Police Department Sued for Failing to Pay Employees for Checking Cell Phone off Clock

Police Officer Jeffrey Allen estimates that he took one or two off duty calls on his employer provided blackberry per day. Now Allen wants the Chicago Police Department (Chicago PD) to pay him for that time he spent taking those calls. Allen recently filed a lawsuit in the federal district court in the Northern District of Illinois alleging that the Chicago PD violated the Fair Labor Standards Act (FLSA) by requiring him to take calls while off duty.

The complaint alleges that Allen was a non-exempt employee, eligible to receive overtime pay for time when he worked more than 40 hours a week. In January the court approved a conditional certification of the class of plaintiffs, which means that Chicago police officers in the Bureau of Organized Crime can now also join the lawsuit. Police officers, and former officers similarly situated to Allen have until April 8 to join.

The Chicago PD responded to claims stating that it had procedures which allowed employees to report overtime worked, and that Allen and other police officers simply failed to comply with those procedures. However, Allen argues that there was an unwritten rule that if an officer wanted a promotion he or she should not report overtime for emails and calls taken off duty.

Time Spent Answering Work Email or Phone Can be Overtime

An employer must pay an employee for all time worked. An employer may not discourage employees from reporting time worked just because it happens off their employer’s listed work schedule. An employer can get into trouble with the law if they schedule their workers for 40 hour weeks and then expect employees to also answer emails or take calls at home because extra time spent working off the clock needs to be compensated at the overtime rate for every hour worked over 40. California’s fair pay law, Labor Code Section 510, also imposes stricter requirements that employers must comply with. In California an employer must also pay overtime when an employee works more than 8 hours in a single day and for any time spent working on the seventh consecutive day of the work week. In some circumstances double time also needs to be paid.

If your employer has failed reimburse you or pay your wages you may be entitled to a lawsuit. 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.

Paid Time Off and Unpaid Wages

Although employers are generally not required to offer paid time off (PTO), many do. However, the employer can place restrictions on when you use your PTO. If an employer refuses to allow you to take off the requested days, and you refuse to take off days that are available, the employer must compensate you for the time not used.

Additionally, California Labor Code section 227.3 provides that employers are not allowed to require employees to use or lose their PTO or unpaid vacation time. The employer can put a reasonable cap on the amount of vacation time that an employee may accrue. However, if a court finds that the implementation of a cap is simply to deny or make it more difficult for employees to use their accrued benefits the policy will be invalidated. Also, keep in mind that these benefits can be enhanced or limited by a collective bargaining agreement.

These rules are not to be confused with the rules for sick time. Sick time is treated differently because unlike vacation time, or PTO, sick time is not considered earned compensation because it is only to be used in the event that you become ill.

Another common question is whether an employee can simply deduct PTO or vacation leave for parts of the day. This is usually up to the specific agreement between the employer and employee, it is best to consult the employee handbook for this information because some employers provide PTO, vacation, or sick time in 1 hour increments, but require that employees use their time in 4 hour increments.

This type of compensation can amount to a lot of unpaid wages over the years. This is one reason why so many workers are not receiving the full amount of compensation they are entitled to.

Although most employers are not required to provide PTO, vacation, or sick leave some cities and municipalities throughout the country have modified this by requiring employers to provide a minimum amount of these benefits. One example is San Francisco, where an employer must provide employees with 1 hour of sick leave for every 30 hours worked.

The California employment law attorneys of the Law Offices of Michael S. Cunningham, LLP have many years of experience handling wage and hour cases, including lawsuits for unpaid wages due to failure to provide proper breaks. To schedule a free case evaluation contact us at (858) 376-7390 today.

New FMLA Amendments for Airline and Military Employees and Family

The Family and Medical Leave Act (FMLA) entitles eligible employees to unpaid leave with the right of reinstatement for specific family or medical reasons. Earlier this week the Department of Labor finalized new rules to increase the benefits and eligibility for military families and airline workers.

Generally, employees working for an employer with at least 50 employees within a 75 mile radius of the workplace can qualify for FMLA. An employee must also have worked at least 1250 hours in the previous 12 months before taking leave. However, new amendments alter the hours worked requirements for employees in the airline industry. The amendment provides that airline flight crew members or flight attendants meet the hours of service requirements, if in the past 12 months they 1) worked or have been paid for at least 60% of the total monthly guarantee, and 2) have worked or been paid for not less than 504 hours, not including personal commute time, time spent on vacation, medical or sick leave.

