take: Mr. Mueller Destroyed Important Evidence

Shortly after Taylor Swift’s accusations against Mr. Mueller surfaced, Mr. Mueller was interrogated by his bosses about the incident. Unbeknownst to his bosses, Mr. Mueller secretly recorded the two hour conversation. Mr. Mueller allegedly admitted at the meeting that he may have touched Taylor Swift’s buttocks but that it was “incidental”. 

Mr. Mueller then stored the secret audio recordings on an iPhone, a laptop computer, and an external hard drive. However, even after contacting a lawyer to sue Swift, Mr. Mueller gave away, lost, and/or destroyed all the electronic devises and no longer has the recording. No one but Mueller has heard the recordings.

In response, Taylor Swift filed an order for “sanctions” (meaning a request to impose a penalty) against Mueller for the bad faith “spoliation of evidence”. Taylor Swift won her motion for sanctions, and as a result Mr. Mueller will be cross-examined in front of the jury on the issue of why he destroyed highly relevant evidence after litigation was contemplated. While this line of questioning may not ultimately make the tabloid headlines, it will undoubtedly be a top trial highlight for Taylor Swift’s attorneys who will have a field day on this issue. Mr. Mueller will be lucky to prevail in light of this issue alone.

As a lesson from this case, employees should never secretly record conservations with their bosses. It is a crime in California to do so. Next, prospective litigants should preserve all evidence, good and bad. Destroying evidence will naturally cause jurors to infer that the evidence was destroyed because it was very harmful for their case, especially if the evidence was objective in nature (such as a tape recording or photograph). Similarly, California jury instructions permit jurors to distrust weaker evidence when stronger evidence can be produced, as was the case here.

3.       Why is T-Swift suing for just a buck?

Taylor Swift is suing her alleged groper for just $1.00… well, sort of. A person may sue for what are called “nominal damages” meaning the Plaintiff may not have not suffered much actual harm, but that a token amount of nominal damages should be awarded as a symbolic gesture. As a famous example, President Teddy Roosevelt sued and won six cents in nominal damages against a newspaper publisher who falsely claimed that, “Roosevelt was getting drunk… and not that infrequently.” The former president really just wanted to prove a point to protect his reputation.  

However, even if Taylor Swift wins nominal damages of just one dollar, she could still argue for and possibly obtain “punitive damages” (damages awarded to punish the wrongdoer’s particularly despicable conduct). A case involving a sexual assault could generate very large punitive damages against Mr. Mueller, particularly in light of Ms. Swift’s graphic testimony where she described the incident. Similarly, Ms. Swift could win her attorneys fees. Attorney’s fees could be in tens of millions of dollars after four years of contested litigation with a celebrity-level trial team.

4.       The Photographic Evidence Is Damning

A key piece of evidence of in the trial will be the photograph that captured the very instant in question. It may be viewed here. Jurors in any case are allowed to draw “reasonable inferences” from evidence and apply common sense. The photograph in question shows a grinning Mr. Mueller with his arm and hand behind Taylor Swift’s lower back noticeably near her bottom.  In this writer’s testimony opinion, it will be very difficult for Mr. Mueller to prevail in light of this photograph, particularly in light of the spoliation of evidence issue and the testimony of Taylor Swift. Perhaps Mr. Mueller was hoping for a quick settlement against deep pockets when the case commenced, but has now bitten off more than he can chew.

Brian Mathias is a plaintiff’s employment law attorney and former assistant professor of constitutional law in Santa Cruz, California. Brian represents employees in all aspects of employment discrimination, defamation, and wage-and-hour class actions.

What does "negligence" legally mean? Personal injury law 101.

Everyone has heard of the infamous McDonald's’ hot coffee case and Erin Brockovich. But most people still don’t know the four basic elements of negligence law, also called “personal injury law”.  All four elements must be proven by the plaintiff (the injured person) to establish negligence against the defendant (the wrongdoer) to recover damages for the plaintiff’s harm. The basic concepts are straightforward, even though most people do not learn about them unless they go the law school.

Element One, Duty:

The first element of “duty”, simply put, means that the defendant had an obligation, standard of care, or “duty”, to act in a reasonable, prudent, and safe manner towards the Plaintiff and to not cause them harm. For example, a driver of a car owes a duty to other drivers and pedestrians on the roadway to operate their vehicle safely and to obey traffic laws.

