Employment Law

What Are California’s Overtime Laws?

June 29, 2020 by Haeggquist & Eck

Overtime pay has been enshrined in federal law for the better part of a century, thanks to the Fair Labor Standards Act of 1938 (FLSA). Among a multitude of landmark protections for workers that were established at that time (and in the following decades), the FLSA provides employees who work more than 40 hours per week with pay at a rate of one-and-a-half times their normal rate for each additional hour worked.

As a federal statute, the FLSA provisions regarding overtime apply to all 50 states, which must adhere to it as a bare minimum. California goes beyond what federal law requires in some areas of overtime compensation, so please keep in mind that the protections we’ll describe below apply to California and may only apply to California. If you are concerned about learning overtime compensation laws for another state, check with its statutes.

More than Eight Hours in a Single Day; More than 40 in a Single Workweek; More Than Six Days in a Single Workweek

In California, non-exempt employees earn overtime compensation when they work more than eight hours in a single workday, or more than 40 in a single workweek, or more than six days in a single workweek. This provision is important because it’s a point where California law diverts from the minimum amount of federal protection under the FLSA, where only hours worked beyond 40 in a single workweek are eligible for overtime.

This disincentivizes employers from scheduling back-to-back shifts with only a short break between them or other potentially unintended consequences that may go against workers’ interests. California doesn’t outlaw this kind of “creative” scheduling, but instead ensures overtime compensation for employees who may be subjected to odd schedules throughout the workweek.

Time-And-A-Half Compensation & Double Time

The federal and state standard for overtime compensation is time-and-a-half, which means an employee will be paid at time and a half for each hour of qualified overtime work. A full hour does not need to be worked, but rather any number of minutes worked in excess of eight in a day or 40 in a workweek will be compensated at the same rate even if they don’t add up to a full hour.

Double time is a rate twice that of an employee’s normal pay rate. This rate is triggered when an employee works more than 12 hours in a single workday or more than eight hours on the seventh consecutive day of work.

Special Holiday Pay Is Not Required in California

It’s a common misconception that overtime or double-time rates are mandated by California law when an employee works on a holiday. This is not the case, and what may contribute to the misconception are the many employers who adopt policies to provide additional compensation on certain holidays. The likely reason for this is to encourage workers to come in for their shifts so that the business can operate on a day when it may receive an increase in sales.

In short, holiday pay is a perk some employers provide but it is not required by law.

Are You Being Fairly Compensated?

If your pay stubs aren’t reflecting accurate compensation for the hours you worked, or accurately account for the hours you worked, reach out to the employment law attorneys at Haeggquisr & Eck, LLP for assistance.

We can help you review your pay stubs, employer’s compensation policies, and applicable state and federal laws to help you make sure your paycheck is accurate. If you are being shortchanged for the work you’re doing, we can help you recover what your employer owes you by taking legal action.

For more information about how we can assist you, reach out to Haeggquist & Eck, LLP online or by calling (619) 342-8000.

Why Does It Matter If I Am a Misclassified Worker?

June 29, 2020 by Haeggquist & Eck

Employers have an implicit incentive to cut costs everywhere they see them. This widens profit margins for themselves and their investors and contributes to the overall viability of the business. In and of itself, this isn’t a bad thing because a viable business is one that can continue to employ its workers. Where it can become problematic, however, is when the cost-cutting endeavors directly and illegally impacts employees.

There are many ways an employer can violate wage laws, but employee misclassification has the potential to go unchecked the longest. This is because employee misclassification involves labeling a worker in a manner such that the employer’s obligations to pay overtime or certain taxes are limited.

Typically, workers will be misclassified as “exempt” or as “independent contractors.” Let’s take a look at each and how you may be able to identify if you’ve been misclassified.

Exempt vs. Non-Exempt Employees

When we’re talking about employment law, “exempt” almost always refers to an employee’s eligibility to earn overtime pay. The Fair Labor Standards Act makes this distinction and provides that overtime pay is calculated at a rate of one-and-a-half times the employee’s regular rate. In California, overtime pay is earned for each hour greater than 40 in a week or eight in a day.

