Category: Blog

3 Reasons California Employees Are Entitled to Back Pay

Employees in California who have not received full payment for their hours are entitled to receive back pay. There are many different reasons why employees may be eligible to receive this payment.

# 1 Unpaid hours

Not paying the correct wages is more common than thought. Some employers even hide or lie to their employees to avoid making complete payments.

For example, you may be owed a late payment if your job requires you to wait for long periods of time to go through security or “backpack search” and enter the workplace; that is if the employer has not paid you for that waiting time. It is also possible that your employer simply did not pay you the correct rate for all your overtime.

For more information on this matter, see two of our previous posts.

# 2 Unfair termination

Wrongly terminated employees may receive back payments from the date they were released until their claim is resolved or a judgment is determined.

# 3 Not providing breaks to eat and rest

If you are a non-exempt employee in California, you are entitled to a 10 minute paid break for every 4 hours worked. If your employer does not authorize or allow a break, you are entitled to an additional full hour of pay for each workday that your employer did not provide you with a paid break.

Also, if you are a non-exempt employee in the state of California, you are entitled to a meal break of at least thirty minutes when you work more than five hours a day. You are entitled to this break before the end of your fifth hour of work. They must also provide a second meal break of at least 30 minutes if your work period extends beyond 10 hours.

If your employer has not given you adequate breaks, you may be entitled to significant back pay, especially if the violation has been going on for some time.

A guide to pregnancy disability leave

California has some of the most extensive leave laws in the country. Therefore, as an employee in the state, you may be eligible for pregnancy disability leave.

What is pregnancy disability leave?

It is time off from work that a woman takes when she is disabled by pregnancy or childbirth. In the state of California, you can take pregnancy disability leave under two laws:

• Pregnancy Disability Leave Act
• Federal Family and Medical Leave Act

Pregnancy Disability Leave Act

This law provides up to 4 months of pregnancy disability leave. The exact amount depends on how many hours a week you work.

Your employer is covered by the PDL Act if he has at least five employees and is an agent of a covered employer or a government entity.

But what if I don’t need to take the four months of pregnancy disability leave at once?

The Pregnancy Disability Leave Act allows you to take pregnancy disability leave “intermittently” for a few hours, days, or weeks at a time.

Federal Family and Medical Leave Act

This provides up to 12 weeks of leave.

To qualify for pregnancy disability leave under FMLA, you must have a severe pregnancy-related health condition. Your employer must have also employed you for at least one year, and your employer must have at least 50 employees working within a radius of 75 miles from you.

Unlike the PDL Act, you can only take intermittent leave under FMLA if it is medically necessary.

If you are eligible for pregnancy disability leave under the PDL and the FMLA, your leave will run simultaneously. Unfortunately, this means that you will only get up to four months of total pregnancy disability leave under the PDL and FMLA.

Will I get paid while I’m on leave?

Generally, your employer is not required to pay you during your leave.

You may also be able to get some of the payment back through the California Disability Insurance Program (DI). The California DI program can pay part of your salary while you are temporarily disabled by pregnancy.

Can you get fired for being sick?

In California, employers are allowed to terminate employment without notice and for almost any reason. Dismissal resulting from excessive absences is legal in at-will employment states, especially since attendance is essential to job performance in most cases.

Despite the flexibility allowed by law, employees receive certain protections. In California, labor laws require all employers to provide paid sick leave to employees. All employees who have worked a minimum of 30 days in the past year are eligible to take paid sick leave.

California sick leave requirements

• Employees must accrue one hour of sick leave for every 30 hours worked.
• Employers can limit paid sick leave to 48 hours or six business days.
• Employers also have the right to limit the number of hours used to 3 days (24 hours) per year.
• Unused paid sick leave carries over from one year to the next.
• California law states that an employer cannot deny an employee the right to take sick leave, nor can it demote, fire, threaten to fire, suspend, or in any way discriminate against an employee who uses sick leave.

Family and Medical Leave Law

If an employee has used all of his sick time or has not been in a job long enough to get paid sick leave, he may be protected by the Family and Medical Leave Act (or FMLA), which gives employees the right to take 12 weeks of unpaid leave to address specific medical or family concerns, such as:

• A serious health condition
• Caring for a family member with a severe illness
• Caring for a new child

As with sick leave, laws prohibit employees from being punished or fired for using the FMLA. If you believe your employer terminated your employment because of taking paid sick leave or the Family and Medical Leave Act provided by state law, he might have a wrongful termination claim on his hands.

What are the five most common forms of wage theft?

For many companies, paying their employees y is one of their most significant expenses, which creates an incentive to reduce employee time card hours, withdraw benefits, and lower labor costs. The term “wage theft” refers to when workers are paid less than they have legitimately earned.