Element Two, Breach:

A plaintiff must next show that the defendant violated or “breached” their duty to act in a reasonable, safe, and prudent manner. For example, a driver who speeds 90 miles per hour down the highway, with their headlights off, in the middle of the night has “breached” their duty to other drivers to safely operate their car.  

Element Three, Causation:

The plaintiff  must also show that they were harmed because of  the Plaintiff’s breach of duty. California’s jury instructions phrases the requirement this way, “the defendant’s negligence was a substantial factor in causing plaintiff’s harm.” A rear-end car accident may easily “cause” whiplash, neck pain, and a broken bumper.

Element Four, Damages:   

Lastly, the plaintiff must establish that they were harmed or “damaged” as a result of the defendant’s negligence. In personal injury law, damages include lost income, mental and physical pain and suffering, and medical expenses and care.

These four rules of negligence can be applied to any situation, such as car accidents, bike accidents, or a slip and fall at a store.

To illustrate the  basic elements of negligence, take the case of Mike and his professional landscaper, Jared. Mike has persistent low-back pain and regularly hires Jared to mow his grass. On 4/20/2017, Jared arrives at Mike’s house in Santa Cruz under the influence of marijuana. Shortly afterwards, Jared runs over Mike with his ride-on lawn mower while Jared is distracted. As a result, Mike receives lacerations, misses one-week of work, has large medical bills, and has a new fear of heavy machinery.  He continues to have low-back pain.

Mike has a nice case of negligence against his landscaper, Jared. Jared owed a duty and standard of care to his customers, including Mike, to safely operate his landscaping equipment. Jared breached that duty when he operated the mower while intoxicated. Mike received cuts and wounds in the accident which were clearly caused by being run over, resulting in medical bills and lost work. However, Mike had existing back pain before the accident occurred and therefore, Jared may successfully argue that he did not cause harm to Mike’s back. Mike may seek damages from Jared in the form of money for missed work, his medical bills, and importantly for the physical and mental pain and suffering caused by the trauma of being run over.

Don’t be fooled; in California, there are hundreds of nuances, exceptions, and special laws that apply to each of these four basic elements. Personal injury law is complex.  However, the basic principles should be understood by the general public.

Have you been injured in Santa Cruz or Monterey County as a result of someone’s negligence?  Contact the Law Office of Brian Mathias.

Ready to stand up for your rights?

Five Tips To Protect Yourself As An Employee

Usually employees will only contact an employment law attorney after an employment crisis has occurred, such as getting fired. However, there are several things that employees can do to protect themselves before an employment crisis.  Here are five tips for employees who are still employed:

1. Don’t Work Without Getting Paid.

It seems obvious, but many good natured and trusting employees continue to work for employers who are late in paying regular paychecks, who issue bounced checks, or who outright refuse to pay their employees. Employers who issue bad checks or who fail to pay wages can be sued for penalties that greatly exceed the amount of the actual wages.

The problem for employees is that an employer’s failure to pay timely wages is often indicative of major financial problems, like a looming bankruptcy.  Employees who continue to work for employers without pay risk collecting nothing from their employer even if they successfully sue their employer for owed wages and penalties.

2.  Stay in Contact With Former Employees

Co-workers are almost always used as witnesses in wrongful termination lawsuits. Unfortunately, current employees are usually unfavorable or “hostile” witnesses for plaintiff employees. This is because current employee witnesses still collect a paycheck from the business that’s getting sued, are scared of retaliation, and do not want to cause problems for themselves at work.  

However, former employees are typically very good witnesses for plaintiff employees. This is because former employees no longer have a sense of loyalty to the employer and can speak with more candor with greater credibility.

For this reason, it is a good practice to stay in contact with respected former employees.

3.  Respond to Serious Poor Performance Allegations In Writing

Employees who are wrongfully or unfairly accused of serious performance problems should respond in writing in a timely, calm, succinct, and professional manner, and preferably by email. The writing should clearly explain why the employee is not at fault.  To illustrate, take the following case of Mike, a corndog cook at Hot Dog On A Stick in Capitola.

Mike is responsible for draining and re-filling the restaurant’s deep fryer when directed by his immediate supervisor, Jared. Five minutes before closing, Jared tells Mike to drain and refill the deep fryer. Unfortunately, the store closes before Mike can complete the draining and refilling process. The next day, the store is late in serving corn dogs because Mike needed to finish  refilling the deep fryer. Jared is furious and issues Mike a written warning for insubordination. In the blank “Employee Response” section of the written warning, Mike writes:

“Five minutes before closing yesterday, Jared told me to change the fryer oil. This is a 45 minute process. Before I could finish, my shift was over and the store closed. I completed the process when my shift started the next day. I was not insubordinate.”

