Employers Paying Employees With Out-Of-State Paychecks

California has a very specific law contained in the California Labor Code regarding the issuance of paychecks to California employees. California Labor Code Section 212, states in context, that a paycheck must have imprinted on the face of the check (1) an in-state address where the paycheck can be cashed, (2) without a check cashing fee, discount or hold placed on the paycheck. An employers failure to comply with California Labor Code Section 212, can result in civil penalties of $100 for the first violation $200 for each subsequent violation per employee, per pay period up to one year. In addition to these civil penalties, an employer can be held liable for any check cashing fees incurred by the employee over a four year period. This type of violation has resulted in millions of dollars of penalties and reimbursement of check cashing fees to such companies Robinson-May Company, Dollar Tree Stores and Supercuts, to name just a few large employers. Furthermore, if the employee receives only California Minimum Wage and also incurs paycheck cashing fees, this may result in even greater liability to the employer.

If you are an employee that has to pay check cashing fees, please call Attorney, Scott A. Miller at (800) 417-2008 for more information. The consultation is free and confidential.

California Waiting Time Penalties - Labor Code Section 203

When an employer intentionally fails to pay any wages of an employee who is terminated, or who quits, those wages will continue to accrue as a penalty at the same rate of pay for up to 30 days.

To calculate your penalties for unpaid wages, you take your daily rate of pay multiplied by the number of days you were not paid.
For example, $8.00 per hour x 8 hours per day = $64 per day. If your final paycheck did not come for 30 days, you should seek penalties at $64.00 x 30 days = $1,920.00.

4 Day 10 Hour Work Week - What's the Law

If you are a California Employee and working what some call the "4-10 Plan," you may still be owed overtime if your employer did not comply with the California Labor Commission requirements. Essentially, you and your co-workers, may be owned a great deal of overtime. For more information, contact the Law Offices Of Scott A. Miller, APC at (800) 417-2008.

Employee Polygraph Protection Act of 1988

After being asked several times whether an employer may administer a “polygraph” examination, I thought it would be helpful for employees and employers alike to view what the law is on this fairly common pitfall made by employers to prospective or current employees.

Hope this helps  -  Scott

The Department of Labor administers and enforces the Employee Polygraph Protection Act of 1988 (the Act) through the Wage and Hour Division of the Employment Standards Administration. The Act generally prevents employers engaged in interstate commerce from using lie detector tests either for pre-employment screening or during the course of employment, with certain exemptions. The Act, signed by the President on June 27, 1988, became effective on December 27, 1988.
Under the Act, the Secretary of Labor is directed to distribute a notice of the Act’s protections, to issue rules and regulations, and to enforce the provisions of the Act. The Act empowers the Secretary of Labor to bring injunctive actions in U.S. district courts to restrain violations, and to assess civil money penalties up to $10,000 against employers who violate any provision of the Act. Employers are required to post notices summarizing the protections of the Act in their places of work.
Definitions

• A lie detector includes a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator or similar device (whether mechanical or electrical) used to render a diagnostic opinion as to the honesty or dishonesty of an individual.
• A polygraph means an instrument that records continuously, visually, permanently, and simultaneously changes in cardiovascular, respiratory and electrodermal patterns as minimum instrumentation standards and is used to render a diagnostic opinion as to the honesty or dishonesty of as individual.

Prohibitions
An employer shall not:

• Require, request, suggest or cause an employee or prospective employee to take or submit to any lie detector test.
• Use, accept, refer to, or inquire about the results of any lie detector test of an employee or prospective employee.
• Discharge, discipline, discriminate against, deny employment or promotion, or threaten to take any such action against an employee or prospective employee for refusal to take a test, on the basis of the results of a test, for filing a complaint, for testifying in any proceeding or for exercising any rights afforded by the Act.

Exemptions
Federal, state and local governments are excluded. In addition, lie detector tests administered by the Federal Government to employees of Federal contractors engaged in national security intelligence or counterintelligence functions are exempt. The Act also includes limited exemptions where polygraph tests (but no other lie detector tests) may be administered in the private sector, subject to certain restrictions:

• To employees who are reasonably suspected of involvement in a workplace incident that results in economic loss to the employer and who had access to the property that is the subject of an investigation; and
• To prospective employees of armored car, security alarm, and security guard firms who protect facilities, materials or operations affecting health or safety, national security, or currency and other like instruments; and
• To prospective employees of pharmaceutical and other firms authorized to manufacture, distribute, or dispense controlled substances who will have direct access to such controlled substances, as well as current employee who had access to persons or property that are the subject of an ongoing investigation.

