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Category: Employment Law

Categories
Employment Law

Age Discrimination in California: What You Need to Know

It can be disheartening and frustrating to learn that you have been a victim of age discrimination, but you may be eligible to pursue a legal claim against the employer who has discriminated against you. In recent years, age discrimination claims are on the rise, and laws protect workers as young as 40, but it’s important to note that these claims can be complex without the guidance of an attorney. If you suspect age discrimination, begin taking steps to document how you’re being mistreated. Email evidence of age bias, a wave of new hires from a specific age group, terminations from a certain age group, or disparaging remarks related to age can all be evidence of age discrimination. Bringing a case cannot be based on a hunch or disagreement, you will have to be able to prove your case.

Federal Age Discrimination Laws

The Age Discrimination and Employment Act protects employees and job applicants aged 40 and above from any age based discrimination as it relates to all aspects of employment. It’s important to note that the ADA does not protect independent contractors, elected officials or military personnel. The law also only applies to specific businesses including:

  • Employment agencies
  • The federal government
  • Local and state governments
  • Labor organizations with 25 or more members
  • Employers with 20 or more employees

California Age Discrimination Laws Applies to Small Employers as Well

In addition to federal protection, every state also has laws prohibiting age discrimination in employment. California’s age discrimination law is called the Fair Employment and Housing Act or FEHA. FEHA protects individuals aged 40 or older from discrimination in hiring practices or in the workplace. While the California law has similar components to the ADA, it also has a much broader span. FEHA applies to smaller employers when compared with the federal law. All employers with at least five employees are covered by the California law.

What You Need to Know About Filing Age Discrimination Complaints in California

One of the first things you should do after you believe that you have been a victim of age discrimination is to consult with a California labor attorney. He or she may decide to file your complaint with the Division of Labor Standards Enforcement, the Equal Opportunity Employment Commission, or the Department of Fair Employment and Housing. These initial procedural decisions will be crucial to the success of your case.

If your attorney chooses to file a complaint with the Department of Fair Employment & Housing, she may use circumstantial evidence to illustrate disparate treatment. For example, if an employer has consistently hired significantly younger individuals to replace a person over 40 that has recently been fired, this evidence could be persuasive.  The statute will begin running when you’ve officially filed your claim. You will file an intake questionnaire and an affidavit describing the discrimination, and any other disparate actions that were taken against you. If the employer takes retaliatory actions against the former employee, each agency would consider this an additional violation of the law. If substantial evidence of discrimination is uncovered, the finding agency may choose to initiate a lawsuit.

This is particularly true with the Equal Employment Opportunity Commission. If the EEOC doesn’t find substantial facts to support the complaint, then the complaint will be dismissed and will issue a right to sue letter to the individual who submitted the original complaint. Then the original complaining party, with the help of his or her California labor attorney will have the option to file a lawsuit within 90 days of receiving this letter.

You also have the option of having your attorney file a complaint with the Department of Industrial Relations with the Division of Labor Standards Enforcement. Adverse actions in California could include suspension, demotion, unlawful discharge, refusal to hire or promote or a reduction of pay or hours. It is best to file a complaint sooner rather than later in order to protect yourself. Consulting with an experienced California labor attorney is strongly recommended.

As you can see, there are numerous avenues and layers involved when filing an age discrimination claim. Some of the most common situations involving an age discrimination claim are during the hiring, firing, and promotion process. Often, age discrimination plagues the workplace quietly, making it difficult to collect evidence or file a claim. The complexity of these claims highlights why it’s so important to hire an age discrimination lawyer as soon as possible.

Categories
Employment Law

California Increased The Minimum Wage: Here’s What You Need To Know

California Minimum Wage IncreaseThe minimum wage was instituted at a federal level in 1938 through the Fair Labor Standards Act. It was set at $0.25 per hour, which is a little over $4 per hour in today’s dollars. Since then, it has been raised 22 times by 12 different presidents to the current federal minimum wage of $7.25 per hour. A number of states have their own laws that set the rate higher than the federal minimum, too. This year, California’s minimum wage is set at $10 per hour, but that’s about to change. Governor Jerry Brown just signed a bill that will eventually bump the minimum wage to $15. The California minimum wage increase is matched by a similar bill in New York, matching the highest minimum in the country.

