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When you become a parent, certain working conditions begin to matter more. For example, having a regular schedule that allows you to spend time with your kids becomes crucial. Before, you may not have minded a few extra hours on your paycheck, but now, it interrupts your schedule and can create serious issues with finding childcare.

That leaves many new parents wondering whether their employers can require overtime at all. The answer is complicated – in some cases, your company can require extra time, but not in all. Here’s what you need to know about the overtime rules for parents in California and what to do if your employer discriminates against you for scheduling issues.

Overtime Rules in California

Three sets of rules may impact the type and amount of overtime your employer can require. First, the federal Department of Labor (DOL) sets some basic requirements in the Fair Labor Standards Act (FLSA)

According to the FLSA, all employers must pay nonexempt workers at least time and a half for working more than 40 hours in a 168-hour workweek or 8 hours in 24. However, the DOL does not limit total working hours for people 16 and older. Employers can require workers to perform as much extra time as they want as long as they do not discriminate against people for federally protected characteristics or violate OSHA safety rules.

California adds additional restrictions on mandatory overtime. It defines standard overtime as working more than 6 days a week, 40 hours a week, or 8 hours a day. When nonexempt employees exceed these hours, they must be paid time and a half. It also requires employers to pay double time or twice the worker’s standard wage if they exceed 12 hours of work in a day or more than 8 hours on their seventh consecutive day of work. 

More importantly, California permits workers to refuse extra hours without penalties from their employer in certain circumstances. You can refuse to work more if:

  • You worked overtime the previous week for a total of 72 hours or more.
  • You are currently working your seventh consecutive day of the same workweek.
  • You believe doing so would pose a safety or health hazard, such as if you are operating heavy machinery or factory equipment.

In these situations, your employer cannot penalize you for refusing to work more in California.

The third set of rules that may apply varies from job to job. Your employer is required to follow any terms set in your employment contract or industry-wide labor agreements

If your contract states that you cannot be required to work more than 10 hours of overtime, for example, your employer cannot require you to do so. If they attempt to force you to work more than your contractual limit or penalize you for refusing, they are in breach of contract, and you have grounds for legal action.

Can Employers Make Overtime Mandatory?

Yes, your employer can require you to work more than 40 hours a week or 8 hours a day unless your employment contract states otherwise. However, it’s important to know the rules about mandatory overtime:

  • Your employer cannot force you to show up or stay at work to work more. They can penalize you for refusing to do so, though. This can include firing you or otherwise taking adverse employment action.
  • Your company must pay you appropriately for your time. If you are not receiving time and a half or double time as appropriate for the extra time you’re working, your employer is violating your right to fair pay.
  • Your employer cannot require you to work extra time if it would be unsafe, if you worked more than 72 hours the previous week, or if you are on your seventh consecutive day of work in one workweek.
  • If you’re salaried, you’re usually exempt from overtime requirements unless you would earn more working at the minimum wage and following overtime compensation laws. For example, if you make $45,000 per year but work 80 hours a week, you may be misclassified as exempt and have the right to overtime pay in California.

Keeping these rules in mind can help you spot if your employer is violating state wage and hour laws.

Overtime, Parents, and Protected Characteristics

Parents are not explicitly protected under California law, but many types of discrimination against parents are also grounded in gender and marital status. This includes scheduling discrimination. Examples of discriminatory overtime policies include:

  • Requiring people of a certain gender to work more when other genders are not required to do so. 
  • Excusing married people from mandatory schedule requirements when single people are not excused.
  • Penalizing people for taking protected family or medical leave instead of working overtime. 

It is not illegal to fire someone who cannot work extra hours because they have children. However, it is unlawful to fire a woman because she may have children and no longer be able to work additional hours in the future. Employers also may not excuse women from working overtime so they can care for their kids while requiring fathers to work extra anyway. Finally, any policy that explicitly or implicitly benefits married workers over unmarried ones is unlawful, regardless of parental status. 

Is Your Employer’s Overtime Policy Discriminatory?

