Without a Fixed Salary Employees May be Eligible to Sue for Unpaid Overtime

Earlier this month the California Court of Appeals reviewed a situation where an employee who had been making significantly more money than the average worker, was still subject to California overtime law. In Negri v. Koning & Associates, Mark Negri was an insurance claims adjuster for Koning & Associates. He was paid $29 per hour but was given no minimum guarantee of pay per month. Although he worked more than 40 hours per week, every week, he was never paid more than $29 per hour. As a result Negri sued his employer for violating California overtime law. The employer argued that Negri was a salaried employee, subject to exemption from overtime.

Under California law employees are not subject to overtime pay when:

  1. they meet one of the duties tests for exemption,
  2. they customarily and regularly exercise discretion and independent judgment in performing their duties,
  3. they earn a monthly salary that amounts to twice the minimum wage.

In reviewing these elements the court determined that Negri seemed to satisfy all of the above prongs of the test, except for the salary aspect. Although he earned much more than twice the minimum wage, there was a question as to whether his pay could be classified as a salary. The court found that the definition of salary is quite specific, it does not merely mean pay. Rather, it is “a fixed rate of pay as distinguished from an hourly wage” that is not subject to reduction because of the quantity of hours worked or the quality of work. The employer had admitted that Negri was paid based on the number of hours he worked, and that alone dictated his pay. Because of this the court held that Negri had not been paid a salary and was thus entitled to overtime pay.

This is a very helpful case for employees because Negri would have been entitled to exemption if he merely would have had an established pay rate. There are many reasons why an employee would want to require employees to be paid hourly. The biggest reason is that it ensures that they are only paid for time the employee is productive. However, if an employer does not guarantee a set amount of pay per month or year the work will be considered hourly and subject to overtime law.

Keep in mind that different categories of employees have different overtime requirements. To view a full list of the categories of employees exempt from overtime law visit the California Department of Industrial Relations website.

If your employer has not paid you the full amount you have earned you may be entitled to a class action lawsuit or settlement against them. Contact the experienced California wage and hour attorneys at the Law Offices of Michael S. Cunningham, LLP. Call (858) 376-7390 today for a free consultation.

Resolving a Disability Discrimination or Wrongful Termination Lawsuit

When an employer discriminates against an employee the employer subjects itself to major financial loss far beyond that any rational organization would care to lose. The cost to defend a disability discrimination or other wrongful termination lawsuit is also astonishingly high. Defense attorneys in California may cost employers $450 per hour or more if the employer does not have the proper insurance. For these reasons it is often in the best interests of the employer to settle a pending claim. That is not to say that every lawsuit will be settled out of court without trial, but the vast majority of non-frivolous lawsuits are. There are 3 primary ways to solve a discrimination lawsuit: negotiation, mediation, or arbitration.


Negotiation is a tactic that both sides will employ to get the case settled. There are many different styles and strategies of negotiation. Negotiation is often initiated with a demand letter, which may propose a formal negotiation meeting. If formal negotiations break down, negotiation can continue to play a key role in mediation.


Mediation is when the employer and employee meet and discuss the merits of their positions with a neutral 3rd party, a mediatory. The mediator will question the parties and attempt to get the parties to rethink their approaches and come to a final mutually agreeable solution. This process is informal, and generally non-binding, unless the parties agree to write out a settlement agreement during the mediation.


Arbitration is similar to mediation, but it is much more trial like; although the arbitration rules are much less formal than traditional court hearings. Arbitration may be the first resort for many employment cases because many large employers require their employees to sign arbitration agreements that require the employees to forgo suing the employer in court, leaving arbitration as the only resolution process. There are many legitimate reasons why arbitration is the least favored dispute resolution system for employees.

First, the employer’s arbitration agreement may require that the arbitrator be chosen from a specific panel of arbitrators. Although the arbitrators will not have any interest in the employer in particular, the employer may be a repeat player in arbitration so the arbitrator may slightly favor the employer so that the employer continues using arbitrators from the selected panel. Although most large arbitration organizations can avoid this problem, smaller arbitration panels are more easily susceptible to this bias. Second, arbitration may not allow the employee the benefits of having full discovery, which would allow the employee to obtain evidence that he or she might not otherwise ever get to see. Finally, arbitration generally takes away the right to a jury trial.

To learn more about lawsuit or settlement options for your disability discrimination or wrongful termination lawsuit contact the California employment attorneys of the Law Offices of Michael S. Cunningham, LLP. Schedule a free consultation today, call (858) 376-7390.

Reasonable Accommodation and the Interactive Process in Disability Cases

One of the biggest sources of conflict between disabled employees and their employers is deciding whether to grant an employee a reasonable accommodation as required by the Americans with Disabilities Act (ADA) and the California Fair Housing and Employment Act (FEHA).

