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TURNING EMPLOYER WRONGS INTO EMPLOYEE RIGHTS

*At this time, we are only conducting phone consultations, please no walk-ins.

Danz’ Weekly Five Employee Rights Law Update

In this inaugural segment of Danz’ Weekly Five Employee Rights Law Updates to California Employees, we aim to provide our subscribers and with a healthy dose of informative and timely information from recent cases or new laws. Enjoy.

(1) For shifts longer than twelve hours, California health care workers may not waive their meal period even if they wanted. The California Court of Appeals Rules this week that such a waiver will promote unsafe performance.

(2) It is a violation of the Americans with Disabilities Act to fire a worker because she needed extended medical leave after her diagnosis of breast cancer.

(3) If you have used up all of your Family Medical Leave Act permitted time and need more time off, you may be covered under the Americans with Disabilities Act as a reasonable accommodation. Make sure to notify your employer in writing and keep the employer generally up to date.

(4) Under the Fair Labor Standards Act, if your office closes for less than a week for an external reason such as weather or other natural causes, exempt employees must be paid but non-exempt employees do not have to be paid unless they work from home. (FLSA 2005-41.) However, if the office closes for longer than a week and not one works, the employer does not have to pay anyone.

(5) The ongoing argument of whether a worker is an employee or independent contractor continues to brew in recent cases. Misclassifying workers as independent contractors results in violations of the Fair Labor Standards Act because if those individuals are employees they are not rightfully earning their minimum wage and overtime pay. Just because a worker has a written employment agreement, does not he or she is an independent contractor or an employee under the Fair Labor Standards Act.

The U.S. Department of Labor published a handy worksheet that clearly describes the factors that courts consider when analyzing a working relationship.

In California, Labor Code 226.8 states that it is unlawful to willfully misclassify an employee as an independent contractor. If the employer misclassifies workers, it may face severe penalties ranging from $5,000-$15,000 for each violation or $10,000-$25,000 if it found to be a “pattern or practice” of misclassification. Under Labor Code 510 and 1194, misclassified workers may also receive back pay for minimum wages and overtime. If you believe that your employee rights have been neglected or that you have been misclassified as an independent contractor, you should contact the office of Stephen Danz and Associates to discuss our rights and remedies as well as see more information on our site.