War In The Workplace - Combating The Predatory Employer

The Art of War in the Workplace Strategies for Coping with the Predatory Employer

Sherwin A. Steffin

Forward Now retired, the I have, over the course of a career been an educator a university administrator, a business owner, and an employee of organizations in the private sector. Before being laid off in a mass Reduction in Force (RIF), I was employed as a Senior Data Analyst. Yet, there was something very odd as I attempted to perform the tasks specified in the job description provided at hire. An analyst, after all, is expected to provide answers to complex questions. Achieving this goal demands not only technical skills, but the ability to assist clients in framing useful questions from which data can provide reliable and valid answers. Unfortunately, a series of ignorant (unknowing, lacking knowledge) managers found the job description so threatening, I was barred from conducting these powerful and useful analyses, unless specifically requested by a client. Since they didn’t know what to ask, such requests were almost never made. Instead I was reduced to acquiring data from one source, formatting the findings in Excel – all totally routine robotic, clerical work. Aside from the boredom, and constant confrontations with my managers, some will, perhaps, recognize that changing the tasks set out in my Job Description, requiring the skills of a qualified professional worker, to what was essentially, the work of a clerical worker, entitled me to overtime pay. A full year before being laid off, I brought this matter (in writing) to the attention of management going all the way to the top of my reporting chain. Any response? Absolute, total, zero. For them, disregarding that they did not wish to hear, was the strategy of choice. Then came a mass RIF. I, along with some 3,00 other workers, nationwide, was laid off. Even then, there was a hook. In order to receive severance benefits, I was required to sign a Waiver and Release. In essence, this document eliminated my rights to take legal action in or form, against the employer,. This was pure bluff, since, in California, as is the case in many states, an employee cannot give up his rights to sue for back wages due. It took me a little over two years to get full payment of the overtime wages that were due. This book is designed to assist you in determining your rights, and even more importantly, providing you with strategies to negotiate the very long, often frustrating path, to receiving the wages you are owed. In your reading, I have distinguished everything I have written in this font, while all quotes and citations will be found in the Georgia font. Make sure you use the links to go back or forward to links to what can sometime be some difficult material to absorb. All links are shown in Blue Underline.

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DISCLAIMER The author is NOT a legal professional. Before taking any action, you should consult an attorney. All material contained herein is for informational purposes only, and no representation is made for the accuracy of content nor appropriateness of any recommendation contained herein

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Table of Contents I - What will you learn from reading this book?

6

II. How do employers rip you off?

6

III. How do I know if I am a non-exempt employee?

7

A. Executive Exemption

8

B. Administrative Exemption

9

C. The Computer Exemption

10

IV. So, how do I collect?

12

V. Is all this work worth it?

14

A. Lunch and Rest Breaks

14

B. A Recovery Scenario

14

C. Overtime Pay

16

D. The Independent Contractor Scam

16

E. Determining Qualification for Independent Contractor Status

17

VI. On your own, or with others?

18

A. Do it Yourself

18

B. Retain Legal Counsel

19

C. The Class Action Lawsuit

20

VII. Obtaining the Wage Award

21

A. Filling out the Wage Claim

21

B. When to File

23

VIII. The Informal Conference

24

A. Finding an Attorney

24

B. Preparing for the Formal Hearing

27

C. Selecting witnesses

28

D. The Exhibits

28

E. The Hearing Brief

30

F. Putting it all together

40

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IX. At Long Last – It’s Hearing Day!

40

A. The Hearing Room

40

B. What to expect

41

C. The written finding

42

X. Two other Possible Issues

43

A. Extending the Statute of Limitations to four years

43

B. The Waiting Time Penalty

43

XI. Other Claims

43

A. Discrimination

43

B. Harassment

44

C. Physical and mental disabilities

44

D. Safety in the workplace

45

E. Layoffs and wrongful termination

46

Appendix A - Waiver and Release (Redacted)

48

Appendix B - Plaintiff’s Hearing Brief (Redacted)

51

Appendix C – Witness Interrupted Lunch Declaration

76

Appendix D – Points and Authorities

77

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I. What will you learn from reading this book? Are you an employee paid on a fixed salary, working many hours of overtime, for which you are never paid? Are you consistently deprived of short rest periods, or even a lunch, uninterrupted by demands that you respond to text messages, or even return to your workplace without completing lunch? As the economic horizon darkens, thousands of workers in California have either been laid off, received notice of an impending reduction of their employer’s workforce, or wonder every day, if they soon will become victims of the spreading end to the work they have done for many years.

Having won a large judgment against a former employer, the author of this booklet will tell you how you can determine whether you are entitled to back overtime wages, and if you are, give you a step by step process to collect these wages from your current or past employer.

II. How do employers rip you off? Many employers think, because their employees work with information, that they can classify them as “Salaried - Exempt Employees.” Any employee so classified receives a fixed annual salary. Every paycheck will be exactly the same, no matter how many hours the employee works each week. That classification saves employers millions of dollars a year, by the simple trick of not paying overtime wages. Relying either on employees lack of knowledge of either the law, or even when they know they have been wronged, how to recover their lost wages, many companies automatically achieve this trickery by using a job title to convince you that you are indeed doing work which entitles the employer to classify you in this way. Under the law, the majority of knowledge and administrative workers are both entitled and required to be to be classified as “Salaried – Non exempt.” If you have been the victim of such improper classification, your employer is required to be pay you back wages for the following: ► 1.5 times your calculated hourly rate (annual salary/2080) for each hour beyond 8 hours for any day you work(ed), or for each hour exceeding 40 hours worked in a week.

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► 2.0 times your calculated hourly rate for each hour beyond 12 worked in a single day. ► 2.0 time your calculated hourly rate for each hour beyond 12 worked on a 7th consecutive day ► 2.0 times your calculated hourly rate for each hour worked on a legal holiday. ► Salaried Non-Exempt personnel must also be paid for two ten-minute rest periods within each eight hour period worked. You must be offered the opportunity to avail yourself of these rest periods. If the employer fails to provide these rest periods, you may add one (1) hour to the daily total worked, for each rest period you were denied. ► The employer must offer you a minimum of one-half (1/2) hour as a lunch period, for each five consecutive hours you work in a single day. If you are required to respond to messages on your Blackberry, or to calls on your cell phone, this requirement for uninterrupted lunch has been violated, and you are entitled to be credited 1 hour of paid time for each instance when this occurs. Employers frequently use another subterfuge which saves them huge amounts of money, passing their savings on costs to you. Instead of hiring you as a regular payroll employee, they offer you work as an Independent Contractor. Doing so saves the employer the cost of overtime to which you are entitled. It is relieved of the need to contribute to payroll taxes, benefits, like vacation, paid leave, medical insurance, and the payment of Workmen’s Compensation, should you be injured at work. Fortunately, there are many laws which protect your from these illegal employment practices. Federal and State Law limit the conditions by which employees may be hired as Independent Contractors. Unless the employer can demonstrate that you meet twenty specific conditions, you must be treated as a regular payroll employee.

III. How do I know if I am a non-exempt employee? The Department of Labor Standards Enforcement (DLSE).is the state agency designated by the legislature to determine whether you are properly classified as an Exempt or Non-Exempt employee.

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All work which is legitimately classified as Exempt has one common element. In giving guidance to those charged with the determination of your employment classification, the State Legislature set this one common denominator to all such positions. 515. (a) The Industrial Welfare Commission may establish exemptions from the requirement that an overtime rate of compensation be paid pursuant to Sections 510 and 511 for executive, administrative, and professional employees, provided that the employee is primarily engaged in the duties that meet the test of the exemption, customarily and regularly exercises discretion and independent judgment in performing those duties, and earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. A. Executive Exemption A person employed in an executive capacity means any employee: ► Whose duties and responsibilities involve the management of the enterprise in which he or she is employed or of a customarily recognized department or subdivision thereof; AND ► Who customarily and regularly directs the work of two or more other employees therein; AND ► Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and

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promotion or any other change of status of other employees will be given particular weight; AND ► Who customarily and regularly exercises discretion and independent judgment; AND ► Who is primarily engaged in duties, which meet the test of the exemption. ► An executive employee must also earn a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. Full-time employment means 40 hours per week as defined in Labor Code Section 515(c). [See Cause of Action – Exempt] B. Administrative Exemption A person employed in an administrative capacity means any employee whose duties and responsibilities involve: ► The performance of office or non-manual work directly related to management policies or general business operations of his or her employer or his or her employer's customers, OR ► The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; AND ► Who customarily and regularly exercised discretion and independent judgment; AND ►Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity, OR ► Who performs, under only general supervision, work along specialized or technical lines requiring special training, experience, or knowledge, AND ► Who executes, under only general supervision, special assignments and tasks, AND ► Who is primarily engaged in duties which meet the test for the exemption. An administrative employee must also earn a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. Full-time employment means 40 hours per week as defined in Labor Code Section 515(c). [See Causes of Action – Administrative Exempt] C. The Computer Exemption As of September 2000, California recognizes an hourly computer professional exemption for certain employees in the computer software field. As a “Computer Employee” you are exempt from overtime pay if, and only if, all of the following requirements are met:

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► You are primarily engaged in work that is intellectual or creative and requires the exercise of discretion and independent judgment; AND ► You are primarily engaged (spend more than half of your time) in duties that consist of one or more of the following: a. The application of systems analysis techniques and procedures including consulting with users to determine hardware, software, or system specifications. OR b. The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications. OR c. The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems. AND ► You are highly skilled and proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering; Typically, to meet this requirement, you must have a graduate degree in Computer Science or Information Technology. OR ► Your compensation is not less than $75,000 per year (the equivalent of $36.05 per hour.) [See Causes of Action – Computer Worker] If you are working as a computer worker for a company, you don’t need a law degree to determine whether you should be qualified as a Salary Exempt worker. First, let’s determine whether you are, indeed in that category generally qualifying for the classification, “Computer Worker.” Here is a list of titles and tasks which will be instantly suspect, if classified as Exempt: ► Computer Technicians ► Software Engineer ► Customer Training Consultants ► System Administrator ► Graphic Designers ► Software Testers ► Hardware Testers ► Engineers, Administrators, Analysts Employed by any of the Gaming Industry employers ► Systems Analysts ► Programmers ► Tech-Support

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► Computer Hardware and Software Installers ► Computer Operators ► Desktop Services ► Configuring Employees ►Bug Fixing Employees ► High Tech Employees, Computer Professionals who do not require and advanced degree beyond a B.S. or B.A. ► Information Technology (Regardless of Title) ► Trainees or entry-level employees (Technicians to Programmers) ► Employees in computer-related occupations who have not attained the skill and expertise necessary to work independently and without close supervision ► Employees who are engaged in operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment ► Engineers, drafters, machinists, or other professions whose work is highly dependent upon or facilitated by the use of computers and computer-aided design software, including CAD/CAM, but who are not in a computer systems analysis or programming occupation ► Employees who write material related to computers for print or on-screen media or who write or provide content for computer related media such as the World Wide Web or CD-ROMS) ► Employees who create imagery for effects used in the motion picture, television, or theatrical industry ► Employees engaged primarily in technical support and client support If you have any doubts, go back to item 4. If your annual salary is less than $75,000 per year, and have one of these titles, or carry out the tasks most frequently associated with these titles, you are probably qualified to be classified as Salaried Non-Exempt, entitled to overtime wages, now, and for three or possibly four years in the past. If the employer cannot meet these standards for one of these three categories, then you are non-exempt and entitled to overtime pay and other benefits. In this instance, you can recover wages going back three years (and in some cases. four years) from the date your complaint is filed. Another rich source for determining whether the work done by people with job titles similar to your own can be found at O*Net Online, a Department of Labor electronic publication. Exploring the descriptions of what those performing work under various job titles will help confirm whether you indeed, have a case against your employer.

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IV. So, how do I collect? You are not going to do it simply by complaining to your employer. Employers tend to have corporate personalities much like that of George W, Bush. They are the “Deciders,” especially, when you tell them something they don’t want to hear. Unless you have kept very accurate records of your overtime hours, the employer is likely to brush off your complaint, by saying you have no proof that you have worked these hours. Having classified you as a Salary Exempt worker, the employer has no obligation to track your hours, as it does when you are Salary Non-Exempt. You have the burden to prove that you, indeed, did work the claimed overtime. As you will soon see, keeping written records of the hours you work for your employer is absolutely essential to this process. Also, unless you have been laid off already, in an age where firings and layoffs are rampant, lodging a complaint is a quick way to hear, “Don’t let the door hit your butt as you leave.” If you are currently employed you will have to deal with your fears that retaliation is inevitable. The employer will do everything to convince you that your job is at risk, or lacking that, you will be demoted, denied promotional opportunities, or “blackballed” with future employers. This is psychological warfare in its most refined form. To quote the famous lines uttered by Dirty Harry, your response will be, “Go ahead. Make My Day!” I kid you not – Here is the section of the California Labor Code which protects you from any retaliatory action by your employer: §98.6. (a) No person shall discharge an employee or in any manner discriminate against any employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, or because the employee or applicant for employment has filed a bona fide complaint or claim or instituted or caused to be instituted any proceeding under or relating to his or her rights, which are under the jurisdiction of the Labor Commissioner, or because the employee has initiated any action or notice pursuant to Section 2699, or has testified or is about to testify in any such proceeding or because of the exercise by the employee or applicant for employment on behalf of himself, herself, or others of any rights afforded him or her. (b) Any employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner

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discriminated against in the terms and conditions of his or her employment because the employee engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, or because the employee has made a bona fide complaint or claim to the division pursuant to this part, or because the employee has initiated any action or notice pursuant to Section 2699 shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by those acts of the employer. Any employer who willfully refuses to hire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure, arbitration, or hearing authorized by law, is guilty of a misdemeanor. (c) (1) Any applicant for employment who is refused employment, who is not selected for a training program leading to employment, or who in any other manner is discriminated against in the terms and conditions of any offer of employment because the applicant engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, or because the applicant has made a bona fide complaint or claim to the division pursuant to this part, or because the employee has initiated any action or notice pursuant to Section 2699 shall be entitled to employment and reimbursement for lost wages and work benefits caused by the acts of the prospective employer. In fact, if you expect a layoff is imminent, file your complaint before it happens. Employers tend towards exercising great caution, realizing that such a layoff, even if part of a mass reduction in the workforce, can put them in peril of running against the above sections of the Labor Code. As a result, many will continue employment of litigating employees, until the resolution of the complaint – which could take significant time. There is another situation which the employer can use to great advantage. Many larger companies size will offer a Severance Package, if you have been employed by them for more than one year. If you have already filed your claim, and they have received notice of either the Informal Conference, or Formal Hearing, you may well be told that you must drop your claim, in order to qualify for that package. This where it can get a bit dicey for you. Failure to pay severance benefits to which you are otherwise entitled is covered under the Retaliation provisions of §96.6 of the California Labor Code. Hopefully, showing the HR

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representative who meets with you at layoff time, will be sufficient to collect these benefits.

V. Even if I am protected against retaliation, will all this be worth it? A. Lunch and Rest Breaks During the period that you are classified as Exempt, the employer has no obligation to report, or even record hours you work. You are expected to manage your own time. Yet, as a non-Exempt employee, the employer is required keep exact records of hours worked by each employee, and to to allow their employees two paid rest break periods, and a minimum unpaid lunch period of at least 30 minutes in duration. California has a new penalty section, (Labor Code §226.7), for all employers who fail to allow their non-exempt employees to have rest breaks or lunch breaks. For each regular day in which the employer fails to provide two tenminute breaks, the employer must pay the employee an additional one hour of wages for each break not offered. The hour must be paid at the employee's regular rate. At least one DLSE office has expressed the opinion that the penalty applies to breaks and to meal periods separately. In other words, the DLSE may apply this rule of one hour to the loss of either break, and then apply another one hour penalty to the loss of the lunch period. In the event that the employee is due multiple lunch periods in a day (i.e., from working more than 12 hours in a day), the DLSE has informally expressed an intention to apply yet another one hour penalty to additional lunch periods lost. B. A Recovery Scenario Even without any overtime, watch as we work through a scenario showing how much would be owed to you, just for unpaid lunch and break periods, assuming the DLSE applies the intent expressed above. First calculated are your “Base Rate” and overtime rates, which come from your annual salary: Gross Annual Salary

$50,000.00

Straight Hourly

$24.04

Overtime Hourly $36.06

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“Base Rate” = Gross/2080, while, Overtime Hourly = 1.5 * Straight Time Next, we need to calculate the number of days the average employee will work each year. Days in Year

364

Maximum Working Days 260

Deductions

Vacation Days

10

250

*Legal Holidays

8

242

*Includes Friday after Thanksgiving Day Floating Holidays

2

240

Deduct Other

0

240

Total Working Days

240

The above assumes a 40 hour work week, all of which is worked on a five day schedule. Now comes the Payoff. Since you were misclassified, as an Exempt employee, you only are responsible for completion of assignments, with your work time indeterminate; thus, no formal offer for a Lunch period, or the two ten minute breaks, is made. In fact, were the employer to make such an offer, this would represent an admission that you were, in fact, viewed and classified as a Non-Exempt employee, entitled to overtime pay! Either way, the employer loses. If it did in fact, required (or currently requires) you to adhere to a schedule which offered the breaks and lunch, it is an admission, that, whatever classification it asserts, you were (or are) a Non-Exempt employee. If it made no such offer, even if you have no record of overtime hours worked, once established that the work you do (or did before layoff) is NonExempt, the employer becomes liable for the failure to offer lunch and break times. Using the DLSE intent to pay for each failure (2 breaks and 1 lunch period), and the scenario shown above, you end up with the employer owing $72.12 (3 “Base Rate” Hourly Rate) for every day you performed non-exempt assignments. For the 240 working day, year, using the previously calculated “Base Rate” Hourly pay, this comes to a yearly total of $17,308, without you having to prove a single hour of overtime work. Add to this 10% interest for causing you to wait for this payment. C. Overtime Pay Page 15

Payment only for failure to offer lunch and rest breaks is a worst case scenario. Let’s now assume that you have diligently kept time records. In that case, if you are able to show that you were Non-Exempt, you have some substantial money coming to you. In our example, you worked an average of 2 hours a day overtime, for a full year. Those hours, 2 per day x 240 days x 36.06 Overtime Hourly rate, gets you a $17,308 judgment against your employer. When added to the award for missed breaks and lunches, this would give you a total award of $34,616, with the only cost to you being your preparation time. With the automatic 10% interest penalty, this combined award could potentially equal more than 75% of your annual base pay. Reviewing again the benefits of taking this kind of action, here is what you may expect from a successful action against the employer. ► Payment for failure to provide lunches and breaks (1 hour “Base Rate” for each not permitted) ► All overtime wages due to you, for up to three or possibly four years preceding the date of filing your claim ► 10% Interest on these overtime wages ► Potentially, 30 days regular wages, as a “Waiting Time” Penalty against the employer, for having failed to pay your wages when they were due. D. The Independent Contractor Scam If you are unfamiliar with both Labor Law and Tax law, you can easily become a victim of what, at first look, may appear to you to be a really excellent opportunity. Instead of going through all of the formalities described above, the employer offers to hire you as an Independent Contractor. What makes this look so appealing is that no deductions are taken from your pay, so it looks to you as though you are taking home almost one third more than you would if you were a regular employee. But, let’s look at the downside: •

You will actually pay more income tax then were you to have been a regular employee, and under the rules set by the IRS, it must be paid on a quarterly basis, rather than the single annual payment paid by payroll employees.

