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Archive for workplace claims

Court Funding Issues Mean Longer Wait Times For Justice

I’m often asked by clients with California employment claims how long it will take to adjudicate their claims. In recent years, my answer has been some version of: “A lot longer than it used to.” The 2015 Los Angeles Superior Court Annual Report, published on April 14, 2015, perfectly illustrates why. Over the past five years, the Court has cut spending by $110 million (with a resulting 27.5% decrease in its annual budget from Fiscal Year 2010-2011), closed eight courthouses in which approximately 300,000 cases were filed annually, and drastically reduced staffing. The result? Clogged dockets and delayed motion hearing and trial dates. A process that once took twelve to fifteen months to complete can now easily exceed two years.

This is the first report the L.A. Superior Court has issued since 2011, presumably because it couldn’t find money in its budget for the copy paper and printer toner. I’m just kidding, of course, but only just. Fortunately, the situation appears to be improving. The Court was able to balance its budget beginning with Fiscal Year 2013-2014 for the first time in five years and did not have to undertake layoffs for the first time in seven. It has also streamlined and consolidated specific case types by creating “specialized case-processing hubs in select courthouses.” As I don’t practice in any of these specific case types, I have not a clue what this means, but the Court claims it has “resulted in major efficiencies,” so bully for them!

NEW YEAR USHERS IN NEW EMPLOYMENT LAWS IN CALIFORNIA

Another year, another dozen or so new laws for California employers and employees to brush up on. (It’s the most wonderful time of the year.) Here are my top three:

1. Paid Sick Leave Posting and Notice Requirements

While California’s new paid sick leave law does not go into effect until July 1, 2015, employers are required to provide notice of employees’ paid sick leave rights beginning January 1, 2015. Employers must post notice of these rights where employees can easily read it in the same manner as they do (or should do) with respect to their employees’ minimum wage, overtime, and worker’s compensation rights. Further, employers must provide newly-hired non-exempt employees with notice of their paid sick leave benefits pursuant to the Wage Theft Prevention Act Notice (Labor Code section 2810.5), or “WTPAN,” as it is referred to by . . . absolutely no one.

2. Protection for Unpaid Interns and Volunteers Under FEHA

Assembly Bill 1443 closes a pretty egregious loophole exempting unpaid interns and volunteers from the discrimination, harassment and retaliation protections of the California Fair Employment and Housing Act. AB 1443 extends such rights to unpaid interns and volunteers.

3. Extended Statute of Limitations on Liquidated Damages for Minimum Wage Violations

Assembly Bill 2074 clarifies that the statute of limitations for liquidated damages stemming from minimum wages violations under California Labor Code sections 1197.1 and 1194.2 is the same as the underlying minimum wage violations themselves, three years. Previous case law had suggested that these liquidated damages were penalties and thus subject to a one-year statute of limitations.

Please contact the Leichter Law Firm, APC located in Los Angeles, California to learn more about your legal rights in the workplace.

New Legislation Sure to Sicken California Employers

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Supporters are calling it “historic” and a shot in the arm to working class Americans. Critics contend it’s a job killer. Me? Just one more thing I can blog about.

On September 10, 2014, Governor Jerry Brown signed the Healthy Workplaces, Healthy Families Act of 2014 (Assembly Bill 1522), making California the second state in our great union (damn you, Connecticut!) to provide paid sick leave to employees. Under the legislation, which will take effect on July 1, 2015, employees will earn a minimum of one hour of paid sick leave for every 30 hours of work.

Before all you California employers start making plans to relocate to Mexico, the law is not as economically crushing as it appears. The HWHFA (seriously, no one could think of an act name with a better acronym?) authorizes employers to limit an employee’s use of paid sick days to 24 hours or 3 days in each year of employment. And the employee’s right to use accrued sick days does not begin until the 90th day of employment. See? Not so bad, right? You can live with that. Just be sure to satisfy the posting, notice and recordkeeping requirements. And make sure not to retaliate against any employee who requests paid sick days—that’ll get you into trouble.

 

CA Supreme Court Delivers Victory for Franchisors in Patterson v. Domino’s

In a long-awaited decision that came down last Thursday, the Supreme Court of California in Patterson v. Domino’s ruled that a franchisor is not the agent or employer of a franchisee’s employees for purposes of holding it vicariously liable for the workplace conduct of those employees if it did not control the employment policies of the franchisee.

The facts are as follows: In September of 2008, Sui Juris, LLC (“Sui Juris”) acquired a Domino’s Pizza (“Domino’s”) franchise in Southern California, employing Renee Miranda (“Miranda”) as assistant manager and Taylor Patterson (“Patterson”) as a server. Long story short, Miranda sexually harassed Patterson (allegedly), and Patterson sued both Sui Juris and Domino’s, claiming Domino’s was their employer and a joint venturer of Sui Juris.