Mandatory overtime is legal to an extent, but your employer’s policies may still be discriminatory. If you suspect your employer is violating your rights and discriminating against you with an unjust overtime policy, reach out to the skilled employment attorneys at Le Clerc & Le Clerc LLP. We can help you determine if you are suffering from discrimination and help you choose the best path forward. Learn more about how we can assist you with your workplace discrimination case by scheduling your consultation today.

After a months-long process from which he attempted to withdraw multiple times, Elon Musk’s purchase of Twitter was made official at the end of October 2022. Musk took the social media site private for $44 billion, 38% more than it was valued at the time. While he had big plans for the company, Musk’s tenure as owner has seen less than stellar results. 

This may be related to the fact that his first actions included firing the company’s CEO, CFO, and general counsel. These were the people who had been responsible for managing the top-level activities of the company and maintaining compliance with critical federal and international legislation for years. It should be no surprise that the company’s actions after those critical firings have resulted in multiple class-action lawsuits 

After he fired the top-level counsel and management, Musk proceeded to lay off thousands of workers. Before his ownership, the company had more than 7,300 employees. Within two weeks of buying the company, Musk laid off 50% of the staff, or about 3,700 workers in total, with a few days of rumors providing many fired workers their only notice.

This immediately led the fired staff to file class action lawsuits against Twitter. Both California, where Twitter’s headquarters are located, and the federal government have laws known as “Worker Adjustment and Retraining Notification” (WARN) Acts, intended to protect workers against surprise layoffs. It appears likely that at least some of the fired individuals did not receive appropriate notice. 

In addition, women fired from Twitter have sued the company for alleged workplace discrimination. According to the lawsuit, women were 20% more likely to be fired than men in general layoffs and 30% more likely to be fired if they were on engineering teams. Finally, disabled workers are suing because Musk’s orders that employees must “work long hours at high intensity” or lose their jobs are discriminatory. 

This influx of lawsuits from employees likely could have been prevented had Musk taken a more measured approach to make changes. However, as it stands, the Twitter layoffs are an excellent example of how not to perform mass firings. Here’s what you can learn from the Twitter situation about your rights under federal and California anti-layoff laws. 

What is the California Warn Act?

WARN Act laws on the federal and state level are intended to prevent major employers from firing large numbers of workers on a whim. Under federal law, employers with more than 100 employees are to provide at least 60 days’ notice to workers before firing 50 or more workers at a single site of employment or the lower of at least a third of the workforce or 500 or more workers across the company. 

California’s Cal-WARN Act is even more strict. It applies to any company with at least 75 employees in the state. Furthermore, it requires these companies to provide 60 days’ notice any time they intend to fire 50 or more workers within 30 days, regardless of the percentage of the workforce affected or where they work. It also requires advance notice if companies intend to need 50 or more workers to relocate at least 100 miles away, which may be necessary for Twitter workers after nearly three years of a generous work-from-home policy.

While Twitter had sent out WARN notices to approximately a thousand workers as of Friday, November 5th, the company did not initially provide similar notice to the other employees who were also laid off. This is a clear violation of both federal and state WARN laws. While the company has the employees agreed to arbitration in employment disputes like this, it is yet to be seen whether it will be successful in having these class action lawsuits dismissed. The company has not yet responded to the lawsuits alleging discrimination

What Employees Can Do About Unjust Layoffs

While the situation at Twitter is confusing and stressful for the employees involved, it does provide other workers a clear step-by-step demonstration of how to take a stand against layoffs that violate WARN and fair employment regulations:

  • Consult with an attorney: WARN Act laws are complex. If you and many coworkers have been laid off without notice, your first step should be to discuss your situation with an experienced employment law attorney. They will advise you on your rights and the best path forward.
  • Confirm that your employer is covered under the Cal-WARN Act: If you work in California, your employer is more likely to be covered under the Cal-WARN Act. Your attorney will help you verify whether your workplace is required to comply with California anti-layoff laws.
  • Verify the number of affected employees: Next, your attorney will investigate the number of fired workers to see if the size of the layoff met the threshold to require notice. 
  • Check whether you are eligible for protection: Your lawyer will also help you determine if you are protected by these laws. For example, you may not qualify if you worked for your company for less than six months or were on a specific short-term contract.
  • File a class-action claim: If your employer is required to report layoffs and did not provide WARN notice before firing more than 50 protected workers, your attorney can help you file a class-action lawsuit against your employer. You can pursue compensation for the two months of employment and other losses you’ve suffered. 

