Kosinski + Thiagaraj, LLP congratulates Alison and Emily for their selection to the Northern California Rising Stars list! Alison is receiving this honor for the second consecutive year and this will be Emily's first year as a Rising Star. Both attorneys will be included in San Francisco Magazine’s special section of “The Top Women Attorneys in Northern California” in December 2017. The Rising Stars list honors 2.5% of the California Bar for their excellence in the legal field.
In its much-anticipated decision, the California Supreme Court recently held in Augustus v. ABM Security Services that employees must be relieved of all work—and not be on-call—during their ten-minute rest breaks.
The plaintiffs in this case were security guards who worked for ABM Security Services. ABM provided plaintiffs with ten-minute rest breaks, but, per its policy, required the plaintiffs to be on-call during these breaks. While on-call, plaintiffs had to keep their pagers and radios on, and respond to issues or emergencies as they arose.
As we reported earlier this year, the California Court of Appeal had held that employers were allowed to place its security guards on-call during their ten-minute rest breaks. The security guards appealed this decision and in March 2016, the California Supreme Court agreed to decide the case.
The Supreme Court addressed two questions in its decision:
Question #1: Does California law require employers to relieve employees of all work duties during a rest period? Answer: Yes.
Question #2: If yes, can employers nonetheless require employees to remain on-call during a rest break? Answer: No.
In its decision, the Supreme Court closely examined the text of both Labor Code section 226.7 and Wage Order 4-2001, and concluded that the most reasonable and common understanding of a “rest period,” given its context in the laws, is one that requires no work to be performed. The Court went on to reason that being on-call is irreconcilable with being relieved of all work duties and, therefore, an employer cannot require an employee be on-call during rest periods.
This is a significant decision for California employees, whose right to a true, work-free ten-minute rest break has now been secured by the highest court in the state. Kosinski and Thiagraj, LLP represents individuals and groups of employees who have been denied meal and rest breaks at work. If you believe you have been unlawfully denied meal or rest breaks, please contact us for a consultation.
Kosinski + Thiagaraj, LLP congratulates Alison for being selected as a 2016 Northern California Rising Star. She has also been included in the list of Top-Rated Employment Litigation Attorneys and will be included in San Francisco Magazine's special section "The Top Women Attorneys in Northern California" in December 2016. Check out her Super Lawyers profile here.
Senate Bill 588, which went into effect in California on January 1, 2016, has not been in the media spotlight, but it should be. It will provide a much-needed enforcement mechanism to tackle rampant wage theft throughout this state.
The Department of Labor Standards Enforcement (DLSE), also frequently referred to as the Labor Commissioner, is responsible for enforcing the wage laws in California. Thousands of employees across the state file claims each year with the DLSE for wage theft, including to recover minimum wages and overtime pay.
While the DLSE is a forum for individuals, including many who do not have legal representation, to assert their rights to earned wages, all too frequently a triumphant employee leaves empty handed. A study conducted by the National Employment Law Center and the UCLA Labor Center found the following:
Only 17 percent of California workers who prevailed in their wage claims before the DLSE and received a judgment were able to recover any payment at all between 2008 and 2011.
This is outrageous, but unfortunately not too surprising. Most employers who are found to owe wages before the DLSE simply close up shop, move, or dissolve their business, leaving the DLSE and employees with little recourse. SB 588 changes this. Now, under the new law, once a judgment is entered against an employer, the DLSE will have the ability to attach a lien to an employer’s bank accounts, business property, and even personal property. Other states that have enacted similar enforcement laws have seen an increase in successful wage recoveries. While California must do more to enforce wage laws, including increasing funding to state collections agencies, this is a step in the right direction.
In February, we reported on the California Court of Appeal case, Augustus v. ABM Security Services, which permitted employers to place employees on-call during their ten-minute rest breaks. You can read our analysis of the case here. Now, the Court of Appeal will not have the final word—the California Supreme Court has granted review of this decision.
The California Supreme Court will review the lower court’s decision and decide anew whether, according to the California Labor Code and Wage Order 4-2001, employees must be completely relieved of duty, including not being on-call, during their ten-minute rest breaks throughout the day. The decision will likely come down sometime next year.
