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Tag Archive for employment law

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!

Von Nothdurft Decision a Game Changer for California Resident Managers

Residential apartment managers in California just can’t seem to catch a break. As licensees, they are not afforded the broad legal protections of tenants living at the same property. They are required to be on call 24/7 but are only entitled to compensation for actual hours worked. And they often work far more hours than they are paid for but lack the documentation to prove it.

Until recently, Industrial Wage Order No. 5-2001 (“IWO 5-2001), which regulates the wages, hours, and working conditions of resident managers, was their one saving grace. Under Section 10(C) of the order, an employer cannot credit the value of a resident manager’s apartment “against the minimum wage without a voluntary written agreement between the employer and the employee.”

On June 26, 2014, however, the California Court of Appeal in Von Nothdurft v. Steck, ___ Cal.App.4th ___, significantly weakened this protection. Von Nothdurft is the first state court case certified for publication that addresses what language needs to be included to qualify as a “voluntary written agreement” under IWO 5-2001. The court’s ruling? Far less than previously thought and less than the plain language of the order seems to require.

In Von Nothdurft, Plaintiff Brenda Leigh Von Nothdurft (“Ms. Von Nothdurft”), an apartment manager for a property owned by Defendant John Steck (“Mr. Steck”), signed a management agreement stating her compensation would include “free rent for her apartment.” At the time of the agreement, neither Ms. Von Nothdurft nor Mr. Steck was aware of the requirements of IWO 5-2001.

Ms. Von Nothdurft argued the agreement did not satisfy the requirements of IWO 5-2001 because it did not reference the minimum wage or any apartment rent credit. This interpretation of “voluntary written agreement” was adopted by the Department of Labor Standards and Enforcement (2002 Update of the DLSE Enforcement Policies and Interpretations Manual, at § 45.4.5) and a California federal district court in Brock v. Carrion, Ltd. (E.D. Cal. 2004) 332 F.Supp.2d 1320, 1330 (2004).

The Van Nothdurft court didn’t buy it:

Wage Order 5 does not define the phrase “voluntary written agreement” as used in subdivision 10(C) or otherwise specify that any particular terms must be included in such an agreement to permit a valid lodging credit – it requires only a “voluntary written agreement between the employer and the employee” without qualification. Under its plain terms, no express reference to a credit toward minimum wage, statement that the employee is entitled to minimum wage for every hour worked, or the precise amount to be credited, need be included as long as the parties understand and agree – as they did here by entering into the management agreement – that lodging is to be credited toward the employee’s compensation. Since the wage order’s language is clear, we apply it without further interpretation.

Interestingly, the court in Brock read the same “plain” language to reach the opposite conclusion: “Consistent with the statutory language, the DLSE requires that the written agreement explicitly reference that such credits are being applied toward the minimum wage obligation of the employer.” Brock v. Carrion, Ltd. (2004) 332 F. Supp. 2d 1320, 1330.

The interpretation adopted by the DLSE and the Brock court is the far more sensible one. Under IWO 5-2001, a voluntary written agreement is a condition precedent to validly crediting the employee’s lodging against the minimum wage (“…lodging may not be credited against the minimum wage without…”). This language clearly implies that the agreement must in some way relate to the employer’s minimum wage obligation.

Under Von Nothdurft, an agreement between employer and employee having nothing to do with the employment relationship would qualify as a “voluntary written agreement” as long as it was in writing and signed by the parties. The holding defies common sense and undermines the very purpose of the wage order—to inform the resident employee of her rights under the Labor Code and to protect those rights.

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.

Los Angeles Employment Attorney Helping Workers

For a Los Angeles employment attorney, helping workers is something they take pride in. No matter what dispute you may have with your employer you can always turn to an employment attorney to seek help in the matter and get it resolved the right way.

Are you having problems getting the salary you agreed to in your contract? Maybe your current employer insists you are not worth what you agreed to in your contract. You have the legal right to come to the best Los Angeles employment attorney to help you enforce your legal rights.

Many times people find themselves in complicated situations in the workplace and feel overwhelmed by the prospect of standing up to their superiors. Many of these people find relief in the knowledge that Los Angeles employment attorneys bring to each case, the tailor made solutions they give as well as their expert negotiation skills.

