Los Angeles Employment Attorney Blog

On April 17, 2000, the California Labor Commissioner, Angela Bradstreet, and the Attorney General, Edmund Brown, announced that they had joined forces and obtained a default jugment for $13,640,819,00 against two janitorial services (Excell Cleaning and Building Services Inc. and M.O. Restaurant Cleaning of California Inc.) operating in Los Angeles and two other southern California counties. The action was brought and won because the companies didn't pay payroll taxes and failed to pay minimum wage and overtime to approximately 300 janitors. Congratulations to the State of California Labor Commissioner Angela Bradstreet and Attorney General Edmund Brown! 

Penalties and liquidated damages were included in the $13,640,819.00 judgment. Before the lawsuit was begun, California conducted an investigation that uncovered that the janitors were required to work 8 hours a day, 7 days a week for $50.00 per day and were misclassified as independent contractors so the companies wouldn't have to pay payroll taxes. The default judgment was entered after both companies were served with the summons and complaint but failed to respond.

If you are working overtime and not getting paid, you can contact the California Division of Labor's Worker's Information Hotline at 1-866-924-9757 or consult with an experienced employment law attorney.

Congratulations janitors of Los Angeles. Great clean-up job!

For the full text of the California Labor Commissioner and State Attorney General press release, click here.

Recently, the California Supreme Court denied review of Brewer v. Premier Golf Properties (2008) 168 Cal. App. 4th 1243. Brewer sued her former employer for Government Code violations and Labor Code violations pertaining to meal and break times. The trial resulted in a verdict in her favor including $195,000.00 in punitive damages.

Premier Golf Properties filed an appeal. The appellate court ruled that because the violation of the statutory provisions for meal and break times arose out of the employment contract, tort damages (punitive damages) were not available. But, the real basis for meal and break times, is public policy. This public policy was enacted into law in the Labor Code. Employers must give employees meal and break times. It is the decent and right thing to do.

Likewise, it is the decent and right thing not to discriminate against employees because of the employees race, religion, age, gender, sexual preference, medical condition, or physical disability unless it is a genuine, bona fide criteria that excludes someone. What is important, is that like legislatively mandated meal and break times. California has legislated public policy by mandating employers provide a discrimination free workplace. If the employer violates the public policy mandates embodied in the Fair Employment and Housing Act (FEHA), the employer may be held liable for punitive damages. The same should be true for violations of California Labor Code dealing with meal and break time violations. Such a change will not harm employers that comply with the law.

Punitive damages act as a deterrent to wrongful, unlawful conduct. It just isn't worth it for an employer to violate the law because of the risk of punitive damages being imposed for violation of the law. The prohibition against employment discrimination is based on public policy and codified in the Government Code Section 12940 et seq.. The requirement for meal and break time is based on the public policy codified in the Labor Code. Real life needs to hold people and employers responsible for their actions. When those actions are fraudulent, coercive or in conscious disreagrd of an employee's rights and welfare, punivitve damages are appropriate. 

The California legislature should amend the Labor Code to allow punitive damages for violations pertaining to meal and break times. Most employees live from paycheck to paycheck. They need protection from employers. And, in order to make sure that employees get their meal and break times, employers should face punitive damages if their failure to comply with the law constitutes fraud, coercion, or is in conscious disregard of their employees' rights. While employers may have sighed a sigh of relief when Brewer was decided, it was on the backs of every day workers. It is time to take another swing for punitive damages.

In the meantime employees, insist on your meal and break times. If you are retaliated against, harassed or wrongfully terminated because of asserting your right to meal and break times, in this writer's opinion, that would be a tort for which punitive damages are available. Los Angeles employment law attorneys who represent plaintiffs are among the most courageous and zealous advocates practicing law today. If your rights are being violated consult with an experienced employment law attorney or contact the Local California Labor Board office. 

Almost 50 years ago, President John F. Kennedy signed groundbreaking legislation known as the Equal Pay Act (EPA) into law. The EPA prohibits unequal pay to women and men who do the same job. But, today, women still get paid less than men for doing the same job, National Women's Law Center. Now there is new legislation pending which passed the U.S. House of Representatives on January 9, 2009 known as H.R. 12: Paycheck Fairness Act and is going on to the Senate.

HR 12: Paycheck Fairness Act would put teeth into the EPA. It would add compensatory and punitive damages and allow class action lawsuits, which is, apparently, why the U.S. Chamber of Commerce has fought against the bill. (The U.S. Chamber of Commerce is the largest business federation in the world which represents more than 3 million businesses). The concern is frivolous lawsuits.

That is total hogwash, baloney, scare tactics. No employer needs to worry about punitive damages if the employer complies with the law. Generally, for punitive damages, the plaintiff has to show that an employer acted in conscious disregard of the plaintiff's rights,  with coercion or fraud. Punitive damages and class action lawsuits should help keep employers in-line and encourage them to pay equal pay to women and men. People who are treated fairly aren't after their employer to sue. From my 26 years of employment law practice in Los Angeles, California, it is the abused employee, the employee who has been or is being unlawfully treated, not the happy, well treated employee that wants to sue.

