Wage Claim Process in California

In California, workers who believe that they are owed wages, overtime, or vacation pay may file their claims in court or with the Labor Commissioner. Claims filed with the Labor Commissioner are adjudicated by the Division of Labor Standards Enforcement (DLSE) and is a much more informal process. If you recently received a Notice of Claim and Conference from the DLSE, here is an overview of what the process normally looks like. Worker Filed a Claim. The process began with an employee (plaintiff) filing a DLSE claim form alleging that his/her employer (defendant) failed to pay wages or other compensation owed to the plaintiff. After the claim is assigned to a Deputy Labor Commissioner (deputy), he or she will determine, based on the circumstances of the claim, how to proceed. Within 30 days of the filing of the complaint, the deputy will notify the parties as to which of the following actions the DLSE will take as to the claim: referral to a conference; referral to a hearing; or dismissal of the claim. Not all cases will go to a … Continue reading

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Discovery Phase in Litigation – Anatomy of a Lawsuit Part VI

This series applies to California lawsuits only. For rules regarding your state’s civil litigation procedure, visit the website for your specific state’s judicial branch. This is a very broad overview. Multiple considerations must take place and detailed analysis goes into each step. To recap, we’ve discussed some considerations before filing a lawsuit such as What is the Deadline to File a Lawsuit and Where to File a Lawsuit. We’ve also discussed How to File a Lawsuit and Responding to a Lawsuit. Here’s a visual representation of what a lawsuit looks like. This article focuses on the phase within the blue circle. Once the initial pleadings are filed in the case and assuming that the case survives the first phase, it will move into the discovery phase. This is a big chunk of the lawsuit and one of the most expensive phases of litigation and has numerous components some of which are: Research and Strategy Litigation is a dynamic process and no two cases are exactly the same. Therefore, research and strategy is an ongoing component of any lawsuit and will take place from the case’s … Continue reading

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Year-End Bonus: What You Need to Know

It’s time for reviews, year-end bonus, and raise determinations. I thought this would be the perfect time to get a better understanding of bonuses. What is a Bonus? A bonus is something “extra” that an employer provides to employees without the obligation to do so. Nevertheless, they are considered wages and are governed by state and federal wage and hour laws. Why give Bonuses? As an employer, employee bonuses are a great idea if you could afford it. Although money is not the only motivator in employee performance, it is nevertheless an effective motivator. More importantly though, a bonus demonstrates your appreciation for your employees’ hard work and performance throughout the year. Different Types of Bonuses Bonuses may either be “earned” or “discretionary.” A business may have a compensation plan that incentivizes employees with a bonus of they hit a certain yearly sales goal, work a certain number of hours in a year, or based on the company’s profits for the year. When there is a criteria that an employee has to meet, then employees earns the bonus when they … Continue reading

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What You Need To Know When Hiring a Domestic Worker – AB 241

In the past couple of weeks, I’ve had many conversations with members of the “sandwich generation” and baby boomers about the challenges they face as their parents age. The heartbreak of watching parents age and lose their independence coupled with raising their own children is stressful enough. Yet, many are now finding themselves as employers for the first time (or first time in a long time) and must navigate the complicated terrain of employment regulations. If you are personally hiring your first live-in caregiver, here are a few basics you should know. You must pay at least minimum wage  As of January 1, 2016, the minimum wage in California is $10.00 per hour. Caveat: San Francisco’s minimum wage is currently $12.25 per hour and goes up to $13.00 per hour in July 1, 2016. Domestic Workers Entitled to Overtime Pay AB 241, also known as the Domestic Worker Bill of Rights defines a domestic worker as any person who provides services related toe the care of people in the home, or maintain private households or their premises. Domestic workers includes nannies, … Continue reading

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New Year Plan for 2016: Checklist for California Businesses

I love this time of year because in addition to the holiday parties and good cheer, it’s a time of reflection, taking stock of what we did well, where we could improve, and creating a plan for next year’s targets. You are probably doing the same thing for your business. Here is a checklist for business’s New Year Plan to help your California business prepare for 2016. Hiring Employment Applications – Check for compliance with California’s laws related to questions about arrest and criminal records. San Francisco is one of the 100 cities and counties that has implemented a “ban the box” law prohibiting those questions entirely. Interview and Hiring Protocols – Review your interview questions and hiring protocols to ensure that your hiring decisions won’t give rise to discrimination claims. Systemic discrimination is a hot enforcement area. Salaries – assess your starting (and incumbent) salaries to make sure that you can justify any pay discrepancies between people who perform similar duties. California’s new, tougher equal pay law goes into effect on January 1, 2016. Policies and Procedures Employee Handbook Review – make … Continue reading

