EMPLOYMENT  LAW

Three ways you may be illegally underpaid:

1. Unpaid straight-time wages: You are asked to “work off the clock.”
   For example, you are told by your boss that you should have gotten all your work done during regular working hours. Since you didn’t, he wants to clock out and finish up on your own time.
2. Unpaid overtime wages: Your employer has a policy against paying overtime or you are wrongly classified as exempt from overtime.
   For example, you are a secretary and get paid a salary. Your boss says that, since you earn a salary, they don’t have to pay you for any overtime.
3. Unpaid minimum wage: Your employer sets up your pay in a way that, when you divide your pay by your number of hours, works out to be less than minimum wage.
   For example, you are a courier and you are paid $10 for each delivery you make. Although you work eight hours, there are only three deliveries on an average day. When you do the math, you’re getting only $3.75 per hour.|
   Additionally, your employer may round your time punches so that you are not getting paid for all the time you worked.

Facts About Unpaid Overtime:

If you are an hourly (“nonexempt”) worker, California law requires that you be paid at one-and-a-half times your regular hourly rate if you work more than eight hours in a work day and/or 40 hours in a work week. Overtime must be paid in wages, not in goods or time off.

Several classifications of salaried employees are exempt from these legal minimum Wage and Hour requirements under California law. They include outside salespersons, independent contractors, employees of certain retail establishments, and others who meet various job exemptions, such as those who hold a bona fide executive, administrative, or professional job. If you are not sure about your classification as an employee, contact us at the Janelle Carney Attorney at Law for immediate assistance.

Employees who are eligible for overtime pay may not waive their right to receive it.

As an hourly worker, you may be entitled to overtime pay under the following conditions:

• If you arrive at work earlier than your starting time and do light work at the request of the employer
• If you typically work through lunch breaks at the employer’s request
• If you take work home with the knowledge and permission of the employer
• When at home you are required to be “on call” and ready to report to work within an thirty minutes
• If you work several hours of overtime on a Friday and the employer states that you can leave work several hours earlier the following week
• If the job requires you to stay overnight for out-of-state assignments or travel extensively while on company business (but not for normal commuting travel to and from your home)

Employers who fail to pay required overtime are liable for any unpaid overtime and/or minimum wage compensation, plus attorneys’ fees and costs. For willful violations, damages sometimes include earned overtime up to four years back. Employers may not make any deals to settle wage and hour claims for less than the full amount (even when a release is signed by the employee to defeat the rights of the worker).

If your employer is forcing you to work overtime without being paid the overtime rate, or you have a claim for wages that are due you as overtime, contact us to schedule a meeting with experienced legal counsel.

Private Attorneys General Act

California has enacted a number of powerful laws that allows for the enforcement of the state’s wage and hour laws. Unfortunately, in this state, there are a number of workers whose hands are tied when it comes to filing class-action lawsuits against their employers because the company they work for forces them to sign mandatory arbitration agreements.

For these employees, the Private Attorneys General Act, commonly known as PAGA, is the only way to obtain justice when employers shortchange the wages to which they are entitled. But for this very important law, there would be little that prevents employers from ignoring the state’s wage laws. For employees, PAGA might be the single most important law when it comes to protecting their right to fair wages in California.

Understanding PAGA

In order to file a PAGA lawsuit, an employee who is wronged must file a claim with the state of California. This claim must provide details of all the facts that support the California Labor Code and/or California Wage Order violations made by the company. The state of California has 65 days in order to provide notice to the employee regarding the state’s intention to launch an investigation. If the 65 days have passed and the state does not provide notice, then the employee can go ahead and file a PAGA lawsuit, which is a representative action on his or her behalf or on behalf of other aggrieved employees.

Under PAGA, an “aggrieved employee” is the employee of a company that has violated California’s wage and hour laws or the laws set forth by the state’s Occupational Safety and Health Administration (OSHA). Typically, an employee who has been wronged files a PAGA lawsuit on behalf of himself or herself and other aggrieved employees of that company.

However, it is important to understand that PAGA actions are different from class actions, primarily because the statutory suits are essentially law enforcement actions. In addition, class actions must satisfy other legal requirements that PAGA cases don’t. Therefore, it is simpler to bring a PAGA case than it is to bring a class-action lawsuit.

What Are The Benefits Of PAGA?

First and foremost, PAGA protects employees’ rights. In addition to allowing workers to seek compensation for their losses brought about by labor violations, PAGA also affords them the ability to seek justice that could very well result in positive change in California’s workplaces. Almost all companies and corporations who face PAGA lawsuits change their unethical and illegal practices because they don’t want to face these penalties again. These are positive changes that benefit all employees – not just those who work there at the time, but also future employees.

PAGA provides an efficient method of enforcement. Therefore, California businesses are far less likely to cut corners in order to compete, and this levels the playing field for all companies. PAGA essentially motivates companies to proceed with caution. So, employers who are committed to following the letter of the law and doing the right thing by their workers are not left behind.

PAGA also means increased revenue for the state. It is a fact that PAGA generates millions of dollars in revenue for the state of California without the state having to deploy its resources. Private attorneys are doing the work, in these cases. It is also important to remember that the problem we have in California is not the absence of good laws. We have good laws, but there is no proper mechanism to enforce those laws. Without PAGA employment law violations in California would be sky-high.

