Orange County Employment Lawyer Blog

A Riverside County Superior Court jury awarded $25 million in punitive damages to the nearly $1 million in compensatory damages they had awarded the previous day to a former Kmart manager for age discrimination. In the case of Harkins v. Kmart, the plaintiff alleged that Kmart's unlawful conduct was part of a sequence of events designed to get him to retire. Plaintiff had provided exceptional service to Kmart for 20 years, and claimed he was being terminated solely due to his age (64). He alleged that in the months before his termination, he was unlawfully demoted and disciplined in veiled attempts to "work on him" to quit or retire. When he did not "retire" or quit, he was fired. This firing, plaintiff alleged, was retaliatory due to his refusal to quit and due to his age.

My Orange County Employment Law Firm was recently retained on a case where age discrimination was the primary claim. In assessing such cases, it is sometimes difficult to distinguish between a company's need to reduce its work force due to budgetary concerns and a company using that reason as a pretext for its true motive, ridding itself of an "old" employee. Factors that tend to sway the scales in one direction or the other tend to be things like whether other job positions were eliminated, if other employees lost their jobs (and their ages in comparison to the rest of the workforce) and if the company intends on hiring (or has hired) new employees to replace or fill the holes left by the dismissed employees.

In California, vacation pay is not required. However, many employers have chosen to implement various vacation pay policies for their employees. Those that have must then comply with California law pertaining to vacation pay.

With the state of today's economy, more and more employees are suddenly out of work. My Orange County Employment Law Firm has received a large increase in calls regarding vacation pay, specifically that employees have either been let go or terminated without getting all their vacation pay. So, what is the law? In California accrued (already earned) vacation days are just like wages, meaning once they have been earned, they become the property of that employee.

Many employers have a policy in place that states something to the effect of "Use it or Lose It", meaning that employees who have earned a certain amount of vacation days will lose those accrued vacation days if they are not used in a specific period of time. Such a policy is absolutely against the law! Employees are given two options with regard to accrued vacation:

1. They must be permitted to carry-over the accrued vacation days; or
2. The remaining accrued vacation days must be paid out to the employee at whatever rate the employee is earning at the time of the payout.

If an employee separates from an employer without receiving as pay all accrued vacation days, the employee may also then be entitled to waiting time penalties, which I detailed in a previous blog post, interest, and reimbursement of attorneys fees and costs from the employer.

However, having said all that, employers do have the right to determine the other criteria of their vacation policy, specifically which employees are entitled to receive paid vacation, at what rate or frequency vacation days accrue, and how much can be accrued at one time.

Almost all California employees are "at will" employees, meaning they can be terminated for any reason, so long as it is not an unlawful reason. So, if most employees are at will employees, what separates a termination from a wrongful termination?

California employees can essentially be terminated for any reason, so long as the reason is not an unlawful reason. Here are some of the more common unlawful reasons that would make a termination a wrongful termination:

1. An employee may not be terminated for lawfully reporting sexual harassment to a supervisor or to Human Resources;
2. Similar to above, an employee cannot be terminated for participating in an investigation of someone else's claims of sexual harassment or unlawful discrimination;
3. For exposing certain unlawful wrongdoings by the company or by a higher ranking employee of the company, commonly known as whistle-blowing;
4. For submitting a worker's compensation claim from injuries suffered at work;
5. For complaining to management or Human Resources about not receiving proper wages, overtime compensation, lunch breaks or rest breaks;
6. For filing a complaint with a governmental or administrative agency such as the DFEH or the Labor Board; and
7. Lastly, an employee is not at will if that employee has an employment contract designating a specific period of time.

As I have detailed in previous blog posts about labor code penalties, California has by far the strictest labor laws in the nation. Consequently, employers need to take all steps necessary to insulate themselves from employee lawsuits. One of the most important ways to do that is to have a properly drafted Employee Handbook. Having a properly drafted Employee Handbook may reduce an employer's exposure and liability in a lawsuit filed by an employee against the employer.

My Orange County Employment Law Firm has defended many employers and businesses in lawsuits filed by employees. The severity of many of those lawsuits could have been minimized if that company had an effective Employee Handbook in place. Additionally, some of those lawsuits may not even have been filed if the employees had a handbook advising them of their rights and obligations.

At a minimum, employers in California are required to provide to its employees certain workplace policies in writing. However, a properly drafted Employee Handbook suited to a company's specific business needs may also include items such as vacation pay or lunch breaks, which, though not legally required, will lessen the employer's exposure to lawsuits concerning those topics.

Examples of Employee Handbooks or Manuals can be found everywhere. However, one size does not fit all. I cannot urge employers enough to retain legal counsel who are well versed in employment law to properly assist in the formation of a handbook suitable to the employer's specific company.

In California, tips are the sole property of the employee for whom it is left. However, tip-pools that share all the tips with non-supervisory employees is acceptable ONLY if those receiving a share of an employee's tips provided direct service to the customer. As an example, a lawful tip-pool at a restaurant could be for waiters/waitresses, hostesses, and bus boys. However, this pool could not include cooks or dishwashers, as they did not provide any direct service to the patron. Owners, managers, and supervisors can NEVER share in the tip pool.

Employees are entitled to recover all tips unlawfully pooled or taken from them, and also may be entitled to recover penalties. If an employee complains to their employer about an unlawful tip-pooling policy and is in turn treated adversely, the employee may also have a separate claim for retaliation.

Employers cannot require employees to waive their rights to tips. As such, any documents that employees have signed wherein they agreed or consented to sharing a portion of their tips with management or other supervisors, as well as employees who do not provide a direct service to the patron, is invalid.

RELATED LINKS

Division of Labor Standards Enforcement (DLSE)

California law prohibits employers with at least five or more employees from discriminating against an employee on the basis of pregnancy, childbirth or pregnancy-related medical condition.

The Family and Medical Leave Act (FMLA) generally provides that an employee who is disabled on account of pregnancy is entitled to up to four months of leave from work. All time off needed for routine prenatal care, such as doctor's visits, as well as, time off for medically-ordered bed rest, severe morning sickness, childbirth, recovery from childbirth or other pregnancy-related condition may be counted against the leave time. Furthermore, if the employee does not exceed the leave time, she is guaranteed the right to return to work at the same position or a comparable position.

Like any physical disability, an employee disabled on account of pregnancy or a pregnancy-related medical condition has the right to request a medically-advisable reasonable accommodation, such as a request for less strenuous or less hazardous duties. The request needs to be based upon the recommendation of your doctor. Whether the accommodation must be provided is generally based upon whether the accommodation is reasonable and whether the requested accommodation unduly burdens the employer.

Any violation of the rights described above may give rise to a claim of sex (pregnancy) discrimination against your employer.

RELATED RESOURCES

Family and Medical Leave Act (FMLA)