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Holiday Party Checklist for Employers

When you host a holiday party, how do you walk the tightrope of wanting your employees to have a great time without getting sued for sexual harassment, wage and hour claims, or workers’ compensation liability? Each company has its own work culture, which generally defines their party culture as well. I’ve attended holiday lunches sans alcohol as well as those where alcohol was free flowing. Although the presence of alcohol tends to make the event more festive and the conversation free-flowing, it’s usually at those parties that I’ve looked over and asked myself “did I really just see that?” Here are 10 Things to help your company host a holiday party without getting sued. 1. Skip the Mistletoe   This one is self-explanatory. 2. Address employer-sponsored social functions in your handbook Your harassment policy should specifically address company-sponsored social events. In particular, consider providing specific examples of unacceptable behavior at these functions. If you do gift exchanges, remind employees that risqué or adult-themed gifts should not be exchanged with co-workers. 3. Host the holiday party at a restaurant or other off-site location … Continue reading

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Hiring an Employee – “Have You Ever Been Convicted?”

I received a lot of questions from employers who have read my post on job application questions related to arrests and criminal records. The main concerns that businesses have are related to managing risks in hiring an employee and the desire to ensure that they do not engage in negligent hiring. Most wanted to know whether they could ask about criminal convictions. The answer is yes, but . . . Inquiries into criminal convictions must: Come after you’ve determined that the applicant meets the qualifications for the job; Not be related to marijuana convictions two years or older; Be accompanied by a statement that a conviction will not automatically prohibit employment (unless it is for a position that where federal or state law prohibits one with a criminal conviction from holding); Be job related and consistent with business necessity.  There are 3 factors to consider when making the determination: The nature and gravity of the offense or conduct Careful consideration of the nature and gravity of the offense or conduct is the first step in determining whether a specific crime may be relevant to concerns about risks … Continue reading

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Job Application Questions – Arrest and Criminal Records

I’ve received a number of calls from colleagues who are California criminal defense attorneys whose clients have run into employment problems because of their criminal arrest records. As an employer do you know what job application questions you can and can’t ask when it comes to arrests and criminal records? California Labor Code section 432.7 makes it illegal for any employer to request job applications to disclose, or considering as a factor in determining any condition of employment, information concerning: An arrest or detention that did not result in a conviction; Referral to, or participation in, a pretrial or posttrial diversion program; Conviction that has been expunged, sealed or dismissed; Marijuana possession convictions two or more years old; or Misdemeanor convictions for which probation was completed or otherwise discharged and the case has been dismissed. Employers may ask an employee or applicant for information about arrests for which the employee or applicant is out on bail or on his own recognizance pending trial. There are additional exceptions for a health facility employer to ask applicants who will work with patients … Continue reading

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Responding to a Lawsuit in California – Anatomy of a Lawsuit Part V

This series applies to California lawsuits only. For rules regarding your state’s civil litigation procedure, visit the website for your specific state’s judicial branch. This is a very broad overview. Multiple considerations must take place and detailed analysis goes into each step. You wouldn’t operate on yourself so consult with a lawyer if you have a legal dispute. To recap, we’ve discussed some considerations before filing a lawsuit such as What is the Deadline to File a Lawsuit and Where to File a Lawsuit. We’ve also discussed How to File a Lawsuit. Here’s a quick orientation on filing a lawsuit in California.  This article discusses the actions within the blue circle. How to Respond to a Lawsuit? Get thee to a lawyer – as I mentioned in Part VI, lawsuits are very deadline driven and blowing the deadline to respond to a lawsuit could result in a default judgment against you, which translates to you automatically lose. What is the Deadline for Responding to a Lawsuit in California? Within 30 days after service of the complaint. The clock starts to run the day after … Continue reading

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Paying Tips & Tip Pooling in California

Clients in the restaurant and food services industry often ask me about California laws on paying tips. Here are the basics on paying tips in California. General Rules on Paying Tips in California Definition of gratuity – “Gratuity” is defined by the California Labor Code as a tip, gratuity, or money that has been paid or given to or left for an employee by a patron of a business over and above the actual amount due for services rendered or for goods, food, drink, articles sold or served to patrons. It also includes any amount paid directly by a patron to a dancer covered by IWC Wage Order 5 or 10. Rule #1 – Gratuities are the sole property of the employee or employees to whom they are given. Rule #2 – According to California Labor Code Section 351, employers may not share in or keep any portion of a tip or gratuity that a patron left for or gave to one or more employees. Rule #3 – It is illegal for employers to deduct the employee’s wages from the tips, … Continue reading

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