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Alternative Workweek Schedules in California. There are VERY strict requirements which must be met or the AWS may be invalid and overtime pay may be owed.

6/25/2015

              California labor laws allow an employer to avoid paying overtime to nonexempt employees who work ten hour shifts four days per week.   It is called Alternative Workweek Scheduling.   However, to have a valid alternative workweek schedule, the employer must comply with VERY strict requirements or face getting sued for failure to pay overtime.

            Before an alternative workweek schedule (AWS) may take place, the employer must have a meeting with the affected employees.   The topic of the meeting must be the alternative workweek proposal and provide information about the days/hours to be worked and when the AWS will take place.

            There must be a written proposal/agreement provided to the affected employees.

            There must be a secret ballot election amongst the affected employees and 2/3 must vote in favor of the AWS.

               The results of the voting must be provided to the Labor Commissioner’s Office/DLSE within 30 days of the vote.

               The employees may repeal the AWS if 1/3 of the affected employees petition to repeal it and follow the rules for repealing it.

               If there is an AWS in place and the affected nonexempt employees work over 10 hours in a workday, they must be paid overtime of time and one-half up to 12 hours per workday.   If they work over 12 hours in a workday, they must be paid double time.

               If you are an employer and have or want to have an AWS, call Law Office of Kristine S. Karila to consult to make sure EACH required step is completed and completed correctly.   Failure to abide by one required element can give rise to a costly lawsuit for unpaid overtime.   If you are an employee who works an AWS and have not been paid overtime and believe the AWS was not properly enforced, call Ms. Karila to discuss.



(949) 481-6909

Copyright 2015 Law Office of Kristine S. Karila/Labor and Employment Attorney.

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"Bullying" in the Workplace. What is lawful and unlawful bullying or harassment.

6/15/2015

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               “I was bullied at work,” is a common complaint of employees or former employees.   They believe that being bullied at work, no matter the reason, is illegal.   They are usually surprised to find out that bullying in the workplace is oftentimes and usually not protected by the law.

               There are generally three types of harassment claims (in law, not referred to as bullying, but harassment) that are actionable/provide a basis for a lawsuit.    They are harassment based on a protected class, harassment because the harassed employee asserted his/her right to a legal right, in good faith, and whistleblowers.

               Characteristics that are protected by the law and called protected classes are:   gender, pregnancy, religion, disability, race, age over 40, marital status, etc.

               Examples of unlawful harassment against employees who assert their legal rights in good faith are:    Harassment because an employee asserted his/her right to overtime pay, meal/breaks or complained about sexual harassment in the workplace.

If a whistleblower is harassed or bulled BECAUSE of his or her complaint about the employer’s violation of laws to a governmental agency (EPA, IRS, etc.) or to a supervisor who had the authority to investigate and stop the illegal conduct, that employee may have a case for unlawful harassment in the workplace.

            A new law became effective on January 1, 2015 in California which refers to workplace “bullying.”   It requires employers of over 50 employees to include in their supervisors’ mandatory biannual training of avoiding sexual harassment in the workplace, to also include training regarding anti-bullying in the workplace.   However, importantly, there are no added protections under the law for bullying that is NOT based on a protected class, assertion of a worker’s legal rights or the laws that protect whisteblowers.

            Oftentimes, the “bullying” described by frustrated employees are personality conflicts at work.   That is just human nature.   Those conflicts are not actionable (can’t sue because of) UNLESS they are BECAUSE of the harassed employee’s characteristic in a protected class, assertion of legal rights in good faith or because the harassed worker is a whistleblower.

            Example of actionable harassment/bullying case:   Employee is made fun of because of where she was born, her religious clothing, accent, being pregnant, etc.

            Example of nonactionable harassment/bullying case:    Employee A, who is a co-worker or a supervisor of Employee B does not like Employee B because she is loud or he is a smoker.    There is no actionable lawsuit because personality conflicts alone are not actionable.