There are nuances to overtime compensation laws in California that we’ll explore in another post, but for now that’s the basics of how overtime pay works. Clearly, employers have a financial incentive to label certain workers as “exempt” from overtime compensation when they should really be classified as non-exempt. Misclassification leaves the door open to demand more hours and more work from an employee without consequence because exempt workers aren’t entitled to overtime.

Here is how California law defines a non-exempt worker:

They DO NOT earn a monthly salary of at least no less than twice the state’s minimum wage for full-time employment
They DO NOT exercise discretion and independent judgement with regard to evaluating possible courses of action and deciding to take an action after consideration.
Less than 50 percent of their time is spent performing non-exempt duties, such as manual labor.
They ARE NOT an executive, administrator, salesperson, computer professional, artist, or another professional with specific skills and education.

Your job title is irrelevant if the reality of your job doesn’t match up to these standards. It’s not uncommon for employers to inflate their employees’ titles to make them sound as if they’re performing exempt functions when these employees should really be classified as non-exempt workers.

Independent Contractor Misclassification

Unlike exempt misclassification, inappropriately classifying workers as independent contractors not only helps the employer avoid paying overtime and payroll taxes, but also makes it harder – or even impossible – for the worker to bring wrongful termination, discrimination, sexual harassment, and other types of employment-based lawsuits.

An independent contractor is a perfectly legitimate classification. People who are independent contractors are often contracted by an employer to do a special job or perform work for a limited period of time, like an accountant.

That said, not everyone who is labeled as an independent contractor may actually be legally considered as such. California recently provided a so-called “ABC Test” to help people determine if they should truly be classified as independent contractions.

According to the ABC Test, an independent contractor is someone who:

Is free from control and direction of the company in performing work, both practically and in the contractual agreement between the parties;
Performs work that it outside the usual course of the company’s business; and
Is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the company.

If your relationship to an employer DOES NOT align with the above criteria, you may actually be misclassified and should be a full-fledged employee. Chances may also be likely that you should be a non-exempt employee and entitled to earn overtime pay.

Do You Need To Hold an Employer Accountable?

If you believe you are a misclassified employee and have been improperly denied overtime pay, certain benefits, or have otherwise had your employment rights violated, reach out to Haeggquist & Eck, LLP for help.

Contact us online or by calling (619) 342-8000 for a free consultation!

Can My Employer Require Me To Take an Antibody Test?

June 23, 2020 by Haeggquist & Eck

The short answer is: No. Businesses can’t require their employees to take COVID antibody tests. The U.S. Equal Employment Opportunity Commission (“EEOC”) issued new guidance on June 17, 2020 that although employers can require employees to take a COVID-19 test, they cannot require employees to take a test for COVID-19 antibodies.

The EEOC pointed to recent guidance from the Centers for Disease Control & Prevention (“CDC”) that says that antibody tests shouldn’t be used to determine if someone is immune to the virus or as a basis for decisions about allowing workers back to work.

“An antibody test constitutes a medical examination under the ADA,” the EEOC said. In light of the CDC’s guidelines that that antibody tests shouldn’t be used to make decisions about people returning to work, the EEOC found that an antibody test does not meet the ADA’s standard for medical examinations for current employees. Thus, the EEOC concluded that “requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.”

The EEOC stated that it would continue to closely monitor the CDC’s recommendations, and it could update its guidance in response to changes in the CDC’s recommendations.

Call (619) 342-8000 or contact Haeggquist & Eck, LLP online to learn more about how we can help you.

Can I Be Fired For Joining the Black Lives Matter Protests?

June 11, 2020 by Haeggquist & Eck

Assuming you did it on your own time, the answer is no. Employees cannot be fired because they joined the Black Lives Matter protests, or for any other political activity in which they participate.

At the Federal level, and in many states, political affiliation is not one of the traditional “protected classes” of anti-discrimination law. California, however, is among a minority of states that protect political affiliation and activity from workplace discrimination. Although California’s Fair Employment and Housing Act does not prevent employment discrimination on the basis of political affiliation, under California Labor Code §§1101 and 1102, employers may not interfere with or control employees’ political activity.

