What is the Difference?

In California the Fair Employment and Housing Act (FEHA) makes certain employment practices illegal based on particular classifications. The FEHA makes it illegal for an employer to discriminate against, retaliate against or harass an employee on the basis of race, age, sex, gender, sexual orientation, physical disability, medical condition, national origin, religious creed, color, ancestry, mental disability, medical condition, genetic information, marital status, gender identity or gender expression. “Discrimination,” “retaliation,” and “harassment” are all legal terms that have very different meanings. Lay persons often use the terms interchangeably, but each term prohibits a different kind of conduct. An experienced employment lawyer should be able to tell you what type of conduct is in issue in your case and it is important to speak with a legal professional to determine what legal options are available. This article will look a little closer at the differences between “discrimination,” “retaliation,” and “harassment.”

Discrimination

The FEHA makes it illegal for an employer to discriminate against an employee, applicant, volunteer or independent contractor on the basis of a protected classification. The FEHA delineates each of the protected classifications, prohibiting discrimination on the basis of race, age, sex, gender, sexual orientation, physical disability, medical condition, national origin, religious creed, color, ancestry, mental disability, medical condition, genetic information, marital status, gender identity or gender expression are illegal in California. (Cal. Gov’t Code §12940(a).) The definition of “discrimination” is constantly changing. With each new case that is decided through the courts, the definition of “discrimination” changes. Generally, “discrimination” is further defined to as an “adverse employment action” against an employee (applicant, volunteer or independent contractor). Logically, the next question is what conduct is considered an “adverse employment action?”

Just like the definition of the terms “discrimination,” “retaliation” and “harassment,” the definition of the phrase “adverse employment action” is constantly changing. Currently, here is no settled definition of the phrase “adverse employment action.” Generally, courts are supposed to “liberally construe” the phrase to include any of an employer’s conduct which negatively affects the terms and conditions of employment. The United States Supreme Court defined an “adverse employment action” as “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” (Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).) Thus, “discrimination” is used to describe adverse employment acts that significantly change the terms of employment.

For an employer’s conduct to be considered an “adverse employment action,” the conduct must involve an ultimate employment decision, such as the decision to fire, demote, reduce pay, reduce hours, deny leave, deny a promotion or otherwise jeopardize an employee’s ability to advance in his or her employment. An adverse employment action must be a material change, meaning that it must be something more than a mere nuisance, an inconvenience or a minor alteration of job responsibilities. A change in employment conditions must be more than a change that is simply undesirable or inconvenient. A person cannot make out a discrimination claim by pointing to trivial conduct alone. Minor, innocuous, or immaterial changes to the employment relationship will not be considered to be materially adverse.

Sometimes whether conduct rises to the level of an “adverse employment action” is a matter of degree. It can be difficult to determine, even among legal professionals, whether the conduct in issue will be found to be an “adverse employment action.” However, whether an employment action rises to the level of an “adverse employment action” is determined on an individualized, objective basis. When suing a former employer, the aggrieved employee must be able to establish that the action in issue is objectively adverse, meaning a reasonable person who is similarly situated to the aggrieved employee would also find that the conduct materially affects the employment relationship.

There is little doubt that a termination materially affects the employment relationship. A termination is not minor or trivial. Thus, a termination will almost always be considered an adverse employment action. Conduct by an employer that falls short of a termination may also be considered an adverse employment action. For example, a demotion, an undesirable transfer, a decrease in wages, a less distinguished title, a transfer to a less desirable shift, a loss of benefits or a loss of seniority may rise to the level of an adverse employment action, especially if multiple factors are present simultaneously.

Now that we know what an adverse employment action is, when can turn to “retaliation.”

Retalliation

A separate code section makes it an unlawful employment practice for an employer or its employees retaliate against an employee “because the person has opposed” discrimination and/or harassment or because an employee “filed a complaint, testified, or assisted in any proceeding” involving claims of unlawful discrimination or harassment. (Cal. Gov’t Code §12940(h).)