Mike’s timely, calm, succinct, and professional note can now serve as favorable evidence one, two, or even five years later in the event of a wrongful termination lawsuit.  Just as employers document employee performance problems, employees must create a paper trail of their own.

4. Request Your Personnel File and Keep Copies of Employment Records

Current and former employees are entitled by law to inspect and copy their personnel file which should contain important employment records. When appropriate, employees should ask to review their personnel file if they suspect false or defamatory statements have been made about their job performance.

Similarly, employees should keep copies of their paystubs and important personnel records, such as awards, letters of recommendation, notes of customer appreciation and any other document that shows they are performing their job well. Employees should not rely on employers to include positive records in their personnel file. 

5. Contact an Employment Law Attorney Before A Crisis Occurs

Employment law is one of the most complex and aggressively litigated areas of California law. It is almost always in the employee’s interest to contact an employment law attorney before an employment crisis if the employee is experiencing harassment, discrimination, retaliation, or is not getting paid their wages or is not provided with rest and meal breaks.  

Are you a Monterey, Salinas, Watsonville or Santa Cruz employee facing an employment scris? Ready to stand up for your rights? Contact the Law Office of Brian Mathias.  

Legal Myths 101: The Difference Between Robbery and Burglary

Many people, and even the Santa Cruz Sentinel and other larger newspapers, use the words “burglary” and “robbery” synonymously. This is incorrect. The words describe two separate and different crimes.

The legal meaning of burglary is the “entering of a house [or other structure] with the intent to commit theft.” (California Penal Code Section 459). Burglary does not involve the use of violence or threat of violence to accomplish the theft.

The legal definition of robbery in California is very different from that of burglary. It is defined as “the taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by force or fear.” (California Penal Code Section 211). Robbery necessarily requires violence or threat of force and a confrontation between two or more people, while burglary does not.

To illustrate the material difference between these two definitions, take the case  of Milo.

Milo has a  bad crack cocaine habit. To fuel his addiction, Milo decides to break into Acme Jewelry Store on Pacific Avenue in Santa Cruz late at night while no one is inside. Milo breaks into the store, smashes a display case, and steals three Rolex watches. He then runs away with the watches.

Milo is guilty of burglary, not robbery. He did not take the watches from another person, nor did he use violence or the threat of violence. An empty store or vacant house does not get “robbed” it gets “burglarized”.

The misapplication of these very common words is a good reminder that non-lawyers should not perform their own legal work, especially on a matter as important as your own employment.  

Two Weeks' Notice Not Required: 5 Employment Law Surprises

Employment law is full of surprises. Here are five employment law surprises, myths, and misconceptions:

1. Two Weeks’ Notice Is Not Legally Required

Giving two weeks' notice to your employer before you quit is not legally required. On the contrary, employment in California is presumed to be “at-will”.  Employment is “at will” if it has no specified term. It may be terminated “at the will” of either party, meaning any time. Inversely employers can terminate employees whenever they like, so long it is not for an illegal reason.

The major exception is if the employee is employed for a contracted length of time, for example for one year. In this case, the employment could not be terminated “at-will” by either party. However, most employees do not have written employment contracts.  

2. It’s An “At-Will” State. I can fire you for whatever reason I want.  

Employment in California is presumed to be at-will, true. But with a big exception. Employees may not be terminated for an illegal reason. There are dozens of California and federal employment laws that prohibit termination of employment, even in an at-will context.

For example, employment may not be terminated  because of a "protected characteristic". This includes terminations based on age (if over 40), ancestry, color, disability or “health” discrimination, gender, gender identity, military and veteran status, marital status, national origin, race, religion, and sexual orientation. Other policies prohibit retaliation against whistle blowers (employees who have reported illegal acts).

At-will is not carte blanche.

3. If I pay you a salary you don’t get overtime.

Employers, and even human resource managers, very frequently believe that if an employee is paid on a salaried basis, rather than an hourly basis, the employee is not entitled to overtime pay. This is not the case at all.

There are two classifications of California employees, “exempt” employees and “non-exempt” employees. Non-exempt employees are entitled to 1.5 times their hourly rate for any hours worked longer than 8 per day or 40 per week, meal breaks, rest breaks, and other protections.  Exempt employees are not.

