Category: Uncategorized

Overtime Pay

Are Salaried Employees Entitled to Overtime Pay?

Like most legal answers, it depends.  A lot of salaried employees aren’t aware that they may be entitled to overtime pay.  Under California law, the issue is whether the employee is exempt or non-exempt.  An exempt employee is not entitled to overtime pay.  So how do you know if you’re exempt or non-exempt?  For starters, California law presumes that all employees are non-exempt employees and therefore entitled to overtime pay.  The analysis, however, does not end there.

The 50% Rule

In order to be considered an exempt employee in California (and therefore not entitled to overtime pay), an employee will generally need to meet a strict duties test in which more than fifty percent (50%) of an employee’s time must be spent performing exempt job duties.  Exempt job duties customarily and regularly require the employee to exercise discretion and independent judgment in their jobs.  Discretion and independent judgment involve comparing and evaluating possible courses of action and making a decision after considering various possibilities.

For example, a factory line production worker will not exercise much discretion and independent judgment in assembling parts for a product and is unlikely to be exempt from overtime pay.  Likewise, a software engineer that engages in routine and repetitive tasks that primarily include standardized configuration, troubleshooting, automated debugging, and testing is not exempt and therefore entitled to overtime pay.  In contrast, an executive officer routinely makes business decisions that require him to exercise his discretion and independent judgment.

Job titles are irrelevant to the determination of whether or not an employee is exempt from overtime pay.

Exempt Employees Must Be Paid at Least Twice the Minimum Wage

In addition to the 50% rule of using discretion and independent judgment, an exempt employee must be paid at least twice the minimum wage, and for certain job positions like a software engineer the minimum salary requirement for an exempt employee can be much higher.

For example, as of 2017 a California exempt computer software employee must have an hourly rate of at least $42.35 per hour or a salary of at least $7,352.62 per month (i.e., $88,231.36).

In addition, the “salary test” required for exempt employees provides that the full weekly salary be paid for any week in which any work is performed, with only very limited exceptions. As a result, deductions from the salary of an exempt employee are limited.  For example, if your employer closes its business for holidays such as Christmas Eve and Christmas Day and you work the remaining three work days, then you are entitled to a full week’s pay.

Further Requirements for Proper Exemptions

Under California law, employees can fall into a variety of exemptions such as the executive, administrative, and professional exemptions.  In addition to the 50% rule and minimum pay requirements, each exemption may have additional requirements.  For more information, visit the California Department of Industrial Relations website for an easy to follow breakdown of California overtime exemptions at http://www.dir.ca.gov/dlse/faq_overtimeexemptions.htm or access the Industrial Welfare Commission’s (“IWC”) wage orders at https://www.dir.ca.gov/iwc/wageorderindustries.htm.

California exemptions can be complicated and confusing.  A skilled attorney can help you determine whether or not you are entitled to overtime pay.  For a free consultation, contact Jose Garay, APLC at 949-208-3400 or dhyun@garaylaw.com.

 

About the Author

——————————————————————————————

Daniel Hyun is a California Employment Law Attorney and is counsel in Jose Garay, APLC (www.garaylaw.com).  Mr. Hyun earned his law degree from Washington University in St. Louis School of Law and studied as a visiting scholar at UCLA School of Law, ranked 18 and 17 respectively by US News World & Report in 2017.  During law school, Mr. Hyun received the prestigious CALI Award for receiving the highest grade in his Mediation Theory and Practice course and was a Scholar in Law recipient.  He also made the Dean’s list for being in the top 20 percent of his class, and received high grades in Contracts, Torts, Ethics, Pre-Trial Litigation, Mediation, and Asian American Jurisprudence.  Mr. Hyun was also an Associate Editor for Washington University School of Law’s Law & Policy Journal.  Prior to law school, he graduated from the University of California San Diego and double majored in Political Science: Public Law and Communications, and received multiple Provost’s Honors for having a 4.0 G.P.A.

Mr. Hyun is a member of the California State Bar, Orange County Trial Lawyers Association, and California Employment Lawyers Association.  He has played a critical role in prosecuting and settling multi-million-dollar class action lawsuits.  Mr. Hyun litigates wage and hour, and consumer class actions, and single and multi-plaintiff litigation involving discrimination, harassment, retaliation, and wrongful termination lawsuits in California state and federal courts.  Mr. Hyun provides free consultations and may be contacted at 949-208-3400 or via e-mail at dhyun@garaylaw.com.

soy based wiring rodent

Soy Based Wiring in Honda and Toyota Vehicles May Attract Rodents!

Certain Honda and Toyota vehicles have incorporated environmentally friendly car wiring made out of soy-based biodegradable wire coating.  However, it turns out the soy-based coated wiring is attracting mice, rabbits, and squirrels causing damage and creating potentially dangerous conditions for vehicle owners.