This means that an employer cannot take any adverse employment action against a person because the person complained about illegal discrimination or harassment. It also means that an employer cannot take any adverse employment action against an employee who acts as a witness or otherwise helps someone else complain about illegal discrimination or harassment. “Retaliation” is a form of discrimination. “Retaliation” is an adverse employment action that is taken in response to an individual’s exercise of protected rights. In a retaliation claim, the phrase “adverse employment action” means the same thing as it would in a discrimination claim.

Harassment

Yet another code section makes it an unlawful employment practice for an employer, or its employees, or its customers, or its clients to harass an employee, applicant or independent contractor on the basis of race, age, sex, gender, sexual orientation, physical disability, medical condition, national origin, religious creed, color, ancestry, mental disability, medical condition, genetic information, marital status, gender identity or gender expression. (Cal. Gov’t Code §12940(j)(1).) “Harassment” is another legal term that has no precise definition. Again, as more and more cases are decided, the definition of harassment changes. Although most people are familiar with sexual harassment, there are numerous other type of illegal harassment as well. For example, most often a termination based on gender or race would most likely be considered “discrimination” or “retaliation,” while making inappropriate racial or sexual jokes would most likely be considered “harassment.”

Not all adverse conduct by an employer is discrimination or retaliation. An employer’s conduct that does not rise to the level of an adverse employment action, may still be actionable as harassment. Often employees experience a course of conduct in their employment where the employer tries to make them quit. All of the conduct that is designed to make an employee quit can most likely be classified as harassment. Additionally, any time of unwelcome or offensive conduct that it motivated by an illegal reason can also be harassment even if it is not sufficient to rise to the level of “discrimination.”

Discrimination, retaliation and harassment are all illegal when based on one of the protected classifications. Determining what type of conduct is in issue is important because each type of illegal conduct is proved in a different way. It is important to note that the employer’s state of mind is what is important here. If the employer is motivated by an illegal reason, the conduct will also be considered illegal. If the employer is motivated by a legal reason, then the same conduct may not be illegal at all. For example, terminating an employee because the employee is Asian is illegal race discrimination. However, terminating that same employee because the employee made a series of errors is not illegal discrimination.

Sometimes an employer terminates an employee for something that it seems should be illegal, but is not. For example, it is not illegal discrimination for an employer to fire a worker so that the employer can put his personal friend into the position. It may seem that this type of conduct should be illegal. Certainly, a strong argument can be made that such conduct would be completely unfair. However, terminating an employee in order to put a friend into the position has simply not been made illegal in California. In order for “discrimination” to be considered illegal in California, the conduct must be an “adverse employment action” that is motivated by one of the protected classification stated in the California codes.

By Janeen Carlberg

Google

The post Different forms of Employment law explained appeared first on Janeen Carlberg Law.