•

You will receive none of the benefits offered by the employer to its regular employees – no health care coverage, vacation, paid sick leave, family leave, etc.

•

You cannot receive Unemployment Insurance for those periods of time in which you worked as an Independent Contractor.

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•

If you suffer a job related injury, you will receive no medical payments for your injuries. If such injury results in you being unable to work, you cannot access disability payments.

• E. Determining Qualification for Independent Contractor Status There are, of course, times when it is quite appropriate that you work as an Independent Contractor. If you are running your own business to deliver services or products to others, than you will have one or more clients for your services. You cannot rely on the integrity, or for that matter, the knowledge of the employer. Instead, there is a tool available that quickly allows you to make an accurate determination of whether you are to be paid as an Independent Contractor or as a payroll employee. This tool is commonly referred to as the “20 questions.” You will note that if the answer to any but Question #16 is “Yes,” then you are improperly classified as an Independent Contractor, and are entitled to be employed as a regular employee. As you will note when reading this article, “…the employer becomes responsible for both the employers and employees FICA (15.3% of gross wages), FUTA (currently $56 per year per employee), as well as the federal income tax (20% of gross wages). The IRS may also bring in the state and as a result, the employer may also become liable for the state income tax, as well as state unemployment and worker's compensation. Employer's may also face a penalty equal to the amount of the back taxes owed. Likewise, the employer will owe interest on all back taxes from the due dates. And, the business may be required to support [an] injured person for the rest of their life.” Undoubtedly, if you have been working for the employer for some time, and have received significant payments, the employer is going to be less than pleased to have these facts presented to it. There are a number of possible responses which you can expect, only one of which is immediately desirable: ► The employer agrees to its obligations, reclassifies you as an employee, and pays all back taxes and other obligations as described above; ► The employer disagrees with your presentation, tells you to either continue under the present arrangement, or face termination. (Do NOT agree to continue as is.) ► The employer immediately terminates your employment. If you are currently employed, and discover that you have been improperly classified, you should inform your employer that you wish it to convert you to the status of a Regular Employee. If it refuses to do so, or if you are no longer Page 17

working for this employer, you will file the same wage claim, just as would be the case if you were filing any other wage claim. [See Cause of Action – Independent Contractor]

VI. On your own, or with others? A. Do it Yourself There are three separate options which you can employ to recover money owed to you. The first of these is to pursue, without the assistance of an attorney, your case. The California state agency you will use is the Department of Labor Standards Enforcement (DLSE). The chief advantage of using this option is that you get every dollar of damages awarded to you. There is an additional advantage to pursuing your own case. If you retain an attorney, he is going to process your claim much like that of a factory assembly line. Your claim is taken, and with the data you provide, the attorney will most probably use a template (usually referred to as “Boilerplate”) to prepare your case. At the appropriate time, this Hearing Brief will be submitted, along with evidence you have furnished, to the DLSE. This will be the foundation for the presentation made at the formal hearing. Following this procedure works very well, but may very well “leave money on the table,” when there are special circumstances which can add to your award. ► Interrupted Lunches: In a world in which many are tied to their workplace by Blackberries or cell phones, employees often are expected to respond to messages while at lunch, even when physically away from the workplace. In a formal 1988 DLSE Opinion Letter (see Appendix D, “Points and Authorities”), precedent was established to entitle employees suffering such interruption, to be entitled to a full hour’s pay for each such occurrence. [See Cause of Action – Lunch] ► Travel Time: If you were required to travel as a part of your job, you are entitled to add total daily hours worked for the following times, beyond the eight hour work day for each of the following activities: [See Cause of Action – Travel] ♦ Travel time between your home or workplace to transportation carrier (plane, train, bus, taxi, etc.); ♦ Waiting time at airports, bus or train terminals, prior to boarding; ♦ Travel time on the plane , train, or bus; ♦ Travel time from the airport, train, or bus terminal to your lodging. ♦ All work done in preparation for, or in participation in, the remote event. ♦ Time repeating of these items necessary for return to your home. ♦ Excluded from chargeable time are meals, unless business is being conducted, sleep time, and any personal or recreational activity, in which you engage, without a business purpose. Page 18

While it is true that this Do-It-Yourself option carries with it the greatest opportunity for a maximum award, it requires you to do substantial preparation, as well as being able to convincingly present your case, and face your opposition. They will almost certainly be represented by a legal professional. There are many who feel themselves ill-equipped to handle this challenge. If this is the case for you, the next alternative is preferable. B. Retain Legal Counsel If, after finishing your reading of this material, you decide that the required preparation is beyond your ability to complete, too much work, or, the prospect of managing your presentation and defense at the Hearings described, will be more than you feel comfortable in attempting, then you should retain an attorney to manage your case. Typically, in wage cases, attorneys specializing in these matters require no direct payment from you. Instead, they take a significant percentage (from 30-50%) of the amount you win. This method is called “taking the case on Contingency.” Since the attorney is gambling that your case will result in an award with a value sufficient to make his investment worthwhile, you will need to convince him that your case has merit. To do this, you should bring as much as you have of the following documentation to your first (almost always, free) consultation with the attorney: ► A copy of your employment contract; ► A copy the personnel handbook issued to all employees; ► A copy of your job description; if your position title has changed during the last three years of employment, provide copies of each of the Job Descriptions accompanying each change in Job Title; ► Any examples of work product which demonstrate that the actual work you do (or did) fails to meet the requirements for Exempt Classification. ► All records of time you actually spent when work was performed for the employer; ► If you have incurred any expense for the employer which was not reimbursed, you should provide receipts for such expense at this first meeting. ► Any written communications, either from your immediate manager, or company wide, which address scheduling of your time, or the nature of the actual work which you do or did while employed. After reviewing all of these materials, as well as discussing the merits of the case with you, you will be required to sign a Retainer Agreement, specifying the terms and conditions of your relationship with the attorney. If the attorney requires any payments from you directly, you should immediately end any discussion and look for someone else to represent you. C. The Class Action Lawsuit Page 19

The Class Action lawsuit is to the 21st Century knowledge worker what the labor union was to the 20th Century blue collar worker. It requires group action by a large number of workers within a company taking concerted action to collect the overtime wages. Someone has to start the ball rolling by enlisting a large number of misclassified workers within the company. For example, the class might be composed of “Computer Technicians,” “Programmers,” and System Administrators.” Each one of these groups requires its own “Representative.” These representatives are exactly that. They are the only named Plaintiff (the person or persons who are the complainants) appearing in the papers filed to begin action against the employer. Except for the named individual(s) who represents the class, all others in the class are completely unknown to the employer. You are perhaps familiar with this approach to collecting overtime that is owed to you. At first inspection, it may seem a very appealing opportunity for you to collect on overtime wages, while at the same time, keeping your participation in this action, hidden from your employer. Successful actions of this kind have been taken against some of the largest companies in the country. Wal-Mart, IBM, and State Farm Insurance, and recently, Entertainment Arts, have all paid millions of dollars for having incorrectly classified workers, in California, as well as other regions of the country. In the last few months, the same complaints form the basis for a lawsuit against Apple. All members of the class, including the named representative, are protected from retaliation by the company. That may mean, that if you or other members of the class were scheduled to be laid off, the company can possibly be stopped from taking this action, because it could easily be interpreted as retaliation – for which the penalties are very severe. Thus, if you know that layoffs are scheduled in the next several months, you might well use this as a mechanism to delay layoffs for you, as well as other members of the Class. The chief advantage of approach is that it makes very few demands on most of the participants in this action. If you re a member of the Class, it may range from a simple notification that you can opt-out if you wish, to in some cases, answering some written questions, and signing a Declaration that certain facts applying to you are accurate. However, If you are the one of a number of Class Representatives, you will be heavily involved in recruiting other employees to join the action, providing the law firm with evidence about the nature of the work performed by you, as well as other members of the class, the average overtime hours worked, and other information which may be required. In short, this is not an option for the fainthearted, or those lacking the needed time and energy to successfully pursue this course of action. The duration of this kind of lawsuit is measured in years, not months, and is by no means a sure thing. After months of preparation, the judge hearing the case may reject the composition of the Class, for any of a variety of reasons. Once Page 20

accepted, it is likely to be several years before the case is either settled, or goes to trial. If the case is won, you may wait years more as the employer appeals the original award. I began my attempts to collect the overtime owed to me with a co-worker, using this Class Action approach. Both of us were going to serve as Class Representatives. Without going into all the grisly details, this effort resulted in a dismal failure ending with the attorney rejecting the case after months of delay, causing us almost a full year’s delay in filing our respective individual cases. Instead of participating in a Class Action, it may be more effective to simply communicate your actions to your co-workers. Each can each file his or her own individual claim. The employer has many strategies available to it to resist, and delay a Class Action. Conversely, faced with a torrent of individual actions, it may quickly seek to reach an acceptable settlement with each complaining employee. Moreover, a large number of claims from employees of the same company is certain to attract the scrutiny of the DLSE, particularly if all claims are filed with the same local office.

VII. Obtaining the Wage Award Whether you are going to retain an attorney or not, your first step is going to be the same. You begin by reading these directions, filling out the form described within, and then, mailing it to the DLSE office location most convenient for you to be present for the Informal Conference, and the subsequent Formal Hearing. A. Filling out the Wage Claim For your convenience, here is a sample of each section of the Wage Claim, filled out, as if you were had been laid off by your employer. Under the section asking for an explanation, several variations are supplied. You should select the explanation most applicable to your own situation. (Note that most portions printed in Spanish have been removed for improved visual clarity.) Part I – Address Data

All of the above is self-explanatory Part II – Employer Data

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Make certain that you have filled in the two check boxes, as well as your formal position title. Part III – Conditions of Employment

The “Discharged” box refers to any condition in which your employment was ended by the employer, including termination for cause, or layoff. Many employees are currently paid by Direct Deposit, if this is/was the case for you, insert this statement instead of checking either box. Line 3 need only be filled in if three was a delay in receiving regular wage payments. Check the “Yes” box in the hourly records, only if you have complete records of all hours you worked. Part IV – Requested Award

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Break out the number of hours for which you are claim overtime wages due, as opposed to time for unoffered breaks, and interrupted lunches. On the next line, calculate your “Base Rate” rate, and overtime rate as was shown in the earlier tables, and indicate how they are to be applied. After calculation of the total, this is the “Gross Amount Claimed.” The “Amount Claimed,” which will be the same as the gross, unless the employer has made some partial payment. The “Brief Explanation” could contain a number of variations. Here are some of them: ► “Misclassified as Independent Contractor.” With this kind of violation, the Labor Commission will calculate employer tax liability, but overtime hours, lunch and break payments should be calculated as before. ► “Breaks offered, no overtime, but lunches interrupted.” Calculate only the number of times lunches were interrupted, and multiply this number by your “Base Rate” rate, for the Gross Amount Claimed. ► “Misclassified as Exempt with no breaks offered, Lunches interrupted, (or not allowed)” Multiply each occurrence by “Base Rate” Rate. ► “Misclassified as Exempt, Overtime Not Paid, No Breaks Offered, Lunches interrupted, (or not allowed)” Calculate as shown in the example above. B. When to File Here are some different scenarios to help you determine when to file your claim which exist with respect to your employment status with the company: •

You are currently employed by your company, anticipating continuing employment: Prior to filing the complaint, notify your current manager, or HR administrator that the employer is and has been for a period of time, in violation of those laws relating to your compensation. Present the applicable law, as well as the evidence showing the company to be in violation. If you are aware of other employees similarly situated, point out the exposure that the company is incurring. You may be able to get the company to pay the wages owing without the necessity of taking action against them. Should you receive any threats of retaliation, be certain to notify them of the consequences they face should they take any adverse action against you.

•

You have received notice of an impending layoff: The most appropriate response will vary depending on the time between when you are notified, and when the layoff takes place.

► You suspect you are going to be laid off, but have received no formal notice of this action: File your claim with the DLSE, as soon as you have reason to believe that layoff is pending. ► You are given written notice 60 or more days prior to the date of layoff. Immediately File your claim with the DLSE, Contact your HR department and notify them of your filing, and present them with §98.6 of the Labor code

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(Retaliation), indicating that if layoff or any other punitive action is taken against you, you will add this to your original complaint. ► You are given less than 60 days prior to the last day for which you are paid. ♦ IF your employer is laying off more than 50 employees within a 90 day period, AND, ♦ Your Employer has employed 75 workers, in the last year AND ♦ IF your employer fails to pay all wages, accrued vacation pay, medical coverage due, and any other benefits previously provided to that date which is 60 days from the date of Layoff Notice, then you are entitled to that pay and any penalties specified under the California WARN Act. (Specifically read §1402 of the State Labor Code, for an understanding of your rights under this Act.) ♦ File your claim, including failure to pay wages under WARN. ► At layoff, you are offered a Severance Package, subject to signing a Waiver and Release (See Appendix A) which prohibits you from taking action against the Company. The employer cannot enforce this agreement, since California Law requires that you always retain the right to recover wages owed to you. File your claim immediately after returning this signed agreement to the employer.

VIII. The Informal Conference After you file the Wage Claim, be prepared to wait a while before you hear from the DLSE. This waiting period can range anywhere from one to three months. You and the employer will both receive a notice of an Informal Conference. Although the employer is not required to attend, you must be present, or your case will be dismissed. You come alone to this meeting. Seldom will the employer attend, unless it is ready to propose a settlement of your claim. This is the time when your case is evaluated, you can ask any questions regarding what to expect during the formal hearing, and what you need to establish your request for compensation. A Labor commissioner will be in attendance to evaluate your case, answer your questions, and give you a rough estimate of when your Formal Hearing will take place. he can also dismiss the case, if it is found to lack the required evidence necessary to prove your case. You can also request forms to subpoena individuals or documents necessary to prove your case. Individuals you might wish to question at a formal hearing are people such as your immediate manager or supervisor, customers or clients for work you performed, or co-workers who can substantiate the nature of the work you performed and/or your claim for overtime hours worked. Documents you can ask for relate to establishing your salary history, copies of job descriptions, any records of hours worked maintained by the employer, and most importantly

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copies of work product upon which the employer bases its claim that you performed exempt work, at least 50% of time you were present at work. After completion of this conference you should decider whether you wish to handle the case on your own, or whether you want to retain an attorney to represent you. A. Finding an Attorney Before searching for an attorney, there are some important questions you need to ask yourself, which will help you decide whether you should pursue your case on your own, or whether you should seek professional assistance. ► Gathering evidence and writing the Hearing Brief: At the Formal Hearing, you will be required to present a “Hearing Brief.” The document which I prepared for my own case is shown in full, in Appendix B, “Redacted Hearing Brief.” Yours should follow a similar format. You will note that although not presented, reference is made to exhibits and the Hearing Brief prepared by the Defendant (the employer). If the preparation of a similar Brief and the accompany exhibits appears to you to be beyond your own ability and/or will take more time than you have to devote to it, than you will want someone else to prepare these materials for you. ► Handling Intimidation: During the Hearing, you will (a) orally present arguments for your case, (b) call witnesses to support your claim(s), (c) question the defendant and any witnesses it presents, (d) be cross-examined by the Defendant, (e) be questioned by the Labor Commissioner, and (e) present closing arguments to summarize your claim. Not all of these will necessarily occur, with the Commissioner determining what is allowed, and the order of presentation. To give you some picture of the situation, my case extended over two days, with Defendant Counsel constantly delaying completion, with the introduction of irrelevant evidence, and making derogatory remarks about me. Eventually, the Commissioner tired of these tactics, and ended the hearing. Regardless of the conduct of the hearing, many find this to be a highly intimidating experience. If this kind of situation presents more stress, than you are prepared to handle, you will want the assistance of someone else to represent you. While you may not feel personally capable of managing your case, you may have a friend, family member, co-worker, or other individual who can assist you in your preparation, and be present at the hearing to handle your presentation, without charging for their assistance. Be aware that if you plan to use someone as a witness, that same individual cannot, at the same time represent you. As a witness, they can be only be present when called to testify, and not remain after completion of questioning. If no such free assistance is available, it is only then that you should retain an attorney. You will want to follow these steps:

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► If you already have an attorney that you have used in the past, talk with him to determine whether he handles cases such as yours. Unless that is an area of specialized practice for him, he will refer you to someone specializing in cases like this one. ► If you have no source for referrals the Find Law is an excellent source for listing possible attorneys for you to start with. Here is a sample search…

… and a partial result.

