Wage Theft is No Joking Matter, Make Sure it Isn’t Happening to You

As a restaurant server in California, you make the state’s minimum wage, unlike servers in other states. You may have heard that the Department of Labor plans to change the rules on tip-pooling. The purpose of this rule change is supposed to even out how front of house and back of house employees are paid. There’s no worry about this in California; however, critics say the rule goes too far, and legalizes what’s currently considered wage theft. There are many ways an employer can commit wage theft. When that happens, you’ll need the help of an expert labor attorney.

Overtime Wage Theft

You can get overtime for additional hours worked over 40 hours in your full-time work week, whether you’re a blue-collar or white-collar worker, and unless you’ve been classified as exempt from the Fair Labor Standards Act. The questions you’ll want to ask include who is exempt, and who is not. In addition, you’ll want to get a breakdown of overtime rules by occupation. Some occupations have different classifications and exemptions.

Employee Misclassification

If you’re an employee of a company, you have rights that give you protection. As an employee, your payroll taxes are paid by your employer, and unemployment insurance as well. However, independent contractors do not get those rights and protections. Independent contractors are also on the hook for their payroll taxes. If you think this kind of wage theft is occurring, you’ll want to find out about your employee classification. Once you know your classification, ask your labor attorney if you should be classified that way.

Minimum Wage Violations

This one may seem obvious, but if you’re being paid less than the highest minimum wage rate for your area, that’s a case of wage theft. There are federal and state minimum wages, and your city might even have minimum wage laws on the books. You’re entitled to the highest applicable minimum wage.

Off the Clock Wage Theft

Work starts as soon as you go into work. If your employer isn’t paying you the time it takes to get into your protective gear, as well as the time you spend cleaning up after the day, that’s a working off the clock form of wage theft. Don’t let your employer get away with this. If you’re being asked to work off the clock, contact your labor attorney right away.

Illegal Deductions from Pay

If your employer is taking unauthorized or illegal deductions from your paycheck, it’s wage theft, in the most literal sense. You should contact your labor attorney right away to get this resolved.

Not Getting Paid at All

Perhaps the most obvious form of wage theft is when you aren’t even paid. If you aren’t paid you need to immediately contact your labor attorney and start recording everything.

If you fear that you’re suffering wage theft, The Law Offices of Cathe L. Caraway-Howard are here to fight for you. Call (310) 488-9020, email, or Fill out the contact form to get started on the path to justice. Cathe L. Caraway-Howard is always “fighting for the little guy”.

Are you Protected by New Rules About Non-Compete Agreements?

Did you sign a non-compete agreement when you were hired? You should probably have an employment lawyer verify if it actually applies or not. Lots of people think that the protections given by California Labor Code section 925 apply to everyone. However, section 925 went into effect January 1, 2017. Section 925 forbids employers requiring that Californian employees agree to “foreign choice-of-forum” and “choice-of-law” agreements as a condition of unemployment. Your California labor attorney should be familiar with the case law on this subject.

Why Did We Need This?

California’s Business and Professions Code section 16600 says that “every contract by which anyone is restrained from engaging in a lawful profession, trade or business of any kind is to that extent void.” They enacted this to make sure you can work in your profession, even when you stop working with a particular company.

Historically, California has usually enforced section 16600 very strongly. Employers from other states usually couldn’t get around the rule. Sometimes however, they used “choice-of-law” portions in their non-compete contracts.

A good example of a choice-of-law provisions failing is Arkley v. Aon Risk Services Companies, Inc. Aon Risk Services Companies, Inc. is an Illinois based company, and they made employees sign non-compete agreements with that choice-of-law provision. In Illinois, non-compete agreements are enforceable. The Central District of California however, found that California law should apply over Illinois law in the state of California. The reason for this was California’s “materially greater interest” to protect California residents with their own laws.

How Can Employers Get Around Section 16600?

There have been a few recent cases that got around these protections. An employment lawyer can tell you about cases like the one with Synthes, a medical device company. Synthes tried to enforce the non-compete agreement against Peter Harrison, a former employee living in California. Harrison signed an agreement that had both choice-of-law and choice-of venue provisions. When Harrison went to work with a competitor, he filed a declaratory judgment action in the Eastern District of California. Synthes followed up by filing a breach of contract claim in Pennsylvania courts.