Stand Up for Fair Employment in California

California and federal laws are intended to protect workers from massive unannounced layoffs. If your employer acted like Twitter, you might have grounds to pursue compensation for yourself and your coworkers for the unjust layoffs. At Le Clerc & Le Clerc LLP, we have the skills and resources to help you take a stand against unfair and illegal firings. Schedule your consultation to discuss your situation and learn more about how we can assist you. 

As a covered employer, your company must offer qualifying workers FMLA leave. You want to help a family member with a serious health condition, but you also want to ensure your employer does everything right. After all, you still want a job to come back to.

Chron explains what companies must include in their FMLA leave letters. Do your part to ensure your company does not violate your rights.

Employee eligibility

If you qualify for FMLA leave, your letter should note your eligibility. The letter may include forms your employer requires workers to complete before starting their leave, which may include Form WH-381 and Form WH-380. Check to see whether the letter notes if you must use your paid time off for leave. You likely have 15 days to have your doctor complete Form WH-380 and return it to your employer.

Proof of familial relationship

Because you want FMLA leave to care for a relative with a serious health condition, your employer may want you to prove your familial relationship. Other than providing proof, you must still have a physician complete Form WH-380 and receive a letter listing your and your employer’s FMLA leave rights and obligations. The same applies if you want time off to care for a family service member.

Employee ineligibility

If you do not qualify for FMLA leave, your employer should give you a letter stating as much. The letter must include the reason for your ineligibility with the Notice of Eligibility and Rights & Responsibilities Form WH-381. Even if you do not qualify for FMLA leave, you could have other options.

Not knowing what belongs on an FMLA letter could cost you more than you realize. When you have all the facts, you may better understand when your company may be on the wrong side of the law.

When one of your family members is seriously ill, it can be challenging to provide for his or her care while you continue to work. Fortunately, in California, you may be able to take a leave of absence to care for your loved one without losing your job.

Here is what you need to know about taking time off work to help a family member with a serious illness.

Who can take a leave of absence to care for a family member?

Employers with five or more employees must allow eligible employees to take time off of work to support a family member with an illness or injury that requires inpatient care or treatment by a healthcare professional. Family members include spouses, domestic partners, children, siblings, parents and grandparents.

You are eligible if you have worked for your employer for at least one year and accrued 1,250 hours over the past year.

You can take a total of 12 weeks off annually. Unless you use your paid vacation or sick days, your employer is not required to compensate you during your leave. However, you may qualify for additional assistance from the state.

What happens when I go back to work?

In most cases, you can return to the same or a comparable position after your leave. Your employer can not fire you or otherwise retaliate against you because of your absence.

Despite the restrictions, an employer could try to eliminate your position anyways. If this happens, you may have legal options to protect your rights.

Today, people are living longer and remaining in the workforce longer than ever before. By 2024, over one-fourth of the U.S. workforce will be 55 years of age or older. Unfortunately, of the many different kinds of biases in the workplace, ageism is one of the most prevalent.

Common misconceptions about older workers, such as that they are less adaptive, innovative, or tech-savvy, can be harmful to an employee’s well-being and career. According to age discrimination experts, here are five telltale signs of ageism to look out for in your office:

1. Older workers get layoffs and buyouts

If your employers only layoff or buyout older employees while younger workers continue to join the company, it’s a red flag. Many employers will tell an older worker that they are being let go because they aren’t a good “culture fit” for the company. However, this is usually code for wanting employees who are younger and less expensive workers.

2. You don’t get any challenging projects

Another common sign of workplace ageism is employers passing over older workers for challenging assignments. If the only projects management gives you are regularly unpleasant or tedious, it could signal that they are trying to replace you or get you to quit.