Domino’s moved for summary judgment on the employer/joint venturer issue. The trial court granted Domino’s motion on all counts, determining the franchisor did not control the day-to-day operations or employment practices necessary to find that Sui Juris was its agent or Miranda its employee. The Court of Appeal reversed, finding that reasonable inferences could be drawn that Sui Juris lacked managerial independence based on the standards and procedures imposed by Domino’s.

The Supreme Court granted Domino’s petition for review. At the outset, the Court rejected Patterson’s argument that “the degree of control exercised by franchisors like Domino’s makes each franchisee the agent of the franchisor for all business purposes, and renders each employee of the franchisee an employee of the franchisor in vicarious liability terms.” Such a rule would, in the Court’s view, “turn business format franchising ‘on its head.’”

While ruling in Domino’s favor, the Court tempered the victory for franchisors by noting that a franchisor could, and would, face potential liability if it retained or assumed a general right of control over factors like hiring, direction, supervision, discipline, or discharge.

 

The Ten Commandments for Pursuing Your Employment Claims

Think you’ve been wronged by your current or former employer but don’t know how to proceed? Let these ten commandments be your guide.

DO: 

I.     Consult with an Employment Attorney.

We’re everywhere—you can’t miss us. We pay good money to get on your radar, so don’t feel like you’re imposing on our time or good nature. And if you are imposing? Well, that’s our problem, not yours.

DON’T:

II.    Pay Money for an Initial Consultation.

Now this is not a hard and fast rule. There are many competent and ethical employment attorneys who charge for initial consultations and are perfectly justified in doing so. There are also, however, many competent and ethical employment attorneys who don’t charge for initial consultations. Why buy the cow when you can get the milk for free?

DO:

III.    Consult with Another Employment Attorney.

It never hurts to get a second opinion, or a third, or a fourth, especially if they’re free. If every law firm you speak to wants to set up a meeting to sign you up as a client, you know you’re in business. Conversely, if you’re repeatedly told that you have no case, you have a pretty good idea where you stand.

DON’T:

IV.    Consult with Any Attorney.    

In a world where resources are scarce, employment lawyers are plentiful, especially in Los Angeles. If you have an employment law issue, you want to make sure you are advised by someone with employment law experience. If a lawyer’s website does not include employment as an area of practice, there’s a pretty good chance he or she is not well versed in that area of law.

DON’T:

V.     Contact an Attorney From the Workplace.

This seems rather obvious when you think about it. The problem is employees often don’t think about it. Many employers have policies explicitly authorizing the monitoring of employees’ company emails and internet search history. The same is true of phone calls made from work telephones. Even without these policies, you cannot assume such communications will remain confidential. If you don’t have a cell phone, wait until you get home to make the call. If you need to send an email from work, make sure you use a personal email account and do it during a break and out of the reach of prying ears.

DO:

VI.    Give Yourself Sufficient Time to Review the Retainer Agreement.

So you’ve met with the Law Offices of Employmentson and Laborstein, APC, and have a good vibe about them. They’re interested in representing you and give you their standard retainer agreement. Before signing anything, read the agreement! This is more ostensibly obvious advice too many clients ignore. Do not feel pressured into signing anything you have not fully reviewed. If you need more time, ask for it.

DON’T:

VII.   Sign the Retainer Until All Your Questions Have Been Answered.

A common side effect of being a lawyer is writing like one. If there is a provision in a retainer agreement that does not make sense to you, ask the attorney to explain it to you. It’s quite possible he or she does not understand it either. A retainer agreement is a legally-binding contract. Once you enter into the agreement, you are bound by its terms. It’s critically important that you understand, and are comfortable with, everything in the contract.

DO:

VIII.   Everything Your Lawyer Tells You to Do When You’re Told to Do It.

A good attorney will zealously fight for you, but you need to do your part. Make yourself an asset to your case, not another problem your lawyer has to contend with.

DON’T:

IX.    Withhold Relevant Information From Your Attorney.

A corollary to the Eighth Commandment and a cardinal sin. You might be tempted to withhold information which you believe is harmful to your case or personally embarrassing. Don’t! An informed lawyer with advance knowledge can minimize the damage and/or avoid uncomfortable revelations about you. A blindsided and unprepared lawyer will lose face in front of opposing counsel and lose faith in you.

DO:

X.     Follow These Commandments As They Have Been Told Unto You.

Uncomfortable with the religious undertones? Just think of them as helpful suggestions.