The California Minimum Wage Increase

The increase isn’t set to happen all at once. It will get a $0.50 bump in January of 2017 and 2018, then a $1.00 bump every year after that until 2022, when it will reach $15. After that, the wage will rise to match inflation. Businesses with fewer than 25 employees have an extra year to comply. However, note that the governor retains the right to delay a raise in case of economic recession.

Raising the minimum wage is always a contentious issue. In this case, labor unions fought for a faster increase while business owners argued for a slower one. One side argues that the minimum wage should be a living wage while the other argues that raising the minimum wage will raise the cost of doing business, leading businesses to increase prices and lay off workers.

How Does The Minimum Wage Affect Workers?

The minimum wage has not historically been linked to inflation, so it can only be changed by federal or state legislatures. Inflation causes prices to increase, so prices may be going up while the minimum wage has stayed the same. How much money is the minimum wage actually putting in your pocket?

One way to measure is by comparing the minimum to the federal poverty level, which does increase with inflation (so it reflects real spending power). In 2016, the federal poverty level is $11,880 for a single person and $24,300 for a family of 4. Your eligibility for many federal benefits is determined by that line. For example, you may be entitled to health insurance tax credits if you make less than 4 times the poverty line ($47,520). If you earn the federal minimum and work full time, you’ll earn about $15,000 a year. As a single person, you’ll be over the poverty line but still eligible for many benefits. If you’re supporting a family of 4, you’re making just about 60% of the poverty line.

The minimum wage hasn’t always been so low, however. In 1968, it was $1.60, which is more than $10 an hour in today’s dollars – more than California’s current minimum wage! The 1968 poverty level was $1,600 for a single person and $3,300 for a family of 4. Working full time, a minimum wage earner would make almost $3,300 per year – that’s almost 100% of the poverty line for a family of 4.

In other words, the real spending power of the minimum wage has decreased significantly since 1968. California’s increase to $15 means you’ll earn about $30,000 a year working full time. We don’t yet know what the poverty level will be for 2022, but that’s well above today’s line for a family of 4.

What Raising The Minimum Wage Means For You

If you’re currently earning California’s minimum wage, you can expect a raise every year until 2022, barring recession. In addition, overtime laws are linked to the minimum wage and your overtime pay will also increase. If your company employs fewer than 25 people, the raises may be delayed by up to 1 year. It’s the law – your employer doesn’t have a choice.

However, employers do have the right to fire employees. One economics professor from UC Irvine suggests that up to 5-10% of minimum wage earners may lose their jobs as a result of the increase while businesses adjust to the higher costs. What can you do to protect your job? Unfortunately, employers are within their rights to fire you if they can’t afford to keep you on. However, firing due to discrimination or retaliation is always illegal, so you should keep careful records of your work and any incidences of harassment that you experience at work.

Raising the minimum wage may put more money in your pocket, and it’s also the law. Your employer is legally required to comply with all of California’s wage and hour laws. If they don’t, you may be entitled to back pay and compensation. If you believe that your employer is in violation of California’s labor code, consider speaking with an attorney to learn about your legal rights and options.

 

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Employment Law

California Labor Code: The Wage And Hour Laws You Need To Know

As an employee, sometimes it feels like your boss has all the power and you’re stuck with their decisions. If you argue, you may be worried that you run the risk of losing your job. However, federal and state laws recognize that power imbalance give you certain rights and protections as a worker.

Federal labor laws are set out in the Fair Labor Standards Act and represent the minimum rights of employees. States and local governments can pass laws that give employees greater rights and protections and employers must follow the rule that most benefits the employees. For example, if federal law says you’re entitled to a single 10-minute break for every 4 hours of work but California law says you’re entitled to 2 breaks, your employer has to follow the California law. The California labor code regulates the amount workers must be paid, the hours they can work, and more. Let’s take a look at some of the most important provisions.