California’s law protecting political activity dates back to the New Deal era and the organized labor movement, which was growing in political power at that time. But the law is not limited to protecting labor activism and organization. The California Supreme Court has interpreted the law expansively in the intervening years. Under the law, banding together with others in support of a cause can be protected “political activity”; as could expressing support for political reform by a symbolic gesture, such as wearing a pin or an armband, or displaying an appropriate banner.

Based on this interpretation of the law, an employee would be protected from retaliation for marching in a Black Lives Matter protest on his or her own time. The employer could not discriminate against the employee for tweeting about the movement; or for discussing the movement with coworkers during an employee’s rest break. If the employer’s dress code allows t-shirts, the employer could not discriminate against an employee who wore a Black Lives Matter t-shirt to work, and the same goes for pins, posters, or other emblems of the movement. An employee probably cannot walk off the job in order to protest, but if the political activity is otherwise lawful and doesn’t interfere with the employee’s work, it should be protected.

Moreover, because the United States and California Constitutions both protect the right of the people to peaceably assemble and petition for a redress of grievances, terminating an employee for participating in a Black Lives Matter march might also violate the common law prohibition on terminating employees in violation of public policy. If your employer retaliates against you after finding out you joined in the Black Lives Matter protests, contact an employment attorney to protect your rights.

Of course, other, more conventional political activity is protected as well, and actions short of outright termination might also violate the law. For example, an employer could not prevent an employee from wearing a “Feel the Bern” t-shirt, assuming a t-shirt is otherwise allowed by the employer’s dress code. A manager cannot ridicule an employee for being among the tens of thousands of Americans who cast protest ballots for Mickey Mouse or Santa Claus. Without question, an employer cannot fire or threaten to fire an employee because that employee supports a particular cause or candidate. Similarly, an employer cannot refuse to hire a person based on that person’s political beliefs or affiliations.

In an extreme case, where political affiliation discrimination turns violent, California’s hate crime law, known as the Ralph Act, may offer employees even further protection. In California, verbal or written threats of violence, physical assault, graffiti, vandalism, and property damage can be considered hate crimes if motivated by, among other reasons, a person’s political affiliation. If

workplace discrimination on the basis of political affiliation turns violent, or potentially violent, an employer could be liable for failing to act on reports of workplace conduct that would violate the hate crime law.

If you think your employer’s actions may violate California laws protecting political affiliation, you should contact an experienced employment attorney who can assess your situation and advise you on how you might protect your right to political affiliation.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

Child on Summer Break? Summer Camp Closed? No Available Child Care? You May be Eligible for a Paid Leave of Absence.

June 3, 2020 by Haeggquist & Eck

They say hindsight is 2020, and when we look back at 2020, many working parents will be grateful for the time we got to spend at home with our kids while shelter-in-place orders were in effect. But as orders begin to lift, and businesses reopen, working parents will face many different obstacles – Is there any leave I qualify for now that my child is on summer break? What if my care provider is high risk and afraid to watch my child? What if my child’s usual summer programs remain closed? You may be eligible for a paid leave of absence.

By now, you have likely heard of the Families First Coronavirus Response Act (“FFCRA”), a temporary federal law passed by Congress in response to the COVID-19 pandemic. Effective April 1, 2020 through December 31, 2020, the FFCRA requires all private and most public employers with less than 500 employees to provide Paid Sick Leave and/or Family Leave for certain qualifying reasons, including for employees to care for their child if their child’s school or place of care is closed or the child’s care provider is unavailable for reasons related to the pandemic (the “Child Care Qualifying Reason”).

Am I Eligible For Paid Leave Under the Child Care Qualifying Reason?

To determine whether you are eligible, it is important to understand the following definitions:

Child means your biological, adopted, or foster child, stepchild, legal ward, or a child of a person standing “in loco parentis” (meaning “in the place of a parent”), who is under 18 years old. Child also includes one who is over 18 years old and is incapable of self-care due to a mental or physical disability.
School means a nonprofit elementary or secondary school, including public charter schools, up to 12th grade.
Closed means the physical location where your child received instruction or care is closed, even if all or some instruction is being provided online.
Place of Care means any physical location where your child receives care while you are at work. This includes day cares, preschools, before and after school programs, summer camps, summer enrichment programs, schools, homes, and respite care.
Child Care Provider includes nearly anyone who cares for your child including paid individuals like nannies, au pairs, and babysitters, and those who provide childcare at no cost like family members, friends, or neighbors.