Generally, an employee is entitled to as much as 12 weeks of leave per year, as well as continuation of group health insurance, and mandatory restoration of their previous position or an equivalent position on return. The new rules allow military family members to take leave for an additional 15 days to care for a covered veteran with a serious illness or injury on leave from active duty. Family members caring for covered service members are eligible to take as much as 26 weeks of leave to care for the covered service member.

Violations for FMLA can be costly for employers. If an employer discriminates against an employee by harassing, demoting, or terminating an employee for taking leave they may be liable for damages including lost wages and benefits, liquidated damages up to twice as much as actual damages, and attorney’s fees and costs.

In related news The FMLA is turning 20 this month. It was first signed into law on February 5, 1993 on the principal that employees should not have to choose between their job and caring for their illness or the illness of a family member.

If your employer is giving you a hard time or has taken adverse action against you for use of FMLA leave enforce your rights. 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.

Trend of Increased Numbers of Employees Suing for Unpaid Wages Continues

It is no secret that many employers fail to pay their employees what they rightfully earn. However, it appears that more employees are suing their employers over these unfair practices. The Federal Judicial Center recently released statistics that show, for the fifth year in a row, employees have filed more lawsuits against employers than last year. In federal court 7,754 lawsuits alleging violations of the Fair Labor Standards Act (FLSA) were filed this year, up from 7,064 in 2012.

Wage and hour lawsuits dealing with hospitality workers was an area that saw a particularly high increase in lawsuits. One reason for this was because of increased targeting by the federal Department of Labor of unfair pay practices involving workers who receive tips, such as restaurant employees. Additionally, the stabilization of the economy may also be another reason for the increase in litigation. As companies start backing away from bankruptcy they become more attractive targets. New companies in particular are very susceptible to FLSA lawsuits.

It also seems that these lawsuits are generally on the rise from the past decade. Since 2003 wage and hour lawsuits have grown by 400%. According to the National Employment Law Project 68% of low wage workers report being required to work without full pay. It seems that the more widespread wage and hour violations become, the more that employees are encouraged to stand up for their rights and demand full pay under the law.

Although the statistics released by the Federal Judicial Center were nationwide, California litigation follows very similar trends. California employees have additional protections that employers often violate. For example, many small employers in states without state pay laws do not fall under the protection of the FLSA. In California however, all employees are required to be paid for overtime, unless they are exempt employees; and all employees are required to be paid a wage or salary at or above the minimum wage. The major exception for these rules is with independent contractors. One common area of contention between employers and workers is whether an employee is an independent contractor or an employee. To learn more about these distinctions contact a California attorney.

If you have been cheated by an employer the California employment law attorneys of the Law Offices of Michael S. Cunningham., LLP can help you recover your unpaid wages. We work on a contingent fee basis which means we do not get paid unless we get a settlement or judgment in your favor. To schedule a free consultation call (858) 376-7390 today.

Minimum Wage May Increase in California

California enjoys one of the highest minimum wage rates in the country, at $8 per hour. However, it is well known that at this rate making a living usually requires working 2 jobs and spending minimally. Moreover, California’s minimum wage has not increased in 5 years. However, the California senate is currently considering AB 10, which would raise the minimum wage in California to $9.25 over the next several years in order to keep up with inflation. The bill is currently in the Senate Appropriations Committee, it has passed the state Assembly by a wide margin.

But the people of San Jose aren’t waiting for the new bill to pass before they take action. San Jose recently passed an ordinance increasing the minimum wage to $10 per hour, effective as of March 11 of this year. The measure began as a ballot initiative started by students at San Jose State University. San Jose is the second city in California to raise its minimum wage to more than the state minimum, the only other city with a higher minimum wage is San Francisco.

According to the bureau of labor statistics 127,000 workers in California earned the minimum wage or less. Unfortunately, thousands of California workers earn less than the minimum wage due to unfair labor practices. California law requires all employees to pay their employees at the minimum wage. There are some exceptions for independent contractors, volunteer workers, and educational internships; however these exceptions require the organizations taking charge of the volunteers or interns to follow guidelines in terms of the type of work they can engage in; and independent contractors must be correctly classified, not merely classified as independent contractors to allow the employers to avoid having to pay minimum wage or provide other rights.

When employers fail to pay their workers the proper minimum wage the California Labor Commissioner’s Office can fine the employer for each violation. The employee can also hire an attorney to bring a private lawsuit and recover the fines under the private attorney general act.