Employers and employees cannot simply agree on a classification. Rather, it is determined by looking at a complicated, multi-factor test. Each factor of the test needs to be satisfied before an employer can claim an employee is not entitled to overtime. Only one of the factors is whether the employee is paid on a salaried basis rather than an hourly basis. The most important and overlooked factor is whether or not the employee applies discretion and independent judgment on matters of significance. In simple terms, is the employee a grunt-level laborer or high level company decision maker?  Read more here.

4. I was terminated without cause!

Employees often believe that if they are terminated “without cause” that they can sue their former employer. This is not the case.

Employers are not legally required to have a cause to terminate the vast majority of employees. Employers may legally terminate employees without cause, for arbitrary and unfair cause, or even out of a mistaken cause that the employee performed poorly. Without more, the failure to terminate “for cause” does not give the employee the ability to sue their employer.

What employers cannot do is terminate employees for an unlawful reason. For example, employers cannot terminate an employee because of the employee’s health condition, injury, or illness if the employee can still perform the essential functions of their job; called “disability discrimination”.  Employers will often claim that an employee was fired “for cause” to disguise an otherwise illegal termination, called a “pretextual termination.” Read more about wrongful terminations here.

5. I have a hostile work environment!

The term “hostile work environment” is not a myth. It’s a common type of employment lawsuit. However, the legal definition of a “hostile work environment” is much narrower than what most employees expect.

A hostile work environment is a form of harassment in employment. However, harassment is only illegal in California if the plaintiff-employee is subjected to it because of a legally protected characteristic. Legally protected characteristics include age (if over 40), ancestry, color, disability or “health” status, gender (including pregnancy and “sexual harassment”), gender identity, military and veteran status, marital status, national origin, race, religion, and sexual orientation.

Employees do not have an illegal “hostile work environment” simply because they are overworked, are set up to fail by a rival supervisor, or because of an aggressive, mean, and vindictive working environment. The harassment must be directed at the employee because of a protected characteristic.  Read about a hypothetical harassment case here.

Are you a Santa Cruz, Capitola, Scotts Valley, or Watsonville employee who wants to clarify an employment law myth? Visit BrianMathiasLaw.com

Mold Gold! Finally Some Good News for California Landlords

Tenant complaints about mold are among the most feared by landlords. The four letter word “MOLD” instinctively invokes fears of million dollar lawsuits, deadly illness, and expensive renovations.  Mold in rental housing can be a real danger and should be taken seriously by landlords and tenants. However, some tenants will make false or exaggerated claims of mold for the sole purpose of delaying an otherwise lawful eviction.

In response, in a very rare move, the California legislature enacted a law favorable to landlords, SB 655 & Civil Code 1941.7. The new law describes what landlords and tenants are obligated to do when mold exists, and when the presence of mold renders housing uninhabitable.

First, the mold growth must be “visible”. While this may seem like a common sense requirement, tenants in the past have solely relied upon questionable air tests to claim that dangerous levels of non-visible mold exist.

Second, a health and safety or building official must determine that (a) mold actually exists and (b) that the mold endangers the health of the occupants. This requires that a city or county official be notified of the perceived problem and that they  independently determine that mold exists.

Third, landlords are not responsible for mold that is minor or found in areas that accumulate moisture as a part of their properly functioning and intended use. For example, mold that exists in showers, bathrooms, or window sills would not render housing “uninhabitable”.

Fourth,  the landlord is not responsible if the existence of mold is caused by a tenant failure to clean or use household appliances, like using a bathroom vent, opening a bathroom window, or using a chemical like bleach to kill the mold.

Lastly, the tenant must allow access to the landlord to clean up any reported mold. Tenants cannot claim that mold exists in their rental property and then refuse the landlord entry to fix it.

The new law still prohibits slumlords from renting fundamentally disgusting, uninhabitable housing. A rental property with a genuine mold problem could still render it uninhabitable and expose landlords to a personal injury lawsuit. Tenants still have a plethora of rights that make any eviction very tricky and highly technical. However, the guidance  provided by the new law should prevent tenants from making a last minute, bad faith complaint about mold simply to frustrate a otherwise lawful eviction.

Finally some good news for California landlords!

Are you a Santa Cruz, Capitola, Scotts Valley, or Watsonville landlord with a mold problem? Call the Law Office of Brian Mathias. www.BrianMathiasLaw.com

Ready to stand up for your rights?