As a result, class action lawsuits have been filed against Honda in California, (Daniel Dobbs et al. v. American Honda Motor Co. Inc., case number 2:16-cv-00456, in the U.S. District Court for the Central District of California), and Toyota in Texas and Florida, to name a few (Browder v. Toyota Motor Sales USA, Inc. et al., case number 3:2016cv03387, in the U.S. District Court for the Northern District of Texas; Toler v. Toyota Motor Corporation et al., case number 5:16-cv-00727, in the U.S. District Court for the Middle District of Florida).  Other vehicle manufacturers are suspected of using soy based wiring that may attract rodents and cause significant damage.

If you own a vehicle with soy based wiring contact Jose Garay, APLC at 949-208-3400 or e-mail dhyun@garaylaw.com for a free consultation.

 

About the Author

——————————————————————————————

Daniel Hyun is a California Employment Law Attorney and is counsel in Jose Garay, APLC (www.garaylaw.com).  Mr. Hyun earned his law degree from Washington University in St. Louis School of Law and studied as a visiting scholar at UCLA School of Law, ranked 18 and 17 respectively by US News World & Report in 2017.  During law school, Mr. Hyun received the prestigious CALI Award for receiving the highest grade in his Mediation Theory and Practice course and was a Scholar in Law recipient.  He also made the Dean’s list for being in the top 20 percent of his class, and received high grades in Contracts, Torts, Ethics, Pre-Trial Litigation, Mediation, and Asian American Jurisprudence.  Mr. Hyun was also an Associate Editor for Washington University School of Law’s Law & Policy Journal.  Prior to law school, he graduated from the University of California San Diego and double majored in Political Science: Public Law and Communications, and received multiple Provost’s Honors for having a 4.0 G.P.A.

Mr. Hyun is a member of the California State Bar, Orange County Trial Lawyers Association, and California Employment Lawyers Association.  He has played a critical role in prosecuting and settling multi-million-dollar class action lawsuits.  Mr. Hyun litigates wage and hour, and consumer class actions, and single and multi-plaintiff litigation involving discrimination, harassment, retaliation, and wrongful termination lawsuits in California state and federal courts.  Mr. Hyun provides free consultations and may be contacted at 949-208-3400 or via e-mail at dhyun@garaylaw.com.

Man touching shoulder of uncomfortable woman co-worker

What Do I Do If I’ve Been Sexually Harassed?

If you are the victim of sexual harassment, there are several steps you can take to preserve your claims:

Document the harassment in a personal journal and include details about each instance of sexual harassment such as the date and time of the harassment, a description of the event, and the name of the harasser.

Report the offending conduct to your human resources department, supervisor, manager, or superior.  When making a report, do it in writing and keep a copy for yourself.

Follow Your Employer’s Procedures, if any, by checking your employee handbook or any other employer guidelines pertaining to sexual harassment.

Contact Jose Garay, APLC at 949-208-3400 or dhyun@garaylaw.com for a Free Consultation to learn more about your legal rights and potentially pursue a lawsuit.  Please note that the statute of limitations (time limit) to bring a sexual harassment lawsuit is one year from the last instance of harassment unless it is timely extended an additional year by obtaining a Department of Fair Employment and Housing Right to Sue letter.

 

About the Author

——————————————————————————————

Daniel Hyun is a California Employment Law Attorney and is counsel in Jose Garay, APLC (www.garaylaw.com).  Mr. Hyun earned his law degree from Washington University in St. Louis School of Law and studied as a visiting scholar at UCLA School of Law, ranked 18 and 17 respectively by US News World & Report in 2017.  During law school, Mr. Hyun received the prestigious CALI Award for receiving the highest grade in his Mediation Theory and Practice course and was a Scholar in Law recipient.  He also made the Dean’s list for being in the top 20 percent of his class, and received high grades in Contracts, Torts, Ethics, Pre-Trial Litigation, Mediation, and Asian American Jurisprudence.  Mr. Hyun was also an Associate Editor for Washington University School of Law’s Law & Policy Journal.  Prior to law school, he graduated from the University of California San Diego and double majored in Political Science: Public Law and Communications, and received multiple Provost’s Honors for having a 4.0 G.P.A.

Mr. Hyun is a member of the California State Bar, Orange County Trial Lawyers Association, and California Employment Lawyers Association.  He has played a critical role in prosecuting and settling multi-million-dollar class action lawsuits.  Mr. Hyun litigates wage and hour, and consumer class actions, and single and multi-plaintiff litigation involving discrimination, harassment, retaliation, and wrongful termination lawsuits in California state and federal courts.  Mr. Hyun provides free consultations and may be contacted at 949-208-3400 or via e-mail at dhyun@garaylaw.com.

sexual-harrassment-at-work

Employers Cannot Suggest or Ask for Sexual Acts in Exchange for Employment Benefits

What is Quid Pro Quo Sexual Harassment?

Quid Pro Quo sexual harassment occurs when an employee feels their terms of employment are conditioned upon giving into his or her employer or supervisor’s sexual advances.  Under California (Fair Employment and Housing Act aka FEHA) and federal law (Title VII), an employer cannot impliedly or expressly ask for sexual acts in exchange for employment benefits.

Quid Pro Quo sexual harassment can occur in various forms.  For example, an employer or supervisor conditions an employment benefit such as a job offer, raise or a promotion in exchange for some sort of sexual conduct from the employee.  Quid Pro Quo sexual harassment can also occur in the form of a threat of an adverse employment action such as a reduction in pay, demotion, or termination if the employee fails to give into the employer or supervisor’s sexual propositions.

