business disputes

 

Independent Contractor Misclassification

 

When an employer hires someone as an independent contractor, the employer does not need to pay payroll taxes or worker’s compensation for the contractor and the worker is not afforded all of the protections that a regular at will employee has. Because of this, it is much cheaper to classify workers as independent contractors. However, the employer cannot merely designate someone as an independent contractor – the worker has to meet certain criteria. If you believe that you have been incorrectly classified as an independent contractor, contact us and arrange a free consultation.

 

Wrongful Termination and Workplace Discrimination

 

Even if you quit, under certain circumstances, the law might provide you the same protection as if you had been fired. Such circumstances might include if you were subjected to harassment or discrimination. The provides that employees are not required to continue to work in unsafe, or illegal conditions and if you leave your job voluntarily because you were subjected to such conditions, if you quit because your employer allowed such conditions to exist, the permitting of such conditions can be the equivalent of firing someone. If you were subject to conditions that forced you to voluntarily quit, contact our office for a free consultation.

 

Unlawful discrimination can include firing, demoting, or failing to promote someone based on race, gender, sexual orientation, or religion.

 

Sexual harassment can be either in the form of quid pro quo harassment (for example, promising a promotion in exchange for sexual favors) or hostile work environment harassment (making unwanted sexual comments or advances).

 

Failure to Pay Wages on Time

 

If an employer fails to pay full wages in a timely manner , he or she might be subject to waiting time penalties. Those penalties are described in  California Labor Code section 203, which states:

 

(a) If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days. An employee who secretes or absents himself or herself to avoid payment to him or her, or who refuses to receive the payment when fully tendered to him or her, including any penalty then accrued under this section, is not entitled to any benefit under this section for the time during which he or she so avoids payment.

 

(b) Suit may be filed for these penalties at any time before the expiration of the statute of limitations on an action for the wages from which the penalties arise.

 

What this Means for You

 

In sum, if your employers fails to pay you your wages on time, he or she must pay you  a penalty in the amount of your daily wage for every day that the employer is late, up to 30 days. For example, if you make $100 a day, and your employer is 20 days late, he or she must pay you 20 x $100, or $2,000 in penalties for failure to pay on time.

 

 

The same rule applies for bounced checks. An employer cannot evade this penalty simply by writing a bad check.

Similarly, if an employer underpays, he or she may be penalized  as  if  no payment was made.

 

Paying Employees Who Have Been Fired or Quit

 

California Labor Code section 201  states that when an employee is fired, the employer must pay any unpaid amount immediately, including unused vacation time. Section 202 states that if an employee quits, the employer has 72 hours to  any unpaid amount and unused vacation time, unless the employee has given at least 72 hours’ notice that he or she is quitting.

 

Failure to Pay Overtime

 

Employees are entitled to overtime pay if they work more than eight hours a day or more than 40 hours in any workweek. Overtime is time and a half. For example, if you make $10 an hour, overtime would be one and a half times that much, or $15 an hour.

 

Failure to Allow Rest Periods or Lunch/Meal Breaks

 

On-the-clock rest periods and meal breaks are governed by California Labor Code section 512. That section states that employers are required to  give employees at least a 30 minute break  if the employee  works at least a six-hour shift. Employees who work at least 12 hours, get a second meal break.

 

During that lunch period, the employee has to be free to go anywhere and relieved of all work duties, otherwise, the lunch period does not count and must be paid. If you are at work and your employer tells you to take your lunch in the office so you can answer phones, that is not a valid meal break and the employer  must pay you as if you did not take a break.

 

Similarly, the employer is required to  give employees a 10-minute break for every two to four hours worked. If you work 9 am -5 pm, that means you get a break around 10 am (on the clock – so the employers pays you while you do something relaxing for 10 minutes), a lunch break for 30 minutes to an hour , and another break around 3 pm.

 

Because of the superior position that the employer has over employees, California law provides in certain circumstances that the employer pay penalties, interest, and attorney’s fees.

 

If you think that your employer might have violated one of these laws, contact our office today and let us explain your rights. Remember, if you decide to pursue a case against your employer, you are protected under whistle blower laws from retaliation, such as being fired or demoted.

 

 

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Law Office of Jeff Bennion