            When I think about the law, there is a lot of common sense behind it.   Imagine if every person who has a personality conflict at work got to sue the employer BECAUSE of the personality conflict without a protected class, assertion of legal right or whistleblower activity being involved?   We would need a few courthouses on each corner and our taxes would rise significantly.

            When an employee is told he/she does not have a case for unlawful harassment in the workplace, they sometimes ask: “So, then I have no rights?”    The answer is that at-will employees can quit at any time without notice, for any reason.   Also, they can try to work out the differences, ignore it, find a new job, etc.   But the cold truth is that you can’t sue your employer, supervisor (even if rude and yells at you in front of people) or co-worker for “bullying” or because of personality conflicts unless the harassment is based on a protected class, assertion of your legal rights or if it is BECAUSE you are a whistleblower.

If you believe you have a lawful harassment claim or if you are an employer who needs advice about the new anti-bullying training law in California or if you would like to discuss other areas of employment law, Call Ms. Karila to discuss.   (949) 481-6909.

Copyright 2015 Law Office of Kristine S. Karila/Labor and Employment Attorney.

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Not All Discrimination in the Workplace is Unlawful. It must be Based on a Protected Class and the Employer Must Have at Least 5 Employees.

6/1/2015

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Federal and California law prohibit discrimination in the place of employment.   In order for discrimination in the workplace to be unlawful, it MUST be based on a protected class.   California protected classes are the same as those under federal law plus California law has added additional protected classes.   The protected classes in California are:

Age over 40

Race

Religion

Gender

Disability

Medical Condition

Sex, including pregnancy, child birth or related medical conditions, including pregnancy complications or disabilities

Marital status

Sexual orientation or identity

AIDS/HIV

Political activities or affiliation

Military or Veteran Status

Victim of domestic violence, assault or stalking

Color

National origin

Another requirement for discrimination to be unlawful in the place of employment is that the employer have at least 5 employees.

To sum up workplace discrimination laws, the discrimination must be BECAUSE or mostly because of the employee’s protected characteristic and the employer must have at least 5 employees.

Many employees believe that any discrimination must be illegal/unlawful.   That is not true.   For example, an employee gets passed up for a promotion he/she thinks was deserved.   Instead of promoting the employee, the employer promotes someone they like better or feel is better at the job, etc.   As long as the reason they like the other employee better is NOT BECAUSE the employee who was not given the promotion is of a particular gender, has a medical condition, is pregnant, took maternity leave, is over 40, etc., etc.

An example of unlawful discrimination in employment situations is when an employer fires, demotes, harasses, etc. an employee BECAUSE the employee is older (must be at least 40 years of age.)     Or an employer who has a pattern of paying males more money than females, etc.

On June 1, 2015, the United States Supreme Court agreed with the Equal Employment Opportunity Commission in its ruling that a job applicant for a sales position at Abercrombie & Fitch was denied her rights when she was not hired for the job BECAUSE she wore the religious scarf known as a hajab.   It is unlawful to discriminate against protected classes in the hiring process as well as after the employee is working.    Employers faced with discrimination lawsuits can expect a costly and sometimes very long process.    Consult with Law Office of Kristine S. Karila about this topic to protect your business or if you are an employee or job applicant who has faced unlawful discrimination in the labor/employment arena.

Employers should have an employee manual which clearly states that the employer does not discriminate based on protected class, provide an employee with a guideline as to how to complain about unlawful discrimination and make every effort to ensure the workplace is free from unlawful discrimination.

Law Office of Kristine S. Karila, Employment Law Attorney with over 23 years of experience to discuss.   (949) 481-6909.

Copyright 2015 Law Office of Kristine S. Karila.

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Alternative Workweek Schedules in California. There are VERY strict requirements which must be met or the AWS may be invalid and overtime pay may be owed.

"Bullying" in the Workplace. What is lawful and unlawful bullying or harassment.

Not All Discrimination in the Workplace is Unlawful. It must be Based on a Protected Class and the Employer Must Have at Least 5 Employees.

Kristine S. Karila, Employment Law Attorney has been practicing law in California since 1992. She specializes in employment law. Call for a free initial phone consultation (949) 481-6909

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