Problems you face may range from employment breach of contracts to unfair dismissal to discrimination in the selection process of employees based on age, gender, race, disability or sexual orientation. In all the above cases you will be able to get a hands-on solution that will alleviate your frustration or dispute.

The U.S. Constitution and several state statutes as well as various acts of congress describe broadly the remedies available to any complaint brought under the acts, the precautions, procedures and prohibitions that relate to each unique circumstance you may find yourself or your loved ones in.

Employment Law: Sexual Orientation Discrimination

Discrimination based on a person’s sexual orientation is an unfortunate occurrence that happens quite often in workplaces.  Sexual orientation discrimination is unlawful and is initiated when an employer discriminates against an applicant or employee because the applicant or employee is gay, lesbian, bisexual or transgender. The Leichter Law Firm, APC advocates for individuals suffering discrimination based on sexual orientation and gender identity, if you feel you have a case, contact your Los Angeles Employment Law attorney today.

Here’s a more detailed explanation of sexual orientation discrimination laws and policies at various levels.

Federal Law

Although federal laws protect people from workplace discrimination on the basis of race, national origin, religion, sex, age, and disability, there is no federal law that specifically bans sexual orientation discrimination in the private sector. There have been attempts to pass such federal laws, but they have been unsuccessful.

State Laws

There is a bright side at the state level. Almost half the states and the District of Columbia have laws that currently prohibit sexual orientation discrimination in both public and private jobs: California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.  In addition, a few states have laws prohibiting sexual orientation discrimination in public workplaces only.

Local Laws

For states who do not have laws against workplace discrimination, some cities and counties have laws that can protect such cases. Many cities and counties prohibit discrimination on the basis of sexual orientation in at least some workplaces.

Company policies

Companies have taken it themselves to initiate their own policies prohibiting discrimination based on sexual orientation. These policies prohibit such conduct and often provide disciplinary guidelines for dealing managers who discriminate, up to and including termination of employment.

We have the knowledge and experience to guide you through the complex legal issues that you may face. Our southern California office is located in the mid-Wilshire area, just west of downtown LA.  Call 213-381-6557 or email us today.

 

Via NOLO

Employment Law: What You Need to Know about Employment Discrimination

Employment discrimination can take many forms. It most often occurs when an employer takes action against an employee based on his or her race, color, sex, national origin, disability, age, or religion. Many people fall into these “protected classes,” but simply feeling like you have been treated unfairly does not always mean you have a case.  If you have experienced employment discrimination contact your Los Angeles employment attorney for a confidential consultation.

You need to keep in mind that it really depends on how others in a similar situation were treated compared to you. Generally, unless there are statements directly indicating a decision was made because of a discriminatory reason, lawyers will look at how other people are treated differently from you. In order to have an employment discrimination case, you have to be able to provide specific information and/or examples of how you think your treatment has been discriminatory. For example, if a person is fired for having too many absences and he or she alleges gender discrimination, legal teams will look at whether other employees have had a similar number of absences and whether male and female employees are treated equally.

Before filing a complaint, you need to make sure you have all relevant information such as: termination notices, letters of discipline, paycheck stubs, documents supporting your request for reasonable accommodation (if you are claiming disability discrimination), information about witnesses, and any other information that you may feel will support your case.

According to Cornell University Law School, your employer must have at least 15 employees and you must file your charge of employment discrimination within 180 days of the alleged discriminatory act.

Employment Law: Overtime Pay Claims

New employment regulations prohibit employers from stiffing employees from their overtime pay. However, that doesn’t mean they never try to keep those extra earned wages from their workers. According to the University of Washington, “The Fair Labor Standards Act (FLSA) requires that most workers receive overtime pay at 1.5 times the employee’s regular pay rate for all hours worked over 40 hours in a seven day workweek, and that employees be paid at least the federal minimum wage.” In addition, employees are also entitled to overtime compensation whenever they work more than 8 hours in one day (but only receive overtime pay for the time worked after the 8 hour mark.) If you think you are owned any overtime pay please contact your Los Angeles employment attorney for a confidential consultation.

Since the FLSA took affect some employers have tried to cheat their employees using old and new methods. For example, an employer might decide to deny overtime pay if it is not approved in advanced. However, the FLSA treats approved and non-approved hours the same; meaning that once the hours are worked the employee is entitled to overtime pay.

