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Customer of Your Employer May be Liable for Your Wages

What if your employer successfully bids on a contract from a customer, you are one of the lucky employees assigned to that work site, but then, you find that you are not making minimum wage or are denied lunch or rest breaks. In some cases, funds may not be available to provide you with safe clothes or other protections in a dangerous workplace in violation of California Labor Codes 6310 and 6311.  When you question why you should be denied benefits provided by law, specifically California Labor Code 2810 (covering security, janitorial and certain services), your employer tells you they did not bid enough to cover those basic essentials. The specific words of the statute make it illegal to:

“…include funds sufficient to allow the contractor to comply with all applicable local, state and federal laws or regulations governing the labor or services to be provided.”

In a case just handed down by the Second Appellate District, Arlette Hawkins alleged in this class action brought on behalf of all similarly-situated workers that his employer the Sereca Company (which is now defunct, probably explaining why he sued their customers)  had contracted to provide security services to the airlines which were inadequately funded to provide minimal rights under the California Labor Code. These included unpaid wages, uniform reimbursement and overtime. The Court of Appeals criticized the plaintiff for not having sought formal discovery of the actual contracts entered. As a result of not having the contracts, the plaintiff was unable to state specific facts demonstrating that there was not enough money to pay the basic rights under local state and federal laws or regulations.  In fact (an oops moment, we’re sure), the plaintiff’s counsel actually alleged that the employer did have the ability to pay the claims. Therefore, the court held that the company clearly did have the ability and was not in violation of this statute.

While the case was lost on procedural grounds (Hawkins vs Taca International Airlines, S.A., B242769 (1/27/14), the warning shot over the bow for defendant employers is that there is a price to be paid at bidding too low and then having to violate the law relating to payment of legally-mandated matters such as overtime. There is nothing in the opinion to suggest that the employer himself is immune from liability for non-compliance with the basic California state and federal labor laws. An employee who complains about these violations might well win an employment lawsuit for wrongful termination or termination in violation of public policy. Severe violations and highly unsafe working conditions might well lead to a criminal investigation by the Department of Justice or Labor.

Savy employment attorneys will also investigate several other theories of liability against the customer of your employer, such as “joint and several employer”, civil conspiracy to violate state and federal labor laws, and aiding and abetting your employer in such violations. A thoroughly pled case against your employer’s customer may be the only link to you and real compensable damages if your company isn’t solvent. Seek an experienced attorney and call Stephen Danz at any time for a free consult on your case. 877 789-9707.