Qualifications of examiners
An examiner is required to have a valid and current license if required by a State in which the test is to be conducted, and must maintain a minimum of $50,000 bond or professional liability coverage.
Employee/prospective employee rights
An employee or prospective employee must be given a written notice explaining the employee’s or prospective employee’s rights and the limitations imposed, such as prohibited areas of questioning and restriction on the use of test results. Among other rights, an employee or prospective employee may refuse to take a test, terminate a test at any time, or decline to take a test if he/she suffers from a medical condition. The results of a test alone cannot be disclosed to anyone other than the employer or employee/prospective employee without their consent or, pursuant to court order, to a court, government agency, arbitrator or mediator.
Under the exemption for ongoing investigations of work place incidents involving economic loss, a written or verbal statement must be provided to the employee prior to the polygraph test which explains the specific incident or activity being investigated and the basis for the employer’s reasonable suspicion that the employee was involved in such incident or activity.
Where polygraph examinations are permitted under the Act, they are subject to strict standards concerning the conduct of the test, including the pre-test, testing and post-test phases of the examination.
Civil actions may be brought by an employee or prospective employee in Federal or State court against employers who violate the Act for legal or equitable relief, such as employment reinstatement, promotion, and payment of lost wages and benefits. The action must be brought within 3 years of the date of the alleged violation.

California Workers Compensation Benefits

If you have the misfortune to become injured on the job, you are entitled to workers compensation in California. There are no exceptions to this law and if any employer tries to tell you differently, they are in violation of this law. These laws were enacted to protect employees and provide a source of income for when their injuries were severe enough to prevent them from working.
Unfortunately, far too many employers try to take advantage of their employees and do their best to circumvent the laws covering workers compensation in California. Some will try to force employees back to work before they have fully recovered, others will attempt to find ways not to pay anything at all. Both are in flagrant violation of the law and you have the right to prosecute in order to get the money you are entitled to.
If you find yourself in this situation, contact the California Wage Law Attorney and let use get you the money you are entitled to.

California Workers Compensation Law

If you have the misfortune to become injured on the job, you are entitled to workers compensation in California. There are no exceptions to this law and if any employer tries to tell you differently, they are in violation of this law. These laws were enacted to protect employees and provide a source of income for when their injuries were severe enough to prevent them from working.
Unfortunately, far too many employers try to take advantage of their employees and do their best to circumvent the laws covering workers compensation in California. Some will try to force employees back to work before they have fully recovered, others will attempt to find ways not to pay anything at all. Both are in flagrant violation of the law and you have the right to prosecute in order to get the money you are entitled to.
If you find yourself in this situation, contact the California Wage Law Attorney and let use get you the money you are entitled to.

Employment Class Action is filed against ITC Service Group, Inc. for Unpaid Wages and Failure to Reimburse Expenses under the California Labor Code

Law Offices  of Scott A. Miller have sued ITC Service Group, Inc., in a employment “class action” of behalf of current and former employees who were denied wages and reimbursement of expenses.  The employees, installers of cable and telephony equipment for ITC Services Group were required to supply their own tools, failed to receive adequate reimbursement of mileage and overtime wages.  The lawsuit is currently being litigated and Plaintiff attorney, Scott Miller would gladly speak to other current and former employees of ITC Service Group.
Attorney, Scott Miller may be reached at (800) 417-2008 for comment or questions.

California Wage Law Attorney: Why do I practice "wage & hour" employment law?

California Wage Law Attorney: Why do I practice "wage & hour" employment law?: "People often ask me, 'why do I practice wage & hour law?' I always seem to have the same answer. Employers of both small and large com..."

Why do I practice "wage & hour" employment law?