► There will be a substantial number of names. Give first priority to those any who mention “Wage Cases,” or “Overtime,” in the short description appearing under the name of each law firm. If you find multiple firms in which you are interested, prioritize them by location, or area code appearing closest to you. ►Go to the websites of the two or three firms which have the most interest for you. After doing so, call the top one on your list, and make an appointment for a free consultation. Page 26

► At that first meeting, bring all of the evidence you have gathered, so the attorney can determine the likelihood of success, as well as additional materials needed for the case. Along with the personal level of comfort with the attorney, you will want to assess how progress on your case is going to be reported, as well as the terms of the retainer agreement which is offered to you. The more preparation you have done, greater is the opportunity for you to negotiate the percentage of award that you will be charged. Be aware that some of his fees will be paid by the Defendant if you win your case, so you will want to very carefully examine the additional percentage which you will be charged. Determine what the firm will do if you lose at the DLSE, and you wish to appeal in Superior Court. ► Depending on your level of comfort, you can (a) sign the Retainer Agreement at that meeting (b) take it home for a day or two to consider, or (c) decide to interview the next law firm on your list. ► If at all possible, bring someone whose judgment you trust along with you, and avoid making the decision without someone who you can use as a sounding board to validate your view of the situation. ► If you do decide to use a law firm, your work is done. Your attorney will tell you what you need to do to prepare for the Formal Hearing. The firm will proceed to gather any additional evidence needed, and will notify the DLSE that they are representing you. They may wish to schedule additional meetings with you, or have you sign documents, or perhaps ask you to be present at a Deposition, where the Defendant or other witnesses are examined. Be certain that you follow all directions given to you. B. Preparing for the Formal Hearing Everything from this point on assumes you will be managing your own case, either personally, or with the help of a non-attorney representative. While the process is going to seem to drag on interminably, you should know that the odds are strongly stacked in your favor. Unlike all the criminal cases you have seen depicted in films or TV, the Defendant (the employer), is presumed guilty and bears the burden of proof to demonstrate that it acted properly, and that your claim either fails under the law, or the evidence that you present. As a result, almost all but the smallest employers will be represented at the hearing by someone from their Human Resource (HR) department, and an attorney. Their preparation will almost always include a “Defendant’s Hearing Brief.” This document will be formatted as a standard legal document, and will be given to you at the hearing. (In my own case, since the hearing was split over two dates, I was able to obtain the Defendant’s Brief on the first day, giving me the opportunity to fully prepare my own response, presented on the extended second day of the hearing.)

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C. Selecting witnesses Co-workers, or former clients who either had knowledge of, were requestors of, recipients of your work product, or former managers who made your work assignments, are all possibilities to serve to confirm the nature of the work you performed. At most, you should select only one or two such individuals, because the hearing is ordinarily expected to be completed within a single day. Needless to say, consider using only those individuals who will willingly testify on your behalf. In many cases, it will be inconvenient for witnesses to appear. You can substitute for the actual presence of the witness by securing his or her Declaration. This document simply is a signed version of what the witness would be saying at the hearing. A Sample is shown below. These Declarations are referred to in your Hearing Brief. (See Hearing Brief for the use of Declarations) D. The Exhibits Documenting your claim(s) is absolutely essential to winning your case. Each should be sequentially numbered, so that they can be referred to in the Hearing Brief. There are two categories of exhibits that you will want to have available: ► Document that you should be a Regular (Taxes-withheld) employee ♦ If you have been improperly hired as an Independent Contractor, you will use the “Twenty Question Test,” to establish that you should be paid as a regular payroll employee. Question #1 is the most critical to establishing an employee relationship. It asks whether you must comply with instructions regarding when and where work is to be performed. To establish that you received direction from the employer, any or all of the following documents will serve to prove this answer. ♦ Any document which sets forth a daily or weekly reporting schedule, indicating the time and/or location where work is to be performed. ♦ emails or other dated written communications from the employer setting forth the manner or means by which work is or was to be performed, or changes to be made in work in progress, or compensation made contingent on modifications to be made to delivered work product. ♦

written performance evaluations making continued employment or compensation contingent on some aspect of personal conduct.

► Document proper Non-Exempt Classification ♦

If your Employment Agreement contains any reference to you being classified as an Exempt Worker, this section should be highlighted, and reference made to it, in the Hearing Brief.

♦

If you were issued an Employee Handbook when hired, you my expect that there will be a section related to the work schedules and how they Page 28

apply to different worker classifications. Copy these sections for later presentation. ♦ Job Description – Although the actual test of whether or not you are exempt comes from the work you performed, if this document describes tasks which are non-exempt, you may be spared the task of gathering examples of work product. ♦ A sampling of Work Product which can clearly indicate that the work you performed failed to meet the requirements for an exempt classification. Since this work is legally is owned by the employer, you should obtain it by subpoenaing these materials. ► Document hours for which wages are owed. ♦ A Time analysis of work product samples, used to demonstrate that less than half of your time was devoted to Exempt work ♦ Any or all job descriptions issued to you during the period covered by your complaint. ♦ All communications referencing scheduling, hours of work, lunch period, or breaks. ♦ Any performance evaluations which refers to your schedule, or time worked, whether satisfactory or not. ♦ Copies of job tickets, or requests for product production demonstrating work to be done which is/was non-exempt. These documents should be secured by subpoena, since they are owned by the company. ► Break periods, and uninterrupted unpaid lunch If you were or are classified as non-exempt, and have not been offered two tenminute break periods during the eight hour day, and one-half hour (unpaid) of uninterrupted lunch, you will need the following items to verify this violation of the Labor Code. ♦ a copy of your employment contract, or Employee handbook. Failure to list these rights can serve as proof of violation of this provision of the Labor Code. ♦ Witness Declarations used in place of the physical presence of a witness. Such declarations establish observations of instances when your lunch was interrupted by “on call” requirements of the employer. See Appendix C, “Sample Declaration.” ♦ Subpoenaed copies of work related emails or text messages sent from your Blackberry or cell phone, during your previously established lunch time.

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E. The Hearing Brief Please consider this before going any further, please consider this: Many who are reading this book are going to look at these directions for preparing the Hearing Brief and will consider it far too much work, or beyond their abilities to assemble the required materials. The truth is that you can win your case, without ever writing this document. If it is not required, why do I devote eight pages to the process of preparing this document? ► If you are seeking an award for either the Waiting Time Penalty or an extension of the Statute of Limitations from three to four years, this document will be essential to your efforts to achieve this component of your claims. ► If you are feeling intimidated by the prospect of going up against an attorney, and presenting your case, going through this process will greatly add to your confidence, and readiness to present your case. ► Seeing this product of your preparation sends a warning to the opposing attorney that you are a well prepared opponent, and may have the effect of lessening personal attacks and distracting information, when he questions you. Even, as will usually be case, you have not seen the Defendant’s Brief, you are well advised to prepare your own, using the format shown in the Appendix B, “Redacted Plaintiff’s Hearing Brief.” Besides requiring you to assemble all of your evidence in an organized and convincing form, following the legal format shown below, serves you as a “marketing” tool, which, when read by Labor Commissioner, establishes your credibility as serious, well prepared, and knowledgeable about the elements of your case. Note: The format shown below differs significantly from the Appendix A document. This recommended format is designed to deal with the general claims that most will be making, along with some of the variations which may specifically apply to your case. Appendix A was the actual Brief for a complex, and somewhat unusual case, and is offered for reference purposes only. Here is your Title Page. You can easily get the desired column alignment by making a two column page, and using the Alignment tools to get words as they appear on this sample page.

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××××××××××××××××××××××××× Much credibility rests with the formatting of the document. Tradition dictates that it be prepared using serif based fonts. Any of the following are acceptable: Courier, Times Roman, Century Schoolbook, or Georgia. (My personal choice is Georgia, which is very legible, with many accepting it as aesthetically pleasing.) ××××××××××××××××××××××××× While your document will address the specifics of your own case, it must contain the following elements: ► I. BACKGROUND –This section presents an overview of why you have brought the case, and any circumstances which were involved. [1] ♦ Formatting: All main level text paragraphs are double spaced, consecutively numbered, in plain text throughout the document. Do not renumber regardless of intervening heads. References to legal cases, or published documents are italicized. ♦ Content: The Introduction provides the reader with the historical background explaining how the employer violations occurred. Perhaps, at hire, you were given a job description setting for tasks which would

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make you exempt, but the actual work you did differed sufficiently from the job description to make you Non-Exempt; Often, a change of manager results in just such a situation, causing you to change the nature of tasks performed, while retaining the same job title. A sample of this first section is shown below:

► II. CAUSES OF A ACTION – Here you provide a thorough discussion of the facts supporting your position that you have been improperly classified.

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♦ Format: Each Cause of Action begins as shown in the illustrative template shown below. These are main level paragraphs and, as such, continue sequential numbering as before.

♦ Initial Paragraph: This is a section of legal “Boilerplate which is customarily used, and should be dropped in as the first paragraph at the beginning of each Cause of Action:

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♦ Content: Use this section to List each violation in which your employer engaged. Each Violation is a separate cause of Action. Here is a list of possible Causes of Action. ♦ Improper classification of worker as Independent Contractor instead of regular employee; ♦ Improper Classification of employee as Executive Exempt vs. NonExempt Worker; ♦ Improper Classification of employee as Administrative Exempt vs. NonExempt Worker; ♦ Improper Classification of employee as Computer Worker Exempt vs. Non-Exempt Worker; ♦ Failure to offer one paid 10 minute rest period for each four consecutive hours worked. (Remember, the employer only needs only to give you the opportunity to take these breaks, but has no duty to require you to use this time) ♦ Requiring that you be on duty during your unpaid lunch period, or at times when you are otherwise not expected to engaged in paid work activity. ♦ Failure to add travel time to regular daily on-duty hours. ♦ Unreimbursed approved business expense. Failure to Pay Wages Due is is next to last in the Causes of Action. Here, you summarize the total overtime and “Base Rate” hours for which wages are due for each cause of action, and refer to the Spreadsheet as an exhibit, which details all “Base Rate” and overtime wages, due. Use separate paragraphs for each type of Wages not paid; thus, overtime wages, “Base Rate” due for interrupted lunches or lunch not offered, as well as a separate paragraph for breaks not offered. Additional paragraphs should be directed at any unreimbursed business expenses. •

III. PROOFS FOR CAUSES OF ACTION -- To this point in the Brief, you have alleged (made claims) that you were entitled to overtime and/or other wages, because your employer violated California Labor Law, or otherwise incorrectly calculated wages due to you. In this section of the Brief, you are going to present your proof that these claims are valid. The following list the elements you can use to prove your case.

► Independent Contractor vs. Regular Employee: As discussed earlier many employers will try to evade their obligations by classifying you as an Independent Contractor. To establish that you have been incorrectly classified, simply refer to those questions in the 20 Question list which requires that you be treated as a regular employee.

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► Job Description: In most cases you will be given a job description, as you begin each position within the company. It may have been given to you during your application interview, or as you are oriented by your manager to the work that was expected of you. While your claim for Non-Exempt status rests with the actual tasks you performed, if your job description sets out non-exempt tasks, this makes your claim considerably easier to prove. This document among your first numbered exhibits. ► Proof of Actual Work Performed: This is a key element in proving that you were incorrectly classified. There are a number of tools you can use to prove this: ♦ Samples of Work Product: This is the most powerful demonstration you can show to demonstrate that you were non-exempt. As but one example, if you were required to compile or present raw data, or fill out forms, samples of these assignments serve to demonstrates that such work was routine, and required no special skills, nor, most importantly required no use of “independent judgment and discretion.” Any work which is regularly repetitive (such as a quarterly sales report), uses preconstructed templates, is non-exempt. ♦ Job Tickets: many companies have established job ticketing systems, which determine work to be performed by the recipient. Sample of these tickets can be used to establish the exact nature of the work performed. ♦ Communications from management: Emails or hard-copy memoranda which either order non-exempt work assignments to be performed, or require specific working schedules are ♦ Refer to Witnesses: Refer to the expected testimony of the one or two “live” witnesses who have made themselves available to you at the hearing, by an advance description of the contribution that they will be making to your overall case. If you have secured declarations from witnesses these should be included in the numbered exhibits. ► Proof of Unreimbursed Business Expenses: If you have kept careful records of all expenses incurred on behalf of the employer, you may be pleasantly surprised to find that a significant amount is due to you. You must have receipts for any purchases, credit card billings, and accurate mileage records for any use of your personal car or truck. ♦ Round trip mileage from your home to workplace, at times outside your regular schedule of work is chargeable. If, for example, you had to return to the workplace, after going home, or were called in to work on a day in addition to your regular schedule, the round trip mileage can be billed at IRS allowed rates, for the year in which such trips occurred. ♦ Trips from your regular workplace, to offsite locations, and return mileage to the workplace can be claimed. Page 35

♦ If you drove from home to an offsite location on a regularly scheduled workday, the difference in mileage between home to offsite location minus distance to regular workplace can be charged. ♦ Cost of meals taken on days worked outside of your regular schedule. •

IV. USE OF POINTS AND AUTHORITIES – To this point in your listing of Causes of Action, your writing has been directed at proving your claims that your employer either performed or failed to perform some action. There is a second requirement which must appear in each of the Causes; establishing that the Employer acted or failed to act, in violation of a law, regulation or policy. You will at this point be wondering why you are expected to deal with this. After all, the commissioner hearing your case should certainly be familiar with the law which applies. Right? Not really. There are a number of reasons why is essential that you cite the applicable laws, regulations or opinions which tie your evidence to a violation of law, or argue for an expansion of one of your claims

► Your use of applicable law gives great credibility to your claims. It demonstrates that you have taken the time to carefully consider and prepare your claim. ► Like everyone else hearing officers forget, or at times need to be reminded of, the specific rule or regulation applying to your Cause of Action. ► New regulations and procedures are constantly occurring. Not every hearing officer will be immediately informed of every change, and such changes may well directly impact on your claim. Thus each Cause of Action should reference any and all legal decisions which apply to it. These are inserted within the paragraphs which establish each claim. Here is an example of how you would integrate a citation within your discussion of an issue. In this example, the writer is arguing for expanding the Statute of Limitations on wage cases from three to four years. A full guide to Wage and Hour Legal Citations is provided in Appendix D, “Points and Authorities.” •

V. PAYMENT CLAIMED – In this section you provide the hearing officer with a calculation of the hours due to you as a result your proof of the violations engaged in by your employer. In this section, you need to explain or review the circumstances which lead to the calculations which follow. There should be explanation for each category of claim that you are making. Overtime, lack of breaks, working through , or interrupted lunches. To present the actual hours and amounts due, use the these Excel spreadsheets. After opening the sheet, this sample, download, and save

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as an Excel Worksheet. You will make a separate sheet for each year for which you are claiming overtime. For those filing from this point in 2009, 2006 is the earliest year which can be covered under the three year Statute of limitations. If, for example, your claim is received at a DLSE office on January 20,2009, you can only make claims for the week of January 21, 2006. Begin the Week column, for each year in which you are making a claim, by beginning with the Monday of the week in which the 1st of January occurs. Those weeks for which you are making no claim will simply have a “0” entered in each of the cells prior to the allowed date. In this sample we are assuming that you worked two hours overtime for every regular day worked, that you were not offered the opportunity for 2 ten-minute break periods, and that you either had to work through your lunch, or were interrupted with employer duties during lunch an average of twice a week. If you have kept careful record, you can easily sum the categories for each week. Those records should be a part of the exhibits you reference in the narrative paragraphs described above. If you have not kept actual records, you can still construct these sheets, estimating the average number of overtime hours worked. If you have made a credible case for your claims. As you inspect the sample, note that not very week shows the same number of overtime, break or lunch hours. That is because, in this sample, your hours are reduced for weeks in which holidays occur, as well as a two week period in which a vacation was taken. If you re constructing your own sheet, be certain to properly reflect these periods when you have no hours to claim. •

VI. REQUEST FOR RECOVERY OF MONEY DUE – This is the final step. You have presented everything you need to establish the violations, made specific the claims arising from them, presented evidence to prove your claims to be accurate, and provided a numeric calculations as the basis to request recovery for of wages owed to you. In this, the final section of the Hearing Brief, you make your formal request for the recovery of wages owed to you.