The California Court Dismissed Harrison’s action in favor of the action Synthes filed. After appeal and remand, Harrison got an injunction from the Pennsylvania Trial Court.

Another case, also involving Synthes, played out in April of 2017. Another California employee, Gregory Knapp, went to work with a competitor in California. Even though he filed a declaratory judgment action right after resigning, the Eastern District didn’t exercise jurisdiction, and let the case be held in the Eastern district of Pennsylvania. The case transferred to the Eastern District of California, but the Pennsylvania choice-of-law rules still apply.

Enter California Labor Code Section 925

Because of this unfair “loophole” California is taking measures to close it. Because section 295 forbids employers from requiring employees who primarily live and work in California to agree on foreign choice-of-forum and choice-of-law provisions, it deems these kinds of provisions voidable by the employee. Section 925 also provides for the fees of hiring an employment lawyer to enforce your rights under this statute.

So, Am I Safe?

Because section 925 only applies to contracts entered into or modified after January 1, 2017, you should talk to your employment lawyer. The Synthes opinions did not consider this new statute because they were not entered or modified after January 1^st. It’s also important to note that there haven’t yet been any cases where a court invalidated the forum-selection clause under section 925.

As always, if you have any questions you should contact an employment lawyer to discuss your individual circumstances. The Law Offices of Cathe L. Caraway-Howard have been fighting for the little guy since 2009. Cathe makes sure average American’s rights are protected everyday. You can call (310) 488-9020, email cath@carawaylaw.com, or fill out our contact form to schedule a consultation.

Guide to Filing OSHA Safety Complaints From A Local Labor Lawyer

Ask any labor lawyer– safety in the workplace is no joke. Employers have a responsibility to protect their employees from safety and health issues while at work. Workers also have the right to know about possible hazards and not be forced to perform work that they believe is harmful or dangerous.

Of course, there are potential safety issues in every workplace. According to top California employment lawyers, some safety issues are more of a danger than others. Some are more easily correctable than others. However, if you do notice a potential safety issue, the first thing you should do is inform your superior (supervisor or manager) of the issue. Some states require you to give written notice to the employer, while others will allow a verbal notice.  If they are unable (or unwilling) to correct the issue, you should file a complaint with the Occupational Safety and Health Administration.

How Did OSHA come about?

President Nixon established the Occupational Safety and Health Administration (OSHA) on December 29, 1970. His signature on the Occupational Safety and Health Act of 1970 created a new branch of the Department of Labor. This new branch’s purpose and mission has always been to “assure the safety and health of America’s workers by setting and enforcing standards; providing training, outreach, and education; establishing partnerships; and encouraging continual improvement in workplace safety and health.”

Gather your Evidence Before you Contact OSHA

Before you report OSHA, this employment lawyer suggests being absolutely sure you have all the information necessary to make a full report of the safety issue. You’ll need the business name, address (a district and corporate address as well, if they have one) and phone number. You will also need the name and title of your manager or superior. Finally, you’ll need a description of the type of business, as well as the type of work you perform for the business.

Next, you need to get an accurate description of the safety issue. Describe the safety issue in as much detail as you can. You’ll want to gather the following information:

• The specific location of the issue. It is important to be as specific as possible, especially in large work spaces.
• What tasks workers perform in an around the location. These tasks do not have to relate to the safety issue. However, if workers perform these tasks near the safety issue, the safety issue may harm them as well.
• The number of workers who may be exposed to or affected by the safety issue.
• Whether any workers have already suffered problems or injuries resulting in medical treatment.
• How long the safety issue has existed, and how long you believe the issue will continue to exist.
• Any references or witnesses who know about the safety issue, and their contact information. A brief statement from them is generally helpful as well.

Employment lawyers and other labor law attorneys agree that you should make sure to have everything documented first, before completing the form.

