Have Your Just Lost Your Job Unfairly?

The average profit of corporations is six percent. Many times, the profitability of a corporation is tied closely to executive compensation. In other words, where an executive can increase profitability, his or her compensation increases. This leads to careful scrutiny to budgetary and productivity line items. What this means is that companies often seek to squeeze employee pay and benefits while demand greater and greater productivity.

If you’re reading this website it may be because your employer has crossed the line. In other words, your employer may have violated the law. The most common unlawful conduct falls in to two generalized areas. The first is wage and hour violations where the employee has not been paid for regular hours or overtime. The second area is wrongful termination or retaliation against public policy. The law grants employees certain privileges and protections of which your employer may not deprive you. The Gwynn Law Firm can help you with both areas.

If you think you might have a case against your current or former employer, the best advice to give you is to NOT delay in seeking experienced legal advice right away. This is because there are various time limits or Statute of Limitations that run on all employment claims and not all employment claims trigger the same limitations period. Consider the following, but it is important to note that this list is not all inclusive and does not take into account tolling, determination of the accrual date of the claim, and the continuing violation theory.

Some Time Limitations or Statute of Limitations

  • Wrongful Termination in violation of Public Policy: Claims must be filed within 2 years of the job termination.
  • Discrimination/Harrassment/Retaliation due to race, age, disability, national origin, sexual orientation, and gender: These claims must first be brought before the California Department of Fair Employment & Housing (“DFEH”). These claims are referred to as violations of the California’s Fair Employment and Housing Act (“FEHA”). You have 1 year from the date of the wrongdoing to bring a claim with the DFEH and request a Right to Sue Notice. Once you get a Right to Sue Notice, you have 1 year to file a civil lawsuit in state court.
  • Breach of Contract: If written contract, you must file a lawsuit within 4 years of the date of the breach. If an oral contract, you must file a lawsuit within 2 years of the date of breach.
  • Unpaid Wages & Overtime: Within 3 years of the date the wages were earned if filing under state law CA Code of Civ. Proc. Section 338. You may also file a claim under Fair Labor Standards Act (“FLSA”), but this claim must be filed within 2 years of the date of your employer’s wage violation. However, if your employer’s violation of the FLSA was willful –i.e., employer knew that its conduct was prohibited by FLSA or showed reckless disregard, then the statute of limitations is extended to 3 years.
  • Unpaid Wage under the Unfair Competition Law (“UCL”) for Restitution: Must be filed within 4 years.
  • Missed Meal & Rest Period Violations: Must be filed within 3 years.
  • Waiting Time Penalties under Labor Code section 203: Must be filed within three years of termination.
  • Itemized Wage Statement Violations under Labor Code section 226: Must be filed within 1 year.
  • California Government Tort Claims: These claims against the state or other public agencies must first be presented as a claim to the government agency within 6 months.
  • PAGA Claims – 1 year Statute of Limitations (See below).

Federal Court v. California Labor Commissioner’s Office v. State Court

In California, employees can bring wage claims in three different venues. Employee can file with the California Labor Commission (also called the Labor Board) at the local office. The employee can file in superior court where they live or where they worked for their employer, or they can file in federal court in the district where they live or where they worked for their employer.

Wage claims in federal court are more rare, so your option is really between the Labor Commissioner and State Court. Moreover, while FLSA regulates wages and hours for most employees working in the United States, it is important to know which venue will provide you with the best possible recovery. An employer who violates FLSA will be required to pay unpaid wages and liquidated damages, which essentially is referred to as “double damages.” Liquidated damages are intended to compensate the employee for being deprived of wages from the time they were owed to the time of the award. If you opt for this recovery, you typically cannot receive prejudgment interest on any award.

Similar liquidated damages recovery is provided for in California, but for minimum wage violations only.

It is also important to note that an employer who is subject to more than one law, must follow the law that is most generous to the employee.