Shame on you U.S. Chamber of Commerce. Compensatory damages, punitive damages, and class actions are just what we need to get equal pay for equal work.  The law hasn't worked without it. Women workers are vital and dynamic contributors to the U.S. workforce. If they aren't paid fairly, they should have the right to powerful legal redress. I vote for the Paycheck Fairness Act. Got carried away there for a moment, my vote doesn't count. I forgot. It isn't necessarily about fairness, it is about politics.

The Abel Law Office Offices, Los Angeles employment law attorneys, counsel employees and employers on equal pay for women and gender discrimination.

Everyone wants tips. Tips on the stock market. Tips on the real estate market. Tips on losing weight. Everyone wants tips. Dishwashers want tips, but they are in the back of the restaurant and are not in a position to receive a tip from a restaurant patron. And, cooks, who work so hard to make the food tasty and right, want tips too.

What to do with tips left by customers in restaurants has been the subject of not only restaurant owners and restaurant workers, but the California legislature and courts. Los Angeles restaurant goers are known to routinely give a tip on top of the restaurant bill. I know I do.

But some waiters and waitresses don't like to share. So, restaurant owners have imposed mandatory tipping pools which provide dishwashers, cooks, and bartenders a share of the tips left at the dining table. It seems fair. All of these people are in the chain of service, so why shouldn't they share in the tips?

California enacted Labor Code Section 351 reads in part "Every gratuity is hereby declared to be the sole property of the employee or employees to who it was paid, given, or left."

But just what does that mean? Who is the tip left for? Is it left for the waiter or waitress only? What about the bussers who bring napkins, utensils, water, and attend to the customers' needs? And, of course, the list goes on.

Well, don't sweat the tip stuff. On March 27, 2009, the California Court of Appeal in Brad Etheridge v. Reins International California, Inc. ruled that an employer can impose mandatory tip pools which can be shared by the bussers, bartenders, cooks, and dishwashers. This is not a happy day for a lot of waiters and waitresses.

Let me give you a tip on tips - they are for everyone in the chain of service. Really, where would the servers be if the bartenders, bussers, cooks, and dishwashers didn't do their jobs? And, who would the customer complain to if one of these other restaurant workers dropped the ball? You got it - the servers. Come on now, tips are for everyone.

In California the unemployment is now above 10%. The unemployed are not worried about a pay increase, they are worried about finding work. Even Los Angeles law firms are being hit by the economic crisis. (See Los Angeles Times).

The United States Congress has established minimum wages. Currently, the federal minimum wage is $6.50 per hour. Even though Congress gets automatic pay raises, the last increase of $4,700.00 boosted pay to $174,000.00 per year, it took 10 years (from 1997 to 2007) for Congress to increase the federal minimum wage from $5.15 to $6.50. There will be another increase as of July 2009 which will increase the minimum wage to $7.50.

Doesn't something seem out-of-wack? The hard working tax payers slave every day to make a a few hundred dollars a week and our servants, the elected politicians in Congress, get $3,500.00 dollars a week. Unless someone is willing to say that the average minimum wage employee makes little or no contribution to our society, it isn't right.

Congress should roll back its pay and eliminate the most recent $4,700.00 pay increase that went into effect January 2009. Everybody was outraged that AIG executives were paid huge bonuses after receiving an historic bailout out of billions and billions of dollars. How come the AIG executives should be taxes 90% on their bonuses and union members had to agree to have their pay scale sliced, but Congress goes merrily along in the bliss of pay increases when our country is broke?

You don't get a raise by working hard. No, that's for chumps. The best way to get a raise is to become a member of Congress. They just vote themselves raises. Try it, you'll like it.

The United States Equal Employment Opportunity Commission (EEOC) tracks charges of employment discrimination. Recently, the EEOC released charge statistics reflecting the individual charge filings for the time period covering 1997 through 2008. Well, with the laws in place and government enforcement of violations of the law, wouldn't you think there would be less discrimination? Despite the laws and the on-going efforts to enforce the law by EEOC, the number of charges in all categories have increased.

Individual employment discrimination charges increased almost 20% from 2007 to 2008. In 2007 there were 82,792 discrimination charges compared to 95,402 in 2008. Of the 9 categories of discrimination tracked, each and every category reflected an increase of filings from 2007 to 2008. For example, race discrimination filings increase from 30,510 race discrimination charges in 2007 compared to 33,937 in 2008. And there was almost a 20% increase in sex discrimination charges from 2007 to 2008. There were 11,000 more individual filings in 2008 than there were in 2007 (approximately a 20% increase) alleging retaliation for engaging in protected activities or some other type of retaliation.

 

Having laws isn't enough. Then, what is the solution? We need to educate employers, supervisors, and employees on the importance of diversity in the workplace and providing a discrimination free work environment. We need to train our employers, supervisors, and employees on effective and efficient methods to redress employee grievances and minimize discrimination in the workplace. Sexual harassment training is already a mandate, but it obviously that is not enough.