In general, California employers may not force employees to sign illegal non-competition agreements as a condition of employment. Terminating an employee who refuses to agree to or sign the illegal covenant may sue the employer for wrongful termination in violation of law or public policy. Forcing an employee to sign an unlawful non-compete agreement as a condition of employment may foster a claim for unfair competition. Even merely asking an employee to sign such an agreement, or implying that signing the agreement is a requirement, may lead to a lawsuit.
For example, an employee sued his employer for wrongful termination alleging that his employer violated public policy when it fired him for refusing to sign a confidentiality agreement that contained a non-compete clause. The court ruled that an employer cannot lawfully make the signing of an employment agreement which contains an unenforceable covenant not to compete a condition of continued employment, even if such agreement contains choice of law or severability provisions that would enable the employer to enforce the other provisions of the employment agreement. The court held that there exists a clear legislative declaration of public policy against covenants not to compete in California Business & Professions Code §16600 which formed the basis of plaintiff’s cause of action for wrongful termination in violation of public policy. Thus, the D’Sa court held that an employer’s termination of an employee who refuses to sign an illegal noncompete agreement that is contrary to California law and policy constitutes a wrongful termination. (D’Sa v. Playhut, Inc. (2000) 85 Cal.App.4th 927; see also Kolani v. Gluska (1998) 64 Cal.App.4th 402.)
Most covenants not to compete between an employer and employee are invalid in California. Only in specific, limited circumstances have such agreements been upheld. An employer who insists, or even simply requests, that an employee sign such a document may, in some cases, be sued for unfair competition under California Business and Professions Code section 17200 (“Section 17200”). Section 17200 allows an aggrieved employee, and sometimes even another, to bring an action for unfair competition based on any unlawful business practice. Because Business & Professions Code section 17200 covers an employer’s business practices, the employer’s relationships with its employees are also implicated. Business & Professions Code section 17200 subjects employers to lawsuits for unfair competition should they try to include an unlawful covenant not to compete in their employment agreement. (See Application Group, Inc. v. Hunter Group, Inc. (1998) 61 Cal.App.4th 881.)

By Janeen Carlberg

Google

The post Employers May Not Force an Employee To Sign a Covenant Not To Compete appeared first on Janeen Carlberg Law.

The Law Offices of Janeen Carlberg is a prominent California Employment Litigation Law Firm exclusively representing employees against their employers regarding various violations of employee rights and working condition requirements under the California Labor Code.  Each attorney at The Law Offices of Janeen Carlberg has extensive knowledge and background in the area of California Employment Law and practices in both Federal and State Courts.

The Law Offices of Janeen Carlberg  are experts in the following areas:

Harassment: Sexual, Racial, Sexual Orientation

Discrimination: Age, Race, Gender, Sexual Orientation, Disability Accommodation

Wrongful Termination: Retaliation, Whistleblower

Leaves of Absence Violations:Medical, Pregnancy, Military, Family Care

Breach of Contact: Written Employment Agreements

Wage Disputes: Wrongful Classification, Failure to Pay Overtime, Unpaid Commissions, Failure to Give Breaks &/or Lunches, Class Actions.

Do you feel like your rights have been violated?

We fight for your rights in the workplace!  Call us now at (714) 665-1900 for a FREE consultation and find out how our successful trial attorneys with over 20 years experience can help you get the result you deserve.
 

Google

The post Free Consultation Attorney with No Recovery – No Up-front Fees, Costs or Charges appeared first on Janeen Carlberg Law.

Sometimes employers sue their former employees. One of the ways that these lawsuits come about is when the former employer sues a former employee in response to a lawsuit. Often these retaliatory lawsuits are based on sound legal theories, but are more of a reactionary kind of thing where the former employer is seeking to make the employee pay for suing them in the first place. It is the adult version of a juvenile game of one-upmanship.

There are a few ways to respond to these retaliatory lawsuits. The former employee who is now a defendant in a counter- or cross-action can try to have the cross-complaint dismissed pursuant to anti-SLAPP provisions. Alternatively, the former employee can see the retaliatory claim through to a final ruling. If the retaliatory claim truly lack merit, then the former employee should obtain a dismissal or verdict in the former employee’s favor and against the former employer. Once that outcome has been secured, the former employee may then turn around and file a “malicious prosecution” action against the former employer.

Before embarking on this course of action, it should be noted that malicious prosecution actions are not particularly favored in California. (See Sebastian v. Crowley (1940) 38 Cal.App.2nd 194, 202.) Nevertheless, if a former employee is successful on a malicious prosecution claim, he or she will be able to recover attorneys’ fees and costs. In California, there are usually very few ways for a successful defendant, or in our scenario a successful cross-defendant, to recoup his or her attorneys’ fees and costs incurred in fighting a case that they are ultimately found not to be liable for.