Completing the OSHA Complaint Form

In recent years, OSHA has made great strides to ensure that filing a complaint is as easy as possible for workers. Over the years, OSHA has adapted to new technology for a changing world. Today, you can go to the website of the California Division of OSHA (Cal-OSHA) to their online complaint form and complete all the necessary paperwork online. You can also call your local OSHA Area Office to discuss your safety issue or answer any questions you may have.

A Word About Retaliation

Every state has its own laws in regards to retaliation by an employer. However, they all are similar in that they prohibit actions that affect an employee’s hours or wages from adverse actions. Some of those actions a labor lawyer would consider retaliation include being fired, laid off, demoted, or disciplined, or by denying benefits, overtime, or even a promotion. In California, Labor Code sections 6310 and 6311 specifically allow workers to:

• File complaints about safety or health conditions or practices;
• Institute any proceeding related to their rights to safe and healthful working conditions or testifying in any such proceedings;
• Participate in an occupational health and safety committee; or
• Refuse to perform work where the worker believes that an occupational safety or health standard, or any safety order would be violated and the violation would create a real and apparent hazard to the employee or his or her co-workers.

If you believe your employer is retaliating against you due to a complaint you filed, a qualified labor attorney can help. Depending on the situation, the labor lawyer can help you file a retaliation complaint with the Labor Commissioner, also known as the Division of Labor Standards Enforcement (DLSE) or the National Labor Relations Board (NLRB).

For the Best Results, Get a Labor Lawyer to help

Safety hazards are never easy to tackle alone. The larger the organization, the more difficult it feels to file a safety complaint against them. This is especially true if your employer decides to retaliate against you. That’s why it’s always important to have the services of a qualified labor lawyer on your side. With the skilled help of an experienced California employment lawyer like the Law Offices of Cathe L. Caraway-Howard, you need not fear even the most threatening of situations. After all, when it’s not only your own health and safety on the line but that of others you know and care about, you need to fight to make sure no future employee suffers a similar fate.

Congress is Considering National Right-to-Work Laws – But What Does Right To Work Mean?

You’ve probably heard the term “Right to Work” recently. The ideas behind right to work laws have been in the news, on political ads, and seem to be gaining support. But do you know what right to work means? It might feel like you have to be a labor lawyer to understand what these employment laws are about.

On this page, you’ll receive a breakdown of what the right to work law means, and what it does. Even if you’re in California with strong employment laws, federal right to work laws could affect you.

What is a Right to Work Law?

Right to work laws are employment laws regarding unionization. If you’re in a state like California, a company’s union might require you to join as a condition of employment. This means you’ll have to pay dues, and your union will bargain for you. In states with right to work laws you cannot be required to join your union, or pay dues to your union. However, those unions will still have to bargain for you.

Organized labor argues that because you’re receiving the benefits of union membership, you should be expected to help pay for the costs of bargaining. Proponents of Right to work laws say these laws just ensure that you have the freedom to make your own choices.

How Can Right to Work Laws Affect Me

There are many instances where you may be affected by right to work laws. When you’re being hired, if you have right to work laws in your state, you don’t have to join a union. However, if your new employer has a union contract, you can still enjoy the benefits of that contract without paying any fees to your union. Opponents of right to work laws say that this will harm the overall power of unions.

If your coworkers are trying to organize a union, or negotiate a new union contract, right to work laws matter. Because the negotiation must cover all the workers, even if you’re not a member or paying fees, you’ll probably find fewer members and even less funds for the unions.

So, are Right to Work Laws Anti-Union?

This depends on who you talk to. Most employment rights and labor groups oppose right to work laws, arguing that these employment laws result in weaker unions and fewer workplace protections. What do you think about right to work laws? Tell the Law Offices of Cathe L. Caraway-Howard on their Facebook page. If you have any question about California employment laws, or you have a dispute with your employer, Contact Cathe L. Caraway-Howard at (310) 488-9020. You can count on decades of experience to fight for your employee rights.

5 California Employment Laws Coming up in 2017 You Should Watch

Whether you’re an employee or an employer, it’s important to know how California employment laws will affect you. You should always contact a labor attorney like Cathe L. Caraway-Howard if you have any specific questions. That said, it’s always good if you have an idea of what’s coming up regarding California employment laws. 2017 is already shaping up to be a big year when it comes to your rights in the workplace. The California State Legislature has already introduced these 5 bills.