The interactive process is a shorthand way of describing the informal negotiations between an employer and employee in finding a reasonable under ADA and FEHA. This process is critically important because failure to engage in the interactive process can be a violation of disability law in and of itself.

Although there are no bright line guides for how the interactive process should proceed, the employer must take steps to ensure that the employer had notice of the existence of a reasonable accommodation.

Problems that can arise during the interactive process include when the communications between employer and employee come to an impasse or break down, the employer refuses to discuss options, or rejects accommodations without reason despite the proposal being clearly simple fixes and not constituting an undue hardship. In these situations an employer may become liable for failure to engage in the interactive process under California law.

For example, in Wysinger v. Automobile Club of Southern California (AAA) (2007) 157 Cal. App. 4th 413 an employee, Wysinger, suffered from lupus and rheumatoid arthritis. After his employer AAA instituted plans to reduce the pay of senior employees he filed an age discrimination claim and also a claim that the employer failed to reasonably accommodate his disabilities because it failed to discuss options in reducing his commute time. Wysinger had requested a transfer in order to reduce his commute time; however AAA rejected this and did not raise any other possibilities.

The California Court of Appeals found that AAA could not rely on its rejection of Wysinger’s suggestion and claim that Wysinger had the burden to request other reasonable accommodations because it is not up to an employee to request multiple types of accommodation that an employer may choose from. The court upheld that under FEHA failure to engage in the process can be a separate claim from failure to provide reasonable accommodations.

If your employer or former employer has failed to discuss reasonable accommodations with you after you told them you needed accommodation you may be entitled to damages. To learn more contact the experienced California Employment law attorneys of the Law Offices of Michael S. Cunningham, LLP. Schedule a free consultation by calling (858) 376-7390 today.

Punitive Damages in Disability and Other Discrimination Lawsuits

Punitive damages are damages designed to punish an organization or individual for particularly bad behavior and deter them from doing it in the future. Punitive damages are possible to receive in employment discrimination lawsuits. However, these damages require a very high level of proof, including the following requirements:

The first requirement is that the employer acted with oppression, fraud or malice. This must be shown with clear and convincing evidence. Clear and convincing evidence is a higher standard than the typical burden of proof in a civil case. Generally, to prove anything to the court requires a preponderance of the evidence, which means that the weight of the admissible evidence rests on your side; in other words it was more likely than not true. By contrast clear and convincing evidence requires that the admissible evidence shows a high probability that what you accuse occurred.

California Civil Code § 3294 defines more explicitly what oppression, fraud, and malice are. Oppression is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Fraud means an intentional lie, misrepresentation, or concealment of an important (“material”) fact that was made in order to deprive the person of their property of legal rights. Malice means acts where the employer intentionally caused injury to the plaintiff or acted despicably with a “willful and conscious disregard of the rights or safety of others.”

So unless the employer intentionally lied about an important fact to deceive the employee, committed some other fraud, or intentionally tried to injure the employee, the employee must show that the act of discrimination was despicable. Despicable means conduct that is so bad that it would be looked down upon and despised by ordinary decent people. Some examples of despicable conduct include conduct that is intended to humiliate an employee and force them to quit. It generally requires more than 1 act. For example in McGee v. Tucoemas Fed. Credit Union (2007) an employee with cancer was able to win punitive damages after the employer refused to give the employee extended leave after cancer treatment surgery, and then cancelled the employee’s medical insurance, and demoted the employee.

An employee must also prove with clear and convincing evidence that the employer either authorized the discrimination or learned of the discrimination and did nothing to prevent it; effectively ratifying the discrimination.

If you have been discriminated against due to your disability or perceived disability contact a California employment law attorney right away. Call the employment lawyers of the Law Offices of Michael S. Cunningham, LLP to schedule a free consultation at (858) 376-7390.

Protests Throughout Country Seek Minimum Wage Increase to $15 per Hour

The California legislature is considering a proposal to increase the minimum wage to $9.25 an hour. However, protests throughout the country have erupted, demanding faster change, and an increase to $15 an hour. Which is more than double the current federal minimum wage. These protests have sprung up in pockets throughout the country, including Chicago, Milwaukee, New York, Detroit, and Seattle. Seattle workers have so far seen the most support from the public. The residents of a Seattle suburb known as SeaTac will be voting on a ballot provision that would increase the minimum wage to $15 per hour. Washington already has the highest minimum wage of any state at $9.19 per hour. Nevertheless, the proposal has been backed by a wide range of individuals, from politicians to venture capitalists. Of course, the idea is also being fervently opposed by many businesses.

Critics say that increasing the minimum wage will force employers to perform less hiring, and seek to outsource even more of their labor requirements, or turn to automated machines. They also claim that consumers would be forced to pay more for their goods and services. Recently San Jose increased their minimum wage to $10 per hour, making it the second highest minimum wage outside of San Francisco. Although, it is still too early to determine what effects the increase will have on San Jose.

