Can You Get Fired for Being Late to Work? San Diego Lawyer – 619.202.0264

I received this phone call from an employee who lost her job: One her way to work, she received a phone call regarding her mother having an emergency.  About an hour and a half being late to work, the employee gave her boss a call to inform him about her condition and the reason she was late to work.

The boss responded “We have already terminated you because you did not show up to work!”

Can you be legally fired for being late to work?

In California, and majority of States, the answer is yes, of course! California law adopts the at will employment meaning that you can be terminated for any reason or no reason at all. Your employer can terminate you for not liking your shoes or simply because he had a fight with his wife and was in a very bad mood.

Of course, the at-will employment principle in California has exceptions. The following scenarios might protect you, under certain circumstances, from getting fired:

Fair Labor Standards Act:
If you are properly exempt from overtime compensation requirements, then this means you are on a salary. Even if you are late, your employer has to pay you for a full day and you should therefore receive your full salary.

If your employer deducts your wages for being late, you might be misclassified under the Fair Labor Standards Act.  You could sue your employer for back pay including overtime, penalties, and attorneys’ fees.

Disability
If you suffer from a physical or medical condition that limits a major life activity, then you might be “disabled” under the FEHA. Being disabled requires your employe to provide you reasonable accommodations. Your employer also has a duty to engage in interactive process to inquire about and learn more about your disability in order to know what accommodations you might need.

Of course, if your employe can show that you cannot perform your duties even with accommodations, then you have no case.

Family and Medical Leave:
If your company has 50 or more employees within a 75 mile radius, you’ve worked at least a year, and you’ve worked at least 1,250 hours in the last 12 months, you may be covered under the Family and Medical Leave Act. This law gives you up to 12 weeks of continuous or intermittent leave to deal with a serious medical condition of an immediate family member or you. But you have to apply in advance, as soon as you know about the need for the leave.

If an immediate family member or you have an emergency relating to a serious medical condition, you may be covered even if you haven’t applied for leave in advance. However, you need to call in as soon as possible and do the FMLA paper work.

http://www.sandiegoemploymentlawyer.net – 619.202.0264

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Is Your Exemption From Overtime Appropriate? San Diego Employment Lawyer – 619.202.0264

I received several questions over the past month regarding proper exemption from overtime requirements. The question that begs itself here is am I properly exempt from overtime and therefore I am not legally entitled to receive overtime compensation since my employer classified me as a salaried employee?

The simple answer is just because you’re on a salary, that doesn’t mean you’re automatically exempt from overtime. Many employers try to evade the overtime compensation requirements by putting the salary tag on the employee regardless of his duties. Your title does not determine whether you are entitled to receive overtime compensation and courts look at your actual duties. Therefore, if you are a salaried employee and your employer is making you work many overtime hours, odds are you are improperly classified as exempt employee and you are entitled to overtime.

Executive duties: Do you supervise two or more employees? Is management your primary job? Do you have genuine input into the hiring, promotion and firing of your subordinates? If yes, odds are you are properly exempt from overtime.

Learned professions: Are you a doctor, lawyer, dentist, teacher, architect, clergy, engineer, or scientist?  If yes, you are not entitled to receive overtime compensation.

Creative employees: This list of employees include actors, musicians, composers, writers, cartoonists, and some journalists. If you are one of them, you are exempt from overtime even if you are not salaried.

Administrative duties: Do you perform office work that’s directly related to management or the general business operations of your employer? Do you use your independent judgment and discretion about significant matters? If yes, then you are properly exempt from overtime.

Our San Diego Overtime Attorney Can Explain Your Rights
If you need assistance in determining whether you are properly exempt from overtime or whether you are owed any overtime, feel free to contact our San Diego overtime Attorney. You may also contact our San Diego overtime lawyer online and confidentially discuss your situation.

http://www.sandiegoemploymentlawyer.net – 619.202.0264

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When Can Your Employer Legally Discriminate Against You!? – San Diego Employment Lawyer – 619.202.0264

We all know that employers may not discriminate against employees on basis of race, religion, national origin, gender, pregnancy, creed, color, or disability. The issue here is when is it legal for employers to discriminate against employees.

Here are the most popular grounds where it is totally ok for an employer to discriminate against its employees.