► Your request will be formatted as in the example shown below. Be certain that the paragraph numbering continues from the last paragraph of the HOURS DUE section of the Brief.

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► If there are unreimbursed expenses, each category of these will have been included in your causes of action, and the recovery for which you are asking will be listed in this section. ► Skipping to the end, you end with a statement apply to All Causes of Action.

► Finally, you will sign and date the Brief, with the format appearing as:

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F. Putting it all together You have done a great deal of work in assembling the materials necessary to make your case. Before the hearing, there is one last task remaining – assembling everything into loose leaf notebooks. At the top of the documents is a copy of the Hearing Brief, (if you have written it) followed, in order by the numbered exhibits. You may wish to separate documents with tabbed separators. The more professional looking is your presentation, the better your chances for winning your case.

One copy is for the defendant, one, to the Labor Commissioner, with the last one kept for yourself.

IX. At Long Last – It’s Hearing Day! A. The Hearing Room Unlike a courtroom, the hearing will be far more informal, with what happens in the hearing room completely under the control of the commissioner hearing your case. Present in the hearing room will be (usually only one) representative from your employer, and almost always, an attorney representing the employer. If you have an attorney, or have brought a friend or associate to be your representative, they will be present throughout the hearing. Any witnesses you have asked to testify for you, as well as witnesses for the defendant, will be present at the start of the hearing. The commissioner will swear in everyone present, and then ask all witnesses to wait in the reception area, until called to testify. You will ordinarily be seated at a table to the commissioner’s left, with the defendant(s) at his right. As soon as you are sworn in, hand a copy of your

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documents to the commissioner, and then to the defendant’s counsel, or representative. B. What to expect If you have observed a courtroom trial, you may recall that the proceedings follow a very formal, fixed order of events. Not only is the order of events followed, the rules for what evidence is accepted follow very strict rule of procedure. This is not the case for this hearing. While the presiding commissioner will generally follow the same order as in a courtroom, he has much more latitude to get the information he requires to make a ruling. He can hear or accept evidence which he believes is relevant, or useful to making his ruling; there is no court reporter present. Instead the proceedings are tape recorded. There is no public record, as with a courtroom trial. There are no objections to testimony by attorneys. Most importantly, for the most part, it is the commissioner who will ask the questions. In most instances, both sides will be given the opportunity to cross examine witnesses, if a request is made, but this is entirely at the determination of the hearing officer. You can expect to present your case first. Plan on doing a short, to-the-point presentation, explaining your reasons for making your claims (the Causes of Action). If there is anything complicated, refer the commissioner directly to the pages in your Brief, and/or the Exhibit numbers which address the issue. Your emphasis must be on the labor laws which the employer has violated, with clear testimony describing how they have done so. The commissioner will do everything possible to make you feel comfortable, and assist you in helping him to understand your position. S/he will end the hearing when s/he has heard everything s/he feels necessary to make his ruling. One question you should be prepared to answer is the following, which is likely to be asked of both sides: “If you lose this case, will you appeal?” Unless you believe that the commissioner has failed in some important respect to get all the necessary information, your chances of winning an appeal, are very limited. You are likely not to get every dollar you asked for, but the cost of recovering some additional fraction of your request is simply not worth it. The employer will ordinarily respond, “Yes,” but seldom follows through. Here’s why. If they appeal, your attorney fees will be paid by the DLSE, while they will have to absorb all the costs of doing so. Even more important, by the time someone is given the rank of a Labor Commissioner, s/he makes decisions that the courts are unlikely to reverse. The advantage to saying “No,” is that if both sides agree, you are likely to get an oral decision before you leave the hearing room.

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C. The written finding The decision reached by the commissioner is set forth in a written decision, copies of which you and the employer will be mailed. While the procedures say that you should expect this decision within 10 days of the hearing, don’t expect it that soon. Like every other California administrative agency, current budget problems have left the DLSE short-handed, with long delays, between hearing and issue of the judgment. Before calling to inquire, you should wait at least three months. If you have not heard by then, there will be a phone number provided so that you can inquire about the status of the decision. ► Contents of the Finding ♦ The Decision: The first item will indicate who won the hearing - you or the employer. ♦ The Commissioners Opinion: In this section you will find the basis by which the decision was reached. Each of your claims will usually be separately discussed. ♦ The Award: If the decision goes to you, there will be a calculation of the total award ordered to be paid by the defendant. ► Payment Order ♦ Included within the finding will be directions for payment. If you have won, the Defendant is given a time to pay, or give notice to the DLSE of its intent to appeal the finding. ♦ If the Defendant chooses to appeal, the DLSE will provide you with its own attorney (at no cost to you). In effect, the defendant is no longer defending your claims, but rather defending a decision of the State of California. ♦ Should this occur, there will be a completely new trial, in a California Superior Court. While you will almost certainly ultimately win, count on waiting another two or three years before an ward is made. ► Collection of the Payment ♦ The defendant is given a fixed time to pay. If it fails to pay the ordered amount by the date set, the DLSE will do its own collection, since again, this is not you, but the State of California that is the creditor. There can be considerable delay in the payment process, but usually it happens within 30 days of receiving the order. ♦ After the check is received by the DLSE, and clears, payment is recorded, and DLSE cuts a new check to you. Again, do not expect immediate payment. You will be notified that payment has been received, but remember, the payment clerks are just like the rest of the drones who work for any state agency, having no incentive to move faster than a snails. Page 41

♦ There is a nice bonus for you. Since the employer makes the check payable to the DLSE, it issues no tax information. Nor does the DLSE withhold or report taxes due, since you have never authorized it to do so. Therefore, your award ends up being tax-free!

X. Two other Possible Issues From my own experience in pursuing my claim, as well as later informal conversations with DLSE employees I think this is an accurate picture of what portion of possible claims you will end up collecting. •

The DLSE, and all of the apparatus of the California Labor Commission is largely “Employee Friendly.” This is to say, that recognizing that you are not a trained attorney, the DLSE will lean in the direction of accepting your basic claims, if backed by credible evidence.

•

On the other hand, there are two possible extensions of your claim that are very difficult to achieve, but definitely worth the effort, because if granted, they will substantially add to your award.

A. Extending the Statute of Limitations to Four Years If your claim extends backward, more than three years from the date that your filing is accepted, your award could potentially be increased by as much as 25%. To get this fourth year allowed, you must prove that your employer failed to pay wages due for the purpose of reducing its costs to improve it’s competitive position, thus violating the Unfair Competition Law (UCL). This is a very difficult to prove, but if you are interested, a full discussion of prosecution of this claim is found in Appendix D. B. The Waiting Time Penalty Award of a waiting time penalty results in payment to you of 30 days wages at the “Base Rate” rate, as well as the monetary value of all benefits to which you are entitled, whether currently employed, or having been laid off. Regardless of the claim that your are making, you and the employer are considered to have a “legitimate business dispute.” In essence, the assumption is made that your claim arises out of differing interpretations of the governing labor law. If you want to make a claim for this penalty, you must prove that instead of a mere dispute, the employer has knowingly violated the law, as it applies to you. As with the UCL, look to Appendix D for a full discussion of this issue.

XI. Other Claims The central focus of this book is directed at recovering wages resulting from improper classification as an exempt employee. Beyond the scope of what has been covered here are several other categories where the employer violates your rights, or fails to protect you from what has come to be called the “hostile workplace.” These are offered to you, so that you can be aware of protections you Page 42

have when these actions occur. If you believe that any or all of these apply to you, you should consult an attorney for assistance in remedying these issues. A. Discrimination Discrimination occurs throughout the entire continuum of workplace environments. It ranges in time from denial of employment to differential treatment while on the job, to ending employment for other than reasons of economic necessity, or the contribution made by to the worker to the purposes of the employer. Age, gender, sexual preference, race, religious affiliation (or lack thereof), and political afflation all have been used to deny employment, restrict job progress or advancement, justify selective layoff, and cause wrongful terminations. B. Harassment Bullying by a manager or supervisor is only one of a variety of behaviors which you can use to establish as harassment. Sexual harassment by manager or coworker is among the most commonly understood elements of this larger category. Beyond this, however, there are a number of situations commonly occurring in the workplace which, while less discussed, nonetheless constitute harassment: •

Speech or behavior of others causing you personal discomfort, or distress in the workplace, after you have requested that it stop.

•

Discrimination by others based upon your age, gender, sexual preference, race, religious affiliation (or lack thereof), or political afflation.

•

Speech or actions by others which interferes with the performance of your assigned tasks, or opportunities for advancement.

•

Defamatory (spoken or written) remarks directed at you, by others, regardless of their position in the employer organization.

Any or all of these constitute the creation of a hostile work environment. In such circumstances, you not only have an absolute right to bring an end to this activity, but also to be awarded monetary damages for having to put up with this harassment. C. Physical and mental disabilities While it is generally recognized that employers have a duty to hire and make reasonable accommodations for those suffering physical disabilities, far less better known or practiced by employers is that same level of attention directed at those with mental disabilities. Mental disability is most frequently thought of as being characterized by difficulty in learning, remembering, or concentrating. While the employer has no obligation to hire those not capable of performing required tasks, it does have the obligation to provide equal opportunity to those suffering these disabilities for positions they are capable of successfully performing. Page 43

Far more subtle are what are generally identified as “personality disorders.” Many, if not most, employers expect and often demand that all employees be congenial, friendly, and courteous in their interactions with co-workers and managers. This, in spite of the fact that there are many positions which require limited or no interaction with others. There is an almost mythical expectation that workers will be loyal to the company, “team players,” and expected to direct energy toward fostering the company’s core values and beliefs. There are many employees perfectly capable of productively delivering the tasks specified in their job description, who, for a variety of reasons, are just not very skilled in interpersonal interactions. A host of factors can enter into this equation, not the least of these are disabilities such as Asperger’s Disease, Clinical Depression, Adult Attention and Hyperactivity Disorder (ADHD), as well as Tourette’s syndrome. Awareness of such disabilities varies widely among those who suffer from them. Yet, those who have these disabilities often are seen by co-workers as: •

Avoiding interactions with co-workers.

•

Exhibiting irritability and short tempered behavior.

•

Demonstrating arrogance and rudeness to others.

•

Being impatient and unwilling to assist those perceived as lacking in competence.

Complicating the situation is that the employee may be unaware s/he is suffering from these as well as other similar disabilities. S/he may often be perceived as being “a loner,” odd, or eccentric, to be avoided whenever possible. Consequences can range from poor performance reviews, negative entries in the employee’s personnel record, restricted promotional opportunities, all the way to termination. The Americans with Disabilities Act of 1990 requires that employers make “reasonable accommodations,” for those with physical disabilities, so long as they can make a productive contribution to the business of the employer. D. Safety in the workplace For those working in the typical business office environment, safety in the workplace is seldom given more than passing consideration. At the other end of this continuum are professions which inherently have physical risks ranging from moderate to extreme, associated with the performance of required tasks. Yet, no matter what work performed, when leaving home each morning, almost all expect that they will return in the same condition, that night. Unfortunately, every day, hundreds of workers sustain work related injuries, some fraction of which are lethal. Federal and State governments have built a substantial legal infrastructure to insure that employers maintain minimum health and safety standards to protect all employees. Employers have an absolute duty to follow these standards, with Page 44

employees having both the right to expect these standards to be followed, and a duty to report violations. Employees reporting such violations are specifically protected from any retaliation by the employer. E. Layoffs and wrongful termination While many employees are aware that their employer is violating some or any of the rights described above, the ultimate nuclear weapon in the employer’s arsenal is termination. By a great majority, workers are employed under the provisions of an “At Will” contract. In essence, this means that you can quit work at any time, and the employer can end its employment relationship with you “for any or no reason…” Under these conditions, employees are understandably hesitant to “rock the boat,” even when they know precisely how their rights have been violated, and have clear and convincing evidence of these violations. Below are some of the reasons that have caused employees to be wrongfully terminated, terminated, in which case complaints can be successfully brought: Violation of a state or Federal discrimination law Violation of rights granted by the First Amendment to the U.S. Constitution Violation of the employer's own discharge policy Breach of an explicit or implied contract of employment or an employer-union collective bargaining agreement (contract law) In breach of the covenant of good faith and fair dealing According to the constructive discharge doctrine Because the employee would not break a law (public policy) Under the guise of a false statement of fact For jury duty (Judiciary and Judicial Procedure Act) Additionally, it might be wrongful termination if an employer discharged an employee in retaliation for: ► Reasonably exercising employee rights under relevant employment and labor laws ► Reasonably exercising union rights ► Legitimately taking leave under the Family and Medical Leave Act ► Serving in the military reserve (Uniformed Services Employment and Reemployment Rights Act) ► Whistleblowing Off Duty Activity As but one example, employee lawful behavior outside of the workplace, has, at times impacted on whether or not an employee can be discharged. A current California case, dealing with termination of an employee Page 45

legally using marijuana for medical purposes in California is illustrative of state-specific issues being considered by the courts.

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Appendix A - Waiver and Release (Redacted) __________________, Inc. Waiver and Release Agreement 1. In consideration for the severance pay and severance benefits to be provided to me under the terms of the ************ , Inc. Position Elimination and Severance Plan, in the amount of $__________. I, ***********, on behalf of myself and my heirs, executors, administrators, attorneys and assigns, hereby waive, release and forever discharge ************* , Inc. (the "Company"), together with its subsidiaries, divisions and affiliates, whether direct or indirect, and its joint ventures and joint venturers, including (except as specifically provided herein) their respective directors, officers, employees, shareholders, partners and agents, past, present and future, and each of their respective successors and assigns (collectively, the "Releasees"), from any and all known or unknown actions, causes of action, claims or liabilities of any kind that have or could be asserted against the Releasees arising out of or related to my employment with and/or separation from employment with the Company and/or any of the other Releasees and/or any other occurrence up to and including the date of this Waiver and Release Agreement, including but not limited to: (a) claims, actions, causes of action or liabilities arising under Title VII of the Civil Rights Act, as amended, the Age Discrimination in Employment Act, as amended ("ADEA"), the Employee Retirement Income Security Act, as amended, the Rehabilitation Act, as amended, the Americans with Disabilities Act, as amended, the Family and Medical Leave Act, as amended, and/or any other federal, state, municipal, or local employment discrimination statutes or ordinances (including, but not limited to, claims based on age, sex, attainment of benefit plan rights, race, religion, national origin; marital status, sexual orientation, ancestry, harassment, parental status, handicap, disability, retaliation, and veteran status); and/or (b) claims, actions, causes of action or liabilities arising under any other federal, state, municipal, or local statute, law, ordinance or regulation; and/or (c) any other claim whatsoever including, but not limited to, claims for severance pay, claims based upon breach of contract, wrongful termination, defamation, intentional infliction of emotional distress, tort, personal injury, invasion of privacy, violation of public policy, negligence and/or any other common law, statutory or other claim whatsoever arising out of or relating to my employment with and/or separation from employment with the Company and/or any of the other Releasees, but excluding the filing of an administrative charge, any claims which I may make under state workers' compensation or unemployment laws, and/or any claims which by law I cannot waive. I also agree never to sue any of the Releasees or become party to a lawsuit on the basis of any claim of any type whatsoever arising out of or related to my Page 47

employment with and/or separation from employment with the Company and/or any of the other Releasees, other than a claim to challenge the validity of this Waiver and Release Agreement under ADEA. 3. I further agree that I shall not in any manner, engage; either directly or indirectly, in any conduct that might reflect negatively or adversely upon, or make any statements disparaging of, any of the Releasees. 4. I further acknowledge and agree that if I breach the provisions of paragraph 2 or 3 above, then (i) the Company shall be entitled to apply for and receive an injunction to restrain any such breach, (ii) the Company shall not be obligated to continue payment of the supplemental pay continuation and supplemental benefits to me, (iii) I shall be obligated to pay to the Company its costs and expenses in enforcing this Waiver and Release Agreement and defending against such lawsuit (including court costs, expenses and reasonable legal fees), and (iv) as an alternative to (iii), at the Company's option, I shall be obligated upon demand to repay to the Company all but $100 of the severance pay and severance benefits paid or made available to me. I further agree that the foregoing covenants in this paragraph 4 shall not affect the validity of this Waiver and Release Agreement and shall not be deemed to be a penalty or a forfeiture. 5. I further waive my right to any monetary recovery should any federal, state or local administrative agency pursue any claims on my behalf arising out of or related to my employment with and/or separation from employment with the Company and/or any of the other Releasees. 6. I further waive, release, and discharge Releasees from any reinstatement rights which I have or could have and I acknowledge that I have not suffered any on-thejob injury for which I have not already filed a claim. 7. I acknowledge that I have been given at least 45 days to consider this Waiver and Release Agreement thoroughly and I was encouraged to consult with my personal attorney, if desired, before signing below. 8. I understand that I may revoke this Waiver and Release Agreement within seven days after its signing, and that any revocation must be made in writing and submitted within such seven day period to the Benefits Administrative Committee. I further understand that if I revoke this Waiver and Release Agreement, I shall not receive any supplemental pay continuation or supplemental benefits. 9. J also understand that the severance pay and severance benefits that I will receive in exchange for signing and not later revoking this Waiver and Release Agreement are in addition to anything of value to which I already am entitled. I FURTHER UNDERSTAND THAT THIS WAIVER AND RELEASE AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS TO DATE INCLUDING KNOWN AND UNKNOWN CLAIMS UNDER THE FEDERAL AGE DISCRIMINATION IN EMPLOYMENT ACT, AND I EXPRESSLY WAIVE MY RIGHTS, IF ANY, ARISING UNDER CALIFORNIA

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CODE OF CIVIL PROCEDURE SECTION 1542, UNDERSTANDING AND ACKNOWLEDGING THAT SECTION 1542 OTHERWISE PROVIDES AS FOLLOWS: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” 11. I acknowledge and agree that if any provision of this Waiver and Release Agreement is found, held or deemed by a court of competent jurisdiction to be void, unlawful or unenforceable under any applicable statute or controlling law, the remainder of this Waiver and Release Agreement shall continue in full force and effect. 12. I further acknowledge and agree that I have carefully read and fully understand all of the provisions of this Waiver and Release Agreement and that I voluntarily enter into this Waiver and Release Agreement by signing below. Date ********** ' Date On behalf of the Company PLEASE RETURN TO:

*******************, Inc.

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Appendix B Plaintiff’s Hearing Brief (Redacted)

LABOR COMMISSIONER, THE STATE OF CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS DIVISION OF LABOR STANDARDS ENFORCEMENT CITY OFFICE City, State ) Case No. 17-367578 TB First Name Last Name

)

Plaintiff,

) Assigned to ********* ) Hearing Officer

vs.

