California Employment Attorney Blog

Uniform Maintenance

Mon, 20 Sep 2010 11:32:29 -0800

I handled a case on behalf of an employee who was not reimbursed for the maintenance of his uniform. The employer required that his employees' wear uniforms that were provided to them at no cost. These employees were required to maintain their uniforms in a clean and unsoiled manner. However, due to the nature of their job duties, their uniforms were exposed to different chemicals such as ink, grease, and other contaminants. As a result of the chemicals, these employees' were forced to wash their uniforms separately from their everyday clothes.

California Labor Code § 2802, provides that employers must indemnify employees for all "necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful"

When a California employer requires an employee to wear a uniform, the Industrial Welfare Commission (IWC), obligate the employer to provide and maintain their uniform. The IWC also published a document titled "Uniforms- an Explanation of Industrial Welfare Commission Regulations", which stated that "employees must maintain or provide a maintenance allowance for uniforms requiring special laundering for heavy soiled uniforms"

Therefore, if the job duties of the employee were such that their uniforms would get soiled with chemicals and/or ink, it is the employers' responsibility to provide or reimburse the employee for their uniform maintenance.

The California employment lawyers at The Nourmand Law Firm can help you obtain a claim against an employer who fails to reimburse his employees' for their uniform maintenance.

Employee "On Call" or "Standby time" is Compensable in California

Mon, 16 Aug 2010 16:25:43 -0800

I handled a case on behalf of an employee who was not compensated for "on-call" or "standby time." The employee worked as a security guard and was required to provide security at construction sites or developmental properties.

For years, the employee was scheduled to work Monday through Friday, during which days he would work 16-hour consecutive shifts. Moreover, he was also scheduled to work both Saturday and Sunday, during which days he would also work 24-hour consecutive shifts. Altogether, the employee worked 7 consecutive days and over 140 hours a week. The employer failed to compensate the employee for his 16 and 24 hour shifts.

The employer committed numerous wage and hour Violations.The employee was not paid overtime for the work he performed over eight hours per day or forty hours per week, was not paid double time for work performed over twelve hours per day, was not paid time and a half his regular rate of pay for the first eight hours worked on the seventh consecutive day of work in any work week, and was not paid the regular rate for hours worked in excess of eight on the seventh day. Furthermore, he was not paid wages earned, nor was he provided meal periods or compensation in lieu thereof.

Analysis of Equitable Estoppel and Family Medical Leave Act (Part 2 of 2)

Thu, 15 Jul 2010 16:12:43 -0800

Family Medical Leave Act applied to this employer who employed more than fifty employees within a 75 mile radius. Therefore, once the employee informed the employer that he needed time off to be with his wife, for birth of a child, to care for the employee's spouse, son, daughter, or parent with a serious health condition, the employer has an obligation to determine if the employee is eligible for FMLA leave,

FMLA regulations provides: "When an employee requests FMLA leave, or when the employer acquires knowledge that an employee's leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee's eligibility to take FMLA leave within five business days, absent extenuating circumstances." 29 CFR §825.300(b)(1).

Here the employer failed to conduct any analysis whatsoever to determine if the employee was eligible under FMLA. Furthermore, the employer failed to advise the employee in writing of his eligibility under the FMLA.

FMLA's new regulations provide: "Failure to follow the notice requirements set forth in this section may constitute an interference with, restraint, or denial of the exercise of an employee's FMLA rights. An employer may be liable for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered (see §825.400( c))."

Analysis of Equitable Estoppel and Family Medical Leave Act (Part 1 of 2)

Fri, 04 Jun 2010 15:37:17 -0800

As a California Employment Attorney, I recently handled a case on behalf of an employee who worked for employer in 2003 for approximately two months. The employee also worked for his employer in 2004 for approximately eight months and in 2005 for approximately three months. Thereafter, the employee worked for his employer on or about September 2007, as a Produce Clerk.

In or about November 2007, the employee informed the Store Manager that his wife was pregnant with a high risk pregnancy. The Store Manager responded by asking the employee, "if he really was married or was he messing with him?" The employee responded yes that he had placed his wife's name on his job application. In or about December 2007, in order to prove to the Store Manager that the employee was married, he took his marriage certificate to the Store Manager, who looked at it and said "okay".