Kosinski and Thiagaraj, LLP, along with its co-counsel Duckworth Peters Lebowitz Olivier LLP, recently filed a class action lawsuit in San Francisco Superior Court against Virgin America seeking unpaid minimum and overtime wages. Check out our cases to learn more about this lawsuit.
Below are some helpful questions and answers about how—and how much—software engineers in California should be paid.
How low is too low for a software engineer’s salary?
This may come as a surprise, but if you are a software engineer who works in California and receives a salary, the answer is simple. You must be paid at least $85,981.40 annually. Otherwise, if you are paid less, you may be entitled to overtime for any time worked over eight hours per day and over forty hours per week.
Does this mean that software engineers in California cannot legally be paid a salary of 85k?
Most likely yes. California law is very specific: In order for you, an engineer, to be exempt from overtime pay, you must be paid at least $85,981.40 annually. The California Legislature set this annual salary in October 2014, to be effective January 1, 2015. This is a 2.2 percent increase over last year’s salary requirement of $84,130.53.
What makes some California employees salaried but others eligible for overtime?
In general, employees in California must be paid hourly, which means they’re entitled to overtime. Overtime pay is one-and-a-half times the regular hourly rate. California law carves out a few exceptions to this general rule for employees—one exception is for software engineers who meet both this salary requirement ($85,981.40) and certain responsibilities requirements. Only then can you be paid on a salary, without overtime compensation.
What other requirements must be met before a software engineer loses the right to overtime pay?
Generally the law looks to see that you exercise discretion and independent judgment in your position. If you work under close supervision or are in an entry-level position, with little opportunity for independent creativity, then you are most likely entitled to overtime pay.
You also must have considerable experience in your field and be involved in designing, creating, documenting or testing software applications or systems, in order to forfeit your right to overtime.
Keep in mind, a job title is not determinative in the eyes of the law. Titles like “Engineer,” “Builder” or “Code Monkey” do not guarantee that the employee meets these exempt job duties. For example, if your primary responsibility is to perform office IT support, then you may not meet these exempt criteria and may be entitled to overtime pay.
Doesn’t this mean that some employees working as software engineers are entitled to overtime pay?
Exactly. If you do not earn $85,981.40 per year, then you should be paid hourly. Or, if you do not meet the other responsibilities for exempt computer software employees, you are likely hourly. Hourly employees are entitled to overtime pay, as well as meal and rest breaks.
There are a few carve-outs in the law for salaried positions, so while the computer professional exemption is the most likely carve-out for a software engineer, keep in mind that you may fall into another exemption if you manage employees or oversee the business.
My offer letter says I accepted a salaried, exempt position as a software engineer. Could I still be eligible for overtime?
Yes. The law does not look at what your offer letter or employment contract says. Instead, it looks at how much you are paid and what responsibilities you have on a day-to-day basis.
Can stock options in lieu of salary count towards the salary requirement for software engineers?
No. Many employers offer engineers a bundle of stock options in lieu of a competitive salary, hoping that you will stick around to vest and in the meantime work for a low salary. These stock options do not count towards the salary requirement.
What rights does an engineer have to recover overtime pay?
If you think that you have been receiving a salary unlawfully, and that you’re entitled to overtime for all the hours you worked late or on the weekends, you have the right to correct the practice going forward and to recover your lost wages and penalties for the past.
In a recent California case, Augustus v. ABM Security Services, a group of security guards sued their employer, ABM Security Services, for the company’s failure to provide rest breaks during employee shifts.
While on duty, security guards at ABM patrol guarded buildings, report safety concerns, greet visitors, and respond to emergencies, among other duties. ABM provides its security guards with 10-minute rest breaks for any shifts over three-and-a-half hours. However, during these rest breaks, security guards are still required to be on-call, which means that they keep their radios and pagers on during the rest period, remain vigilant, and respond to emergencies as needed. During these on-call rest breaks, the security guards nonetheless make personal phone calls, surf the internet, and smoke.
In their lawsuit, ABM security guards claimed that ABM should be liable for not providing its security guards with uninterrupted rest breaks. While California law is clear that hourly employees must receive a 10-minute rest break for any shifts over three-and-a-half hours, it is not clear what an “uninterrupted” rest break really means. Labor Code section 226.7 states that an employer “shall not require an employee to work during a meal or rest or recovery period.” The question in this case was whether being on-call is in fact working and therefore not permitted during rest breaks. The California Court of Appeals answered this question in the employer’s favor.
