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For Employers

120008616These Are the Risks Every Employer Faces

In its most recent report (for 2017), the California Department of Fair Employment and Housing (“DFEH”) identified 4,346 discrimination, harassment and retaliation claims filed.  Five Bay Area counties accounted for nearly 3,000 of them.

The Division of Labor Standards Enforcement (“DLSE”), which is responsible for enforcing wage and hour laws, and conducting wage hearings, reported that in 2017-2018, it conducted 2,181 employer inspections and issued over $36 million in penalties.

It frequently costs an employer over $150,000 to defend itself against one employment practices claim. Adding to those costs, many California labor laws award attorney’s fees to the employee’s attorney at the end of a case even if the wage award is small. Often, the employee’s attorney’s fees are many times higher than the employee’s actual award.

Patrick Kitchin is a leading expert in California employment laws.  We can help you to design employment policies that will keep your business from becoming part of these statistics.  And, if you are sued by an employee, Kitchin Legal can help you resolve the case in the most efficient and cost-conscious way.  With over 25 years of litigation experience skills at resolving employment cases, we are a great choice for litigation counsel.

Typical Wage and Hour Violations

Misclassifying a person as an independent contractor when in fact he or she is an employee.

“Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee.” (Labor Code § 3357)  In the recent Dynamex v. Superior Court (Lee) decision the California Supreme Court has determined that California will use the “ABC Test” to determine whether someone is an independent contractor or employee for claims brought under the California Wage Orders.  A worker will be deemed to be an employee unless the employer can prove that: (A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

Failing to pay an employee minimum wage for all time worked.

An employer can be ordered to pay 2 times the value of the minimum wages that were unpaid.

Misclassifying a person as exempt from overtime pay when in fact they are entitled to it.

Under California law, the employer is required to prove that the employee is go to site not entitled to overtime, not vis-a-versa.

Failing to maintain appropriate timekeeping records for hourly, non-exempt employees, including meal periods taken and missed.

Penalties for record keeping violations can add up to $4,000 per employee.

Failing to provide non-exempt employees appropriately timed rest and meal periods.

The California Supreme Court recently set out new guidelines governing employee meal and rest breaks.  (Labor Code § 226.7)

Maintaining a tip pooling policy in a restaurant that violates Labor Code § 351.

Section 351 prohibits employers and their agents from sharing in or keeping any portion of a gratuity left for or given to an employee by a patron.