Bankruptcy

Although the Bankruptcy Code prohibits discrimination against an individual who is or has been a debtor under this title, several courts have held that this provision does not apply to potential employers and you might legally be denied employment due to your bankruptcy.

Double Standards

While it is illegal for an employer to discriminate against you because of your race, age, sex, religion, national origin, disability, pregnancy, color or genetic information, it is ok for your employer to like someone more than you or prefer another employee over you only because it is you. It is also ok for your employer to terminate you because you opposed your employer’s favoritism.

Appearance

If your employer discriminates against you merely because of the way you look or appear, it is Not against the law. That being said, your employer may legally hate you or be jealous from you because of your appearance.

Credit History

In California, under the FEHA, your potential employer may refuse to hire you because you have bad credit rating. However, other States have now laws that prohibit using credit rating as basis of employment decisions.

Weight

In general, an employer may discriminate against en employee based on their weight. However, if someone is morbidly obese, they are likely protected under FEHA disability discrimination.

Unemployment

Under the FEHA, it is ok for your employer to discriminate against you because you are collecting unemployment. Only few States have made proscribed unemployment discrimination but in the majority of States, including California law, unemployment discrimination is ok.

Our San Diego Discrimination Attorney Can Explain Your Rights

If you feel you are being discriminated against, feel free to contact our San Diego Discrimination Attorney. You may also contact our San Diego Discrimination office online and confidentially discuss your situation. Our San Diego Discrimination Attorney will be glad to offer you a free consultation and answer any questions you might have regarding your job.

http://www.sandiegoemploymentlawyer.net – 619.202.0264

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Tricks Used By Employers To Avoid Paying Overtime

Some employers, in an attempt to cut costs, use illegal tricks to avoid paying overtime.

As an employment attorney, I’ve seen lots of maneuvers, but below are the 10 most common tactics that I’ve seen employers use to cheat workers out of their hard-earned overtime pay:

1. Tell the worker that because he earns a salary, he isn’t entitled to overtime.
Many employers and most employees think that, once you’re paid on a salary basis, you lose your right to overtime pay. That isn’t the case. Unless you earn at least double the minimum wage for a full time employment, you are improperly exempt. Plus, you still must fit within one of the exemptions to the Fair Labor Standards Act or you must be paid for all your time.

2. Improperly classify the worker as an ‘independent contractor.’
Most people classified as independent contractors are really employees. If your company controls the time, place and manner of your work; if you can’t work for other companies, can’t hire your own assistants, answer to company work rules and the company sets your hours, the law would probably consider you an employee. If you signed an independent contractor agreement and think you’re misclassified, you are losing more than your overtime. You are also paying your company’s share of employment taxes.

3. Require workers to log in hours ‘off the clock.’ 

I’ve heard of employers that force employees to clock out for lunch, even if they work through lunch. Or they demand employees clock out and stay late. Maybe there’s no time clock at all, and you’re asked to sign a timesheet every week saying you worked 8 hours a day. This is your employer trying to put the lie on you. That way, if you do sue and you signed a paper or clocked in and out, they’ll claim you are lying about your overtime.

4. Combine non-exempt duties.

Even if you have an exempt job, some employers are trying to save money by cutting non-exempt jobs and giving those duties to exempt employees. Double the work, same pay. If your managerial job also requires you to be the receptionist, you are probably entitled to overtime pay for your non-exempt duties.

5. Expect the employees to be on-call.

If you have to jump anytime there’s an emergency and if you can’t use your “free” time freely, you may be entitled to be paid for your time on-call. If the company says you have to stay within a certain mileage from the office, that you must return calls within a short time (such that you can’t even go out and cut the grass or go to the movies if you want), or if the calls come in every 10 minutes, so that doing anything else is impossible, you are probably entitled to be paid overtime for your on-call time.

6. Give off-hours duties.

This is how it works: Employers require employees to arrive at the workplace several minutes before clocking in to put on a uniform or do other prep work, have before-hours or after-hours meetings, mandatory trainings, and other duties that are off the clock. If you’re in this situation, you are probably entitled to be paid for any time you are mandated to be present at work.

Truly voluntary training, such as going to an outside company to get a certification you want to increase your chances of promotion, even if the company pays for it, is probably not work time such that you’re entitled to be paid. If you’re told that failure to attend the training will result in some adverse consequences, it isn’t voluntary.