To successfully prosecute an action for malicious prosecution, the former employee who was wrongfully sued in the prior retaliatory action must demonstrate that the prior retaliatory case was commenced by or at the direction of the defendant, was pursued to a legal termination in plaintiff’s favor, was brought without probable cause, and was initiated with malice. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3rd 863.) This requires the plaintiff to show that there was an unsuccessful prosecution of an action (civil or criminal although we will be dealing almost exclusively with the civil side herein), which any reasonable attorney would regard as completely without merit and for the intentionally wrongful purpose of injuring another person. (Downey Venture v. LMI Insurance Company (1998) 66 Cal.App.4th 478.)

For the purpose of establishing a claim for malicious prosecution, the phrase “favorable termination” is defined legal term in the relevant case law. In order for the prior lawsuit to be considered to “favorably terminated” for the purpose of an ensuing malicious prosecution claim, the termination must have been decided on the merits. This means that the underlying facts were considered and the former employee was judged to be innocent of any misconduct alleged in the lawsuit. (Lackner v. LaCroix (1979) 25 Cal.3rd 747.) Usually, a “favorable termination” means that the former employee won on a motion for summary judgment or won at a trial on the merits.

If a “favorable termination” does not relate to the merits, meaning it does not reflect on the innocence of nor responsibility for the alleged misconduct, the retaliatory case will not be considered to have been “favorably terminated” for the purpose of supporting a subsequent action for malicious prosecution.” (Id. at 751.) Where the retaliatory case ended by way of the former employer voluntarily dismissing the case and the allegations that made up the case never get adjudicated, then the Court is charged with reviewing the reasons the case was dismissed and deciding if the dismissal meets the “favorable termination” criteria. It can get really messy when a former employer fears losing and randomly dismisses the retaliatory case before the former employee can win. Then the analysis involves a judge determining if the voluntary dismissal reflects the opinion of “either the trial court or the prosecuting party that the action lacked merit or if pursued would result in a decision in favor of the [former employee].” In such a situation, the court is permitted to make a judgment call on the “opinion of the dismissing party” as to whether the former employer believed he was going to lose the case.” (Contemporary Services Corporation v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043.)

Damages potentially recoverable in a malicious prosecution action are substantial. They include out-of-pocket expenditures, such as attorney’s and other legal fees (Stevens v. Chisolm (1919) 179 Cal. 557, 564-565); business losses (Ray Wong v. Earle C. Anthony, Inc. (1926) 199 Cal. 15, 18); general harm to reputation, social standing and credit (Ibid.); mental and bodily harm (Singleton v. Perry (1955) 45 Cal.2nd 489, 495); and exemplary damages where malice is shown (MacDonald v. Joslyn (1969) 275 Cal.App.2nd 282, 293.)

A former employee can also seek compensatory damages pursuant to California Civil Code § 3333, i.e. “For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not” or, in other words out of pocket costs and harm to your client’s reputation.

Punitive damages are also available. (California Civil Code § 3294(a) “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (See also Singleton v. Singleton (1945) 68 Cal.App.2nd 681, 690 [exemplary damages were allowable in action for malicious prosecution where there was sufficient evidence of malice, oppression and design to injure the plaintiff.]) A successful malicious prosecution action may also allows and the former employee to recover attorneys’ fees and costs for the underlying action. (See California Code of Civil Procedure §1021.)

By Janeen Carlberg

Google

The post Malicious Prosecution appeared first on Janeen Carlberg Law.

In general, it means there is more money to go around.  Most employment cases are handled on a contingency basis, meaning that the attorney working on the case will take a percentage of the money recovered at the conclusion of the case.  If the attorney does not get any money for the client, then the attorney does not get paid.  Only when the client obtains a verdict or settlement does the attorney get paid for his or her efforts.  This creates a unity of interest between the attorney and client wherein both individuals are motivated to obtain the best result possible.  The more money there is, the better it is for everyone involved. The ability to recover attorneys’ fees in addition to damages makes a case more valuable overall. Stated quite simply, attorneys’ fees awards can be huge.  It is not uncommon for an award of attorneys’ fees made after a trial to be hundreds of thousands of dollars. So, it is definitely a good thing to have a case that allows for the recovery of attorneys fees.