) ************* , Inc

) HEARING BRIEF OF PLAINTIFF

Defendant,

) Date: Monday, April 18, 2005

____________________________

) TIME: 1:00 PM ) DEPT: ****** Hearing Officer

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I. INTRODUCTION 1. Plaintiff, a fully trained statistician and researcher, was engaged by Defendant during the period covered by this complaint, first as a Telecommunications Data Analyst, and subsequently as a Senior Telecommunications Analyst for the periods October 16, 2000 to November 13, 2001, and November 15, 20001, to April 15, 2003, respectively. At that latter date, Plaintiff was laid off as a part of Defendant’s Mass Layoff Program. 2. At all times from the point of original engagement to the date of termination, it was Plaintiff’s expectation that his work would consist, in those categories which met the standards making him exempt under the administrative exemption. Plaintiff was (1) to be paid on a salary basis; (2) paid more than the minimum required salary to qualify for this exemption; (3) was engaged and assured that his work would involve office or non-manual work directly related to management policies or general business operation; (4) would customarily and regularly require him to exercise independent discretion and judgment; (5) would be performed only under general supervision with work being done along specialized or technical lines requiring special training, experience, or knowledge; and (6) more than 50% of his time would be spent performing such exempt tasks or tasks closely related to such exempt tasks. Page 51

3. During the periods above described, Plaintiff had four different managers, each of whom assigned tasks meeting these above described conditions to a greater or lesser degree, meeting at all times conditions (1) and (2). Yet at no time in the entire period of his employment while employed in exempt positions with the Telecommunications department, were conditions (3), (4) and (5) engaged in at levels of work even approximating the 50% requirement of condition (6). 4. Defendant argues that the nature of the work assignment engaged in by Plaintiff was unlikely to make overtime time demands upon the Plaintiff such as to render his claims credible and provable. Defendant may well argue that the claims represented in the total summation of these hours is unsupported by Defendant company records, and may thus represent faulty or incorrect computation by Plaintiff. Three elements of time usage can clearly be identified as being outside the capability of the Defendant to record or measure: 5. Personal Professional Development: Since the early 1980’s methods for statistical analysis have undergone as much change and growth as has been evident in other industries. Both trained and employed as a statistician, Plaintiff believed it incumbent upon himself to continuously upgrade his knowledge of this profession. Activities as diverse as the reading of professional journals, attending weekend seminars offered by professional statistical associations, conversing with professional colleagues via personal email all comprised the efforts Page 52

engaged in during the time that Plaintiff viewed himself as an exempt employee, with responsibility to make this growth in knowledge applicable to Defendant needs. The working day seldom provided such opportunities, although the company did endorse engaging in such professional growth activity, as evidenced by the fact that it paid for enrollment in a class in the display of statistical materials for both Plaintiff and

********* .

6. Engaging in Applications Research Directed at Improving Accuracy of Forecasting Methodology Necessary to Company Achievement of Its Objectives: The company relied on many forecasts by which it could govern its operations. Such questions as, how many calls would come to the Technical Support, or Customer Support operations in a given month, day or hour; given an average length of call by a Technical Support Agent, what would be the number of agents required to handle such calls during a given period? There were many departments and individuals charged with providing Management with the answers to just such questions. Yet, because the data did not lend itself to analysis by classical statistical methods (even assuming they were properly employed, which they were not), Plaintiff for the entire period of his employment as an analyst set about to develop a universal, easy to apply tool which would lead to just such accuracy of forecasts. Since there was seldom time to devote to extensive periods of such activity during the regular working day, this work was conducted by the

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Plaintiff at home in the evenings, on weekends, and at times during holiday release from regular work obligations. The partially completed paper, Explorations in the use of Fast Fournier Transforms as a Substitution for Polynomial Regression Forecasting, (Plaintiff’s Exhibit 6.) Since there was no one, with whom Plaintiff was acquainted who could understand or discuss the contents (with the exception of ********* ), it was Plaintiff’s plan to present this methodology as a demonstration to appropriate Management, only when it had been fully proved and tested as to its utility, ease of use, and accuracy. 7. Conducting Overflow work catch-up: For varying reasons ranging from time taken for face to face meetings, to the processing of a high volume of non-exempt routine data extraction, consolidation and presentation activities, Plaintiff frequently worked in excess of eight hour days, or 40 hour weeks. Much of this work was either done in Plaintiff’s home, in the evenings, or on weekends at the Defendant’s work-site, with total overtime added to the others accrued in a worksheet submitted for this hearing. (Plaintiff’s Exhibit 1) 8. Defendant argues that no waiting time penalty is owed, since “Defendant did not Willfully fail to pay Plaintiff overtime wages, but had a good faith defense that no overtime was owed.” Plaintiff will demonstrate that the company, via written transmittal through the Defendant’s established management chain, Defendant was notified in writing that a dispute with respect to overtime wages existed and was properly Page 54

noticed via personal service to the company on July 8, 2002. During the entire time from the filing of that notice to the exit interview held with the then Director of Human Resources, Defendant failed to make any response addressing Plaintiff’s claims that any or all of the overtime wages claimed by Plaintiff did or did not have merit. [Return]

II.ASSESSING THE FACTUAL PRESENTATION 9. In reviewing the evidence presented by both parties, the Commissioner has a formidable task in determining the accuracy of conflicting assertions to a level of certainty that can make an equitable decision possible. Plaintiff respectfully submits several criteria which may serve to make this process have a higher chance for objective evaluation of the issues at hand.

A Assessing the Standards for the Determination of the Performance of Exempt Duties (Elements 1-5) 10. Plaintiff acknowledges that at all times he was classified by Defendant as an exempt employee, he was paid the same amount (a salary) on a periodic basis, determined by the Defendant. 11. Plaintiff acknowledges that at all times he was classified by Defendant as an exempt employee, his wages being more than twice the minimum wage. 12. Plaintiff acknowledges that at all times he was classified by Defendant as an exempt employee, he was engaged in and assured that his work

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would involve office or non-manual work directly related to management policies or general business operation 13. Plaintiff acknowledges that during the period covered by his claim that he, at times engaged in some tasks that fully qualify under the criteria for the Administrative Exemption. Neither Plaintiff nor Defendant can submit each and every work product delivered to a Defendant employee. Even if these documents were to be made available, Defendant lacks the information necessary to accurately determine the duration required to complete each such document, and the proportion of time that such document completion occupied out of the total duration of work claimed by the Plaintiff. 14. In order to be classified as an administratively exempt worker, “Plaintiff would customarily and regularly be required to exercise independent discretion and judgment.” 15. Plaintiff regularly was assigned each task, it’s deadline, and the form in which it was to be presented by persons delegated by his manager. In the event Plaintiff found the assignment to be inappropriate, providing noting of usefulness to the requestor, or not completable by the deadline, his only recourse was to convince the person making the assignment of the need for change. If that individual persisted in her requirements, Plaintiff was required to go forward as originally directed. As evidence that this process was indeed formally mandated, please review “Data Analyst Work Process,” (Plaintiff’s Exhibit 7). Page 56

16. In Defendant’s Brief, ( p. 1, L 15) Defendant specified that “In order to be classified as an administratively exempt worker, [work] would be performed only under general supervision with work being done along specialized or technical lines requiring special training, experience, or knowledge.” 17. If Plaintiff’s claims set forth in 12 above, are found to be accurate, it then follows that Plaintiff could have performed no exempt work following the issuance of that order, until at least such time as that policy may have been rescinded by his new manager, commencing on or About August 1, 2002. It is evident that during that period, rather than working under general supervision, Plaintiff was subject to the direct task-to-task supervision. Beyond this there is the question of the nature and kind of reports delivered to the requesting customer.

B Assessing the Standards for the Determination of work being done along specialized or technical lines requiring special training, experience, or knowledge.” (Element 6) 18. It is evident from A7 above, that, since Plaintiff’s report-producing activity was controlled by other than himself, from March 20, 2002 until on or about August 1, 2002, he had no opportunity to engage in tasks, “…with work being done along specialized or technical lines requiring special training, experience, or knowledge.” Yet, there remain the period from August 1, 2002 until layoff occurred on April 3, 2003, for which a determination must be made as to the character of the work carried out by the Plaintiff. Page 57

19. Absent the availability of an outside objective witness with statistical expertise, and absent a complete universe of work-product produced by Plaintiff during this period, which could be evaluated by such expert witness as to the expertise needed to produce and the time required of one having the requisite skills to do so, we are left with the development of an analytic framework by which the Commissioner can assess this critical element determining exempt or non-exempt status. 20.Conceptual Density: There are three obvious and readily discernable levels of the depth and quality of information derivable from any statistically oriented report. a. Raw Data: This represents simply one or more columns (lists, technically referred to as “Variables”) of numbers or words (Such as the names of employees). In general, the more values comprise a variable, or the greater the number of variables, the less utility this raw data has for the requestor or viewer of the data. Time to assemble such listings of variables is completely indeterminate, since it depends on so many factors that mere inspection of the number of data cells can provide no estimate of the time which was required to prepare it. b. Processed Data: Some, if not all variables are assumed to be associated with one another in some way, or an individual variable may have attributes which provide information about its distribution, magnitude, range, etc. Such data undergoes processing by various statistical methods, which are designed to answer some question(s) posed by the requestor for this processing. Answers to such categories of questions are frequently stated as (1) What will be the value of a given variable at some specified future period (forecast)? (2) How did/will a change in some policy or procedure effect the attributes of one of more of the variables under consideration (correlation)? The presentation of such processing efforts is displayed in the form of tables, charts, graphs or other specialized formats tailored to that specific methodology. With the capabilities and robustness of current statistical programs, the time required to produce these results is measured in seconds to, at the most, a few minutes. More extensive time must be expected to be Page 58

spent by the statistician, in assessing the variable(s) to be extracted, and the methods best employed to answer the requestor’s question. What is most important to consider in assessing the degree to which Plaintiff engaged in these tasks is the number of requests made requesting the answer to some specific question(s). c. Interpreted Data: When the requestor of a statistical report is trained and sophisticated with respect to the results presented, very little interpretation need be provided; yet, of the few requests that were submitted for Processed Data, almost none of the requestors could simply look at the results and proceed from there. Instead, the Plaintiff found it necessary to engage in verbal “handholding,” to guide the requestor to the answer(s) he was seeking. This took perhaps the most time of all to clarify and make useful the report being reviewed. d. Time on Task: There are some metrics which the Commissioner may find useful in assessing the time necessary to prepare such documentation of results. P2 of this Brief contains 485 words. Assume a maximum of 10 pages of pure textual explanation in a complex report, which would then be approximately 5,000 words of content. Using common dictation software, which the Plaintiff has available to him (DragonWare, Naturally Speaking, v8.0), which processes at a maximum of 180 WPM processing capability, straight dictation would then take some 28 minutes. Assume a tripling of that time, allowing for the Plaintiff’s “thinking and planning” of what was going to be said. Of the kinds of processing utilized by the Plaintiff to produce the charts, graphs, and tables described above, and given a maximum of 10 such displays, with 5 minutes of preparation required for each, one gets a total a maximum of 2.5 hours for the preparation of a complex Interpreted Report. (Witness will testify that he prepared the bulk of raw data at Plaintiff’s instructions, so no time is assumed for Plaintiff’s assumption of this element of preparation.)

C.Multiple counsel have found merit in Plaintiff’s Claims 21. That the Plaintiff was aware of its potential for recovery of overtime wages is documented in Plaintiff’s Exhibit 2, dated July 8, 2002, and transmitted via personal service, to ******** Estate and Facilities Services Division,

, Vice President, Real

********* , Inc.

22. In a personal meeting with *********** , during which time Exhibit 2 was received by him, Plaintiff was assured that the addressee would be Page 59

given a copy. Whether this was in fact done, is unknown. Yet, while Plaintiff was promised a response by the department, made frequent inquiries as to when he would receive such a response, none was ever forthcoming by any person. 23. Since conditions of work remained unchanged (although Plaintiff was transferred to a different manager), and Plaintiff continued to accrue overtime hours carrying out non-exempt work, he saw no reason to take any legal action beyond the notification which had been made. 24. On April 3, 2002, Plaintiff was noticed in writing of his termination, as a consequence of the company’s Mass Layoff Plan. Plaintiff was afforded the opportunity for an individual exit interview, at which time he was notified that he was entitled to certain severance payments, contingent upon his signature of an *********** , Inc. Waiver and Release Agreement (Plaintiff’s Exhibit 3). In that interview, Plaintiff asked about the outstanding issues relative to the overtime issue. He was told that this was something to be discussed with his counsel, in assessing the decision as to whether it was to his benefit to sign the Waiver and Release Agreement. 25. In the week following the layoff, Complainant, and co-worker

*********

, retained counsel for the purpose of ascertaining what, if any legal actions might be taken against defendant, and the attendant risks, were we to sign the Waiver and Release Agreement, and then pursue any such legal action. Page 60

26. Counsel expressed the view that (1) the Waiver and Release Agreement was unenforceable and (2) from the information provided there was sufficient basis to institute consideration of a class-action suit for overtime wage recovery. Counsel’s advice and assessment of the situation resulted in both Complainant and

********** signing a

retainer agreement with counsel. 27. From April 2003, to October 2003, counsel engaged in preparation for the filing of a Class Action suit against the defendant. On October 11, 2003, Plaintiff received a document entitled “COMPLAINT FOR DAMAGES, INJUNCTIVE, DECLARATORY RELIEF AND RESTITUTION.” (Plaintiff’s Exhibit 4). However, Counsel reversed its decision, citing difficulties in reaching all plaintiffs, since most, if not all were no longer employed by the Defendant. 28.Since counsel’s practice was limited only to the prosecution of Class Actions, he referred us to new counsel, with a practice limited to individual claims for wage and overtime recovery. Because Plaintiffs had contemplated additional claims against individual employees for certain tort violations, this new counsel advised that he could not take these cases until “Right to Sue” releases were obtained from the state DFEH. DFEH found that the Statute of Limitations had expired. 29. By the time these releases were obtained, it was late Spring, 2004. Plaintiff’s remaining recourse was to turn to the DLSE to obtain relief, which was thereafter timely filed. Yet, what the Labor Commissioner is Page 61

asked to consider is that multiple counsel have each reviewed the information provided, and assessed the complaint contained herein as having merit.