7. Expect the workers to do work from home.

If your job requires you to answer emails, respond to texts, or otherwise work from home after you leave, you are probably entitled to be paid for those hours. No, you can’t charge for time you took a shower, ate dinner, or watched “The Office,” no matter how much it reminds you of your own office, but you can charge for the time you actually spent working.

8. Tell workers to wait before clocking in.

If your employer requires you to come in, only to make you wait until they need you before you’re allowed to clock in, you’re probably entitled to be paid for your waiting time. If you aren’t told you can leave the premises, you can’t do anything else like go shopping or eat lunch, and you must be available when the work comes in, you are working. If you work in the copy room and play online checkers while waiting for the next job to come in, you’re probably entitled to be paid for that time.

9. Require workers to volunteer. 

Many companies are involved in civic and charitable work, and that’s great. They may ask for volunteers to help with, say building houses for Habitat for Humanity. If you can volunteer or not, without consequences, then you’re working for free. But if your employer requires you to participate, supervises your work, and if you will suffer consequences for not “volunteering,” you are likely required to be paid.

10. Pretends not to know workers are toiling through lunch.

Your employer may look the other way if you work through lunch or after you clock out. That doesn’t excuse the employer from paying overtime. They may claim they didn’t know, but if the company suffers or permits you to work extra hours, you must be paid. That’s why many companies have written policies that require discipline, even termination, for failing to report all hours worked.

Our San Diego Overtime Attorney Can Explain Your Rights
If you need assistance in determining whether you are owed overtime in San Diego, feel free to contact our San Diego overtime Attorney. You may also contact our San Diego overtime lawyer online and confidentially discuss your situation.

http://www.sandiegoemploymentlawyer.net – 619.202.0264

 
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OVERTIME – If an employee works unauthorized overtime is the employer obligated to pay for it? San Diego Employment Lawyer – 619.202.0264

If an employee works unauthorized overtime is the employer obligated to pay for it?

The simple answer is Yes.

California law requires that employers pay overtime, whether authorized or not, at the rate of one and one-half times the employee’s regular rate of pay for all hours worked in excess of eight up to an including 12 hours in any workday, and for the first eight hours of work on the seventh consecutive day of work in a workweek, and double the employee’s regular rate of pay for all hours worked in excess of 12 in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek.

An employer can discipline an employee if he or she violates the employer’s policy of working overtime without the required authorization. However, California’s wage and hour laws require that the employee be compensated for any hours he or she is “suffered or permitted to work, whether or not required to do so.” California case law holds that “suffer or permit” means work the employer knew or should have known about. Thus, an employee cannot deliberately prevent the employer from obtaining knowledge of the unauthorized overtime worked, and come back later to claim recovery. The employer must have the opportunity to obey the law.

Our San Diego Overtime Attorney Can Explain Your Rights
If you need assistance in determining whether you are owed overtime in San Diego, feel free to contact our San Diego overtime Attorney. You may also contact our San Diego overtime lawyer online and confidentially discuss your situation.
http://www.sandiegoemploymentlawyer.net – 619.202.0264

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OVERTIME – Calculating “Regular Rate of Pay” – San Diego Employment Lawyer – 619.202.0264

The following are examples of how to calculate the regular rate of pay:

If you are paid on an hourly basis, that amount is the regular rate of pay.

If you are paid a salary, the regular rate is determined as follows:

Multiply the monthly remuneration by 12 (months) to get the annual salary.

Divide the annual salary by 52 (weeks) to get the weekly salary.

Divide the weekly salary by the number of legal maximum regular hours (40) to get the regular hourly rate.

If you are paid by the piece or commission, either of the following methods may be used to determine the regular rate of pay for purposes of computing overtime:

The piece or commission rate is used as the regular rate and you are paid one and one-half this rate for production during the first four overtime hours in a workday, and double time for all hours worked beyond 12 in a workday; or

Divide your total earnings for the workweek, including earnings during overtime hours, by the total hours worked during the workweek, including the overtime hours. For each overtime hour worked you are entitled to an additional one-half the regular rate for hours requiring time and one-half, and to the full rate for hours requiring double time.