To determine what forum is best for you, you should consult an experienced attorney. Just bear in mind, if you go with the Labor Commissioner, you would not be entitled to reimbursement of your attorney fees and nor will you be able to recover all the penalties that could be available to you under California law – e.g., Private Attorneys General Act (“PAGA”).

What is PAGA?

PAGA was enacted because the California’s Labor and Workforce Development Agency (“LWDA”) did not have adequate resources to police employers’ compliance with the Labor Code. PAGA provides employees with a private right of action against an employer in order to collect penalties on behalf of the state’s LWDA.

Most PAGA claims encompass violations of the Labor Code sections identified in section 2699.5 of the Labor Code. These include, but are not limited to, section 203 waiting time penalties, and section 226.7 on meal and rest break premiums.

However, before commencing a PAGA claim in state court, an employee must still give written notice, by certified mail, to both the LWDS and the employer describing the specific provisions alleged to have been violated with supporting facts and theories. An employee can only proceed with the PAGA claim if LWDS either declines to investigate or neglects to respond to the notice within 33 days.

PAGA requires that 75% of any penalties collected be paid to the LWDS, with the remaining 25% to the employee. It also provides for attorney’s fees if the employee suit was successful. PAGA penalties are calculated based on the violation. So, if the violated Labor Code provision already provides a civil penalty, then an employee can seek to collect that penalty on behalf of other employees. If the underlying Labor Code section does NOT already provide for a civil penalty, then the PAGA penalty is equal to $100 per employee per pay period for the initial violation and $200 for each employee per pay period for each subsequent violation.

Common Wage Violations in California and How to Calculate Amount Owed

Minimum Wage: The minimum wage in California, as of January 1, 2016, is $10 per hour. This is true even if you are a tipped employee.

Overtime: Nonexempt employees must receive overtime if they work more than 8 hours in a day or 40 yours in a week. After working 12 hours in a day, California law requires employees to receive double time. If an employee works on a 7th day, that employee is entitled to time and a half for the first 8 hours of work and double time for additional hours. If you are salaried, you are exempt from the overtime provisions. However, it is important to speak to an experienced attorney, as many employers improperly classify their employees as exempt salaried. For example, to be exempt, you must be paid on a salary basis of at least twice the current minimum wage per week. In addition, the employee must be primarily engaged in work duties that qualify as exempt at least 50% of the time, unless the employer can show the employee was not performing up to the realistic job expectations. If you fall into this misclassification, then you would be entitled to overtime pay, despite your salaried status.

Meal Time Breaks: In California, employees are entitled to 30 minutes, unpaid, after 5 hours, except when the workday will end in 6 or less hours and the employer and employee consent to waive the meal break. In addition, if an employee works more than 10 hours a day, then a second 30-minute break is required, except if the work day is no more than 12 hours. The second meal break may be waived if the first meal break was not waived. Penalty: = to 1 hour of pay for each day that you missed one or more meal periods.

Rest Breaks: Employees are also entitled to a paid 10 minute rest period for each 4 hours worked. Breaks are not required if an employees total daily work time is less than 3.5 hours. Penalty: = to one hour of pay for each day that you missed one or more rest breaks.

Paystub violations. Penalty: = $50 for the first violation and $100 for each subsequent violation, up to a total of $4,000.00

Waiting time penalties based on employer’s failure to pay employee on time upon separation from the company. Penalty: = entitled to average daily wage for each day that your employer is late paying your wages, up to maximum of 30 days (available only to former employees)

Sick leave violations for employer to provide paid sick leave: Penalty: = 3 times the value of the paid sick leave withheld or $250, whichever is greater, up to a total of $4,000.00. If you were fired as a result of the sick leave violation, you can receive an additional $50 per day, up to a maximum of $4,000.00.

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If you decide to pursue the matter on your own, you can file your claim with the Labor Commissioner’s Office or pursue your civil action in pro per. The Labor Board has a website that offers forms needed to file Wage Claims.

If you aren’t comfortable filing a claim on your behalf, or have a large complicated wage claim, talk us about assisting you in filing the claim on you your behalf with the Labor Commissioner’s Office or in state court.