D. Defendant Focus on Issues Irrelevant to the Complaint 30.Plaintiff, in the INTRODUCTION above, has set forth three and only three issues which the Commissioner is to adjudicate. (1) Did the Plaintiff engage in tasks, assigned by the defendant, which meet the test of making the Plaintiff exempt under the definition of an Administrative Exemption? (2) If the Plaintiff was non-exempt under theses definitions, is the overtime presented an accurate representation of overtime hours earned? (3) Is the Plaintiff entitled to a waiting-time penalty, as a result of Defendant’s failure to enter into good-faith negotiations to resolve issues (1) and (2) after receiving written notice that such issues existed. 31. Yet Defendant persists in introducing statements which are demeaning and insulting to the Plaintiff, and which serve no probative value in assisting the Commissioner with his task in assessing these substantive issues. “Plaintiff devoted his time primarily to exempt staff functions although his conduct made him ineffective in performing such duties.” The effectiveness of the Plaintiff in the performance of his duties has no bearing on any of the issues under consideration. Plaintiff makes no claim for wrongful termination, nor any

Page 62

other tort which may have been committed by Defendant, this not being the proper venue for any such claim to be adjudicated (Defendant Hearing Brief, p. 7, L-1-2). “Unfortunately, that was a severe problem for Plaintiff and another analyst, . Plaintiff would frequently ‘talk down’ to people which was reflected on many performance reviews. Plaintiff was also counseled for calling certain employees [unidentified by person] names such as ‘trolls,’ ‘incompetent’ and ‘ignorant.’ (Id, p. 7, L-14-17) 32. Grievance material written jointly by Plaintiff and_____________ are several times referred to as “rambling” and as a “Manifesto” (Presentation of Grievance, Plaintiff’s Exhibit 5). 33. The accuracy of such alleged statements does not even bear a response. All were garnered by Plaintiff’s manager, who was physically sited in ____________

, California. Her assessments, at best, represent

second and third hand reports of eavesdropped telephone conversations. 34. Plaintiff has no problem in admitting to the general sense of the image portrayed of him. Plaintiff was known for his readiness to voice his negative assessments of intellectual deficiencies and performance of people, as well as the counter-productivity of policies and procedures engaged in by the Defendant company, or departments thereof. He became legendary at the

__________, California site where he Page 63

worked, when he publicly labeled an earlier supervisor as a “Thought Nazi” following being threatened with disciplinary action for making critical statements about a company product to co-workers and managers. 35. Yet, none of his commentary impacted upon the assessment of the performance of his assigned duties, or upon his promotional movement through the company, until a single manager (the one to whom the “rambling manifesto” was directed) found this behavior offensive, or even worth mentioning in previous or subsequent performance reviews. 36. Had the Defendant found such behavior rising to the level of disruptiveness to its operations, in violation of it’s policies, or in violation of law, it had many options available to it for ending this pattern. These ranged from written warnings, negative performance evaluations, demotion, suspension, up to and including termination. In fact, what it chose to do, was to reassign the Plaintiff and____________ to another manager, who found such behavior of less importance to him. 37. Given that Defendant has made no linkage between Plaintiff’s verbal conduct, and the assessment of whether he did indeed perform tasks which would serve to classify him as an Exempt Administrative Worker, Plaintiff perceives only three possibilities for the introduction of such material to this hearing:

Page 64

a. As an attempt to influence the perception of the Plaintiff as being undeserving of an award for overtime work. b. little evidence to counter the Plaintiff’s claims, as an attempt to place distracting “Straw Men” material to substitute for the lack of probative material. c. As an attempt to delay and extend the hearing time, such that not all relevant material can be introduced

E. Potential for Personal Animosity of Defendant Witness Towards the Plaintiff, influencing Testimony 38.Three years have elapsed since Plaintiff and Defendant had any interaction. Recall of events has become diminished and distorted with the passage of time. Useful documentation has been lost, or destroyed. Yet, as the evidence will show, Defendant witness

’s recall of

critical events can be further distorted by potential animosity she may well have felt, and continue to feel today. 39. Along with many contentious meetings held with

, during the

period January 2002, until August 2002, Plaintiff specifically alleged her incompetence to Management in separate grievance documents, which could well have engendered in her feelings of dislike and anger toward the Plaintiff: 40.In Plaintiff’s Exhibit 2, directed to the Executive Vice President of the People Support Division,

’s top level report, the following

statement is made: “Under ordinary circumstances we would first bring this matter to the attention of an HR representative, and if dissatisfied with the results, escalate the issue to

,

Manager of HR in Pasadena. However, both of our experiences with

Page 65

her have been exceedingly negative, and we find her to be the center of issuance of the very policies, with which we are in dispute.” ( p. 1, L 1317) Whether any action resulted from this comment, it would naturally engender antagonism had it been distributed. 41. Later, in this same exhibit, the following appears: “Moreover, as an element of a written warning addressed to Sherwin A. Steffin, January 31, 2002, the recipient was alleged to have been taking ‘excessive time for lunch and breaks...’” Offered as the sole proof for that allegation, was the fact that on a given day, Plaintiff had made 22 key card swipes, some number greater than the Manager of Human Resources,

, deemed to be in compliance with allowable time

away from an employee’s work station. Even if the reported number of key swipes is accurate, and even if the inference that the number in excess of some optimum was determined to be linked to the taking of multiple breaks, Plaintiff believes that he was acting within the privileges accorded to him, as an Exempt employee. (Id. P. 3, L34-43). When Manager

was queried in regard to this element of the written

warning, she asserted that the source for this element was advice provided by

.

42. “One would expect that for such questions, Managers will rely on the advice and guidance of Human Resource Specialists. Yet, if our claims here are found valid, that process has been severely compromised to the point of failure.” (Id. p. 6, L9-11) Page 66

43. Taken together, if all were found to be correct upon investigation, could well be less positively perceived by her management, than had no such comments been delivered to them. 44. Yet, there is more appearing in the Plaintiff’s Exhibit 5. “By oral and written direction, that all employees under her supervision shall adhere to a schedule of 1 15 minute break each morning, a one hour lunch, and a fifteen minute break in the afternoon,

has violated both

the spirit and the intent of the Federal Fair Labor Standards Act (FLSA), The California Industrial Standards and Wages Act (IWS), and has further violated the spirit and intent of the law by assigning duties outside of his Job Description to Complainant 2, [

] without

offer of additional compensation. This unlawful treatment of Complainants has placed the company at risk of losing the exempt status of both complainants as well as all others so effected by these verbal and written directives, such that a claim for accrued overtime may be up held.” P. 2, L6-13). 45. Such a claim, if found to be correct, would certainly give rise to the perception that

had been negligent in her duties to the

company, in that she had failed to properly ascertain and insure the correct classification for each employee, and in having failed to do so placed the company at risk for significant liability.

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46. As the Commissioner evaluates the testimony of

, he is asked to

consider the degree to which this witness may be distorting, consciously or unconsciously, the accuracy of the testimony she provides. III. THE STATUTE OF LIMITATIONS AND OTHER TIME RELATED ISSUES

A. Case Law May Mitigate the Three Year Statute of Limitations 47. Defendant claims, and Commissioner has preliminarily ruled that any overtime claimed prior to July 7, 2001 is null and void as a result of the three year Statute of Limitations set forth in the California Code of Civil Procedure. 48.However, in the instance of Cortez v. Purolator Air Filtration Products Co., __ Cal. 4th __, 96 Cal. Rptr. 2d 518 (June 5, 2000), the Court held, in effect, that withholding of overtime provides an employer the opportunity of engaging in Unfair Competition, through its reductions in workforce costs as opposed to its more law-obeying competitors. In this case, the Court held that the four-year statute of limitations in the Unfair Competition Act permits employees to obtain four years of back pay, despite the fact that the Code of Civil Procedure would otherwise limit such relief to three years. [Return to Points and Authorities] 49. While Plaintiff is by no means an expert in labor law, that Defendant was (1) provided written notice which it disregarded for a period of at least eight months; (2) was warned in that notice that if it was indeed in Page 68

violation, such violation might well apply to substantial numbers of employees. Such failure to respond, verbally or in writing, implies other than mere error committed by Defendant, suggesting a deliberate attempt at work-force cost savings, providing Defendant with an advantage over other competitors.

B. Being Disciplined for Failing to Work Scheduled Hours Does Not Make Plaintiff Non-Exempt. (Defendant Brief P1617) 50.If carefully considered, this argument is ludicrous indeed. Nothing in the Defendant’s communications with those reporting to the Plaintiff suggest a scheduling of hours, but rather behavior expected only of Non-Exempt employees, to wit: a specification of times which may be allocated for breaks (which are paid) and for lunch which is unpaid. 51. There is no specification that work is to be performed between a beginning and ending time, days on which work is to be performed, or even, that work is to be performed by the employee only at some specified location, such as the building and room to which the employee was assigned. Such specifications would be legitimate labeling as a “Schedule of Work,” for an exempt employee. A look at the implications of this failure to provide a schedule rapidly makes the inappropriateness of this ambiguity regularly evident. 52. Lacking such specification, the Plaintiff would be fully compliant if he were to call in and say, “I am working at home today.” In fact two members Page 69

of the department (Defendant’s first Manager, and a departmental Project Manager) between them, engaged in such activity at least once a week. 53. Attempts to impose breaks and lunch periods on exempt employees severely constrain their ability to engage in “independent judgment and discretion.” Here are some examples: Because of the echoing acoustics in the office in which the Plaintiff _________had their assigned workspaces, as well as the unfriendly atmosphere which prevailed, Plaintiff and __________ each day held a one hour planning and business procedures meeting at one of the local restaurants. At other times, when shorter meetings were necessary, both availed themselves of one of the many conference rooms available for such meetings. Surely, it would not be argued that because Plaintiff and both consumed food at these meetings, that this constituted a “lunch break.” Since smoking is not allowed within the premises of commercial buildings in California, Plaintiff often arranged for meetings with other individuals who smoked, with the meeting held in company allowed smoking zones, external to the building to which the Plaintiff was assigned, or at other buildings where the others worked. Since Defendant has no way of knowing whether Plaintiff took such opportunities for smoking as a means of conducting a comfortable meeting, or as an individual break, proof of “excessive breaks,” would seem to be difficult, if not impossible, to document. 54. Defendant asserts, “Although Plaintiff’s role in providing data analysis and forecasts was important for management making key decisions, Plaintiff often could not be reached.” (Defendant Brief, p.8, L17-18). All Plaintiff business contacts were held with employees of the company, or outside contractors or vendors, all of whom had access to communication with the Plaintiff, via the company employee phone

Page 70

directory. Several modes of communication were available to any member of the company community: (1)

could physically

reach the Plaintiff’s phone from his desk, so if a call was expected while Plaintiff was to be away, it could either be handled directly by , or he could refer the caller to the Plaintiff’s cell phone number; (2) Plaintiff carried a company issued and listed cell phone, which was turned on at all times, during the working day; (3) Plaintiff had a company email address. Since it had been made known to all individuals that either Plaintiff or

could respond to any

issue affecting our assignments, customers almost invariably addressed email messages to both parties, making knowledge of need to contact and the urgency of response, essentially real-time. Thus, such an assertion seems hardly credible. Even if Defendant’s assertion that plaintiff was unreachable was provably factual, this again would be a disciplinary matter, not at issue, here.

C. Calculating the Ratio of Exempt to Non-Exempt Work Product 55. The primary decision which Commissioner must determine is, did the ratio of exempt work product of the Plaintiff exceed, in hours work was performed, 50% of the total work product generated by the Plaintiff. Before attempting to calculate that ratio however, one must subtract work hours engaged in by both exempt and non-exempt workers, the remaining hours being the total number of hours to be used in determining that ratio. The following activities are business related and credited as hours worked, but cannot be used to calculate this ratio: (1) Meetings held at the discretion of management which are attended by any group of which the Plaintiff is a member; (2) Training assigned or undertaken by the employee to enhance the performance of his/her job; (3) one-time tasks which differ from the usual and customary activities engaged in by any employee, e.g.; a day Page 71

spent in moving from one workspace to another; (4) Applications research, engaged in specifically to improve some aspect of employee or company performance, whether done at the workplace or elsewhere. The criterion would be that if copyrightable or patentable, such rights would be assigned to the company as “work for hire.”

D. Determining the Aggregate Hours Worked by the Plaintiff in the Performance of his Job-Related Duties 56. For each week the Commissioner will calculate the total of the hours used by the Plaintiff in performance of his job-related duties, subtracting that 40 from that sum to determine Total Overtime Hours performed in that week. Ideally, that number would be derived from the sum of Exempt Hours + Non Exempt Hours + Meeting Hours + Training Hours + One time Tasks + Applications Research, for each week Plaintiff is not recorded as being on vacation, or sick, or other leave categories established by the company. IV. ESTABLISHING THE PREPONDERANCE OF THE EVIDENCE 57. In a perfect informational world, Plaintiff has provided guidelines by which both total hours and the Exempt to Non Exempt Ratio and the Plaintiff’s aggregate working hours could be calculated. Clearly, critical records are unavailable to either side. There is no way to accurately assess how many requests coming to the Plaintiff were exempt or nonexempt tasks. Defendant can produce no witnesses to the level of activity which came to the Plaintiff nor even the proportion of Exempt tasks which may have been distributed to

. Nor can Defendant

establish the number of hours per week that Plaintiff expended in activities applicable to the production of work product vs. the number Page 72

of hours in tasks associated with activity engaged in, by both exempt and non-exempt personnel. Admittedly the same may be said to be equally true for the case presented by the Plaintiff. Thus, it appears to Plaintiff the decision must rest with the credibility and coherence of the evidence presented by both parties. The following are the factors the Commissioner may choose to use to establish which side has produced a more compelling view of an accurate presentation of the evidence at hand.

A Determination of the Classification of Exempt vs. NonExempt Work Product 58. Defendant brings to the Hearing a Director of Human Resources and an attorney, skilled in citing applicable law to information provided to him. Yet neither can possibly be expected to accurately assess whether a given project required “independent Judgment or Discretion,” and also “required specialized or technical lines requiring special training, experience, or knowledge.” The closest they could have come to making these determinations was by querying the managers who supervised the Plaintiff, but these potential witnesses are long removed from employment with the Defendant. Yet, Defendant had ample time to gather such resources, question them, and if necessary secure declarations or depositions from them; after all, they had ample warning that some action might take place, after being presented with Defendant Exhibits 2 and 3. Even if they chose to make no formal

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response, they could easily have readied themselves for potential litigation in one form or another. Yet, they chose not to do so.

B Lacking Substantive Data, Defendant Turns to Ad Homonym Attacks on the Plaintiff 59. Besides being irrelevant to any decision rendered, the kinds of scurrilous and defamatory statements were unsubstantiated, were derived from the writings of a single manager, holding an adversarial position to that of the Plaintiff, were derived from second and third hand sources whose identity, to this day, are unknown by the Plaintiff. 60.One assumes that if the Defendant were truly interested in bringing all relevant evidence to the Trier of Fact, it is questionable as to the reason Defendant chooses to employs techniques such as these. V. CONCLUSION 61. For the reasons set forth above, and as to be further established at the hearing, Plaintiff respectfully requests that Plaintiff’s Claim be granted in full.

Dated May 26, 2005 , Plaintiff By:________________

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Appendix C – Witness Interrupted Lunch Declaration

DECLARATION My name is ____________. I reside at ____________, City_____, California , The following information is submitted on behalf of ___________, in the matter of ________vs._________. 1. I was employed by ___________, in the position of _____________, during the period ____________ to _____________. 2. During that period, _____________, and I occasionally/frequently had lunch together. 3. During those lunch periods, I observed ___________ being interrupted by receiving and thereafter responding to either cell phone calls or text messages. These interruptions occurred at least 50% of those lunch periods at periods at which I was present. I declare, under penalty of perjury, the preceding to be true to the best of my information and belief, and can so testify, if called upon to do so. ____________ (Signature) Name_______________(Printed) Dated_____________

[RETURN]

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Appendix D – Points and Authorities This Appendix is designed to give you a very complete view of the laws, regulations and opinions that impact, not only the collection of wages due. Beyond payment of wages due, as you have noted above, there are many other situations which affect you, not only while you are at work, but which at times, can intrude and interfere with your personal life, while away from your employment. We begin with the State of California agencies, which are there to protect and assist you from your predatory employer. As you will note in the figure below, the State of California has created a number of administrative agencies, each designed to assist you in processing your complaints against your employer. ► Department of Labor Standards Enforcement (DLSE): For many, if not most, of the claims you will have against your employer, this is the California agency which you will use to present a claim for unpaid wages, and as well as claims for retaliation and/or discrimination. ► Department of Fair Employment and Housing (DFEH): While the DLSE is a primary source for processing discrimination claims, when there is a likelihood that an attorney is going to be required to properly pursue your complaint, or when there are multiple elements (e.g., wages and discrimination) then this is the agency best suited to either resolve the issues, or authorize you the “Right to Sue,” necessary before you can pursue your case ► Division of Occupational Safety and Health (DOSH): The Cal/OSHA enforcement unit has jurisdiction over every employment and place of employment in California which is necessary to adequately enforce and administer all occupational safety and health standards and regulations. This Division insures that worker’s rights to a safe workplace environment are fully protected. ► Employment Development Department (EDD): This department is best known by California employees. It accepts claims for, and makes payments to those who qualify for Unemployment Insurance. When non job-related illness or injury makes work impossible, it provides payment for up to a full year to those suffering disabilities, through a Disability Insurance Program. Job placement assistance is provided to those who are handicapped, but are capable of working. Special needs groups such as high-school dropouts, older workers, and military veterans all have the opportunity to get career assistance from this agency.

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************************************** Below is an overview of how various laws and agencies interact to implement the protections described above. FEDERAL LAW

All claims against employers are started through one of the agencies shown here.

CALIFORNIA LABOR CODE

CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS

Employee begins here

IWC Enforcement Handbook

EDD

DFEH

CAL OSHA

DLSE

Either Side Dissatisfied with Decision

CALIFORNIA COURTS

Attorney Represents Employee

District Courts

Appeal Courts

Supreme Court

Federal Laws and Regulations Related to Wages Due •

The Fair Labor Standards Act (1938) Passed at a time in American history when the country was in the midst of the great depression, anyone lucky enough to find employment could be victimized in ways that we today, would find unthinkable. As President Franklin Roosevelt fought to bring some kind of order out of the then existing fought to bring economic recovery to the nation, this Act was passed by Congress to end the many horrific actions engaged in by the employers of that period.