The Court held that an employer does not violate California law when it requires its employees, in this case security guards, to be on-call during their ten-minute rest breaks. The Court explained that security guards have far fewer responsibilities when on-call than when on duty; for example, while on duty they monitor traffic, greet visitors, and observe property. The Court drew a clear distinction between being available for work (on-call) versus actually working (on duty) and determined that the Legislature, when drafting Labor Code section 226.7, intended only to prohibit actual work during rest breaks—not being available to work.
Further, the Court noted that for meal periods, the Legislature specifically required in the Wage Orders that an employer completely relieve its employees of all duty for a 30-minute meal period. However, there is no such equivalent language for rest breaks, suggesting that the Legislature did not intend the same prohibition to apply. In addition, while employers need not pay for uninterrupted 30-minute lunch breaks, employers must pay for rest periods. This difference provided further basis for the Court’s decision that while employees cannot be on-call for meal periods, they can be on-call for rest periods.
This recent case does not change the requirement in California that employers provide all hourly employees with a ten-minute rest break for any shift that is longer than three-and-a-half hours. To learn more about meal and rest periods in California, visit our earlier blog here.
In Swanson v. Morongo Unified School District, the California Court of Appeal reiterates an important employee right: that a disabled employee has both the right, and priority over other non-disabled employees, to be reassigned to a vacant position that would allow the employee to perform the essential functions of the job.
In this case, Lauralyn Swanson was an experienced elementary school teacher who worked at Yucca Valley Elementary School in California. She was diagnosed with breast cancer and took medical leave for chemotherapy and a mastectomy. When Swanson returned to work, the school district offered her a position teaching fifth grade. Swanson objected, explaining that this would be her third assignment in three years and, given her fragile health, she would not be able to handle all of the necessary preparations for this assignment. Instead, she asked to be placed in an open position in second grade, since she had taught that level only a few years ago.
The school district ignored Swanson’s request, placed another teacher in the second grade opening, and assigned Swanson to teach kindergarten. Swanson again objected—she feared that exposure to all of the germs in a kindergarten classroom would place her fragile health even more at risk. She also had not taught kindergarten in nearly thirty years and would need extra time to prepare. The school district refused to change her assignment. A few months later, the school district decided not to renew Swanson’s teaching contract, citing performance reasons.
Swanson sued the school district, claiming that it failed to reasonably accommodate her disability and discriminated against her based on her disability and medical condition. She argued that assigning her to the vacancy in second grade was a reasonable accommodation, which the school district refused to provide. The school district, on the other hand, argued that placing her in a kindergarten assignment was a lawful accommodation, even though it was not Swanson’s requested accommodation.
The trial court granted the school district’s motion for summary judgment, but the California Court of Appeal reversed in favor of Swanson.
In California, an employer is not obligated to provide a specific accommodation requested by a disabled employee, or to create a new position for that employee. However, as the Court explained in its decision, an employer does have a duty to reassign a disabled employee to a vacant, funded position, if possible. Further, if a disabled employee seeks this position, she must be given preferential consideration.
Here, the school district was unable to show that the fifth grade position was a reasonable accommodation in which Swanson could truly perform all of her essential functions, given the preparation required. There was also ample evidence that the second grade position was available and that Swanson requested assignment to that position, but did not receive preferential consideration. By refusing to place Swanson in the second grade position and not discussing with Swanson possible other reasonable accommodations, the school district was not able to defeat the lawsuit at the summary judgment stage.
If you have concerns about reasonable accommodations at work or would like to learn more about your rights under disability laws in California, please contact the attorneys at Kosinski and Thiagaraj, LLP.
California employees who lack work authorization are more vulnerable than other workers to wage theft and to unlawful retaliation. Last year, California took action and passed AB 263, which made it unlawful for employers to target employees without work authorization who assert their rights.
Under AB 263, employers are now prohibited from engaging in unfair immigration-related practices in retaliation for an employee exercising rights under the California Labor Code. Examples of exercising a right include filing a wage claim, informing other employees of their rights, or inquiring as to whether an employer is complying with wage laws. An employer commits an unfair immigration-related practice when it:
- Requests additional or different documents from an employee to complete the Form I-9 upon hiring;
- E-verifies an employee’s work authorization when not required to do so;
- Threatens to file or files a false police report; and
- Threatens to contact or contacts immigration authorities.