Eligibility under the Child Care Qualifying Reason is extremely broad, and chances are, if your usual childcare is unavailable because of the pandemic, you will qualify for paid leave under the FFCRA.

How Much Paid Leave Can I Get For the Child Care Qualifying Reason?

If you are eligible under the Child Care Qualifying Reason, you are entitled to up to 80 hours of Paid Sick Leave, paid at 2/3 your regular rate of pay (which varies depending on full-time, part-time, or irregular schedules), capped at $200 per day and up to $2,000 total, regardless of how long you have worked for the employer. If your employer agrees, you may be able to supplement the remaining 1/3 pay with any accrued vacation, sick, or paid time off under your employer’s policies – but your employer may not require that you use your existing leave entitlements in place of Paid Sick Leave. That is because Paid Sick Leave under the FFCRA is in addition to any vacation, sick, paid time off, or other paid leave entitlements already provided by your employer or under other Federal, State, or local law.

If you are eligible under the Child Care Qualifying Reason, you are also entitled to up to ten additional weeks of Family Leave, which is also paid at 2/3 your regular rate of pay (which varies depending on full-time, part-time, or irregular schedules), capped at $200 per day and up to $10,000 total, if you have worked at least 30 days for the employer. During the ten weeks, your employer may require that you exhaust any accrued vacation or paid time off, but they will have to pay you the full amount that you are entitled to under their policy.

Further, you can use the Family Leave intermittently, only while your typical childcare is unavailable, if you and your employer agree to a schedule. For example, if your neighbor usually watches your child on Monday, Wednesday, and Friday, and your child’s grandmother usually watches your child on Tuesday and Thursday but only your child’s grandmother is unavailable for care because she is high risk for COVID-19, you can take your Family Leave only on Tuesdays and Thursdays and work the remaining days if your employer agrees to that schedule.

How Do I Request Paid Leave For the Child Care Qualifying Reason?

To get Paid Sick Leave and/or Family Leave under the Child Care Qualifying Reason, you will need to provide your employer, either orally or in writing, with the following information:

Your name;
Date(s) of requested leave;
Reason for leave and a statement that you are unable to work because of this reason;
Name of your child;
Name of the school, place of care, or child’s care provider that is unavailable; and
A statement that no other suitable person is available to care for your child. Note that this generally means a co-parent or co-guardian will not also be able to take paid leave for the Child Care Qualifying Reason because if they do so, then there will be another suitable person available to care for your child.

You may also be required to fill out certain IRS forms if your employer so requests.

Do I Have a Right To Return To Work After Paid Leave For the Child Care Qualifying Reason?

Generally, yes you have the right to return to work to the same or an equivalent job as you had before you took leave. Your employer is prohibited from firing, disciplining, or otherwise discriminating against you because you took Paid Sick Leave or Family Leave. That said, you are not protected from employment actions that would have happened regardless of whether you took leave. For example, your employer can close your worksite or lay you off for legitimate business reasons, such as profit losses during the pandemic, if your employer can prove you would have been laid off even if you had not taken leave.

What if I Work For a Small Business That Has Been Hit Hard Financially By The Pandemic?

Economic realities right now may disqualify you from your rights under the Child Care Qualifying Reason of the FFCRA. First, if your employer has less than 50 employees, it may qualify for a small business exemption from providing Paid Sick Leave or Family Leave if doing so would jeopardize the viability of its business. To claim the exemption, an authorized officer of the business must determine only one of the following:

That providing the paid leave would cause the business to cease operating;
That the absence of the employee requesting leave would entail substantial risk to the business’s financial health or operational capabilities because of the employee’s specialized skills, knowledge of the business, or responsibilities; or
That there are not sufficient workers who are able, willing, qualified, and available to perform the labor and services provided by the employee requesting leave, which labor and services are needed for the business to operate at minimal capacity.