While economists have not yet come to a consensus on what changes would be brought about by an increase in minimum wages, one thing is clear—the U.S. has one of the lowest minimum wage rates of large developed countries. For example, the United Kingdom, Australia, and France all have minimum wages that hover at around 50% of the median income. The U.S. minimum wage is 38% of the median income; meaning that workers earning the minimum wage must work long hours and make many sacrifices just in order to make a living.

Unfortunately, even with our low minimum wage, many employers fail to properly pay their employees. Every year the California Department of Industrial Relations Division of Labor Standards Enforcement and private attorneys recovers millions of dollars from employers for unpaid wages.

To learn more about how to recover unpaid wages from your employer or former employer contact the California employment attorneys of the Law Offices of Michael S. Cunningham, LLP. Schedule a free consultation by calling (858) 376-7390 today.

Price is Right Model Wins $7.7 Million in Pregnancy Discrimination Lawsuit

Producers of the popular television show the Price is Right are facing a $7.7 million punitive damages award for allegedly discriminating against a former model.

The model, Brandi Cochran, worked on the show for seven years before she took maternity leave in 2010.

Cochran alleges that shortly after she told producers that she was pregnant with twins her executive producer asked questions about how long was she planning to work, and whether she will work if she got really big. After starting to show she claims that co-workers called her insulting names such as wide load, and also teased her about her weight.

After taking maternity leave the producers allegedly would not return Cochran’s phone calls. She claims that it took more than four months before they even sent her a notice that she would not be allowed to come back to work.

The show’s producers, FremantleMedia, have stated that they would be appealing the ruling because they claim that the court should have allowed the jury to hear evidence like the fact that the show had allowed other models to appear on the show while pregnant.

California law allows employees who have been discriminated against to recover a wide range of damages. First employees are eligible to claim compensatory damages. These damages include pay for wages lost up until the time of trial, future earnings, and interest on damages. Medical payments can also be awarded in disability discrimination cases. If the employee was harmed emotionally they may be entitled to recovery emotional damages. Attorney’s fees are also recoverable by employees who can show that they have been unlawfully discriminated against. In some cases, such as the Price is Right case, employers may be charged with punitive damages to punish the employer in order to prevent them from making the same mistake again.

In this case the punitive damages were awarded in addition to the compensatory damages that Cochran already received in the amount of $777,000. Generally the amount of damages awarded is only relevant to the extent that the employer can pay them. In this case the employer’s substantial assets make recovery of the total amount likely, as long as Cochran is successful on appeal.

If you have been discriminated against by your employer or potential employer you may be entitled to compensation. To learn more contact the attorneys of the Law Offices of Michael S. Cunningham, LLP. Schedule a free consultation today by calling (858) 376-7390.

Source: ABC News, “Former ‘Price Is Right’ Model Awarded $7.7M in Termination Suit,” Jennifer Abbey, Nov. 22, 2012

Pregnant Mothers May be Entitled to More Than 19 Weeks of Pregnancy Disability Leave

Pregnancy Disability Leave Law (PDLL) and the California Family Rights Act (CFRA) allow women to take disability leave while pregnant and after delivery. However, even with the leave afforded by both acts some women will not be able to return to work before the statutorily imposed time frames. Nevertheless, according to the California Court of Appeals some women may be entitled to even more pregnancy leave.

In the case of Sanchez v. Swissport, Inc., Cal. Ct. App. Feb. 21, the employee, Ms. Sanchez, was diagnosed with a high-risk pregnancy that required bedrest. She applied for and pregnancy leave and was granted 19 weeks of leave from her employer as required by PDLL. However, Ms. Sanchez was still unable to return to work after the leave period expired and still had 3 months to go before she could return to work. As a result her employer terminated her. Ms. Sanchez then filed a lawsuit based on sex discrimination and failure to engage in the interactive process to determine whether she could be provided with reasonable accommodations.

Her employer argued that it was not required to provide her with any more leave because she had exhausted all leave that was required by PDLL and CFRA. However, the trial court disagreed. The employer appealed and the California Court of Appeals held that the employer was wrong.

The Court ruled that simply providing 4 months of leave under PDLL does not entitle the employer to avoid the separate requirements of the Fair Employment and Housing Act (FEHA) in which an employer must provide reasonable accommodations to employees with disabilities. Ms. Sanchez argued that she would have been able to return to work shortly after delivery and that it would not have been an undue hardship on her employer. The court agreed that this in theory could have been a reasonable accommodation.

Although the court did not address the issue of CFRA, it is worth mentioning that after giving birth an employee is entitled to up to 12 weeks of leave under the CFRA in order to care for a new child.

If your employer or former employer has taken action against you or terminated you after taking disability leave you may be entitled to a lawsuit to recover your wages and other damages. To learn more contact the experienced California Employment Law attorneys of the Law Offices of Michael S. Cunningham, LLP. Schedule a free consultation by calling (858) 376-7390 today.