A group rate for piece workers is an acceptable method for computing the regular rate of pay. In using this method, the total number of pieces produced by the group is divided by the number of people in the group, with each person being paid accordingly. The regular rate for each worker is determined by dividing the pay received by the number of hours worked. The regular rate cannot be less than the minimum wage.

If you are paid two or more rates by the same employer during the workweek, the regular rate is the “weighted average” which is determined by dividing your total earnings for the workweek, including earnings during overtime hours, by the total hours worked during the workweek, including the overtime hours. For example, if you work 32 hours at $9.00 an hour and 10 hours during the same workweek at $7.00 an hour, your weighted average (and thus the regular rate for that workweek) is $8.52. This is calculated by adding your $358 straight time pay for the workweek ((32hours x $9.00/hour) + (10 hours x $7.00/hour) = $358) and dividing it by the 42 hours you worked.

Our San Diego Overtime Attorney Can Explain Your Rights
If you need assistance in determining whether you are owed overtime in San Diego, feel free to contact our San Diego overtime Attorney. You may also contact our San Diego overtime lawyer online and confidentially discuss your situation.
http://www.sandiegoemploymentlawyer.net – 619.202.0264

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OVERTIME – What is the “regular rate of pay,” and how is it determined? San Diego Employment Lawyer – 619.202.0264

Overtime is based on the regular rate of pay, which is the compensation you normally earn for the work you perform. The regular rate of pay includes a number of different kinds of remuneration, such as hourly earnings, salary, piecework earnings, and commissions. In no case may the regular rate of pay be less than the applicable minimum wage.

Ordinarily, the hours to be used in computing the regular rate of pay may not exceed the legal maximum regular hours which, in most cases, is 8 hours per workday, 40 hours per workweek. This maximum may also be affected by the number of days one works in a workweek. It is important to determine what maximum is legal in each case. The alternate method of scheduling and computing overtime under most Industrial Welfare Commission Wage Orders, based on an alternative workweek schedule of four 10-hour days or three 12-hour days does not affect the regular rate of pay, which in this case also would be computed on the basis of 40 hours per workweek.

The agreed upon regular hours must be used if they are less than the legal maximum regular hours. For example, if you work 32 to 38 hours each week, there is an agreed workweek of 35 hours, and thirty-five hours is the figure used to determine the regular rate of pay. However, in circumstances where the workweek is less than 40 hours, the law does not require payment of the overtime premium unless the employee works more than eight hours in a workday or more than 40 hours in a workweek. In other words, assuming you are employed under a policy that provides for a 35-hour workweek, the law does not require the employer to pay the overtime premium until after 40 hours in a workweek. If you work more than 35 but fewer than 40 hours in a workweek, you will be entitled to be paid for the extra hours at your regular rate of pay, as overtime premium pay is only required after 40 hours in a workweek.

Our San Diego Overtime Attorney Can Explain Your Rights
If you need assistance in determining whether you are owed overtime in San Diego, feel free to contact our San Diego overtime Attorney. You may also contact our San Diego overtime lawyer online and confidentially discuss your situation.
http://www.sandiegoemploymentlawyer.net – 619.202.0264

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California Overtime – In General – San Diego Employment Lawyer – 619.202.0264

In California, the general overtime provisions are that a nonexempt employee 18 years of age or older, or any minor employee 16 or 17 years of age who is not required by law to attend school and is not otherwise prohibited by law from engaging in the subject work, shall not be employed more than eight hours in any workday or more than 40 hours in any workweek unless he or she receives one and one-half times his or her regular rate of pay for all hours worked over eight hours in any workday and over 40 hours in the workweek. Eight hours of labor constitutes a day’s work, and employment beyond eight hours in any workday or more than six days in any workweek is permissible provided the employee is compensated for the overtime at not less than:

  1. One and one-half times the employee’s regular rate of pay for all hours worked in excess of eight hours up to and including 12 hours in any workday, and for the first eight hours worked on the seventh consecutive day of work in a workweek; and
  2. Double the employee’s regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek.

There are, however, a number of exemptions from the overtime law. An “exemption” means that the overtime law does not apply to a particular classification of employees. There are also a number of exceptions to the general overtime law stated above. An “exception” means that overtime is paid to a certain classification of employees on a basis that differs from that stated above.