People often ask me, "why do I practice wage & hour law?" I always seem to have the same answer. Employers of both small and large companies violate the wage laws because it is "profitable." How is it profitable you ask? Simple, because they think they can get away with it and most of the time they do.
What happens if the employer gets sued? Generally, they will settle for something less than would pay if they were paying the legal wages as required by law. My opinion, it is better to get some money for the employees then seeing the employees get nothing.
This is typical in class action lawsuits. Typically, an employee will come to me with a small case, however the amount of money owed is not large enough to file a lawsuit. It would be like winning the battle, but losing the war. However, many of these employees work in the same company with hundreds of other employees who are all being shorted on wages. This is the perfect class action lawsuit.
Here, I can take one employee who wants to be the class representative and sue this big employer for an amount that will make sense for a lawsuit, make the company change it's ways and get some money back for the employees.
Class Actions can be a real threat for employers should they not settle. The exposure of fighting the lawsuit can result in enormous re-payment of wages, damages, penalties, interest and more.
So, if you have been a victim of Labor Code violations involving wages, maybe I can help you like I have helped many others.

Scott Miller, Attorney
No cost, confidential consultation
(800) 417-2008

New Employment Laws for California 2011

Stools or Chairs Required
The California Court of Appeal in the case of Bright v. 99 Cent Only Stores that Civil penalties could be brought against an employer for failing to provide suitable seating for cashiers.  Interestingly, I do have a case against K-Mart stores throughout California for exactly this issue.
Requirement That An Employer Post A Bond If Appealing A Labor Board Claim
Starting January 2011, Employers that appeal wage and hour claims will be required to first post a bond with the court for the amount the Commissioner has awarded.
Paid Leave Organ or Marrow Donors
If you are an employer with 15 or more employees, you will be required to provide a paid leave of up to 30 workdays for those employees that are donating organs and up to 5 paid workdays for those employees that are donating bone marrow.

What Is The Overtime Rate When I Receive A Combination Of Commission Pay and Hourly Pay?

Let’s discuss a hypothetical so we all know what the question is asking.
John is an inside salesperson and gets $10.00 per hour and also receives a commission of $20.00 for each sale he makes in the workweek.  John works 50 hours in a single week and makes 5 sales totaling $100 in commission.
Here is how to calculate the overtime rate for John
50 hours x $10.00 per hour + $100.00 in commission =$600.00 in straight hourly pay including $100.00 in commission.
You now divide $600.00/50 hours which equals $12.00 per hour.  Once you have figured out the straight hourly rate ($12.00), you then multiply that amount times .50, which equals $6.00.  You then add the straight hourly rate and half-rate together (for John it would be $18.00 per hour) $12..00 + $6.00 = $18.00 for each overtime hour over 40 hours.  In John’s case, he worked 10 hours overtime at $18.00 per hour and 40 hours and $10.00 per hour.  John’s total pay for the week should have been $660.00.
Note:  If the pay is not calculated, as shown above, you will have been under paid.  This is a common problem even among the largest employers.
If you have any questions, please feel free to contact the Law Offices of Scott A. Miller, A Professional Corporation, at (800) 417-2008.

Minimum Wage Employees That Do Not Receive Mileage Reimbursement When Using Their Own Car For The Benefit Of The Employer - Malik vs. Freeway Insurance