Personal injury cases are also handled on a contingency basis

However, there is usually no way for a personal injury attorney to collect additional money for his fees. This is because California, and most states for that matter, follow the so-called “American Rule” when it comes to recovering attorneys’ fees and costs.  Under this rule, each party to a lawsuit pays their own attorneys’ fees. (Trope v. Katz (1995) 11 Cal.4th 274; Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3rd 498.) California Code of Civil Procedure section 1021 codifies this rule, stating that an attorney’s compensation is left to be decided between the individuals involved.  This means that each side pays there own attorneys’ fees. California Code of Civil Procedure section 1021 specifically states that the “each party bear their own fees” rule may be changed by an agreement between the parties or when “attorney’s fees are specifically provided for by statute.” In other words, attorneys’ fees may be recoverable by a successful litigant if there is a contract which allows for the winning party to recover the same (Cal. Civil Code §1717), or attorneys’ fees may be recoverable where the statute provides for the recovery of attorneys’ fees.

Generally speaking, There are not many statutory schemes that shift the recovery of attorneys’ fees.

But in the area of employment law, there are a fair number of fee-shifting statutes.  For example, the Fair Employment and Housing Act (FEHA) is the law that prohibits all types of discrimination, harassment and retaliation and it contains a fee-shifting provision (Cal. Gov’t Code §12965(b).)  California Labor Code sections also provide for the recovery of attorneys’ fees for wage and hour claims.  In fact, it is more unusual for an employment law case not to contain a cause of action for attorneys’ fees than vice versa. However, it does happen. There are certain claims that do not allow a former employee to recover their attorneys’ fees when they successfully sue their former employer.  For example, attorneys’ fees are not normally recoverable in whistleblower cases brought under California Labor Code section 1102.5.   California employment laws contain many for the recovery of one of the defendant litigants’ costs. Sometimes it may appear that attorneys’ fees are not available in a case, but an experienced and capable attorney may be able to make some creative arguments to put at least the prospect of recovering attorneys’ fees in play.

By Janeen Carlberg

Google

The post Recovering Attorneys Fees in Employment Cases appeared first on Janeen Carlberg Law.

This article summarizes the rules related to on-call time. On-call in this context is meant to mean requiring the employee to be prepared to handle a work situation even when the employee is not at work. For example, if an employee is required to answer his or her phone after his or her shift ends (like in the evenings or on the weekends) and deal with work related situations, then the employee is on-call. Sometimes an employer may operate on a 24/7/365 basis and may require employees to be on-call any time the employee is not at the employer’s facility, essentially making the employee a 24/7/365 employee. In such circumstances, the employee is usually required to respond to a call with a certain time period. The time period to respond to calls may be as short as ten to fifteen minutes. There is no law that requires that an employee be given any certain amount of time to respond in an on-call situation. It is conceivable that the employee may be required to handle a work situation at home or may be required to report to the work facility immediately after receiving a call.

Often employees want to know if they should be getting paid for being on-call. Employees also want to know if there is a minimum amount of time that they must be paid for when they get called into work.

In California, an employer must only pay an employee for the time the employee is subject to the “control of the employer” or for “all the time the employee is suffered or permitted to work.” (IWC Wage Orders, Section 2(K); Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 584 [citing to DLSE Opinion Letter (“O.L.”) 1993.03.31].) There are different rules that apply to employees in the health care industry and or employees who are required to reside on the employer’s premises (like a nanny or other domestic employee). But for all others, the employer is required to pay the employee for all of the time that the employee is subject to the employer’s control. This means that if an employee is called into work, then the employee must be paid for the time that the employee is at work. If the employee is working from home, the employee must be paid for the time that he or she actually worked for the employer at home.