3. You hear coded comments

An employer who describes younger workers as “energetic” or “new blood” and describes older employees along the lines of being “stuck in their ways,” it might suggest that they have ageist beliefs. Alternatively, if your boss asks when you’re planning on retiring, even if it’s friendly, it could indicate something that’s been on their mind.

4. You stop getting raises or promotions

It’s not always easy to prove that ageism is taking place when it comes to raises and promotions, as you may not be getting them due to your performance. However, if you observe younger employees getting raises and promotions and know you’ve been performing as well or better, this is likely a sign of age discrimination.

Age discrimination in the workplace isn’t always overt. If you experience ageism in your office, document the incidents and talk to your HR representative as soon as possible to safeguard your role.

Generally, unless an employee is exempt, he or she is entitled to overtime pay. The default is rule is that overtime is calculated at 1.5 times an employee’s regular rate of hourly pay, or “time and a half,” for each hour worked beyond 8 hours per workday or 40 hours per workweek.

For salespeople, comission pay exemption may apply. However, the exemption applies only to employees who are paid on a commissioned basis who:

  • Earn at least one-and-a-half times the minimum wage,
  • Earn more than half their income in the form of commissions, and
  • Work in the mercantile industry (which includes retail jobs), or work in certain professional, technical, clerical, mechanical, and similar occupations.

The commissioned sale exemption only exempts employees who satisfy all three conditions during a pay period.

This means that if an employee earns less than one-and-one-half times the minimum wage during a pay period, the employee must be paid overtime compensation for overtime hours worked during that pay period. Thus, if an employee is regularly paid an hourly wage in one pay period and a combination of hourly wages and commissions in the next pay period, the employee cannot be classified as exempt during the pay period in which no commissions are paid (and is therefore owed overtime wages for hours worked beyond 8 hours/workday and 40 hours/workweek).

This last rule is important for salespeople who do not collect a commission until the customer pays for a purchase. They may be exempt during pay periods in which customers pay for purchases but nonexempt during pay periods when they collect no commissions.

Finally, “commission” has a specific meaning under California law. An employer may designate pay as a “commission” when in fact it is something else. A “commission” is a payment that is based on the amount or value of the sale of the employer’s goods or services that are sold by the salesperson. “Commission” pay may be based on the number of sales made by the salesperson, the value of the sales, or the employer’s profit on the sales. As a contrast, a payment based on production of a good or rendering of a service is not a “commission” even if an employer calls it that. Thus, for example, a construction employee who receives a percentage of a fee charged by the contractor for performing the job is not being paid a “commission”. Similarly, a mechanic who received a percentage of a fee charges by the shop to a customer is not being paid a “commission”.

This may be considered advertising in some jurisdictions. It is intended to provide general information about legal developments and is not legal advice.

Workers have the right to earn a fair wage. Laws are put in place to govern hourly wages for workers in order to prevent individuals from unfair compensation. Unfortunately, not all employers abide by these laws, and some workers may suffer due to not receiving the pay needed to provide for themselves and their families.

It was recently reported that a company in California was fined for wage theft violations. The situation involved a contractor who utilized hundreds of workers on 26 construction projects. As part of the violations, the workers were give one 30-minute meal break, but they were not given other rest breaks. Additionally, some workers were not paid overtime, and other did not receive minimum wage. Rather than paying hourly rates, the company would provide some workers with flat rates, which often did not cover all hours or overtime pay.

As a result, the Labor Commissioner’s Office has required the company to pay $1.9 million in fines. Approximately $1.8 million of that amount will go toward the 472 workers who were not properly compensated, and $72,400 would go toward civil penalties. The violations occurred from Aug. 2014 to July 2016.

Unfair compensation should not be tolerated in the workplace. Of course, many California workers may not realized that they have been the victims of wage theft or fear that they may lose their jobs if they complain. Luckily, individuals in this type of situation can enlist legal advocates to help them understand their cases and determine the best courses of action to address the issues.