Five of the most common forms of wage theft:

• Unpaid overtime: Workers are entitled to overtime pay for time worked after serving 40 hours a week unless they are classified as exempt from the Fair Labor Standards Act.
• Employee misclassification: The difference in compensation between employees and independent contractors can be substantial. Employers who misclassify workers to avoid paying overtime and benefits are breaking the law.
• Minimum wage violation: When an employer pays an hourly rate lower than the minimum wage or makes improper deductions that reduce a worker’s net salary below the minimum wage, it is considered wage theft.
• Tip Sharing Violation: Employees who receive tips depend on tips for a substantial part of their income. Their income then is reduced when employers implement payment practices that split and distribute tips to other workers.
• Unreimbursed Expenses: Some employees frequently incur costs for work-related expenses that benefit their employers, for example, transportation costs. Failure to reimburse those expenses provides an unfair gain for employers and a deduction to employee compensation that can bring them below minimum wage.

What to do against wage theft?

You can start protecting yourself against wage theft on the first day of work. Keep track of the dates you worked, the hours you worked, and the times you took your breaks. Check this information against your salary, and make sure you receive what is stipulated in your contract.

If you think you are being scammed, you can try to resolve it with your boss. If it’s an honest mistake, it could correct things. But for many employers, wage theft is part of their business model. You may be able to file a lawsuit against your employer to collect compensation for unpaid wages and additional damages with an employment attorney.

Are you returning to work after medical leave? Know your rights.

Your medical leave may be subject to the Family and Medical Leave Act (FMLA). To be eligible for FMLA leave, you:

• You must have worked for your employer for the last 12 months and at least 1,250 hours.
• You must work within 75 miles of a location where your business employs at least 50 or more people.
• Cannot be a “key employee” (someone who is in the group that is paid the highest 10% salaries or whose leave is substantially detrimental to the company)

If you are eligible for FMLA leave, you have certain rights when you return to work. Rights include getting back your previous job or a similar one in title, duties, and pay.

Reasonable accommodations

Did you get injured on the job and filed a Workers’ Compensation Claim? Did your boss refuse to accept your doctor’s note? Did your employer refuse to acknowledge your injury, medical problem or give you permission for doctor’s appointments?

This is called disability discrimination and is illegal in the state of California. Under California law, if you have a doctor’s note for health problems or injuries, your employer must provide you with “reasonable accommodations.” Reasonable accommodations may vary depending on the size of your business and the type of injury in relation to the job duties required. For example, for an employee with carpal tunnel, providing an ergonomic keyboard in an office setting would be a reasonable accommodation. Allowing an employee to take time off for additional medical appointments, as long as they can still complete essential job functions, would be another reasonable accommodation.

Act immediately if your employer acted illegally

Please note that the statute of limitations (time within which you can legally file a claim) for most CA medical leave or injury cases is short. It is essential to act immediately if you think your employer is has treated you unfairly. 

If you were fired, harassed, demoted, or fired while on medical leave, it is essential to discuss the situation with an experienced attorney who can provide you with a comprehensive view of your options.

3 Critical Mistakes Employees Make When Filing Cases Against Their Employer

There are many procedures to follow when filing and winning a case against an employer. Some actions could affect the result you expect. Avoid these mistakes when filing a lawsuit against your current or former employer:

# 1 Wait to apply

Filing a case can be a long and stressful process. Take action as quickly as possible, as there are statutes of limitations. The statutes of limitations establish a specific time frame within which you can present your case. Once that period expires, you cannot file a claim, no matter how strong your case is.

There are several time frames depending on the type of case you have. For example, in cases of discrimination, it is key to file your claim with the Equal Employment Opportunity Commission. The statute of limitations is 180 days or 300 days from the incident.

• 180 days if your state does not have an agency with a work-sharing agreement with the EEOC
• 300 days if your state has a work-sharing agreement with the EEOC

If you wait until a day after the applicable deadline mentioned above, you lose your case forever. Find out immediately what your statute of limitations is.

# 2 Not knowing precisely what to ask for

Labor and employment cases can be emotional for the employee. However, you need to look ahead and focus on the result you want. In most cases, it will be financial compensation. 

Regardless of the demands you have on your employer, be realistic. Keep in mind that your employer may be willing to give you your request or something similar if the demands are reasonable. Making unreasonable demands on your employer can make your case difficult.

# 3 Not understanding the process

It is not necessary to have an attorney’s knowledge of an employment case’s procedures, but having a basic understanding of the process is helpful. So you can decide how far you are willing to go with your case and look for opportunities to resolve it.

Labor law is complicated. Often, people who try to go through the process alone make one of these critical mistakes and don’t get the results they want, or they miss out on the opportunity to present their case altogether. Your best option to avoid making mistakes along the way is to work with an experienced employment attorney.