Standby Or Waiting Time.

An employee who is required to remain on the employer’s place of business and respond to emergency calls is working and must be paid for all hours–even if the employee is only waiting around for something to happen. (Armour & Co. v. Wantock (1944) 323 U.S. 126.) However, keep in mind that an employer can pay the employee a different rate of pay for stand-by time, provided that the standby rate is set before the work is performed and the standby rate is at least minimum wage. This type of arrangement makes calculating overtime difficult. For purposes of overtime computation, where an employee is paid two or more different rates of pay, the employer is supposed to use a “weighted average” of the rates of pay for method for overtime calculation be utilized to determine the regular rate of pay. Where an employee in a single workweek works at two or more different types of work for which different straight-time rates have been established, the regular rate for that week is the weighted average of such rates. That is, the earnings from all such rates are added together and this total is then divided by the total number of hours worked at all jobs.

Uncontrolled Standby

An employee who must be available to respond to a request by the employer to return to work for an emergency may be on uncontrolled standby if the employee is completely unrestricted to use his or her time for their own purposes. Such “free” standby time is not under the control of the employer and, thus, need not be paid.

Controlled Standby

If the employee’s time is so restricted that the employee cannot practically pursue personal activities and come and go whenever the employee wants, then the employer is considered to have direction and control of the employee. The California Supreme Court adopted a test to determine when an employee is on controlled standby as opposed to uncontrolled standby in a case called Madera Police Officers Assn. v. City of Madera (1984) 36 Cal.3d 403. This is the test that courts will use to evaluate how on-call time should be classified and ultimately, whether an employee should be paid.

The Madera court applied a two-part preliminary analysis to determine whether the time was compensable. The first part of the test measures whether the restrictions placed on the employee are primarily directed toward the fulfillment of the employer’s requirements and policies. Second, is the employee substantially restricted so as to be unable to attend to private pursuits? Regarding the second prong of the test, the Madera court also indicated that the trier of fact must examine the restrictions cumulatively to assess their overall effect on the worker’s uncompensated time. In other words, the net impact of the restrictions must be considered. The Madera court did not hold that an employer must pay if any restriction is placed on an on-call employee. In other words, an employer can place some level of restrictions on an employee and still not have to pay the employee for his or her time so long as the level of restrictions are not substantial enough to prevent the employee from pursuing private pursuits.

The Madera court held that the following factors should be considered in determining whether an employee is on controlled standby: 1) whether there are excessive geographical restrictions on employees’ movements; 2) whether the frequency of calls is unduly restrictive; 3) whether a required response time is unduly restrictive; 4) whether the on-call employee can easily trade his on-call responsibilities with another employee, and 5) the extent of personal activities engaged in during on-call time.

The simple requirement that the employee wear a cell phone or pager, standing alone, does not require that the employee be paid for all the hours the device is on. Additionally, an employee is not entitled to pay simply because the employee is required to respond to calls unless the call backs are so inherently intrusive as to require a finding that the employee is under the control of the employer.

At the end of the analysis, the rule seems to be that the rule is a kind of balancing test. Courts will consider the amount of “control” exercised by an employer over the employee. If it appears that the employee was mostly able to conduct his or her life without a glaring intrusion by the employer, then pay is most likely not going to be found to be required. Alternatively, if the employer’s rules and requirements substantially inhibit the employee from engage in personal activities, then pay is mostly likely going to be required. The inquiry is into the level of control by the employer and the level of impairment in the employee’s life.

If an employee is on-call, then it can be argued that the employer is always exercising some control over the employee during the entirety of the on-call time. However, this minor level of control alone will not give rise to the a requirement that the employer compensate the employee. But once the employee is activated and called in from the on-call status to perform duties for the employer, then the employer is exercising immediate control over the employee’s activities and the employee must be compensated.

Response and Reporting Time Pay.