In or about January 2008, the employee asked the Store Manager if he could have the day off to go to the doctor with his pregnant wife. Store Manager gave the employee four days off to take care of what he had to take care of. On the fourth day employee went to the store to see the Store Manager to let him know that his wife was hospitalized on the third day that he was off work because she required an emergency c-section and requested an additional one week off. The employee also provided the Store Manager with a doctor's note regarding his wife's condition. Store Manager asked the employee to fill out an affidavit and authorized the employee to take one week off. Store Manager asked the employee to bring a doctor's note or hospital discharge note for his wife upon his return to work.

California Disability Laws Cover Chronic Asthma

Wed, 19 May 2010 17:20:05 -0800

Employer contends that employee was terminated for failure to report to or call work for three consecutive days, which is in violation of its Punctuality and Attendance policy. Employer does not contend that there were any performance issues with employee.

Employee was hospitalized because of her chronic asthma on the following days:

Tuesday, July 2006 - Employee was hospitalized and did not report to work. However, her mother contacted her employer to advise of her condition.

Wednesday, July 2006 - Employee was hospitalized and did not report to work. However, her mother contacted her employer to advise of her condition.

Thursday, July 2006 - Employee was hospitalized and did not report to work. Employee did not contact her employer and no one from her employer attempted to contact her.

Friday, July 2006 - Employee was discharged from the hospital. Employee did not report to work. Employee's mother contacted her employer and advised them that employee was being discharged from the hospital and that employee would contact her employer after her follow-up doctor's appointment to advise as to her return date.

Monday, July 2006 - Employee did not report to work. Employee spoke with Human Resources personnel, who requested that employee obtain a doctor's note covering her for the dates that she missed work, a return to work date with the doctor's signature. Employee agreed to do so and told the Human Resources personnel that she would advise her Supervisor of her return to work after her follow-up doctor's visit.

Tuesday, August 2006 - Employee did not report to work. Employee did not contact her employer and no one from her employer attempted to contact her.

Chronic Asthma is a Covered Disability in California

Mon, 17 May 2010 17:17:15 -0800

Employee was hired directly by employer in July 2006 to work as a Service Order Writer at its El Segundo, California office. In July 2006, employee was hospitalized because of her chronic asthma. Employee's mother contacted her Supervisor, and informer her that employee had been hospitalized because of her asthma. Supervisor asked employee's mother to keep her updated with employee's condition. Employee's mother called Supervisor the next day and informed her that employee was still in the hospital, nothing had changed, however, if something did, she would let her know. A couple days past and employee's mother called Supervisor and let her know that employee was being discharged from the hospital. Supervisor asked employee's mother for a return date for employee. Employee's mother indicated to supervisor that employee had a follow-up appointment with her doctor and after the appointment employee would advise Supervisor of her return date. Supervisor also asked employee's mother to let employee know that she will require a doctor's note in order to return to work.

A few days thereafter, employee spoke with employers Human Resources Department. The Human Resources personnel asked employee to obtain a doctor's note to cover her for the days that she missed, provide a return to work date, with the doctor's signature. Employee responded by telling the Human Resources personnel that she should get the doctor's note at her follow-up visit and would let Supervisor know of her return to work date.

Employees Jury Duty Rights, Part 3

Fri, 14 May 2010 15:51:22 -0800

February 2009 - The day employee reported back to work after serving on jury
duty, the Store Manager informed her that defendant had decided to terminate her employment.

February 2009 - Employee filed a grievance with her Union.

February 2009 - A meeting with employee, her union representative and defendant's representative was held. At the meeting, the company representative took down some handwritten notes regarding employee's version of what had occurred. According to the company representative's handwritten notes, employee had called Assistant Store Manager to let him know that she would be out the following week for jury duty. At the time of her telephone conversation with Assistant Store Manager she was aware that she did not have to appear to court on Monday. Employee was not aware that she was scheduled to work. Assistant Store Manger did not say to employee that Monday is a holiday, will you be in? Employee did not tell anyone that she was on jury duty on that Monday. In fact, when Store Manager asked her if she was on jury duty on that Monday, she told the Store Manager "no". On Tuesday, when employee called Assistant Store Manager with a status of her jury duty he did ask her "you didn't go on jury duty on Monday, did you?", she said "yes" meaning "no".