If you have a claim against your employer for unpaid wages contact an experienced wage and hour attorney today. In many cases acting quickly can make a significant impact on the amount you are able to recover. To learn more schedule a free consultation with the California employment attorneys of the Law Offices of Michael S. Cunningham, LLP. Call (858) 376-7390 today for a free consultation with the California employment attorneys of the Law Offices of Michael S. Cunningham, LLP. Call (858) 376-7390 today.

Minimum Wage Increase Bill Passes California Legislature

California is poised to once again hold the title of state with the highest minimum wage. Assembly Bill 10, signed by Governor Brown this week, will raise the minimum wage to $9 beginning July 1, 2014 and again to $10 beginning January 1, 2016. The minimum wage was last raised to its current rate of $8 per hour back in 2008. The recent increase was a relatively popular proposal in the California state legislature. However, the same cannot be said of efforts on the federal level.

In February’s State of the Union address President Obama stated that the minimum wage should be raised to $9 an hour. However, Republicans took a hard stance against the efforts of House Democrats to increase the federal minimum wage in a fashion similar to California’s. Although whether the minimum wage increase would truly help the economy remains a divisive issue amongst some experts, many argue that increasing the minimum wage to $10 per hour would lift thousands out of poverty. According to Assembly Speaker John Perez, the boost to $10 will increase earnings by minimum wage workers up $4,000 per year.

Although California’s recent minimum wage increase is nothing to scoff at, it probably won’t stay the highest minimum wage for long. For example, Washington, Oregon, and 6 other states currently index their minimum wage to account for inflation annually. This means that these minimum wages will likely surpass the California minimum wage unless future wage increases occur.

What Happens if an Employer Doesn’t Pay the Minimum Wage?

All too often employers get lax about minimum wage rules. However, California law is clear. You must pay workers for all time worked and at a level that is at least the minimum wage. When they do not they must pay the worker the difference. Additionally, the employer may be subject to penalties for each underpaid employee during a pay period. If an employee brings a private lawsuit against the employer they may be able to recover a portion of these penalties.

Often times when an employer fails to provide the minimum wage, they also fail to provide adequate meal and rest breaks. Employers must pay employees a premium for failing provide proper breaks. This can add up to a lot of unpaid wages over time.

If you suspect that your employer has not paid you for time worked contact the experienced California employment law attorneys of the Law Offices of Michael S. Cunningham, LLP to schedule a free case evaluation. Call (858) 376-7390 today.

Merced Settles Firefighter’s Disability Discrimination Lawsuit for $425,000

Ryan Staiger recently won a settlement against the City of Merced for allegedly discriminating against him on the basis of his disability. Staiger received an agreement for a $425,000 settlement in late November.

The case began after Stainger was hired as a firefighter in 2007. He was soon retracted from duty when the Merced Fire Department’s medical doctors determined that he has residual affects from an arm fracture that he received as a teenager. Stainger then filed a claim with the Department of Fair Employment and Housing (DFEH) in 2008 against the fire department.

The medical exam that Stainger failed was performed by a city doctor and private specialist based on National Fire Protection Association standards. The doctors believed that Stainger’s range of motion was limited in his right wrist and elbow and because of this the doctors felt he was unable to perform the essential duties.

The commission decided to take the case and argued that the reason given for the termination was pretextual because the limitations Stainger experienced would not impede his ability to serve as a wilderness firefighter. The DFEH also argued that the city failed to establish that Stainger would actually be unable to perform the essential tasks in question.

The DFEH asserts that this type of decision to retract the offer to hire Stainger was improper because the fire department could have done a more through and personalized assessment by testing abilities to compensate for the limited range of motion in Stainger’s arm.

The DFEH also claimed that the city failed to tell Stainger that he had the right to get a second opinion from a doctor of his choice. Although the city alleges that it did notify Stainger that he had this right.

After leaving the Merced Fire Department Stainger began working with the California Department of Forestry and Fire Protection.

California Antidiscrimination Law Prevents Employers from Using Disabilities as a Reason to Screen Qualified Employees

California’s Fair Housing and Employment Act makes it illegal for an employer to take adverse employment action against a job applicant or employee just because of the employee’s disability. There is an exception to this when the employee’s disability makes the employee unqualified because of a bona fide occupational qualification, which is what the fire department in this case alleged. However, showing a true bona fide occupational qualification exists is not an easy task for employers.

If you believed that your employer has discriminated against you contact the experienced California Employment Law Attorneys of the Law Offices of Michael S. Cunningham, LLP. You can schedule a free consultation by calling (858) 376-7390.