•

The Code of Federal Regulations (CFRs Tiltle 29-Labor) Reading an act passed by Congress is requires the training of a legal scholar to translate the contents into information that can be understood. For those who seek to derive useful knowledge, every law which is passed is translated into a form which can be used as the basis for any reference made to a

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federal law. For Your convenience we have pulled the sections relevant to matters related to wages earned and due. ► CFR 29 -- PART 531--WAGE PAYMENTS ► CFR 29 PART 541--DEFINING AND DELIMITING THE EXEMPTIONS FOR EXECUTIVE, ADMINISTRATIVE, PROFESSIONAL, COMPUTER AND OUTSIDE SALES EMPLOYEES ► CFR 29 -- PART 548 -- AUTHORIZATION OF ESTABLISHED BASIC RATES FOR COMPUTING OVERTIME PAY ► CFR 29 -- PART 578--MINIMUM WAGE AND OVERTIME VIOLATIONS-CIVIL MONEY PENALTIES California Enforcement of Labor Law ► California Labor Code: While all of the federal material lays the foundation for state laws, it is the California Labor Code upon which all DLSE decisions are based. Below is shown a table listing all of the laws (beyond that of overtime) upon which you can take action, if they have been violated by your employer. Some of these require action in Superior Court, rather than with the DLSE. ► The DLSE Enforcement Manual: Rather than referring to this code, often difficult to translate into specific action, these laws have been translated into The DLSE enforcement Manual. After loading this 308 page document, your first response is likely to be, “Why in the world would I want to plow through all of this!” Here’s why. The Table of Contents begins on Page 8 and continues on for another 12 pages. Every item is a potential violation which, if committed by your employer, you can collect on using the DLSE. For each in which you find the employer to have violated, make it a Cause of Action in your Hearing Brief, and then go for a demand for the allowed recovery. In fact, if you find a substantial number of violations, send your completed Hearing Brief to the employer, before filing with the DLSE. You may be pleasantly surprised to find that they make a settlement offer, rather than go through, what, for them, will be an expensive defense to your claims. ► Opinion Letters: Frequently, Plaintiff attorneys find that they are confronted with some novel, unexpected situation, which is not immediately clarified in any of the above documentation. Prior to making a claim, either they, or hearing officers will ask of an opinion on the issue from the Labor Commission. Whenever such opinions are requested, the results of the Opinions, are codified in the Labor Commission Opinion Letters. ► Wage Orders: While almost all readers of this book will be engaged in work which is classified as among the Professional, Technical, Clerical, Mechanical and Similar Occupations, (Wage Order #4) there are many who work in occupations not so designated. The 16 occupational wage orders have been prepared to deal with the specialized needs of these occupational variants. Open the list to see whether any of them applies to your case.

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► Employment Law Blogs: Employment Law is a hot topic for many for the many attorneys specializing in this practice area. Here are a few of them upon which I have relied in the writing of this book, and which you may find to be of interest: ♦

California Labor & Employment Law Blog

♦

California Labor and Employment Defense Blog

♦

Jottings By An Employer's Lawyer

♦

Labor Employment Law Blog

♦

Storm's California Employment Law

♦

Wage Law

♦

What's New in Employment Law?

► Articles of Interest: Click to look at three issues that are of importance – New ruling on reimbursement for employee use of personal vehicle, Restrictions on negative references from past employers, and Statute of Limitations on various categories of claims made by employees. The California Labor Code Personal Behavior, Reinstatement, and Discrimination 96 (k) 98.6 (a)

Retaliation for employee complaint

98.6 (b)

Reinstatement

98.6 (c)(1)

Discrimination against complainant Wage Related Sections

201. (a)

Wages due immediately on discharge

202. (a)

Wages due in 72 hours for quit with no notice; immediately on last day of work, if notice given

203 203.1 204 (a)

Time limits and calendaring of wage payments

204 (b)(1)

Overtime wages must be paid by following payday

206,

Wage disputes

206.5

Release of Wage Claims Prohibited

208

Pay to be made at location of termination, or where

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work has been performed 209 212 221 222.5 226(a) 227 227.3

Unpaid wages earned during or before strike action No substitution for Pay Kickbacks to employer, Unlawful No fee to employee for required medical examinations Pay Stub Requirements Health or Benefit Fraud by Employer a Felony Unused vacation due as wages at termination Provisions for Leave

230(a) 230(b) 230(c) 230(d) 230(e) 230.1(a) 230.2(a) 230.7 230.8(a)(1) 233(a) 234

Protection for jury duty Protection offered to crime victims Protection offered to victims of domestic violence Emergency time-off Reinstatement and wages for emergency time-off Additional Rights of employee following emergency conditions Definitions applicable to Section 230 Time-off for appearance at child’s school Time-off for children’s school activities Illness of child, parent, spouse, or domestic partner Retaliation for time taken to attend those defined in 233(a Employee Protections

232(c) 232.5 351 432.2 432.5 432.7 435 450 510(a) 512(a) 970 973 976 1021

Wage Disclosure Disclose working conditions Payment of gratuities No Polygraph as a condition of employment, including exceptions Agreement for unlawful conduct, prohibited Disclosure of arrest without conviction, prohibited Employer recording of employee in restrooms or locker rooms, prohibited Required purchase of employer products or services, prohibited Definition of overtime Meal period required Fraudulent incentive to relocate Employment during a strike Use of Misleading offers of compensation or earnings Penalty for hiring without Contractor’s License Page 80

1101 1102, 1102.5 1174 (c)/(d) 1194 1198.5 2802 2806 2929(b) 3095 6310 6311 SECTION SUMMARY

Employee free to engage in political activity Employee protected from retaliation for political activity Protection for Whistleblowers Employment Records Minimum Wage Records available to employee Expense Reimbursement Medical insurance cancellation No discharge from garnishment Discrimination illegal Occupational safety complaint protection No discharge for refusal to do unsafe work SECTION EXPANDED

96 (k) Lost Wages for Claims for loss of wages as the result of demotion, lawful conduct outside suspension discharge from employment for lawful employment conduct occurring during nonworking hours away from the employer's premises. 98.6 (a) Retaliation for complaint

Prevents employer from taking action following complaint or testimony by employee.

98.6 (b) Reinstatement following retaliation

Reinstatement following retaliation for complaint to Department of Labor

98.6 (c) (1) Discrimination resulting from complaint

Prevents discrimination (hiring, training, promotion) against employee making complaint or giving testimony against employer.

201. (a) Wages due immediately on discharge

If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.

202. (a) Wages due in 72 hours for quit with no notice; immediately on last day of work, if notice given

If an employee quits his or her employment, his or her wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting.

203 Penalty to employer failing to pay earned wages

If an employer willfully fails to pay any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefore is commenced; but the wages shall not Page 81

continue for more than 30 days. Suit may be filed for these penalties at any time before the expiration of the statute of limitations on an action for the wages from which the penalties arise. 203.1 Penalty to employer for bounced checks

If an employer pays an employee in the regular course of employment or in accordance with Section 201, 201.5, 201.7, or 202 any wages or fringe benefits, or both, by check, draft or voucher, which check, draft or voucher is subsequently refused payment because the employer or maker has no account with the bank, institution, or person on which the instrument is drawn, or has insufficient funds in the account upon which the instrument is drawn at the time of its presentation, so long as the same is presented within 30 days of receipt by the employee of the check, draft or voucher, those wages or fringe benefits, or both, shall continue as a penalty from the due date thereof at the same rate until paid or until an action is commenced.

204 (a) Time limits and calendaring of wage payments

All wages, other than those mentioned in Section 201, 202, 204.1, or 204.2, earned by any person in any employment are due and payable twice during each calendar month, on days designated in advance by the employer as the regular paydays. Labor performed between the 1st and 15th days, inclusive, of any calendar month shall be paid for between the 16th and the 26th day of the month during which the labor was performed, and labor performed between the 16th and the last day, inclusive, of any calendar month, shall be paid for between the 1st and 10th day of the following month. However, salaries of executive, administrative, and professional employees of employers covered by the Fair Labor Standards Act, as set forth pursuant to Section 13(a)(1) of the Fair Labor Standards Act, as amended through March 1, 1969, in Part 541 of Title 29 of the Code of Federal Regulations, as that part now reads or may be amended to read at any time hereafter, may be paid once a month on or before the 26th day of the month during which the labor was performed if the entire month's salaries, including the unearned portion between the date of payment and the last day of the month, are paid at that time

204 (b) (1) Overtime

Notwithstanding any other provision of this section, all Page 82

wages must be paid by following payday

wages earned for labor in excess of the normal work period shall be paid no later than the payday for the next regular payroll period.

206 Wage disputes

(a) In case of a dispute over wages, the employer shall pay, without condition and within the time set by this article, all wages, or parts thereof, conceded by him to be due, leaving to the employee all remedies he might otherwise be entitled to as to any balance claimed. (b) If, after an investigation and hearing, the Labor Commissioner has determined the validity of any employee's claim for wages, the claim is due and payable within 10 days after receipt of notice by the employer that such wages are due. Any employer having the ability to pay who willfully fails to pay such wages within 10 days shall, in addition to any other applicable penalty, pay treble the amount of any damages accruing to the employee as a direct and foreseeable consequence of such failure to pay

206.5. Release of Wage Claims Prohibited

No employer shall require the execution of any release of any claim or right on account of wages due, or to become due, or made as an advance on wages to be earned, unless payment of such wages has been made. Any release required or executed in violation of the provisions of this section shall be null and void as between the employer and the employee and the violation of the provisions of this section shall be a misdemeanor.

208 Pay to be made at location of termination, or where work has been performed

Every employee who is discharged shall be paid at the place of discharge, and every employee who quits shall be paid at the office or agency of the employer in the county where the employee has been performing labor. All payments shall be made in the manner provided by law.

209 Unpaid wages earned during or before strike action

In the event of any strike, the unpaid wages earned by striking employees shall become due and payable on the next regular pay day, and the payment or settlement thereof shall include all amounts due the striking employees without abatement or reduction. The employer shall return to each striking employee any deposit, money, or other guaranty required by him from the employee for the faithful performance of the duties of the employment.

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212 No substitution for Pay

(a) No person, or agent or officer thereof, shall issue in payment of wages due, or to become due, or as an advance on wages to be earned: (1) Any order, check, draft, note, memorandum, or other acknowledgment of indebtedness, unless it is negotiable and payable in cash, on demand, without discount, at some established place of business in the state, the name and address of which must appear on the instrument, and at the time of its issuance and for a reasonable time thereafter, which must be at least 30 days, the maker or drawer has sufficient funds in, or credit, arrangement, or understanding with the drawee for its payment. (2) Any scrip, coupon, cards, or other thing redeemable, in merchandise or purporting to be payable or redeemable otherwise than in money.

221 Kickbacks to employer, Unlawful

It shall be unlawful for any employer to collect or receive from an employee any part of wages theretofore paid by said employer to said employee.

222.5 No fee to employee for required medical examinations

222.5. No person shall withhold or deduct from the compensation of any employee, or require any prospective employee or applicant for employment to pay, any fee for, or cost of, any pre-employment medical or physical examination taken as a condition of employment, nor shall any person withhold or deduct from the compensation of any employee, or require any employee to pay any fee for, or costs of, medical or physical examinations required by any law or regulation of federal, state or local governments or agencies thereof.

226a Pay Stub Requirements

226. (a) Every employer shall, semimonthly or at the time of each payment of wages, furnish each of his or her employees, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately when wages are paid by personal check or cash, an accurate itemized statement in writing showing (1) gross wages earned, (2) total hours worked by the employee, except for any employee whose compensation is solely based on a salary and who is exempt from payment of overtime under subdivision (a) of Section 515 or any applicable order of the Industrial Welfare Commission,

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(3) the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piecerate basis, (4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and his or her social security number, except that by January 1, 2008, only the last four digits of his or her social security number or an employee identification number other than a social security number may be shown on the itemized statement, (8) the name and address of the legal entity that is the employer, and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. The deductions made from payments of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year, and a copy of the statement or a record of the deductions shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. 227 Health or Benefit Fraud by Employer a Felony

Whenever an employer has agreed with any employee to make payments to a health or welfare fund, pension fund or vacation plan, or other such plan for the benefit of the employees, or a negotiated industrial promotion fund, or has entered into a collective bargaining agreement providing for such payments, it shall be unlawful for such an employer willfully or with intent to defraud to fail to make the payments required by the terms of any such agreement. A violation of any provision of this section where the amount the employer failed to pay into the fund or funds exceeds five hundred dollars ($500) shall be punishable by imprisonment in the state prison for a period of not more than five years or in the county jail for a period of not more than one year, by a fine of not more than one thousand Page 85

dollars ($1,000), or by both such imprisonment and fine. All other violations shall be punishable as a misdemeanor. 227.3 Unused vacation due as wages at termination

Unless otherwise provided by a collective-bargaining agreement, whenever a contract of employment or employer policy provides for paid vacations, and an employee is terminated without having taken off his vested vacation time, all vested vacation shall be paid to him as wages at his final rate in accordance with such contract of employment or employer policy respecting eligibility or time served; provided, however, that an employment contract or employer policy shall not provide for forfeiture of vested vacation time upon termination. The Labor Commissioner or a designated representative, in the resolution of any dispute with regard to vested vacation time, shall apply the principles of equity and fairness.

230(a) Protection for Jury duty

An employer may not discharge or in any manner discriminate against an employee for taking time off to serve as required by law on an inquest jury or trial jury, if the employee, prior to taking the time off, gives reasonable notice to the employer that he or she is required to serve.

230(b) Protection offered to crime victims

An employer may not discharge or in any manner discriminate or retaliate against an employee, including, but not limited to, an employee who is a victim of a crime, for taking time off to appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding.

230(c) Protection offered to victims of domestic violence

An employer may not discharge or in any manner discriminate or retaliate against an employee who is a victim of domestic violence or a victim of sexual assault for taking time off from work to obtain or attempt to obtain any relief, including, but not limited to, a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the victim or his or her child.

230(d) Emergency time-off

(1) As a condition of taking time off for a purpose set forth in subdivision (c), the employee shall give the employer reasonable advance notice of the employee's intention to take time off, unless the advance notice is

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not feasible. (2) When an unscheduled absence occurs, the employer shall not take any action against the employee if the employee, within a reasonable time after the absence, provides a certification to the employer. . 230(e) Reinstatement and wages for emergency time-off

(e) Any employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated or retaliated against in the terms and conditions of employment by his or her employer because the employee has taken time off for a purpose set forth in subdivision (a), (b), or (c) shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer. Any employer who willfully refuses to rehire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure or hearing authorized by law is guilty of a misdemeanor. .

230.1(a) Additional Rights of employee following emergency conditions

230.1. (a) In addition to the requirements and prohibitions imposed on employees pursuant to Section 230, an employer with 25 or more employees may not discharge or in any manner discriminate or retaliate against an employee who is a victim of domestic violence or a victim of sexual assault for taking time off from work to attend to any of the following: (1) To seek medical attention for injuries caused by domestic violence or sexual assault. (2) To obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence or sexual assault. (3) To obtain psychological counseling related to an experience of domestic violence or sexual assault. (4) To participate in safety planning and take other actions to increase safety from future domestic violence or sexual assault, including temporary or permanent relocation.

230.2(a) Definitions applicable to Section 230

As used in this section: (1) "Immediate family member" means spouse, child, stepchild, brother, stepbrother, sister, stepsister,

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mother, stepmother, father, or stepfather. (2) "Registered domestic partner" means a domestic partner, as defined in Section 297 of the Family Code, and registered pursuant to Part 2 (commencing with Section 298) of Division 2.5 of the Family Code. (3) "Victim" means a person against whom one of the following crimes has been committed: (A) A violent felony, as defined in subdivision (c) of Section 667.5 of the Penal Code. (B) A serious felony, as defined in subdivision (c) of Section 1192.7 of the Penal Code.(a) 230.7 Time-off for appearance at child’s school

a) No employer shall discharge or in any manner discriminate against an employee who is the parent or guardian of a pupil for taking time off to appear in the school of a pupil pursuant to a request made under Section 48900.1 of the Education Code, if the employee, prior to taking the time off, gives reasonable notice to the employer that he or she is requested to appear in the school. (b) Any employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because the employee has taken time off to appear in the school of a pupil pursuant to a request made under Section 48900.1 of the Education Code shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by those acts of the employer.

230.8(a)(1) Time-off for children’s school activities

No employer who employs 25 or more employees working at the same location shall discharge or in any way discriminate against an employee who is a parent, guardian, or grandparent having custody, of one or more children in kindergarten or grades 1 to 12, inclusive, or attending a licensed child day care facility, for taking off up to 40 hours each year, not exceeding eight hours in any calendar month of the year, to participate in activities of the school or licensed child day care facility of any of his or her children, if the employee, prior to taking the time off, gives reasonable notice to the employer of the planned absence of the employee.

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232 Wage Disclosure

No employer may do any of the following: (a) Require, as a condition of employment, that an employee refrain from disclosing the amount of his or her wages. (b) Require an employee to sign a waiver or other document that purports to deny the employee the right to disclose the amount of his or her wages. (c) Discharge, formally discipline, or otherwise discriminate against an employee who discloses the amount of his or her wages.

232.5 Disclose working conditions

No employer may do any of the following: (a) Require, as a condition of employment, that an employee refrain from disclosing information about the employer's working conditions. (b) Require an employee to sign a waiver or other document that purports to deny the employee the right to disclose information about the employer's working conditions. (c) Discharge, formally discipline, or otherwise discriminate against an employee who discloses information about the employer's working conditions.

233(a) Illness of child, parent, spouse, or domestic partner

Any employer who provides sick leave for employees shall permit an employee to use in any calendar year the employee's accrued and available sick leave entitlement, in an amount not less than the sick leave that would be accrued during six months at the employee's then current rate of entitlement, to attend to an illness of a child, parent, spouse, or domestic partner of the employee. All conditions and restrictions placed by the employer upon the use by an employee of sick leave also shall apply to the use by an employee of sick leave to attend to an illness of his or her child, parent, spouse, or domestic partner.