AB 263 also provides that:
- An employee who is subject to an unfair immigration-related practice may sue the employer and collect attorneys’ fees;
- A court may suspend a business license or permit of an employer as punishment for the employer’s unfair immigration-related practice; and
- Employers who retaliate against employees for exercising their rights under the Labor Code are subject to a $10,000 penalty per violation.
While a step in the right direction, AB 263 left some protections incomplete. Therefore, this year, Governor Brown signed into law AB 2751. This bill received less press than some other employment-related bills, but nonetheless cleans up important gaps in the already-existing laws to protect immigrants in the workplace.
The new bill expands the definition of “unfair immigration-related practice” to include when an employer threatens to file or files a false report or complaint with any state or federal agency—not just with a police department. The bill also clarifies that the $10,000 penalty against the employer shall be awarded to the employee. Lastly, the bill extends the durations for the bans on business permits, based on the number of employer violations. AB 2751 takes effect on January 1, 2015.
These clean up provisions of AB 2751, combined with this year’s California Supreme Court decision in Salas v. Sierra Chemical Company, provide encouragement that the rights of all California employees, including those who lack work authorization, will be protected through the law.
Q: Does my employer have to provide me with a meal period each day?
A: Yes, in general, private employers in California must provide a 30-minute meal period to all hourly employees who work at least five hours that day. If an hourly employee works more than ten hours in that day, the employer must provide a second 30-minute meal break. Some exceptions apply for employees who are members of unions or who work in certain industries. Also, public employers, such as cities and public agencies, are not subject to this requirement (although collective bargaining agreements may cover this). (Lab. Code, § 512(a).)
Q: What if I only work six hours a day? Am I still entitled to a meal period?
A: Yes. However, in this situation an employee may choose to enter into an agreement with the employer to waive the meal period and be paid straight through. If the employee and employer have not made such an agreement, the employer must provide a meal period. (Lab. Code, § 512(a).)
Q: My employer allows me to take lunch, but does not pay me for that time. Is this lawful?
A: Yes, in general an employer in California does not need to pay employees for meal periods, so long as the meal periods are at least 30 minutes long and are uninterrupted. If an employer makes an employee perform any work during the meal period, such as answering phones or greeting customers, then the employer must pay for the entire meal period.
Q: My employer did not let me take lunch. Is there any penalty on an employer for not providing a meal period?
A: An employee in California who is otherwise entitled to a meal period is entitled to receive payment from the employer in the amount of one hour of pay at the employee’s regular rate of pay for each meal period that the employee does not receive. There may be additional amounts owed to the employee if the employer deducted meal period time from the wages. An employee can recover these amounts at the California Labor Commissioner or in superior court. (Lab. Code, § 226.7(c).)
Q: Does my employer have to let me take rest breaks? If so, how often?
A: Yes, in general, private employers in California must provide hourly employees rest breaks. These employees are entitled to take one 10-minute break for every four hours worked. Rest breaks are paid time. In other words, an employer must pay its employees for the rest breaks, even though no work is being performed. Employees who work three-and-one-half hours or less in a day are not entitled to rest periods.
Q: Sometimes at work I am too busy to take a break and still make my deadlines. Is there anything I can do?
A: In general, hourly employees in the private sector have the right to request a break or meal period and the employer must provide that uninterrupted time, even if the workload is busy. Having too much work is not a lawful reason for an employer to deny its employees rest breaks or meal periods.
If you would like more information about the laws governing rest breaks and meal periods, or would like to see if you have a case for wage and hour violations, please contact the attorneys at Kosinski and Thiagaraj, LLP.
Governor Brown recently signed into law the Healthy Workplaces, Healthy Families Act of 2014, which for the first time in this state’s history will provide paid sick leave to nearly all employees across the state. The law takes effect on July 1, 2015.
Under this law, employees will be entitled to accrue paid sick time at a rate of no less than one hour of sick time for every 30 hours of time worked. This accrual rate is equivalent to accruing one 8-hour day of sick time for every six weeks worked (at 40 hours per week). Current employees will start accruing paid sick leave on July 1, 2015, or, for employees that begin work after July 1, 2015, on their first day of work. The employer must allow the employee to take paid sick leave starting on the employee’s 90th day of employment. Sick leave must be paid at the employee’s regular pay rate; for example, an employee who typically works eight hours per day at an hourly rate of $12 must be paid $96 (8 hours x $12) for a full-day of paid sick leave.