In a class action I recently filed, the employer was not reimbursing minimum wage employees for using their own vehicles in the discharge of their job duties.
The core issues of this matter are:
1. Whether an employer that requires its employees to use their personal vehicles in the discharge of their duties but fails to reimburse the employees for mileage and expenses incurred in using their personal vehicles has violated Labor Code § 2802.
2. Whether an employer who fails to have an identifiable, enhanced compensation or reimbursement plan that fully reimburses the employees for their automobile
expenses necessarily incurred in the discharge of their duties has failed to comply with the holding of the California Supreme Court in Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554,572.
3. Whether an employer’s violation of Labor Code § 2802 that effectively reduces a minimum wage employees’ wages below the state minimum wage, has also violated Labor Code § 1194, California’s minimum wage law.
Summary of Facts:
Plaintiff Malik, the class representative in a putative class, was a former inside Sales Representative for Defendant Freeway Insurance Services, Inc. Plaintiff and the other Sales Representatives spent their time primarily inside Defendant’s office selling from the office location to potential clients that either telephoned Defendant’s office or personally came to Defendant’s office. The Sales Representatives were paid $8.00 per hour.
Defendant Freeway has arrangements with car dealerships that recommend Freeway’s insurance services to purchasers of new vehicles. In addition to their inside sales duties, Sales Representatives are required to drive their personal car to auto dealerships to sell insurance when an auto dealer calls Defendant’s office. Generally, the dealerships call Defendant’s office when an uninsured person is purchasing a car and needs insurance coverage to drive the car off
the lot. Plaintiff’s territory included Long Beach, Anaheim, and Tustin. In a typical week,
Plaintiff and the other Sales Representatives made five to seven trips from Defendant’s central office located in Orange County to car dealerships in their territory. On average, each trip was approximately 30 to 40 miles round trip.
In addition to requiring the Sales Representatives to drive their own cars to the dealerships, Defendants also required the Sales Representative to pay for their gasoline, auto expenses, and repairs. The only compensation Plaintiff and the other Sales Representatives received was two dollars ($2.00) when they sold an insurance policy at the dealership. If a sale was not made, Plaintiffs did not receive the $2.00 or any other type of reimbursement for their expenses. Thus, Plaintiff complained that the Sales Representatives were paid less than minimum wage because paying the gasoline and automobile expenses reduced their wages to less than minimum wage, and the $2.00 they received when they sold an insurance policy was insufficient to cover their actual automobile expenses for a single trip.
California Labor Code section 2802:
Labor Code § 2802(a) provides: “An employer shall indemnify his or her employee
for all necessary expenditures or losses incurred by the employee in direct consequence of
the discharge of his or her duties…” The purpose of Section 2802 is to ensure that duty-related
expenses and losses ultimately fall on the business enterprise, not on the individual employee. (Janken v. GM Hughes Electronics (1996) 46 Cal. App. 4th 55, 74)
Plaintiff’s Argument:
In Arriaga v. Florida Pacific Farms (11th Cir. 2002) 305 F.3d 1228, 1237, the federal court of appeals recognized that transportation costs incurred by an employee for the benefit of the employer constituted de facto deductions from the employee’s minimum wages in violation of the minimum wage statute.
Although, not binding, the Court’s holding in Arriaga is persuasive and carries great weight: “There is no legal difference between deducting a cost directly from the worker’s wages and shifting a cost for the employee to bear; employer may not deduct from employee wages the cost of facilities which primarily benefit the employer if such deductions drive wages below the minimum wage.”
What is the actual law? In sum, an employee cannot be paid less than minimum wage. If an employee is paid minimum wage, but has to pay from his/her own pocket expenses that should be paid by the employer, but are not, it can hardly be said the employee is receiving the California Minimum Wage.
This case, Malik vs. Freeway Insurance, is currently in litigation. Defendant, Freeway Insurance, lost their motion to strike the cause of action regarding “failure to pay minimum wage.” The court ruled this issue to be a case of first impression for California. So, this is good news. Feel free to contact Scott Miller, Attorney at (800) 417-2008 if you are having a similar issue with your employment.

CALIFORNIA CLASS ACTION AGAINST CACHE RETAIL STORES FOR LABOR CODE VIOLATIONS

CALIFORNIA CLASS ACTION AGAINST CACHE RETAIL STORES FOR LABOR CODE VIOLATIONS

Law Offices of Scott A. Miller, APC and Thomas Fox of T.L. Fox & Associates have brought a California putative class action lawsuit on behalf of current and former employees of the women’s clothing retailer, CACHE, Inc.  Plaintiff’s counsel have alleged in the lawsuit that CACHE has violated various California Labor Code violations, including a requirement that employees purchase CACHE branded clothing to wear at work, failing to provide employees with uninterrupted meal breaks, as well as other causes of actions.

Plaintiff’s counsel are in the infancy of this litigation and are looking to speak to current and/or former employees that worked in CACHE retail establishments within California over the last four years. 

Please contact Attorney, Scott A. Miller for more information at (800) 417-2008. 

California Wage Law Attorney: Mileage Reimbursement rate 2011

California Wage Law Attorney: Mileage Reimbursement rate 2011: "If you are an employee in California and are required to use your own vehicle for your employers business, you should be reimbursed for mile..."

Mileage Reimbursement rate 2011

If you are an employee in California and are required to use your own vehicle for your employers business, you should be reimbursed for mileage.  Currently, the IRS mileage reimbursement rate for 2011 is 50.5 cents per mile.