Our San Diego Overtime Attorney Can Explain Your Rights
If you need assistance in determining whether you are owed overtime in San Diego, feel free to contact our San Diego overtime Law Firm. You may also contact our San Diego overtime firm online and confidentially discuss your situation.

http://www.sandiegoemploymentlawyer.net – 619.202.0264

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Rise of Wrongful Termination Lawsuits – San Diego Employment Lawyer – 619.202.0264

According to a number of insurance companies, wrongful termination lawsuits are on the rise—and they are the single most frequent labor claim. Even though most employment in the US is considered “at will,” wrongful employment termination claims have spiked for a number of reasons, mainly because the economy has caused an unprecedented number of lay-offs and terminations.

Another reason for a rise in wrongful termination suits is because employees increasingly understand wrongful termination law. In a situation where an employee understands wrongful employee termination and their employer doesn’t, the grounds are fertile for a potential wrongful termination lawsuit.

The increase in wrongful termination claims (mainly involving discrimination and sexual harassment) can also be attributed to laws such as the Americans With Disabilities Act of 1990, the Civil Rights Act of 1991 and the Family And Medical Leave Act of 1993. Because some areas of these laws are vague, they are open to interpretation.

Over 50 percent of all wrongful termination cases are won by the former employee (up to 70 percent in some districts) and there are more than 20 legal grounds for making a claim for wrongful termination or discharge. Clearly, “at-will” employment doesn’t mean that an employee has no legal rights if they are terminated from a job.

If you believe you were wrongfully terminated, please do not hesitate to speak with our San Diego Wrongful Termination Attorney for a free consultation. Call us at 619.202.0264 or check our website at http://www.sandiegoemploymentlawyer.net

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Grounds For Wrongful Termination Claim – San Diego Employment Lawyer – 619.202.0264

Even if your employment is at will, your employer may not terminate you when such termination violates public policy. There are various grounds for wrongful termination lawsuits.

So what are grounds to make a wrongful termination claim?

A wrongful termination attorney will basically study four areas of the law to determine whether their client has a case, including federal and state statutes, public policy, good faith and fair dealing, and implied contracts. Grounds for a wrongful termination case include anti-discrimination laws (e.g., firing a person because of race, age, sex, religion, sexual preference, positive HIV/AIDS tests, disability, height, weight, arrest record, marital status, genetic carrier status and military service).

If employers violate a public policy, they have likely planted the seed for a wrongful termination case. Some examples of violating public policy include:

- Whistle blower retaliation

- Termination for jury duty

- Refusal to break the law at the request of the employer

- Invasion of Privacy

- Defamation of Character

In 2009, Financial Executive discussed five common mistakes made by employers that could result in a wrongful termination lawsuit. In a nutshell:

1. The Employee Manual does not properly address procedures for termination.

2. The context in which managers deliver termination communication is important: ambiguous statements, such as “If it was up to me, you’d still be working here,” or “It looks as though we most likely won’t be able to keep you on,” may cause a legal situation.

3. If charged with discrimination, your employer must prove that the termination was business-related. Managers who neglect to document policy violations and inadequate performance make it challenging to support the company’s defense. Managers must support any employment actions, including performance reviews and subsequent write-ups for poor performance, and firings with complete and appropriate documentation.

4. Documents that include managers’ personal remarks, hyperbole and emotionally laden rhetoric will benefit the employee in a wrongful termination case. Your employer or immediate supervisor can easily add inappropriate comments when documenting violations such as wrongful conduct, intoxication or drugs, tardiness, unsatisfactory work quality, or violation of safety rules.

5. If not prepared for and executed properly, a termination meeting can lead to litigation. An employer must respond calmly to an employee’s behavior and make sure to have a witness in the room as well as the supervisor. An employee should be fired in a controlled, calm and professional manner.

If you have been in any one of these situations, you may have grounds for a wrongful termination lawsuit. Whatever grounds you may have, a wrongful termination claim does not usually reach the point where your employer may reinstate you and/or compensate you for back-pay and warranted damages. Instead, the majority of wrongful termination claims are settled at the initial phase—when your employer is looking for a bargain. This phase is crucial to your settlement and imperative that you have a wrongful termination attorney on your side.

If you believe you were wrongfully terminated, please do not hesitate to speak with our San Diego Wrongful Termination Attorney for a free consultation. Call us at 619.202.0264 or check our website at http://www.sandiegoemploymentlawyer.net

 

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