PAGA addresses a number of common employment law violations including minimum wage violations, unpaid overtime, missed meal breaks and rest breaks, worker misclassification, unreimbursed business expenses and miscalculated pay rates. While opponents of PAGA claim it’s just a way for attorneys to make money, they leave out the fact that it generates revenue for the state and most importantly for aggrieved workers who have been denied fair wages. PAGA helps everybody and offers protections for vulnerable workers. PAGA is also one of the reasons California’s economy has grown and thrived over the year as well.

How Does The Process Work?

The purpose of PAGA is not to recover damages for the worker, but to create a means of assigning citizens as private attorneys general to enforce the state’s labor laws. It is important to remember that the relief provided under this law is meant to benefit the general public and not the specific individual or group of individuals bringing the action.

That said, you could still receive monetary damages under a PAGA lawsuit. This is because employers can be made to pay penalties for wage and hour violations or other types of labor code violations. However, while 25% of the penalties recovered go to the employees, 75% of the penalties recovered through PAGA go to the state of California. Depending on the nature and extent of the violations, PAGA penalties could add up to a significant amount of money.

However, there is no way to guarantee how much the penalties will be or how much employees will receive through a PAGA action as the court retains jurisdiction to reduce the penalties sought. It is also important to understand that you can’t recover back wages or wages your employer did not pay you as part of PAGA. You can only recover penalties under PAGA. So, you cannot recover wages as part of your PAGA lawsuit. A PAGA action is essentially for the purpose of enforcing labor codes meant to protect Californians and penalize companies for illegal conduct or violations of the law.

Before bringing a PAGA claim, the employee bringing the action must provide written notice to not just the employer but also the Labor and Workforce Development Agency (LWDA). A PAGA written notice must be filed online. California Labor Code states that the written notice to the employer must be sent via certified mail. Once this filing procedure is completed, a PAGA lawsuit can be filed in court. A PAGA written notice should specifically state which provisions of the California Labor Code have been violated and should include facts and evidence to substantiate the alleged violations. PAGA claims must be filed within one year of the violations occurring. In other words, there is a one-year statute of limitations when it comes to PAGA lawsuits.

PAGA Penalties

The penalties under PAGA can add up very quickly. Under PAGA, the civil penalty against the company for an individual violation is $100 per worker for each pay period. The penalty for each subsequent violation is $200 per employee for each pay period. Therefore, for each initial violation, the worker may be able to receive $25 (which is 25%) for each violation per pay period and $50 for every subsequent violation per pay period. So the penalties under PAGA can add up soon. If you do prevail in a PAGA action, in addition to receiving a portion of the penalties you may also be able to receive attorney fees and court costs.

Also, PAGA awards are discretionary. Under the PAGA, the penalties that a court orders companies to pay for the violations can be left to the judge’s discretion. However, eventually, the court must award PAGA penalties if it is determined that the employer violated the state’s Labor Code. PAGA allows an aggrieved employee, or a person affected adversely by at least one Labor Code violation committed by his or her employer, to pursue penalties for all such violations committed by the employer. Also, an employee who is seeking to recover PAGA penalties cannot do so as an individual. He or she must bring the action on behalf of himself or herself and other employees.

Whistleblower Retaliation Claims

Whistleblower laws are designed to provide protection for individuals who report illegal or suspected illegal activity. Whistleblower protections cover a wide variety of activities including but not limited to workplace safety violations, discrimination and employment laws.

In California, if an employee is retaliated against for reporting an activity that violates both a state and a federal statute, the employee can pursue damages against his or her employer under both state and federal laws. If you believe you have been terminated or your employer has taken other action against you in retaliation for making a report, talk to a Los Angeles whistleblower attorney at the Janelle Carney Attorney At Law today. Call for a confidential consultation.

Whistleblower Protections Under California Law

California’s whistleblower protections are very strong. Under the state’s whistleblower protection statute, Labor Code Section 1102.5, a person is protected for reporting any violation of state or federal law, rule or regulation or unsafe working condition. To simplify reporting, the Attorney General has established a whistleblowing hotline to facilitate investigation into illegal activities.

People who are not aware of the whistleblowing hotline may also be protected for reporting suspected behavior to a superior or another person within the company or organization who has the authority to take action.

Employees are also protected against retaliation in anticipation of whistleblower activity.

False Claims Act And Qui Tam Claims

Fraud against the government is extensive. Health care fraud is among the most common forms of fraud. Filing false claims and improper Medicare coding are being used by businesses and health care organizations to fleece our government of funds.

Both the federal False Claims Act and the California False Claims Act are designed to combat fraud against the government by providing incentive and protection to whistleblowers who expose the fraud. Often referred to as qui tam claims, an individual with evidence of fraud against the government, who is referred to as a relator, is allowed to pursue a claim on the government’s behalf.

Due to the complexity of the evidence, False Claims Act cases are challenging.

Damages For Whistleblower Retaliation

Whistleblower laws are designed to discourage retaliation. To accomplish this, there are strong damages provisions in both federal and state whistleblower statutes. Whistleblowers may recover back wages as well as compensatory damages.

A California employment contract agreement is a written agreement that has been agreed upon by an employer and their employee which outlines the terms and conditions of employment. An employment agreement typically includes clauses such as income, benefits, sick days, vacation, duties, employment period, and things of that nature.