Kitchin Legal helps companies create work environments that minimize the risk of employee lawsuits.
With over 25 years of litigation experience, Patrick Kitchin is an effective and appropriately aggressive litigator.
We protect good companies from bad outcomes.
It frequently costs an employer over $100,000 to defend itself against a labor claim by one employee. Defending a company against a class and representative lawsuit can be many times more costly than that. Adding to those business costs, many labor laws award attorney’s fees to the employee’s counsel at the end of a case, even if the damages are low. Often the employee’s attorney’s fees are higher than the employee’s actual award.
Kitchin Legal will design and help you implement employment practices that can avoid typical wage and hour lawsuits and discrimination/harassment/retaliation claims.
Wage and Hour Risks
These are a few of the most common risks every employer in California faces.
Misclassifying a person as an independent contractor can place a company in serious jeopardy.
“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 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.
Misclassifying a person as exempt from overtime pay is one of the most frequently seen employment claims in California.
Under California law, the employer is required to establish that the employee is not entitled to overtime, not vis-a-versa. Non-exempt employees have a range of other rights that must be protected as well. Knowing the difference between exempt and non-exempt employees is crucial to reducing litigation risks.
Failing to pay an employee for all time worked can be costly.
An employer can be ordered to pay two times the value of wages that were unpaid. In 2018 the California Supreme Court held that even short periods of work time are compensable.
Failing to maintain appropriate timekeeping records for hourly, non-exempt employees, is risky.
California Labor Code § 226 and the California Wage Orders set out strict recordkeeping requirements for work time and meal periods for non-exempt employees. Penalties for noncompliance with these laws can add up to $4,000 per employee.
Failing to provide non-exempt employees appropriately-timed rest and meal periods is a primary motivator for employment lawsuits.
In Brinker Restaurant Corporation v. Superior Court, the California Supreme Court clarified how and when employee meal periods and rest periods under Labor Code § 226.7 are earned. The law is not complicated in theory, but can be very difficult in its application.
Failing to pay sales commissions to a sales associate in accordance with California law can result in substantial liability.
Precisely when and how an employee earns sales commissions is established by contract, but the commission rights are governed by principles of both labor law and contract law. Drafting commission agreements that protect a business from future liability is important.
Patrick and his team are very professional, personable, and a pleasure to work with. His rates are very reasonable, and he works with you on providing stellar counsel while thinking about your legal budget.
He is honest and upfront with his legal advice, and I would highly recommend him for anyone with business, employee, and corporate legal needs.
Employment Discrimination, Harassment
and Retaliation Risks
California law jealously protects employees from unlawful discrimination, harassment and retaliation under several laws, including the California Fair Employment and Housing Act.
Protected classes under California law include:
- Sexual orientation
- Gender identity and gender expression
- National origin
- Political affiliations or activities
- Sex (including pregnancy, childbirth, and related medical conditions)
- Medical conditions
- Disability: physical or mental
- Age (40 and older)
- Genetic information
- Marital Status
- Military or Veteran status
- Status as a victim of domestic violence, assault, or stalking
Federal and California discrimination laws constitute some of the most complex set of laws on the books. The good news for employers is that the risk of violating these laws can be effectively minimized through knowledgeable human resource measures. Some measures are required under the law.
Since January 1, 2018 all employers in California have been required to establish and distribute comprehensive written policies governing discrimination, harassment and retaliation to all employees.
Starting January 1, 2020, an employer with five or more employees will be required to provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees and at least one hour of classroom or other effective interactive training and education regarding sexual harassment to all nonsupervisory employees in California within six months of their assumption of a position. Employers will be required to provide this training once every two years.