If the employee is required to respond to a call or page, all time spent by the employee answering questions or otherwise responding via phone and/or computer is compensable time and must be paid. Employees must keep accurate records of these hours worked. Under California law, only de minimus work (defined as a “minute or two” during the entire workday-not per response) does not have to be paid. If the employee is required to report to the employer’s facility, the provisions of California’s “reporting time” rules may apply.

Section 5 of each IWC Wage Order provides: (A) Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work, the employee shall be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay, which shall not be less than the minimum wage. . . . [¶] . . . (B) If an employee is required to report for work a second time on any one workday and is furnished less than two (2) hours of work on the second reporting, said employee shall be paid for two (2) hours at the employee’s regular rate of pay, which shall not be less than the minimum wage.”

However, if the employee is on a paid standby and is called to work, the reporting time pay provisions do not apply. In order to qualify as paid standby, the hourly wage for the standby time which has been agreed to or, absent a specific agreement, at the employee’s regular rate of pay must be paid. If the employee is on unpaid standby and is called to work, the reporting time requirements kick in and a minimum of 2 hours of pay is required.

By Janeen Carlberg

Google

The post The law related to on-call time appeared first on Janeen Carlberg Law.

Labor Code 2699 is the Private Attorney General’s Act (PAGA) which creates a private right of action for employees to enforce any provision of the Labor Code, with the exception of a few workers’ compensation provisions. This la­w authorizes any employee to bring a civil action against his or her employer on behalf of himself or others, and to collect attorneys’ fees, for employment law violations that are not pursued by a governmental agency. The statute allows any employee to bring class action lawsuits against employers also.

This means that employees may be able to sue for Labor Code violations under PAGA where there is no other private right of action. Also, employees can sue for Labor Code violations when they are not personally aggrieved. There are specific procedural and administrative requirements that must be met before ane employee can sue for Labor Code violations under Labor Code section 2699.

Here is a summary of the Labor Code section 2699:

• For every Labor Code provision, if no current penalty exists, Section 2699 establishes a $100 penalty for the first violation, and $200 for each subsequent violation. Such penalties are assessed on a per employee, per pay period basis. (Labor Code §2699(c).)

• An aggrieved employee is defined as “any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.” (Labor Code §2699(c).)

• Section 2699 deputizes an aggrieved employee as a “private attorney general” to enforce Labor Code provisions. An aggrieved employee can recover a percentage of civil penalties through a civil action filed on behalf of himself or herself and others. (Labor Code §2699(c), (e)(2).

• An employee who prevails is entitled to an award of attorneys’ fees and costs. (Labor Code §2699(f).)

• This right of action is in addition to any other pre-existing remedies under state or federal law. An action under Section 2699 does not limit an employee’s right to pursue separate or concurrent remedies with an action taken under this section. (Labor Code §2699(f).)

Procedural Requirements

There are significant procedural requirements which must be met before a person can bring an action under Labor Code section 2699. The appropriate procedure depends on the violation. The applicable Labor Code sections basically break the violations into three categories. But for any violation, the employee must first notify the employer and the state agency of the violation. All time limits then run from the postmark date of the notice to the state agency.

The first category of possible Labor Code violations relates to very serious Labor Code violations. This category includes an extensive list of Labor Code violations set forth in Labor Code section 2699. The most common violations under this category can be summarized as follows:

• Violations relating to the setting and paying wages and salaries;

• Violations relating to hours of work, meals and rest breaks;

• Employment of minors;

• Employment under state and public works contracts;

• Retaliation for complaints about OSHA violations (6310), participating in a complaint (6399.7) or refusing to do something unsafe (6311); and

• Protection of whistleblowers (1102.5).

The procedures that must be followed before an employee can sue under PAGA are very important and must be complied with. For a full rendition of all of the procedural requirements that must be satisfied, please refer to Labor Code section 2699. This summary is not intended to be a full and complete recitation of the procedural requirements necessary before pursuing a PAGA claim and no one should rely on any summary herein as a authority on the PAGA procedural requirements. The procedural requirements summarized herein are exactly that: a summary of something more specific.