February 2009 - Assistant Store Manager provided a second statement regarding his version of the telephone conversation.

March 2009 - The company representative sent employee's union representative a letter indicating that employee was terminated for violating Company Policies and Procedures relative to integrity, fraud, theft and grazing. The company representative further indicated in the letter that at the meeting, employee was unable to provide any information that might mitigate her termination. As such, defendant maintains its position that employee's termination was just and will therefore stand.

June 2009 - The California Unemployment Insurance Appeal Board, after a hearing, issued its decision in favor of employee. In the decision, the Administrative Judge held: "Because the claimant believed that she had properly notified the employer regarding her jury service, and her absence from work, the claimant's termination was for reasons other than misconduct connected with her most recent work. The claimant's failure to report to work or properly notify the employer of her whereabouts [on that Monday], was more a good faith error in judgment or discretion than a willful or wanton breach of an important obligation that the claimant owed to the employer. This is particularly true given the claimant's 19 years of service to the employer without any similar incidents. Therefore, the claimant was terminated for reasons other than misconduct connected with her most recent work."

An employer is prohibited from discharging, discriminating or retaliating against an employee "for taking time off to serve as required by law on an inquest jury or trial jury, if the employee, prior to taking time off, gives reasonable notice to the employer that he or she is required to serve." California Labor Code §230(a).

If an employer fired an employee for exercising California Labor Code §230 leave rights, the employee might well be able to state a cause of action for wrongful discharge in violation of public policy. Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 300 - termination in retaliation for protesting hazardous working conditions which violated Labor Code.

Statutory remedies for violation of California Labor Code §230 include reinstatement, and reimbursement for lost wages and work benefits caused by the act of the employer. California Labor Code §230(e). Under wrongful termination in violation of public policy, Plaintiff can also recover emotional distress and punitive damages.

Employee properly informed defendant of her summons for jury duty. Upon completion of her jury service, after 19 years of service, defendant discriminated against her and terminated her employment because she took time off to serve on jury duty.

Employees in California Are Protected When Serving on Jury Duty, Part 2

Thu, 13 May 2010 15:48:29 -0800

January 2009 - Employee is issued a disciplinary memo for taking a rest break over the allowed period of time. Employee testified at her deposition that the reason she went over her break on that day was because an employee from the another department approached her to discuss his father who was terminally ill. Employee was trained that as a manager if an employee approached her with any issues, she should listen and try to assist the employee.

January 2009 - Employee reminded the Store Manager and the Assistant Store Manager that she had to report for jury duty in January 2009.

January 2009 - Employee called the Assistant Store Manager and told him that she was selected as a juror for a criminal case. Assistant Store Manager, requested that employee keep him posted.

January 2009 - Employee called Assistant Store Manager and told him that she was to return to jury duty the next week. Assistant Store Manager never asked employee during that telephone conversation if she had to report to jury duty on Monday or that she was scheduled to work on that Monday. In fact, employee was not scheduled to work on that Monday.

First, this was the first time in employee's 19 years of employment with defendant that the was summoned for jury duty, therefore, this is not a standard incident or circumstance of a "failure to work posted shift". Second, employee was not scheduled to work on that Monday. The schedule clearly provided "Jury Duty" for employee for that Monday. Third, it is not clear why a human resources representative would accept the Assistant Store Manager's version of the telephone conversation with employee and not hers. Especially in light of the fact that the Store Manager indicated that employee told her that she did not have jury duty on that Monday. Fourth, the Jury Duty policy contained in the CBA does not support termination, the form of "discipline" that the CBA provides for a circumstance similar to employee's circumstances, is not to pay her for that day. Lastly, defendant failed to follow its own policy regarding "disciplinary approach", which provides: "Sometimes people make mistakes. The objective of our disciplinary policy is usually deterrence and rehabilitation through counseling and positive reinforcement. We also recognize, however, that when and if counseling fails, more formal and progressively stern measures become necessary. In those instances, the approach generally taken, based on length of services and offense(s), will be written warning, followed by suspension or termination."

January 2009 - Employee provided Assistant Store Manager with proof of juror service.

Blog Post to Be Continued . . .