A.B. 5

Assembly Members Lorena Gonzalez and Ash Kalra introduced The Opportunity to Work Act, or A.B. 5. Gonzalez said during the press release for this bill, “Even as we’ve won increases in the minimum wage to help part-time workers, that just won’t cut it if you can’t get enough hours of work…The Opportunity to Work Act will provide a boost to the millions of workers in California who want to work more so they can afford the necessities of life and to take care of themselves and their families in a time when housing costs, student debt, and surprise expenses are increasingly difficult to manage.”

According to that press release, this piece to the puzzle of California employment laws makes sure that companies with 10 or more employees must offer more hours to existing part-time employees before hiring. They must have an employee that is qualified to do the job. This is great news if you’re one of the 1 million Californians that involuntarily have your hours limited.

A.B. 168

This bill, introduced by Susan Eggman, D-Stockton, applies to your salary history. The goal of this bill is to prevent employers for asking about your salary history during your interview. Additionally, this bill requires your potential employers to give you the pay scale for the job you’re applying for.

During this bill’s press release, Eggman said “Using Salary History to determine compensation perpetuates a system that pays women less than their male counterparts.”

SB-33

Senator Bill Dodd (D-Napa) Introduced this bill. This bill’s goal is to make sure consumers who’ve been defrauded can sue, even if they signed an arbitration agreement. Arbitration agreements mean if you have a dispute with someone with whom you’ve signed a contract, you must use binding arbitration instead of suing them in court.

During the press release for SB-33, Senator Dodd said, “It’s unacceptable for consumers to be blocked from our public courts to recover damages for fraud and identity theft. Allowing victims their day in court not only allows them to recover, it can prevent more victims by putting an end to illegal business practices.” He added, “With Quick Federal Action on this issue unlikely, it’s critical that California lead the nation to prevent these abuses.

Wells Fargo Bank employees used customers’ personal identification to create more than two million new accounts without consent. These fraudulent accounts caused the victims, who didn’t even know about these accounts millions of dollars of fees. Many of these victims tried to sue to recover their damages.

Wells Fargo however, had a response. They argued that customers had waived their right to sue. As such, this should be handled through arbitration. The courts upheld that argument. Wells Fargo has received over $150 million in regulatory fines Since this information came out. While this bill doesn’t directly address employment, it would affect any employment agreement with an arbitration waiver.

S.B. 62

Senator Jackson (D-Santa Barbara) put this bill forward. The purpose of this bill is to expand which family members you can take protected leave to care for. Under this bill, you can take 12 weeks of leave, while protecting your job, to care for your grandparents, grandchildren, siblings, in-laws, or your adult children. The bill applies only to employers who have 50 or more employees.

This bill, and the next one on the list are being similar bills to other bills Jackson had authored that were vetoed by Governor Jerry Brown. During the press release, Jackson said “I look forward to continuing to work with the Governor to reach an agreement on these important issues.”

S.B. 63

In addition to S.B. 62, Senator Jackson also introduced S.B. 63, or the New Parent Leave Act. S.B. 63 expands the amount of job-protected parental leave, both maternity and paternity leave, for new parents who work at smaller businesses. If congress passes this law, you’ll get 12 weeks of job-protected “Parental Leave” as long as your company has 20-49 employees. Under today’s law, only employers with 50 employees or more must provide job-protected leave.

At the press release, Jackson said, “Any new parent knows that the birth of a new baby comes with a host of changes and challenges. But losing a job should never be among those challenges. The same must be said of the impacts of serious illness of an extended family member. It simply is not right that far too many Californians who already pay into and are eligible for Paid Family Leave benefits fear that if they utilize these benefits they will lose their jobs.”

What do you think about these upcoming California employment laws? Tell the Law Offices of Cathe L. Caraway-Howard on Facebook. If you have a dispute with your employer, the Law Office of Cathe L. Caraway-Howard are ready to fight for you. Call us at (310) 488-9020 to schedule a consultation.