The Minimum Wage

Federal law mandates that workers must be paid at least $7.25 per hour – that’s the “minimum wage.” Fair Labor Standards Act § 206(1)(c). California, however, goes further, with a minimum wage of $10 per hour starting January 1, 2016. If your employer provides you with meals or lodging, they can’t credit that against your minimum wage without an express written agreement. Even if you do have a written agreement, they can’t take more than:

  • $47.03 per week for a room you’re occupying alone
  • $38.82 per week for a shared room
  • 2/3 of the ordinary rental value or $564.81 per month, whichever is less, for an apartment
  • 2/3 of the ordinary rental value or $835.49 per month, whichever is less, for an apartment shared by a couple where both people are employed by the same employer
  • $3.62 for breakfast
  • $4.97 for lunch
  • $6.68 for dinner

If you’re working as a server or in another position where you earn tips, you still have to be paid at least $10 per hour by your employer – they can’t count your tips toward your minimum wage.

Lunch And Breaks

The rules for lunches and breaks are set out in California Labor Code § 512. If you work at least 5 hours, you’re entitled to a 30-minute unpaid meal break. If your whole workday is 6 hours or less, you can choose to skip the meal break. If you’re going to work more than 12 hours per day, you’re entitled to a second 30-minute unpaid meal break after the 10th hour. If you’re working 10-12 hours, you can choose to skip your second meal break as long as you took the first one. If you’re working at least 3.5 hours, you’re entitled to a 10-minute paid break every 4 hours.

If the nature of your work doesn’t allow you to take 30 minutes off for lunch (completely off, with no duties or responsibilities), then you and your employer may agree in writing to an “on-duty” lunch. You’ll eat on the job and be paid at your regular rate. If your employer doesn’t let you leave the work site for lunch, you must be paid at your regular rate for that time even if you’re off-duty. Bono Enterprises, In. v. Bradshaw (1995) 32 Cal.App.4th 968.

What happens if you’re entitled to a lunch break, paid or unpaid, and your employer doesn’t give it to you in accordance with the law? Your employer has to pay you for an additional hour at your regular pay rate for every day it happens.  IWC Orders and California Labor Code Section 226.7.

Overtime Pay

In addition to the California minimum wage, you’re also entitled to overtime pay if you work more than a certain amount of time. In general, you get overtime pay for working more than 8 hours a day, 40 hours a week, or 6 days a week. The exact amount of overtime varies by how much you’re working and on what schedule, but it’s usually 1.5 or 2 times your regular rate of pay.

What Can You Do About Wage And Hour Violations?

Knowing about the California labor code doesn’t do you any good if there’s no way to enforce it. If you’ve been the victim of a violation of wage and hour laws, you can file a complaint with the Labor Commissioner’s Office to get the money you’ve earned. If that complaint doesn’t get you the outcome you want, you may also choose to consult with an experienced California wage and hour attorney to look into your options for filing a lawsuit against your employer.

The idea of filing a complaint or claim against your employer can be a little scary, but the law protects you from retaliation from your employer. They’re not allowed to fire you or cut your hours in retaliation for you filing a complaint or claim. If they do retaliate, it’s time to talk to an experienced California employment lawyer to learn about your options for dealing with wrongful termination.

 

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Employment Law

Working Overtime In California

California overtime law mandates extra pay for working more than 8 hours per day or 40 hours per week. It’s a recognition that putting in those extra hours is harder and should be compensated at a higher rate than the regular hours everyone expects to work.

Federal Overtime Laws

Federal overtime laws define the minimum protection for employees. These are set out in the Fair Labor Standards Act (FLSA). Under federal law, employers must pay 1.5x your regular hourly pay rate for every hour you work past 8 hours in a day or 40 hours in a week. Salaried employees are generally excluded from this rule and may be required to work beyond 40 hours per week without an increase in pay.

California Overtime Law

California offers even more to workers than federal law requires. Like the FLSA, California overtime law requires your employer to pay 1.5x your normal hourly wage for every hour you work past 8 hours in a day or 40 hours in a week. You are also entitled to 1.5x your normal hourly wage for the first 8 hours you work on the seventh consecutive day of work. California has an additional increase if you work far beyond normal hours. You’re entitled to double your normal hourly rate for every hour you work past 12 hours in a day or past 8 hours on a seventh consecutive day of work.