Further, if your employer has less than 25 employees, and it provided you with leave under the Child Care Qualifying Reason, it may be exempt from returning you to work if it can show:

Your position no longer exists due to economic or operating conditions that affect employment and due to COVID-19 related reasons during your leave;
Your employer made reasonable efforts to restore you to the same or an equivalent position;
Your employer makes reasonable efforts to contact you if an equivalent position becomes available; and
Your employer continues to make reasonable efforts to contact you for one year after your leave concludes.

What To Do If You Believe Your Rights Are Being Violated

If you qualify for paid leave under the Child Care Qualifying Reason and believe your employer is violating your rights, you may be able to hold them legally accountable. The employment law attorneys of Haeggquist & Eck, LLP will work with you to learn about your situation and seek fair and just compensation if your employer is breaking the law. Contact us online or call (619) 342-8000 to learn more about how we may be able to support your claim

Pregnant Employees Entitled To Pregnancy Leave In Addition To General Disability Leave

May 29, 2020 by Haeggquist & Eck

Becoming pregnant can be one of the most joyous, and simultaneously terrifying, moments of a person’s life. Pregnant employees also have the added fear of losing their job because of the pregnancy. This is especially true for pregnant employees who suffer from a pregnancy-related disability, which could put them out of work for months. Fortunately, California law protects longer leaves of absence for employees who suffer from a pregnancy-related disability.

Under California’s Pregnancy Disability Leave Law (“PDLL”), which is part of the Fair Employment and Housing Act (“FEHA”), employees are entitled to up to four months of leave for pregnancy-related disabilities. Additionally, FEHA requires employers to accommodate any physical or mental disability of their employees, including engaging in a good-faith interactive process with the employee to determine appropriate accommodations. Leave for a finite period of time has been considered a reasonable accommodation under California Law. But for years, it was unclear whether a pregnant employee could take her four months of leave under the PDLL and then take additional leave as a reasonable accommodation under FEHA, or if her leave was capped at four months.

California Code of Regulations §11047 answered this question, stating an employer’s duty to provide reasonable accommodations to a disabled employee is separate from an employer’s duty to comply with PDLL requirements. Thus, pregnant employees are entitled to four months of leave for pregnancy-related disabilities in addition to the protections afforded under FEHA, such as a finite period of leave as a reasonable accommodation.

Additionally, California Code of Regulations §11093 states that at the end of an employee’s PDLL leave, an eligible employee may request additional time off for the birth of the employee’s child under the California Family Rights Act (“CFRA”). CFRA allows an employee a maximum of 12 workweeks of leave. Thus, a disabled employee who has taken four months of PDLL leave may take up to an additional 12 workweeks of CFRA leave.

The California Court of Appeal applied this reasoning in Sanchez v. Swissport, Inc., finding that a disabled employee was entitled to both PDLL and additional leave as a reasonable accommodation. In Sanchez, the plaintiff suffered a pregnancy-related disability which, once diagnosed, required her to be on bed rest through the remainder of her pregnancy. The plaintiff’s employer, Swissport, permitted the plaintiff to take four months of PDLL leave, as well as additional leave provided by the CFRA and accrued vacation time. However, once the leave was exhausted, the plaintiff’s due date was still three months away. Swissport then terminated plaintiff’s employment, believing it had no further duty. The trial court agreed, finding that FEHA leave was capped at four months.

The California Court of Appeal, however, disagreed. The Court held that the PDLL supplements the protection workers are entitled to under the FEHA. Therefore, Swissport had a duty to engage in the interactive process and provide the plaintiff with reasonable accommodation for her pregnancy-related disability.

Similarly, in Gardner v. Federal Express Corp., a Federal District Court denied summary judgment, opining that a question of fact existed as to whether additional leave would have been a reasonable accommodation for an injured employee, even though the employee exhausted his company’s 90-day leave policy. In other words, even if an employee has exhausted mandated leave time, the employer may be required to grant more leave as a reasonable accommodation.