According to this new law, employees will be entitled to carry over accrued paid sick leave to the following year. In addition, if an employee separates from an employer and is rehired by the same employer within one year, the employee will retain his or her accrued paid sick days.
This law covers essentially all employees in California who work at least 30 days in one year for an employer. However, some employees who are represented by unions may be excluded from this law. Employees represented by unions should check with their union representatives to see if this law applies to them.
This law also provides protections to employees who speak up about and exercise their right to paid sick leave. Employers are prohibited from denying an employee use of paid sick leave, as well as discriminating against or firing an employee, because the employee attempts to use paid sick leave or files a related complaint.
The purpose of the Healthy Workplaces, Healthy Families Act of 2014, according to the California Legislature, is multi-fold: to ensure that employees in California can care for their own health and the health of their family members; to decrease healthcare costs because employees will now be more able to treat illnesses early on; to protect employees from workplace retaliation; and to better protect victims of domestic violence. Lower-income employees, in particular, are less likely to have paid sick days available. Yet the need to care for oneself and one’s family is a universal need. Therefore, this new law is a welcomed step in the right direction to better protect the health and wellbeing of all employees throughout California.
Q: How often does my employer have to pay me?
A: In California, private employers must pay you at least twice a month. Your employer must set, in advance, regular paydays for each month. Many employers assign payday to every other Friday or to the 15th and 30th of the month, both of which are lawful. You must be compensated for your work from the 1st to the 15th of the month no later than on the 26th of that month, and compensated for your work from the 16th to the last day of the month no later than on the 10th of the following month. In general, it is illegal for your employer to pay you at irregular or sporadic intervals. (Labor Code § 204(a).)
Q: What if I am salaried? Does my employer still have to pay me twice a month?
A: No, in California, if you are properly categorized as exempt from overtime, your employer does not have to pay you twice a month. Instead, your employer can pay you only once a month, but no later than the 26th of that month and the compensation must cover your work for the entire month, including the days you have yet to work in that month. (Labor Code § 204(a).)
Q: My paystub does not list the number of hours I worked. Is this legal?
A: Probably not. If you are paid hourly, your employer must include on your paystub the total number of hours you worked in the pay period. This requirement does not apply if you are properly classified as exempt from overtime.
Q: What information must be included on my paystub?
A: In addition to your hours worked (if you are paid hourly), your paystub must include: your name, either your employee ID number or the last four digits of your social security number, your gross wages earned, your net wages earned, your hourly rate, all deductions, the dates of the pay period, and the name and address of your employer. If you are paid on a piece-rate basis, your paystub must also include the piece rate and number of piece-rate units. (Labor Code § 226(a).)
Q: What if I get paid in cash? Am I still entitled to a paystub?
A: Yes. Even if you are paid in cash, your employer must still provide you a document that includes all of the same information about your hours, wages, deductions, etc., as if you had received a check or direct deposit. (Labor Code § 226(a).)
Q: Are there penalties against my employer for not giving me a proper paystub?
A: Yes, if your employer does not provide you with a paystub or fails to include all of the required information on the paystub, you may be entitled to recover monetary penalties from your employer. (Labor Code § 226(e).)
If you would like more information about these laws or would like to see if you have a case for wage and hour violations, please contact the attorneys at Kosinski and Thiagaraj, LLP.
As cell phones have become ubiquitous in our lives nowadays, employees commonly use their personal cell phones to make work-related phone calls, sometimes while running work errands or on the way to or from the office. The California Court of Appeal, Second District, recently held that not only must an employer reimburse an employee for this type of cell phone usage, the employer must do so even when the employee incurs no extra costs because the cell phone plan has unlimited calling minutes.
In Cochran v. Schwan’s Home Service, a group of customer service managers sued their employer, Schwan’s Home Service, in a class action for reimbursements of their cell phone bills because of work-related cell phone calls. They based the lawsuit on California Labor Code section 2802, which requires employers to reimburse employees for all necessary work-related expenses. Schwan’s Home Service argued that the lawsuit should not move forward as a class action because each customer service manager had unique expenditures. In particular, it argued that those employees who had unlimited cell phone plans were not entitled to reimbursements because they did not incur any additional expenses from making work-related calls.