Employers could save tens of thousands of dollars or even millions of dollars by implementing effective training and educational programs to ensure their employees know, understand, and implement the laws mandating discrimination free workplaces. For example, a Phoenix, Arizona company, Wheeler Construction, agreed to settle claims by two individuals who alleged both had been the victims of natinoal origin harassment and then had been retaliated against for complainting about about the national origin harassment. Wheeler Construction will pay $325,000.00 to settle the EEOC lawsuit filed in the U.S. District Court for the District of Arizona.  Chester V. Bailey, the director of the Phoenix EEOC office said "These victims attempted to speak out and address their unlawful treatment, and their comlaints were ignored."

Employers should spend more resources on preventing and promptly addressing employee greivances alleging discrimination in the workplace instead of marshaling assets to fight claims. A discrimination free workplace means a more productive workforce and high morale. It's time to get smart.  Educate against hate.

Bruce Abel, Attorney-At-Law, is a 26 year veteran handling employment discrimination cases for employers and employees. Mr. Abel has offices in Los Angeles, Orange, and Ventura Counties. He is available to consult with businesses on effective training methods and resolution protocols regarding employment discrimination laws.

Sew - if you work overtime and don't get paid for it, the business you work for could be the next target of the Economic and Employment Enforcement Coalition (EEEC). The EEEC is California's watchdog and enforcer of California laws regarding worker's compensation insurance, overtime and minimum wage pay, and the requirement for itemized deduction statements for employees. EEEC is part of California's arsenal to fight against the underground economy by making surprise, unannounced sweeps of businesses that are known to avoid labor laws.

The garment industry is a regular target for the EEEC. Recently, the EEEC did a two day sweep of 21 Los Angeles garment businesses and found 14 violations. Garment businesses may think it is cheaper to fail to carry worker's compensation insurance or not pay minimum wage, but it isn't. If a garment business gets caught violating labor laws, they will pay the price.

 

Like what exactly? Like $183,600.00 for example. That's right, the EEEC fined Los Angeles garment businesses $183,600.00 for 14 violations involving violations of worker's compensation insurance, failure to provide itemized deduction statements to employees, and failure to pay minimum and overtime wages.

We want businesses to be successful, but not on the backs of the hourly workers who are the unsung heroes of the industry. Employees with concerns about work conditions can call a toll free Information Hotline 1-866-924-9757 which provides information in both English and Spanish. For more detailed information visit the EEEC website or contact an experienced employment law attorney.

In 2007 the United States Supreme Court decided Ledbetter v. Goodyear Tire & Rubber Company 550 U.S. 618 (2007). Lilly Ledbetter sued Goodyear because she had been paid less then men doing the same job. The Court held that an employee could not sue an employer because she had not received equal pay if the first unlawful act of unequal pay occurred more than 180 days before a charge of discrimination had been filed. Over the course of her working career, Lilly Ledbetter had been paid $200,000.00 less than men doing the same job.

Although Lilly Ledbetter did not prevail in her lawsuit, her name and the new law named after her are beacons of hope.The Lilly Ledbetter Fair Pay Act signed by President Obama on January 29, 2009, nullified the U.S. Supreme Court's holding in the Ledbetter case.  Now, a person has 180 days to file a charge of discrimination after each and every paycheck in which the person is paid less for the same work.

Finally, an elected official keeps an important campaign promise. Equal pay for equal work. Thank you Lilly Ledbetter and thank you President Obama.

Non-exempt employees, basically non-supervisory workers, are entitled to meal and break times if they are working full time. That means the employee is entitled to a duty-free meal period of not less than 30 minutes for every five hours worked and a least a 10 minute paid break for each 4 hours worked. For many this is not a problem. However, there are employers who push for production and expect employees to work through their meal and break times. Sometimes, an employer will make the employees clock out for lunch break, but make the employees work during that break. And, it is not uncommon for an employer to allow an employee to take a meal break, but prohibit the employee from leaving the facility.  These types of unlawful practices are generally seen in large metropolitan areas such as Los Angeles (Los Angeles Times) with a population of almost 10 million and approximately 4 million working people.(U.S. Census Bureau).

In California, that is against the law (See California Department of Industrial Relations). It is hard to speak up when you can't survive without your paycheck. That is understandable. However, in the long run, not speaking up will take a toll on one's emotional health and sense of dignity. Hungry? Tired? Need a break? Well, speak up and make sure you get what you are entitled to under the law. Document your demands such as sending emails. Explain to the employer that you need the break time to re-energize and not getting your meal break is wearing you down.

If your employer doesn't give you meal breaks, the penalty imposed on the employer is to pay you one hour of pay at your regular hourly rate. If the employer gives you a meal break, but makes you stay at the facility - you got it - you are entitled to be paid for that time. And, even if the type of work prevents you from being relieved of all of your duties, there still must be a written agreement between the employer and you to permit on-the-job paid meal periods.

The remedy of one hour of additional pay under Labor Code Section 226.7 for violations of the meal and rest periods is available for three years from the time of the violations. This is referred to as a three year statute of limitations. (The California Supreme Court upheld this legal remedy and the time period to bring an action in Murphy v. Cole.) If you think that your rights have been violated, get in touch with an experienced lawyer to discuss your rights and remedies.