It is important to note that the mere discussion of sexual acts or behavior that could lead to sexual acts can suggest an offer or threat.  For example, California Appellate Courts have held that “[a] cause of action for Quid Pro Quo harassment involves the behavior most commonly regarded as sexual harassment, including, e.g., sexual propositions, unwarranted graphic discussion of sexual acts, and commentary on the employee’s body and the sexual uses to which it could be put.”  Donald Schriver, Inc. v. Fair Employment & Housing Com. (1986) 220 Cal.App.3d 396, 405.  “To state a cause of action on this theory, is it sufficient to allege that a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor’s unwelcome sexual advances.”  See Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 1005.  In addition, a single instance of Quid Pro Quo sexual harassment can be enough to support a sexual harassment lawsuit.

Who is Liable?

Under California law, businesses (employing at least one employee) and individuals can be liable (legally responsible for money damages) for sexual harassment.  In other words, the employer, supervisor, or coworker can be sued for their roles in the sexual harassment.  Individuals can be liable even if they are merely aiding and abetting the harassment.  An employer can also be liable for an employee’s sexual harassment if the employer knows about the inappropriate conduct, or should have known about the inappropriate conduct.  Employers can also be liable if they fail to take necessary preventive measures prior to or during the sexual harassment.

What Remedies do Victims of Quid Pro Quo Have?

Under California Law victims of Quid Pro Quo sexual harassment may seek one or more of the following remedies: backpay, reinstatement or front pay, injunctive relief, attorney’s fees and costs, compensatory damages for pain and suffering, and punitive damages (where a private employer acts with malice or reckless indifference to an individual’s rights).

Backpay – is the amount of money a plaintiff would have earned in the absence of the discriminatory conduct, measured from the time of the adverse action until the date of trial.  For example, Backpay awards are normally in the form of lost wages or salary, and other benefits lost as a result of the discrimination.

Reinstatement or “Front Pay” – in order to compensate an employee for future damages, a court may award reinstatement or front pay for future wages. Front pay is money awarded for lost compensation between judgment and reinstatement, or in place of reinstatement.

Compensatory Damages (Emotional Distress Damages) – are awarded to a plaintiff to compensate emotional harm, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-monetary losses.

Punitive damages – are damages meant to punish the wrongdoer and are available against nongovernmental (private) employers, supervisors, or coworkers if a plaintiff can show by strong enough evidence that the defendant was guilty of oppression, fraud, or malice when it engaged in the unlawful conduct.  If the employer is a corporate entity, then the plaintiff must also show other factors regarding knowledge, authorization or ratification, or guilt in order to establish liability for punitive damages.  Punitive damages are measured by the egregiousness of the harasser’s conduct.

Attorney fees and costs – under California law, courts have the discretion to award reasonable attorney’s fees to the prevailing party.  Since the award to the prevailing party is discretionary, courts generally do not require a losing plaintiff to pay the employer’s attorney’s fees and costs, unless the plaintiff’s lawsuit is found to be frivolous, unreasonable, or without foundation as commenced or maintained.

Injunctive relief – an injunction is a court order that specifically prohibits an unlawful employment practice.  If employment discrimination or sexual harassment is a recurring problem in a company, an employee can seek an injunction to prevent it from continuing.

Interest – under California law, plaintiffs may seek prejudgment interest.

If you have been the victim of Quid Pro Quo sexual harassment contact Jose Garay, APLC for a Free Consultation at 949-208-3400 or dhyun@garaylaw.com.

 

About the Author

——————————————————————————————

Daniel Hyun is a California Employment Law Attorney and is counsel in Jose Garay, APLC (www.garaylaw.com).  Mr. Hyun earned his law degree from Washington University in St. Louis School of Law and studied as a visiting scholar at UCLA School of Law, ranked 18 and 17 respectively by US News World & Report in 2017.  During law school, Mr. Hyun received the prestigious CALI Award for receiving the highest grade in his Mediation Theory and Practice course and was a Scholar in Law recipient.  He also made the Dean’s list for being in the top 20 percent of his class, and received high grades in Contracts, Torts, Ethics, Pre-Trial Litigation, Mediation, and Asian American Jurisprudence.  Mr. Hyun was also an Associate Editor for Washington University School of Law’s Law & Policy Journal.  Prior to law school, he graduated from the University of California San Diego and double majored in Political Science: Public Law and Communications, and received multiple Provost’s Honors for having a 4.0 G.P.A.

Mr. Hyun is a member of the California State Bar, Orange County Trial Lawyers Association, and California Employment Lawyers Association.  He has played a critical role in prosecuting and settling multi-million-dollar class action lawsuits.  Mr. Hyun litigates wage and hour, and consumer class actions, and single and multi-plaintiff litigation involving discrimination, harassment, retaliation, and wrongful termination lawsuits in California state and federal courts.  Mr. Hyun provides free consultations and may be contacted at 949-208-3400 or via e-mail at dhyun@garaylaw.com.