The Court disagreed with Schwan’s Home Service and held that all employees must receive reasonable reimbursements, no matter the employee’s cell phone plan or even whether the employee personally pays the cell phone bill. The purpose of California Labor Code section 2802 is to prevent employers from passing on operating expenses to employees and, therefore, pursuant to this purpose, employers must reimburse employees for the mere use of an employee’s cell phone, irrespective of the employee’s actual payments. The Court left the lower court with the task of determining what amounts would be reasonable.
This case is a victory for employees who are asked to shoulder work responsibilities by using their personal phones without expectation of compensation. As unlimited minute plans become more common, this case timely provides clear precedent for reimbursement irrespective of how the employee pays his or her cell phone bill.
All workers in California, irrespective of their work authorization status in the United States, should enjoy the important protections of this state’s employment laws. Fortunately, the California Supreme Court recently agreed with this principle. In Salas v. Sierra Chemical Company, the California Supreme Court held that employees without work authorization may still bring suit in California for unlawful employment practices, such as retaliation or wrongful termination, and in most cases seek lost wages.
Salas represents an all-too-common situation for employees without work authorization who work in difficult conditions. The plaintiff in this case, Vincente Salas, began work as a production line worker for Sierra Chemical Company (Sierra) in 2003. The work was seasonal and, therefore, each fall Sierra laid off Salas and each spring rehired Salas for the busy summer months. At the time of rehire each year, Salas provided Sierra with a Social Security number and a green card. In 2006, Salas injured his back at work and filed a workers’ compensation claim. When the rehiring season came around in 2007, Sierra failed to rehire Salas, who had not yet fully recovered from his injuries.
Salas filed a lawsuit against Sierra, alleging that Sierra (1) failed to accommodate Salas’ physical disability and (2) fired him in retaliation for him for filing a workers’ compensation claim. Before trial, Sierra learned that Salas had fraudulently provided employment authorization documents. Based on this discovery, Sierra argued that Salas was prohibited from seeking back wages because he had not been authorized to work during the time for which he sought wages. While the California Court of Appeal ruled in Sierra’s favor, the California Supreme Court reversed.
The Court held that federal immigration law, which requires an employer to terminate an employee upon learning that the employee is not authorized to work, does not generally bar an employee’s recovery under the California Fair Employment and Housing Act (FEHA). The Court examined California Government Code section 7285, which was created by Senate Bill No. 1818. This Section provides that state law rights and remedies apply to all employees “regardless of immigration status” and that “a person’s immigration status is irrelevant to the issue of liability” in employment. Therefore, the issue was whether federal immigration law preempts—or takes precedence over—this state law protecting all workers. The Court reasoned that federal immigration law does not prohibit an employer from paying, or an employee from receiving, wages where the employer does not realize that the employee is unauthorized to work. Therefore, the Court held that federal immigration law does not prohibit wage recovery for the entire period up until an employer discovers that an employee is not authorized to work.
Despite this encouraging ruling, the Court carved out a narrow exception to an employee’s right to seek owed wages. Namely, federal immigration law prohibits an employer from continuing to employ a worker once the employer knows that the employee is not authorized to work. Therefore, to the extent that California state law allows an employee to recover lost wages for the period after the employer learns of the employee’s lack of work authorization, the federal law takes precedence and bars the employee from recovery. In other words, Salas is only able to recover lost wages up until the time that Sierra learned that he did not have work authorization.
Salas v. Sierra Chemical Company is an important case for employees and their advocates. It confirms that an employee without work authorization may not be subjected to unlawful workplace treatment, such as discrimination, harassment or retaliation, without the same rights and remedies available to all California employees. Employees without work authorization are already vulnerable at the hands of employers trying to avoid wage laws and workplace safety. As the Court rightly noted, taking away the rights of these employees to sue for retaliation or discrimination would run counter to both the intent of federal immigration law to discourage employment of unauthorized employees and the intent of California law to protect all workers from unlawful workplace conduct.
Kosinski and Thiagaraj, LLP is hosting its Grand Opening on Wednesday, July 30 from 5pm to 8pm at the Women's Building at 3543 18th Street in San Francisco. More details to come. We look forward to seeing you there.