You must work more than 8 hours per day and more than 40 hours per week to qualify. For example, someone whose regular schedule involves working for 10 hours per day, 4 days a week does not qualify for overtime pay for the extra 2 hours on each work day because she’s only working a total of 40 hours per week.

Nonexempt Employees

Some employees are exempt from the overtime laws, meaning that they are not legally entitled to overtime pay past 8 hours per day and 40 hours per week. Exempt employees include executives, administrators, professionals, state and local employees, cab drivers, airline employees (under certain circumstances), actors, and workers whose overtime pay is governed by a collective bargaining agreement.

Nonexempt employees, on the other hand, are entitled to the protection of overtime laws. That means almost everyone who works for an hourly wage and is not a member of a union is entitled to overtime pay. Salaried workers are also entitled to overtime pay as long as they don’t fall under one of the exemptions.

Mandatory Overtime

Your employer does generally have the right to require you to work overtime, as long as you receive the appropriate overtime pay. In fact, your employer can fire you for refusing to do it. On the flip side, your employer is required to pay you for overtime work even if it’s unauthorized. However, you may be disciplined if you’re breaking a company policy about working hours or notifying your superior and you can’t try to conceal the fact that you’re working overtime from your employer.

How To Calculate Overtime

First, you’ll need to determine how many hours you’ve worked in a given week. If it’s more than 8 per day and 40 for the week, you’re probably entitled to overtime pay. First, count how many hours you worked beyond 12 hours in a given shift or beyond 8 hours on a seventh consecutive day of work. Those are the hours for which you make double your regular pay. Next, take the total number of hours you worked and subtract 40, then subtract the number of double pay hours (so you don’t double count them). In general, that’s the number of hours for which you make 1.5x your regular pay. There may be slight variations if you work 7 days in a row, which we see in the second example below.

Overtime pay is based on a multiple of your regular hourly pay rate. If you’re paid an hourly wage, that’s your regular pay rate and you just multiply it by 1.5 or 2 to determine your overtime pay rate. If you earn a salary, you’ll need to take your annual salary, divide it by 52 to get your weekly salary, and divide that by 40 to get your regular hourly pay rate.

For example, say you earn $10 per hour and your schedule last week looked like this:

Monday 9:00 AM to 7:00 PM
Tuesday 9:00 AM to 5:00 PM
Wednesday 9:00 AM to 10:00 PM
Thursday 9:00 AM to 7:00 PM
Friday 9:00 AM to 3:00 PM
Saturday 12:00 PM to 6:00 PM
Sunday Off

First, you worked 13 hours on Wednesday. That’s one hour of double pay.

You worked a total of 53 hours last week. We take 53, subtract the 40 hours for which you don’t get overtime pay, and subtract the hour of double pay. That leaves you with 40 hours of regular pay, 12 hours of time-and-a-half, and 1 hour of double pay.

Let’s take a look at one more example. Say you make $10 per hour and your schedule last week looked like this:

Monday 12:00 PM to 6:00 PM
Tuesday 12:00 PM to 6:00 PM
Wednesday 12:00 PM to 6:00 PM
Thursday 12:00 PM to 6:00 PM
Friday 12:00 PM to 6:00 PM
Saturday 12:00 PM to 6:00 PM
Sunday 12:00 PM to 6:00 PM

With this schedule, you never worked more than 8 hours in a day. You worked a total of 42 hours for the week. However, you don’t just get 2 hours of overtime pay. Because you worked 7 days in a row, you get overtime pay for the hours you worked on the 7th day. That means you get 6 hours of time-and-a-half and 36 hours of regular pay.

Have You Been Denied Overtime Pay?

If you’ve worked overtime in California, you’re entitled to overtime pay. Unfortunately, employers will sometimes deny the appropriate pay rate in order to save money. If this has happened to you, you may need the help of an experienced California employment lawyer to help you get the pay you’ve earned. You may also choose to file a wage claim with the Division of Labor Standards Enforcement.

California Attorney Search

The San Fernando Valley Bar Association offers a comprehensive attorney referral service to help connect you to an experienced lawyer who can help you with your legal questions. We can match you with the right employment law attorney for your unique situation.

 

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