Unemployment benefits

Unemployment benefits are part of a combined federal and state program that provides compensation to eligible workers who have been laid off. Each state has a different unemployment insurance program, but they all follow the same guidelines established by federal law. If you are fired from a job in California, you should immediately file your claim with the Employment Development Department (EDD). About two weeks later, they will conduct a telephone interview with you and your employer to determine if you are eligible for unemployment benefits.

What do I need to file a claim?

You must have earned enough wages during the base period to establish a claim. The “base period” is a specific 12-month term that the EDD uses. Once the EDD has determined that you qualify, you must meet the following requirements:

• You are totally or partially unemployed
• You are unemployed through no fault of your own
• You are physically fit to work
• You are ready and willing to accept work immediately

Am I eligible if I quit?

If you quit your job, it is very likely that you will not qualify for benefits unless you had very good cause to quit, and you have made all reasonable attempts to keep your job. Some of the valid causes for resigning are discrimination or unsafe working conditions. Other reasonable causes include resignation for health reasons (on the advice of a doctor) or the continuing threat of domestic violence to you and/or your children.

What if I was fired for misconduct?

Unfortunately, it is not possible to receive unemployment benefits in that case. The EDD considers misconduct:

• Substantial breach of duty
• The breach of duty was a malicious act, with the intention of violating it
• The breach of duty harmed the employer’s business interests

What happens if my claim is denied?

If your claim is denied, you will receive a notice from the EDD. This decision can be appealed within twenty days. After requesting the appeal, the EDD will schedule a hearing. If you are not satisfied with their decision, you can appeal to the California Unemployment Insurance Appeals Board. After that, your case could go to court.

Your rights in case of sexual harassment at the workplace

In 2019, 33% of women and 28% of men reported experiencing sexual harassment at work, according to a research by the California Coalition Against Sexual Assault and the Center for Gender Equity and Health at the University of California San Diego School of Medicine. The figures are 10% higher for men and 5% higher for women in California. Sexual harassment at work is against the law, despite being widespread. With the assistance of a California employment attorney, you can obtain justice.

California’s Workplace Sexual Harassment Laws

Sexual harassment must be severe enough to foster a hostile work environment in order to qualify as such. The goal does not always have to be an individual. Witnessing sexual harassment of a coworker can make it more difficult for that person to perform their job duties.

Examples of such behavior might be:

• Hostile expressions/looks
• Explicit remarks that are viewed as rude and make someone feel unsafe
• Knowingly making sexually suggestive physical contact or brushing against another person 
• Insisting on a phone number or a date even after being declined
• Quid Pro Quo: The practice of offering a promotion, raise in pay, or other forms of job rewards in exchange for sexual favors from a person in a superior position (supervisor or manager). The worker may face a promotion or dismissal if these favors are not given.

What should you do if the behavior continues?

The next step should be to report the harassment to Human Resources or management if, after calling out a coworker for their behavior, nothing changes or if it is impossible to speak with them. It is crucial to be able to present any supporting documentation, including any emails, texts, or diaries that document the bullying, as well as the names of any witnesses.

It is essential to speak with a California-based employee rights attorney if the firm refuses to take appropriate action or, worse yet, retaliates by firing the employee. Contrary to Title VII of the Civil Rights Act of 1964, which only protects businesses with at least fifteen workers, California law covers all private, public, and local employers, and it is still feasible to pursue compensation even if one’s employer is a tiny business.

Do you work overtime? Your employer may owe you extra payments

Your employer cannot dispose of your time outside of working hours. This includes any work-related activities, including training, phone calls, errands, or preparing your work area. Therefore, you may be owed a significant backpay if your employer requires you to work after hours.

# 1 Your employer denies you times for meals and breaks

According to California law, nonexempt employees are entitled to uninterrupted rest and meal times that must be free from any work obligations. If your breaks are denied or interrupted by work-related matters, including work communications, you may be due a significant additional payment for each day that you have not received the appropriate breaks.

# 2 Your Employee Denies You Overtime Pay

California is different from other states when it comes to overtime pay. The majority of employees in California are owed an overtime rate (1.5 times the regular pay rate) if they work more than 8 hours in a single workday.

You would have to work more than 40 hours in a single workweek to receive overtime pay in other states. That rule still applies in the state of California, but here you may be owed 1.5 times your regular rate if you work more than eight hours a day. Unfortunately, some employers do not follow this rule, and as a result, employees lose a lot of money and time.

If you’ve been asked to do after-hours work, have been denied uninterrupted breaks, or are not being paid for all the hours you work, it may be time to consider your legal options. At Para los Trabajadores, we can help you get the pay you are owed, as well as prevent future wage and hour violations from occurring.