Articles Posted in Wage and Hour Violations

Family comes before anything else. And in times like these, California workers need the freedom and flexibility to care for themselves and their loved ones when they need it most. While the Family Medical Leave Act (FMLA), California’s equivalent to FMLA is known as California Family Rights Act (CFRA), grants them this opportunity, some may wonder if the time the law gives them is flexible.

According to the U.S. Department of Labor, intermittent FMLA allows some workers flexibility depending on the circumstances.

How does it work?

California workers can now stand up for their colleagues in court. That’s due to the recent outcome of the Kim v. Reins International California, Inc. case, which clarified provisions of the 2004’s Private Attorney’s General Act (PAGA). PAGA is a California law that allows workers to act as the state when suing for penalties for alleged violation of the enumerated California Labor Code set forth in the PAGA statute.

Under PAGA, an aggrieved employee can file a PAGA representative action alleging various Labor Code violations. Prior to the decision from the California Supreme Court, the courts had held that if an employee settled his individual labor code claims he/she was no longer an aggrieved employee and therefore could not pursue a PAGA representative action.  The California Supreme Court in Kim held that an employee who settles his/her individual labor code claims does not lose standing to file a PAGA representative action in court.  This is a victory for all California employees!!!

Ruling stems from worker classification lawsuit

Getting approved for intermittent FMLA can feel daunting. That’s because it takes a lot of time and negotiation for workers to get what they need. Once they do, however, they have to provide proof over time that their intermittent leave is still valid.

In some cases, FMLA-related issues may require workers to be gone longer. Because of this, many wonder if it’s possible to extend the time they need off.

It typically depends on how long they’ve been gone already. Also, employers don’t have to extend FMLA leave past the 12-week mark. In California, in addition to the 12 weeks under FMLA/CFRA, depending on the type of disability, an employee may be allowed additional time off as long as the employee can return to work on a finite date and the unpaid leave of absence will not cause undue hardship for the employer.

In October 2019, Governor Gavin Newsom passed a bill banning employers from using forced arbitration agreements. While the policy faces a temporary block in court, AB 51 is another victory for the Golden State’s labor force. AB 51 is in response to several U.S. Supreme Court rulings expanding arbitration agreement and its application in the employment setting.  Decisions from the U.S. Supreme Court, that have been followed and adopted by California courts made it difficult if not impossible for employees who signed arbitration agreement to sue their employers in Court over employment disputes such as wrongful termination, discrimination, sexual harassment and wage disputes.  The most recent ruling from the U.S. Supreme Court, in a 5-4 split decision, expanded arbitration agreements to prevent employees from filing class actions against their employers.

Many employers claim arbitration is a quicker and cheaper option to traditional litigation. While that may be true amongst sophisticated individuals in business, that’s not the case in resolving disputes between employees and employers.  Allowing employees to sue their employer in court gives them an opportunity to have a fair trial to be adjudicated amongst their peers and not a hired their party “neutral” who is being paid by the employer.

Making it hard to read between the lines

California’s AB5 law is a victory for workers across the state. That’s especially the case for victims of labor exploitation. For years, labeling workers as independent contractors allowed companies to avoid paying some workers benefits like paid sick leave, employment taxes, health insurance and obtaining workers’ compensation insurance.

However, under this new law, businesses have more restrictions as to who they can and can’t classify as independent contractors.

Dynamex court case played a role

When you work an hourly job, you expect to get paid for the time you put in. But how do you define the time that you spend working? Is it based on the task you’re performing, or is there more to it?

You might think these are hypothetical questions, but they’re not. They recently formed the core of a very real wage and hour case against Apple. Employees in the tech giant’s California stores believed they should receive payment for the time they spent in mandatory bag searches. And in its opinion, the California Supreme Court agreed with them.

Bag checks and the definition of hours worked