Phone: (415) 677-9058 | Email: prk@kitchinlegal.com

Posts by prk@kitchinlegal.com

Trump’s Enhancing Public Safety in the Interior of the United States Executive Order is Effectively Silencing Immigrant Crime Victims and Workers

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Like many employment lawyers in California, I’ve represented a number of undocumented immigrant workers in lawsuits against their employers. Some of my undocumented clients had been sexually harassed, some discriminated against because of their ethnicity, and some had been denied minimum wages for performing menial work. Of course, these clients and millions of others are working here in violation of our immigration laws. But once they enter the workplace, they are entitled to all of the legal protections guaranteed their American coworkers.  The 14th Amendment to the United States Constitution protects everyone in the United States, regardless of how or why they are here.  So any law whose purpose, or effect, is to deny workers access to the full protection of our employment laws violates the 14th Amendment. Although I worry about the slow pace of our journey toward workplace equality, I have more immediate concerns these days.  The Trump administration’s anti-immigrant rhetoric and immigration executive order are creating barriers to the justice system for entire communities.  If you believe there is a reasonable chance that you or a family member will be deported if you file a civil complaint, or even if you call the police to report a crime, you will be less inclined to complain.  When it comes to criminal or civil justice in America, silence comes at a heavy cost. Silencing Crime Victims Look at what is happening in the criminal justice arena.  Less than 100 days into the Trump administration and already we are measuring its detrimental impact on crime reporting.  According to the Los Angeles Police, Latino immigrants in L.A. have suddenly become less willing to report serious crimes.  Chief Beck reported that complaints by immigrant Latinos dropped 25 percent in 2017 when compared to the same period last year.  Reports of domestic violence fell 10 percent.  Beck asked us to “imagine a young woman, imagine your daughter, your sister, your mother,” he said, “not reporting a sexual assault, because they are afraid that their family will be torn apart.”  I have imagined her choices under those circumstances and I am appalled. Similar reports showing a strong correlation between the Trump administration’s immigration policies and a drop in crime reporting in immigrant communities...

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Thousands of Piece Rate Workers in the Salon Industry in California Are Owed Unpaid Wages

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Salon owners in California who pay employees on a commission wage basis are subject to liability for failing to pay all wages due. Under California law “commissions” are a form of wages applicable only to an employee who sells a product or service, not to an employee who makes a product or provides a service to the employer’s customers. Keyes Motors v. DLSE 197 Cal.App.3d 557, (1987) Thus, salon employees in California whose job is to cut and/or color hair, must be paid on an hourly basis, a piece rate basis, or a combination of hourly wages and piece rate wages.  Salon technicians who have been paid on a typical net commission basis are likely due unpaid wages and statutory penalties. Piece Rate Wages for Hair Stylists and Colorists California Assembly Bill 1513 (AB 1513) went into law on January 1, 2016, adding section 226.2 to the California Labor Code to address compensation for piece rate work. Piece rate workers are paid according to the number of units they complete.  Piece rate units might be defined by the numbers of widgets assembled by a factory worker, the number of cars washed by a car washer or the number of haircuts given by a barber or cosmetologist. AB 1513 did not create new wage obligations, but instead codified the legal obligations described in two important appellate decisions that addressed the wages of piece rate workers back in 2013: Gonzales v. Downtown LA Motors, 215 Cal. App. 4th 36 (2013) and Bluford v. Safeway, Inc., 216 Cal. App. 4th 864 (2013). In Gonzales, the court held that mechanics who worked on a piece rate basis must be paid for their non-productive time (time during a shift when the worker was not actively engaged in compensable work).  An employer, the court explained, cannot average the wages worked by an employee to show that the employee received at least minimum wage for all hours she was under the employer’s control.  The employer must pay no less than the applicable minimum wage for every minute an employee is under its control, including time when no compensable work is being performed under a piece rate system. In Bluford, the court held that piece rate workers...