Wage theft is nothing new. Workers in California and across the country have been involved in wage and hour claims for generations, and it seems that the problem continues. Most often, reports tell of wage theft in retail, restaurants and seasonal employment, where workers make low wages and may have reasons to avoid complaining about the unfair treatment. However, wage theft by employers is not limited to mom-and-pop businesses just getting by. In fact, some of the wealthiest corporations steal from their workers.

Giants like Walmart, JP Morgan and State Farm regularly face lawsuits because of illegal wage practices. A recent report cited various reasons why businesses that can afford to pay a fair wage continue to steal from their employees. It may be that workers do not always have the support of a union to fight for their pay, and in many areas, the laws related to fair wages are not uniformly enforced.

Wage theft can occur in many ways, such as misclassification of employees, not paying a fair wage and forcing employees to work off the clock. When a corporation saves money on labor, that money can go into the pockets of its executives. This, some believe, is enough motivation to break the law and deny a just wage to many hard-working employees.

The fines and penalties for wage theft do not seem to bother some of the large companies who have faced wage and hour claims multiple times. The report concludes that such companies are willing to take the risk, and the threat of fines does little to deter the practice. However, that does not mean a worker does not have the right to pursue justice when an employer pays an unfair wage. Seeking the guidance of a California attorney is often a prudent first step.

Multiple jurisdictions throughout California have enacted minimum wage laws that require payment of wages greater than those which are required by federal and California state law. Many of these jurisdictions schedule increases to take place on July 1, 2018. Below is a summary of the changes to the minimum wage, effective July 1, 2018.

Jurisdiction (Number of Employees) Minimum Wage (Current) Minimum Wage

(July 1)

Emeryville, CA (56 or More) $15.20 $15.69
Emeryville, CA (55 or Fewer) $14.00 $15.00
Los Angeles, CA (26 or More) $12.00 $13.25
Los Angeles, CA (25 or Fewer) $10.50 $12.00
Los Angeles County, CA (Unincorporated) (26 or More) $12.00 $13.25
Los Angeles County, CA (Unincorporated) (25 or Fewer) $10.50 $12.00
San Francisco, CA (Generally) $14.00 $15.00
San Francisco, CA (Government-Supported Employees) $12.87 $13.27
Santa Monica, CA (26 or More) $12.00 $13.25
Santa Monica, CA (25 or Fewer) $10.50 $12.00
Pasadena, CA

(26 or More)

$12.00 $13.25
Pasadena, CA

(25 or Fewer)

$10.50 $12.00
Malibu, CA

(26 or More)

$12.00 $13.25
Malibu, CA

(25 or Fewer)

$10.50 $12.00
San Leandro, CA $12.00 $13.00
Milpitas, CA $12.00 $13.50
Belmont, CA State Law ($11.00 or $10.50)4 $12.50

Fair wages and proper compensation is what many people work for. Often, they must work long, hard hours in order to provide for their families and meet other needs, so whenever something seems off with their pay, it can be concerning. Unfortunately, some employers do not properly pay their workers, and it is often up to the employees to pursue their rightful compensation through wage and hour claims.

Taking legal action can seem intimidating, but it is often necessary when mistreatment and violations of the law have occurred. California readers may be interested in one out-of-state woman who chose to follow this course of action after not receiving her proper pay. The woman was a nail technician at a beauty salon where she claims she was required to clean bathrooms and arrive to work early without being paid for those actions.

The class action lawsuit also states that the workers were not properly paid for the hours they spent on their regular work duties. Legal representation for the woman went as far as to say that the employers picked which hours they felt like paying their workers. The owners of the salon stated that they were unaware of these allegations until the lawsuit, and they do not believe any wrongdoing took place.

People do not have to stand by and have their rights violated by employers. If California workers believe that they have not been appropriately compensated for their hours worked, they may want to gain more information on wage and hour claims. Speaking with knowledgeable attorneys could help interested parties gain thorough evaluations of their cases.

Source: CBS Denver, “Nail Tech Files Class Action Lawsuit Against Ella Bliss Beauty Bar“, Joel Hillan, May 17, 2018

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