234 Retaliation for time taken to attend to those defined in 233(a)

234. An employer absence control policy that counts sick leave taken pursuant to Section 233 as an absence that may lead to or result in discipline, discharge, demotion, or suspension is a per se violation of Section 233. An employee working under this policy is entitled to appropriate legal and equitable relief pursuant to Section 233.

351 Payment of

No employer or agent shall collect, take, or receive any

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gratuities

gratuity or a part thereof that is paid, given to, or left for an employee by a patron, or deduct any amount from wages due an employee on account of a gratuity, or require an employee to credit the amount, or any part thereof, of a gratuity against and as a part of the wages due the employee from the employer. Every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for. An employer that permits patrons to pay gratuities by credit card shall pay the employees the full amount of the gratuity that the patron indicated on the credit card slip, without any deductions for any credit card payment processing fees or costs that may be charged to the employer by the credit card company. Payment of gratuities made by patrons using credit cards shall be made to the employees not later than the next regular payday following the date the patron authorized the credit card payment.

432.2. No Polygraph as a condition of employment, including exceptions

(a) No employer shall demand or require any applicant for employment or prospective employment or any employee to submit to or take a polygraph, lie detector or similar test or examination as a condition of employment or continued employment. The prohibition of this section does not apply to the federal government or any agency thereof or the state government or any agency or local subdivision thereof, including, but not limited to, counties, cities and counties, cities, districts, authorities, and agencies. (b) No employer shall request any person to take such a test, or administer such a test, without first advising the person in writing at the time the test is to be administered of the rights guaranteed by this section.

432.5 Agreement for unlawful conduct, prohibited

No employer, or agent, manager, superintendent, or officer thereof, shall require any employee or applicant for employment to agree, in writing, to any term or condition which is known by such employer, or agent, manager, superintendent, or officer thereof to be prohibited by law..

432.7 Disclosure of arrest without conviction, prohibited

(a) No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information

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concerning a referral to, and participation in, any pretrial or post-trial diversion program, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record of arrest or detention that did not result in conviction, or any record regarding a referral to, and participation in, any pretrial or post-trial diversion program. As used in this section, a conviction shall include a plea, verdict, or finding of guilt regardless of whether sentence is imposed by the court. Nothing in this section shall prevent an employer from asking an employee or applicant for employment about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial. 435 Employer recording of employee in restrooms or locker rooms, prohibited

. (a) No employer may cause an audio or video recording to be made of an employee in a restroom, locker room, or room designated by an employer for changing clothes, unless authorized by court order.

450

No employer, or agent or officer thereof, or other person, may compel or coerce any employee, or applicant for employment, to patronize his or her employer, or any other person, in the purchase of any thing of value.

Required purchase of employer products or services 510(a) Definition of Overtime

Eight hours of labor constitutes a day's work. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee. Any work in excess of 12 hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee. In addition, any work in excess of eight hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee. Nothing in this section requires an employer to combine more than one rate of overtime compensation in order Page 91

to calculate the amount to be paid to an employee for any hour of overtime work. 512(a) Meal period required

512. (a) An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.

970. .Fraudulent incentive to relocate

No person, or agent or officer thereof, directly or indirectly, shall influence, persuade, or engage any person to change from one place to another in this State or from any place outside to any place within the State, or from any place within the State to any place outside, for the purpose of working in any branch of labor, through or by means of knowingly false representations, whether spoken, written, or advertised in printed form, concerning either: (a) The kind, character, or existence of such work; (b) The length of time such work will last, or the compensation therefor; (c) The sanitary or housing conditions relating to or surrounding the work; (d) The existence or nonexistence of any strike, lockout, or other labor dispute affecting it and pending between the proposed employer and the persons then or last engaged in the performance of the labor for which the employee is sought.

973 Employment during a strike

If any person advertises for, or seeks employees by means of newspapers, posters, letters, or otherwise, or solicits or communicates by letter or otherwise with persons to work for him or the person for whom he is acting, or to work at any shop, plant, or establishment while a strike, lockout, or other trade dispute is still in active progress at such shop, plant, or establishment, he shall plainly and explicitly mention in such Page 92

advertisement or oral or written solicitations or communications that a strike, lockout, or other labor disturbance exists. The person inserting any such advertisement, solicitation, or communication in a newspaper, on a poster, or otherwise, shall insert in such advertisement, solicitation or communication his own name and, if he is representing another, the name of the person he is representing and at whose direction and under whose authority he is inserting the advertisement, solicitation or communication. The appearance of this name in connection with such advertisement, solicitation or communication is prima facie evidence as to the person responsible for the advertisement, solicitation or communication. 976 Use of Misleading offers of compensation or earnings

No person shall publish or cause to be published any advertisement, solicitation or communication in any newspaper, poster or letter, offering employment as a salesman, broker or agent, whether as an employee or independent contractor, which advertisement, solicitation or communication (a) is willfully designed to mislead any person as to compensation or commissions which may be earned; or (b) falsely represents the compensation or commissions which may be earned.

1021 Penalty for hiring without Contractor’s License

Any person who does not hold a valid state contractor's license issued pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, and who employs any worker to perform services for which a license is required, shall be subject to a civil penalty in the amount of two hundred dollars ($200) per employee for each day of employment. The civil penalties provided for by this section are in addition to any other penalty provided by law.

1101 Employee free to engage in political activity

No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.

1102 Employee

No employer shall coerce or influence or attempt to Page 93

protected from retaliation for political activity

coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.

1102.5 Protection for Whistleblowers

(a) An employer may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. (b) An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. (c) An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. (d) An employer may not retaliate against an employee for having exercised his or her rights under subdivision (a), (b), or (c) in any former employment. (e) A report made by an employee of a government agency to his or her employer is a disclosure of information to a government or law enforcement agency pursuant to subdivisions (a) and (b). (f) In addition to other penalties, an employer that is a corporation or limited liability company is liable for a civil penalty not exceeding ten thousand dollars ($10,000) for each violation of this section..

1174(c)/(d) Employment Records

1174. Every person employing labor in this state shall: (c) Keep a record showing the names and addresses of all employees employed and the ages of all minors. (d) Keep, at a central location in the state or at the plants or establishments at which employees are employed, payroll records showing the hours worked daily by and the wages paid to, and the number of piecerate units earned by and any applicable piece rate paid to, employees employed at the respective plants or Page 94

establishments. These records shall be kept in accordance with rules established for this purpose by the commission, but in any case shall be kept on file for not less than two years. 1194 Minimum Wage

. (a) Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees, and costs of suit. (b) The amendments made to this section by Chapter 825 of the Statutes of 1991 shall apply only to civil actions commenced on or after January 1, 1992.

1198.5 Records available to employee

. (a) Every employee has the right to inspect the personnel records that the employer maintains relating to the employee's performance or to any grievance concerning the employee. (b) The employer shall make the contents of those personnel records available to the employee at reasonable intervals and at reasonable times. Except as provided in paragraph (3) of subdivision (c), the employer shall not be required to make those personnel records available at a time when the employee is actually required to render service to the employer. (c) The employer shall do one of the following: (1) Keep a copy of each employee's personnel records at the place where the employee reports to work. (2) Make the employee's personnel records available at the place where the employee reports to work within a reasonable period of time following an employee's request. (3) Permit the employee to inspect the personnel records at the location where the employer stores the personnel records, with no loss of compensation to the employee. (d) The requirements of this section shall not apply to: (1) Records relating to the investigation of a possible criminal offense.

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(2) Letters of reference. (3) Ratings, reports, or records that were: (A) Obtained prior to the employee's employment. (B) Prepared by identifiable examination committee members. (C) Obtained in connection with a promotional examination . 2802 Expense Reimbursement

(a) An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful. (b) All awards made by a court or by the Division of Labor Standards Enforcement for reimbursement of necessary expenditures under this section shall carry interest at the same rate as judgments in civil actions. Interest shall accrue from the date on which the employee incurred the necessary expenditure or loss. (c) For purposes of this section, the term "necessary expenditures or losses" shall include all reasonable costs, including, but not limited to, attorney's fees incurred by the employee enforcing the rights granted by this section

2806 Medical insurance cancellation

(a) No employer, whether private or public, shall discontinue coverage for medical, surgical, or hospital benefits for employees unless the employer has notified and advised all covered employees in writing of any discontinuation of coverage, inclusive of nonrenewal and cancellation, but not inclusive of employment termination or cases in which substitute coverage has been provided, at least 15 days in advance of such discontinuation. (b) If coverage is provided by a third party, failure of the employer to give the necessary notice shall not require the third party to continue the coverage beyond the date it would otherwise terminate. (c) This section shall not apply to any employee welfare benefit plan that is subject to the Employee Retirement Income Security Act of 1974. Page 96

2929(b) No discharge from garnishment

(b) No employer may discharge any employee by reason of the fact that the garnishment of his wages has been threatened. No employer may discharge any employee by reason of the fact that his wages have been subjected to garnishment for the payment of one judgment A provision of a contract of employment that provides an employee with less protection than is provided by this subdivision is against public policy and void.

3095 Discrimination illegal

Every person who willfully discriminates in any recruitment or apprenticeship program on any basis listed in subdivision (a) of Section 12940 of the Government Code, as those bases are defined in Sections 12926 and 12926.1 of the Government Code, except as otherwise provided in Section 12940 of the Government Code, is guilty of a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000) or by imprisonment for not more than six months, or both.

6310 Occupational safety complaint protection

(a) No person shall discharge or in any manner discriminate against any employee because the employee has done any of the following: (1) Made any oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, his or her employer, or his or her representative. (2) Instituted or caused to be instituted any proceeding under or relating to his or her rights or has testified or is about to testify in the proceeding or because of the exercise by the employee on behalf of himself, herself, or others of any rights afforded him or her. (3) Participated in an occupational health and safety committee established pursuant to Section 6401.7. (b) Any employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because the employee has made a bona fide oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, his or her employer, or his or her representative, of unsafe Page 97

working conditions, or work practices, in his or her employment or place of employment, or has participated in an employer-employee occupational health and safety committee, shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer. Any employer who willfully refuses to rehire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure, arbitration, or hearing authorized by law, is guilty of a misdemeanor.

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6311 No discharge for No employee shall be laid off or discharged for refusing refusal to do unsafe to perform work in the performance of which this code, work including Section 6400, any occupational safety or health standard or any safety order of the division or standards board will be violated, where the violation would create a real and apparent hazard to the employee or his or her fellow employees. Any employee who is laid off or discharged in violation of this section or is otherwise not paid because he or she refused to perform work in the performance of which this code, any occupational safety or health standard or any safety order of the division or standards board will be violated and where the violation would create a real and apparent hazard to the employee or his or her fellow employees shall have a right of action for wages for the time the employee is without work as a result of the layoff or discharge. These labor laws become the basis for the procedures used by the DLSE. Articles of Interest Source: California Labor & Employment Blog – Wage Issues Required Reimbursement for Employee Mileage Will Increase on July 1,2008 July 1 will be a day of change for California employers with employees who drive as part of their duties. Not only will such employees be required to utilize hands free devices when operating cell phones while driving (see our June 20 post on this subject), employers will also have to pay more to employees to properly reimburse them for their driving costs. Section 2802 of the California Labor Code requires all California employers to reimburse their employees for all costs incurred in performing their duties, including driving and transportation costs (other than regular commuting). The California Labor Commissioner has taken the position that any employer who reimburses at less than the IRS mileage rate will have to prove that the actual expenses are less than the going rate or be subject to liability for the difference. In almost all cases, we recommend that California employers reimburse at the standard IRS mileage rate to minimize liability under section 2802 for driving expenses. The IRS just announced that it will increase the standard mileage reimbursement rate to 58.5 cents per mile for the period July 1 through Dec. 31. The current mileage rate is 50.5 cents per mile. This eight cent increase represents an Page 99

increase of almost sixteen percent (16%) and is the largest jump in mileage rates in recent history. Obviously it is fueled by the increasing cost of gasoline. California employers should review their expense reimbursement policies and consider making modifications before the end of the month.

Source: Q&A: Restrictions on Bad References by Former Employers The Law in California Many Californians believe that it is illegal for employers to say anything negative about them after they leave. However, this is just not the case. It is completely legal for an employer to say anything they want about a former employee as long as it is true. This might seem like an easy test, but when you consider some of the things that employers say, such as “she wasn’t a very hard worker” or “she is lazy,” whether or not something is “true” becomes hard to judge. This is why many companies just prohibit any comments about former employees’ performance altogether. California employees who sue because former employers misrepresented something to potential employers can recover triple damages.

Possible Solutions The problem you have is you do not know if your employer is truly saying negative things about you, what they are saying, or who is saying it. These are all facts you need to know before you decide what to do. One easy way to find out this information is to have a friend or relative call your old employer and pretend to be a potential new employer. Your friend can ask whether they recommend you, whether you are eligible for rehire, if there is anything they should know about you, etc. Another method is to use a reference-checking service. These services employ court reporters who call former employers posing as a potential new employer and type out every word that is said. After the call is concluded, they sign an affidavit testifying to the transcript’s authenticity and send you a full report. If you strongly suspect that your former employer is bad-mouthing you, this might be the way to go because the affidavit can be used to sue your former boss or the company for defamation or misrepresentation. The best reference check service I have used is Documented Reference Check (DRC), which you can visit at www.BadReferences.com. There is a fee for their services, but it is always good to know whether a former employer is badmouthing you behind your back.

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Common Statutes of Limitation A “statute of limitation” is the time within which a lawsuit or claim must be filed. “Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute.” California Code of Civil Procedure Section 312. While there may be instances wherein the statute of limitations is tolled, missing a statute of limitations can have dire consequences. If a claim or lawsuit is not timely filed, the plaintiff may be barred from pursuing his or her claims. One reader asked for a list of common statutes of limitation in employment litigation. So, here goes my list (Beware - Statutes of Limitation may differ from state to state. The Statutes of Limitation listed below apply in California): Discrimination/Harassment/Retaliation under California’s Fair Employment and Housing Act (age, race, sex, disability, national origin, etc.) - Claims must be initially filed with the Department of Fair Employment and Housing within one year of the discrimination/harassment/retaliation. Once the DFEH issues a Right to Sue Notice, the claimant has one year to file a case in court. Discrimination/Harassment/Retaliation under Title VII, ADEA and ADA (age, race, sex, disability, national origin, etc.) - In California, claims must be initially filed with the Equal Employment Opportunity Commission within three hundred days (other jurisdictions it may be as little as one hundred-eighty days). Once the EEOC issues a Right to Sue Notice, the claimant has ninety days to file a case in federal court. Breach of Contract - If the contract is written, the lawsuit must be filed within four years of when the breach occurred. If the contract is oral or implied-in-fact, it must be filed within two years of the breach. Unpaid Overtime, Minimum Wage, Meal and Rest Breaks - Claims must be filed with the Labor Commissioner or in court within three years of when the wages were earned. This means, if the employee has worked more than three years, the employee may lose a portion of the claims he or she could have brought earlier. In court, many plaintiff’s counsel include a cause of action under Business and Professions Code Section 17200 to extend the statute of limitations by an additional year. Effectively, this gives employees up to four years to file a wage claim in court (not with the Labor Commissioner, though). Wage Claims Based on Breach of Contract - Must be filed within either four years or two years, depending on whether the contract is written or oral or implied-in-fact. Vacation Pay - There is currently a split in authority as to when the statute of limitations on vacation pay claims begins to run. In Sequeira v. Rincon-Vitova Insectaries, Inc. (1995) 32 Cal.App.4th 632, the court held that the statute of Page 101

limitations begins to run when the vacation pay is earned. Therefore an employee who had accrued 12 years of vacation pay under a written employment agreement could recover only the portion accrued during the 4 years preceding termination. Later, in Church v. Jamison (2000) 143 Cal.App.4th 1568, the court held that the statute of limitations does not begin to run until the employee is terminated because Labor Code Section 227.3 says, “all vested vacation shall be paid … as wages” to a terminated employee. Waiting Time Penalties Under Labor Code Section 203 - A claim for just the penalty must be filed within one year of the termination. A claim seeking both the penalty and the underlying wage must be filed within the time frame to bring a suit based on the underlying wage. There is some discussion that recent interpretations regarding the statute of limitations for meal and rest breaks claims would extend the statute of limitations to three years even if the penalty alone is sought. To my knowledge this specific issue has not been address since Murphy v. Kenneth Cole. Termination in Violation of Public Policy (aka Tameny Claim) - Claims must be filed in court within two years of the wrongful termination California Government Tort Claims - Some claims against the State of California or other public agencies must be presented to the government agency in a particular format before filing the claim in court. Such claims usually must be presented to the government agency within six months. Defamation (libel/slander) - Lawsuits must be filed within one year from when it was determined that the defamatory statements were made. Fraud - The lawsuit must be filed within three years of when the aggrieved party discovers the facts constituting the fraud or mistake. Family Medical Leave Act - Any action must be filed within 2 years after the violation, or within 3 years if the violation was willful. California Equal Pay Act - Court actions for wage discrimination claims (i.e., the opposite sex is paid a higher wage based on gender) within two years for most actions, and three years if the violation was willful. While there is no administrative exhaustion requirement, claims may alternatively file a claim with the State Labor Commissioner within 6 months of the violation.

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