California Employees Are Protected to Serve on Jury Duty

Mon, 10 May 2010 17:41:22 -0800

After 19 years of employment, employee was terminated for attending jury service. Throughout her 19 years of working for defendant, prior to December 2008, employee only received 7 disciplinary actions taken against her. Throughout her employment with defendant, employee continuously, year after year, received positive performance evaluations. As of January 1, 2007, effective date of her promotion to Manager to February 2, 2009, date of her termination, employee received a total of three disciplinary actions, two of which were issued by the Store Manager where she worked out of.

The following time line will illustrate defendant discriminatory animus towards employee:

January 2007 - Employee is promoted to Manager.

January 2007 - Employee is issued a disciplinary memo

March 2008 - Employee received a positive performance evaluation.
In or about December 2008 or January 2009, employee received a jury summons and timely informed the Store Manager.

December 2008 - Employee receives a disciplinary memo for failure to work her
posted schedule. Employee testified at her deposition that the reason she left early on that day was because of an emergency at home and she did notify the clerk, who acts as the manager for her department when she is not there, that she was leaving because of an emergency. The Store Manager never asked employee why she had left early that day. The reason employee left early that day was because she is a single mother and her daughter had called her at work to tell her that she was stung by a bee. Employee did not know if her daughter was going to have any allergic reaction, therefore, she rushed home to care for her daughter. Something that a responsible parent would do.

Blog Post to Be Continued . . .

Resident Apartment Managers Rights Under California Wage & Hour Laws

Wed, 05 May 2010 16:28:37 -0800

California Labor Code §1182.8 provides: "No employer shall be in violation of any provision of any applicable order of the Industrial Welfare Commission relating to credit or charges for lodging for charging, pursuant to a voluntary written agreement, a resident apartment manager up to two-thirds of the fair market rental value of the apartment supplied to the manager, if no credit for the apartment is used to meet the employer's minimum wage obligation to the manager." Emphasis added.

Industrial Welfare Commission Order No. 5-2001 Section 10 provides: "( C) Meals or lodging may not be credited again the minimum wage without a voluntary written agreement between the employer and the employee. When credit for meals or lodging is used to meet part of the employer's minimum wage obligation, the amount so credited may not be more than the following: Apartment - two-thirds (2/3) of the ordinary rental value, and in no event more than $423.51 (2007) and $451.89 (2008) . . . . (E) If, as a condition of employment, the employee must live at the place of employment or occupy quarters owned or under the control of the employer, then the employer may not charge rent in excess of the values listed herein." Emphasis added.

The only case that analyzed Labor Code §1182.8 and Wage Order 5-2001 was the U.S. District Court for the Eastern District of California in Brock v. Carrion, Ltd. (2004) 332 F.Supp.2d 1320. In Brock, the defendant owned and managed several apartment buildings in Northern California. For approximately two years, plaintiff worked for defendants as a resident apartment manager of a 22 unit apartment building. Plaintiff entered into a written employment contract with defendants wherein defendants agreed to pay plaintiff $550.00 per month and plaintiff agreed to pay defendants $550.00 per month as rent for an on-site apartment. Defendants provided the apartment to plaintiff as a condition of his employment. The agreement did not specifically state that the apartment was being credited towards defendants' minimum wage obligation to plaintiff. The parties filed cross-motions for summary adjudication seeking resolution of a single issue: whether an employer is legally entitled to claim an offset or credit, against wages potentially owed to employee, for all or part of the value of the apartment in which the employee resided during his employment as apartment manager. The District Court granted the employee's motion for summary adjudication and denied the employers motion. The District Court held:

"defendants credited lodging costs against plaintiff's minimum wages. Although Wage Order No. 5 permits such credits in certain circumstances, the amount that defendants credited ($550.00 per month) exceeded the permissible value ($324.70 per month from 1999-2000, and $352.95 per month from 2000-2001). Moreover, defendants have failed to establish that plaintiff entered into an appropriate 'voluntary written agreement.' 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.' [citations omitted] The sole agreement referenced by defendants is the Employment Agreement, which does not stat that rent would be credited against minimum wages. Thus defendants cannot obtain an offset against plaintiff's potential damages under subdivision 10( C) of Wage Order No. 5. Because defendant violated Wage Order No. 5 by improperly crediting the apartment's value against minimum wages, state law precludes defendants from claiming an offset to recoup this value from plaintiff's potential damages." Brock v. Carrion, Ltd., supra, 332 F.Supp.2d at 1330-1331, emphasis added.