Another strategy used to get around paying overtime is to classify salaried employees as exempt. This revolves around the idea that an employee that is paid salary rather than an hourly wage cannot earn overtime. However, this notion is completely false because job titles and descriptions are not determinative factors. Whether an employee qualifies for overtime compensation is determined by the work they performed, not whether they are paid salary or hourly.

Other employers reduce hours on employee timecards for meal breaks when work is performed. Normally if an employee is entitled to a meal break his or her employer does not need to count the time as part of the total hours worked. But, if the employee works during the meal break, the time must count toward the hours worked for the day and the week.

Employment Law Issues and Sweatshop Violations in California

It isn’t very common to find employees in the United States let alone in California working in sweatshop conditions, however this hit close to home. However some employers will never learn and will continue to treat employees unlawfully.  If you have experienced such instances, contact your Los Angeles employment lawyer immediately.

One recent case takes place in Los Angeles.  According to an article from Lawyers and Settlements, O & K Apparel Inc. has been ordered by California Labor Commissioner Julie A. Su to pay its 110 employees $13,785 in California overtime wages plus penalties of $61,450 for failing to pay proper overtime, and $307,250 for issuing improper itemized/deduction statements.

The article continues to explain that, “O & K Apparel Inc., which is based in Los Angeles, makes women’s garments and has been paying its employees by the piece, or piecework.”  The California labor code states that garment contractors are required to provide accurate itemized statements to employees showing total hours worked by the employees, and if paid by the piece, they must show the number of pieces produced for specific manufacturers and the rate of pay for each piece in addition to the total hours worked.

The rest of the article explains a statement from Labor Commissioner Su, explaining that there is no place for sweatshop conditions in our 21st century economy. Su explains, “piece rate payment cannot be used as an end-run around the basic requirement that all workers in California receive a just day’s pay for a hard day’s work, including overtime pay for overtime hours worked. In addition, California law requires itemized wage statements so employees know how much they worked and what they earned. In this case, the pay stubs did not include any of that information, which makes it hard for workers to know when their wages are being stolen right out from under them.”

Future Employment Lawyers: The Top 5 Law Schools with Best Employment Prospects

Whether you have heard or not, lately the trend in law school students finding jobs after graduation has been at an all time low.  According to Policy Mic, “this trend is glaringly rampant in law schools. Only 86% of the nation’s class of 2011 law students found employment after graduation, a figure that is six points lower than four years prior. Those who find employment have an average annual starting salary of $60,000, which is $12,000 less than was the median in 2009.”

A law degree is exciting and an awarding accomplishment to have under your belt. Hard work and valuable knowledge comes with sacrifice in order to fulfill a rewarding career in the future.  Often people graduate students attend graduate school in order to continue to pursue what they love or are interested in, in hopes of finding a fulfilling career post graduation.  If you are a future law student in the making, whether you are looking to get into employment law or other fields, your hard work will pay off.  Check out the top 5 law schools with the best employment prospects according to Policy Mic.

  1. Columbia University School of Law
  2. University of Chicago Law School
  3. University of California at Berkeley School of Law
  4. Northwestern University School of Law
  5. New York University School of Law

For more information on the starting median salaries and percentage of students finding work after graduation read here.

Employment Law: Everything You Need to Know About Family and Medical Leave Act

There are many cases where an employee feels the need to take time off of work to care for a sick loved one.  Many may not know that could qualify for their company’s Family and Medical Leave Act (FMLA).  It is important to understand your employee privileges in case a situation should arise.  If you have encountered issues with FMLA contact your Los Angeles employment lawyer today.

What does the Family and Medical Leave Act entail?  According to US News, “The Family and Medical Leave Act took effect in 1993 to help balance workplace demands with the medical needs of employees and their families. You’re entitled to take up to 12 weeks of unpaid leave during a 12-month period for your own serious health condition, or to care for an immediate family member who has a serious health condition. You may also use the FMLA for what the Department of Labor website refers to as “birth and bonding:” an extended parental leave for the birth or adoption of a child, and for bonding with a new foster child.”

Check out these facts on determining your eligibility according to US News:

  • Not every employee is eligible.
  • Your employer may require that you use paid leave first
  • Your employer may require proof of the serious health condition
  • A job is guaranteed to you, but not necessarily the same job you had before.

You may request additional time to care for a member of the military

Find out everything you need to know about FMLA here.