• An employee alleging a violation of one of these violations must notify the employer and the Labor and Workforce Development Agency (LWDA). The LWDA must then notify the employer and employee within 33 calendar days about whether the LWDA intends to investigate the matter. If the LWDA advises it will not investigate, or if no notice is provided within 33 days as was required, then the employee may file a lawsuit.

• If the LWDA notifies the employer and employee within 33 calendar days that it will investigate, then the LWDA has 120 calendar days to complete its investigation. The employee may file a lawsuit if either the LWDA decides not to cite the employer, (the LWDA is supposed to notify the employer and employee within 5 working days of such a decision) or the LWDA fails to issue a citation against the employer within 158 calendar days.The second category of Labor Code violations that one of our clients may want to sue for relates to OSHA health and safety violations (except the whistleblower/retaliation sections noted above [6310, 6311, 6399.7]).

The second category of violations includes all violations of the Labor Code which relate to occupational health and safety issues. An employee alleging a violation of saftey standard must notify the employer and the Division of Occupational Health and Safety (DOSH) and also the LWDA. After receiving notice of the claimed violation, DOSH must inspect or investigate.

• If DOSH issues a citation, the employee cannot file a lawsuit. DOSH must follow up and notify the employer and employee within 14 calendar days of certifying that the violation has been corrected.

• If DOSH decides not issue a citation, the employee may challenge that call in court. If the court directs DOSH to issue a citation, the employee cannot file a lawsuit.

• If DOSH fails to inspect or investigate, the employee may proceed along the same path as with the third categories of violations. (See infra.)

In addition, no private lawsuits may be filed where the employer and DOSH have an existing agreement for long-term abatement of objectionable conditions.

The third category of Labor Code violations relates to any Labor Code violation not addressed elsewhere. This last category is a catch-all for all other alleged Labor Code violations, as well as failure of DOSH to inspect or investigate.

• Here, after an employee notifies the employer and appropriate state agency, the employer has 33 days to bring itself within compliance with the law and “make whole” any aggrieved employee and notify the employee and state agency of the action taken.

• If the employer’s actions do not timely cure the violation, the employee may then file a private action.

• If the employee believes that the employer’s actions did not cure the violation, the employee may notify the state agency. The agency can then take up to 17 days to investigate, and grant the employer an additional 3 business days to cure the violation. If the state agency determines that the alleged violation has not been cured, the employee may then file suit.

• If the state agency determines that the alleged violation has been cured, but the employee disagrees, the employee may appeal the state agency’s decisions. At this point, things get a bit remote and this memorandum will not go into the appeal process. But if an employee is successful on an appeal, he or she may be able to sue.

Other Important Procedures In PAGA:

Judicial Discretion Over Award Amounts

A judge can reduce civil penalties where appropriate. A court is authorized to award a lesser amount than the maximum civil penalty amount allowed if to do so would otherwise result in an award that is “unjust, arbitrary and oppressive, or confiscatory.”

No Cases Involving Only Posting Violations

An action cannot be brought for any violation of a posting, notice, agency reporting, or filing requirement except where the requirement involves mandatory payroll or workplace injury reporting.

A Plaintiff Only Gets 25% of the Penalties Recovered

75% of the penalties recovered are given to the LWDA. The employee can only recover the remaining 25%, plus attorney’s fees and costs.

Prohibition on Retaliation

There is a separate anti-retaliation provision related to Labor Code section 2699. To protect employees from retaliation or discrimination for notifying the LWDA or the employer of a violation, an employer is prohibited from retaliating against any employee who brings a civil action under Section 2699.

By Janeen Carlberg

Google

The post The Private Attorney General’s Act appeared first on Janeen Carlberg Law.