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Ninth Circuit Court of Appeals Rejects Class Certification Challenge in Vaquero v. Ashley Furniture Industries

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The Ninth Circuit Court of Appeals has rejected a California employer’s challenges to class certification in a wage and hour class action lawsuit brought on behalf of 600 sales employees.  At issue in the case was whether differences in the damages allegedly suffered by the sales employees made the claims too disparate to satisfy the legal requirements for class certification under Rule 23 of the Federal Rules of Civil Procedure.  The employer argued that substantial differences in the alleged damages meant that the employees’ claims were not common to the whole group and that those differences were more dominate than the alleged common issues in the case. If the damages suffered by the employees (unpaid wages) would require individualized proof, the defendant argued, then the employees should not permitted to proceed on a classwide basis.  They should be required to prove their claims on an individual basis in separate lawsuits. Rule 23 permits a plaintiff to sue as a class representative only if “there are questions of law or fact common to the class.”  That means that the plaintiff can only proceed on a class basis if there exists a common factual or legal contention that is capable of classwide resolution.  In other words, is it possible to reach a common answer to a question that is common to all members of the class? In Vaquero the employees alleged they were paid on a commission basis for sales but were not paid any wages for work they performed that was unrelated to sales (cleaning the stores, attending meetings and moving furniture).  Under California law, they alleged, Ashley Furniture was required to pay them at least minimum wage for this additional work.  Commonality The employees argued that Ashley Furniture’s failure to pay them for this extra work raised a common issue of fact and law that was easily capable of classwide resolution.  The Ninth Circuit agreed: “If the company required sales associates to do work not “directly involved in selling” and failed to compensate the sales associates for such work, then it violated California’s minimum wage laws for all such employees.” As such, the Court determined, the claims satisfied Rule 23(a)(2).  The issue was common to the class. Predominance Rule...

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Small Company? Big Risks!

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Over the years, Kitchin Legal has helped numerous small to mid-sized companies, including restaurants, general contractors, janitorial companies and healthcare providers, to understand and follow the complex laws governing the employment of workers in California. We have also helped such companies resolve employment claims through the courts, the California Division of Labor Standards Enforcement and the United States Department of Labor.  There is one overriding lesson we have learned from representing these diverse companies and it is an obvious one:  proactive litigation risk management is hundreds of times less costly than fighting employment-related lawsuits in any venue.   One of the simplest and most cost-effective steps any company can take right now is to implement timekeeping, meal period and rest period policies that comply with California’s labor laws.  Often, for less than the cost of a court filing fee, Kitchin Legal can help a company implement wage and hour policies that can mean the difference between avoiding a wage claim and defending the company against one.   Let us help you to lower your company’s litigation risk profile...

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Tips or Service Charges? Challenges for the Restaurant Industry

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Some restaurants in the San Francisco Bay Area are rethinking the tip or gratuity system we have all come to expect and accept.  Instead of relying on tips to help increase wage levels for their employees, some restaurants are imposing service charges of up to 20% to augment wages, and telling their patrons that tips are no longer expected. Restaurant owners can distribute the service charges as wages to all employees, whether they working in the front or the back of the house.  Employers use the proceeds from service charges to increase the hourly wages of employees who sometimes have not been included in the gratuity system (including cooks, dishwashers, food runners). Under California law service charges are not considered tips.  Service charges are the amount a patron is required to pay under the terms and conditions of purchasing food and drinks at the restaurant.  Service charges belong to the restaurant and not to the employees. Using service charges to augment wages for restaurant workers can raise legal issues that can expose a restaurant to liability for failing to pay the correct amount of overtime pay to an employee. [W]hen an employer distributes all or part of a service charge to its employees, the distribution may be at the discretion of the employer and the service charge, which would be in the nature of a bonus, would be included in the regular rate of pay when calculating overtime payments.  California Division of Labor Standards, FAQ, Tips and Gratuities If a restaurant establishes a standard distribution of the service charge proceeds (for example, each busser working an eight hour shift is entitled to 10% of the total service changes received during the shift), then the additional wage payment can be characterized as a non-discretionary bonus.  If the payment is deemed to be a non-discretionary bonus, then the employee’s overtime rate must be calculated to include the value of the service charge distribution.  If the additional compensation is not included in the regular rate of pay, the restaurant could face a claim that it failed to pay all of the overtime wages that were due. While service charges are a creative way of creating and managing a fair wage system in a restaurant, they can also expose restaurants...

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