DFEH Allows Employees To Obtain Immediate Right-To-Sue Online

Several months ago the California Department of Fair Employment and Housing (DFEH) updated its website to allow employees to make an online appointment to lodge a complaint of employment discrimination or harassment. Now the DFEH allows employees to obtain immediate right-to-sue notices online. The website (www.dfeh.ca.gov) instructs that “Persons represented by counsel, who wish to proceed directly to court on employment discrimination, harassment, and retaliation complaints, can now request a right-to-sue letter online.”

Employees filing a claim of discrimination with the DFEH can choose to forgo an investigation and ask for an immediate right-to-sue. The right-to-sue is the employee’s “ticket” to sue the employer in court. By choosing the immediate right-to-sue route, the DFEH will not investigate the claim, and the employee can immediately sue the employer in court. If during the initial interview the DFEH determines a case has no merit, it will allow the employee to request an immediate right-to-sue. The DFEH website repeatedly warns the employee that obtaining an immediate right-to-sue should only be done after consulting with an attorney.

The new “online” route to obtaining an immediate right-to-sue notice can streamline cases where an attorney wants to file a lawsuit. It may also lead to an increased number of discrimination or harassment lawsuits because the employee can obtain the right-to-sue from the comfort of their own home.

It will be interesting to find out if the number of discrimination and/or harassment lawsuits increase as a result of the new online procedure.

You can download an audio version of this article here: California Employment Lawyer Netcast for June 27, 2008.

The Law Office of Phillip J. Griego

95 South Market Street, Suite 520

San Jose, CA 95113

Tel. 408-293-6341

 

Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.

 

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

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Living Wage Ordinance Also Applies to Out-of-City Employees

In June 2008, the First District Court of Appeals held that employees are entitled to the protection of a living wage ordinance (LWO) even if they work outside the boundaries of the city. In Amral v. Cintas Corporation No. 2, the court found that in accepting a contract with the City of Hayward to provide laundry services Cintas certified that it would comply with the City’s LWO setting a minimum compensation level for all covered employees.

Hayward’s LWO defined covered employees as those employed on a service contract with the city. The court found it reasonable to construe that this required the payment of a living wage to all employees who performed work for the city under a service contract. Further, the LWO did not limit the employer’s obligation to pay a living wage only for the time spent performing tasks related to the contract with the city. Because work under the contract was distributed among all Cintas employees, the court found that they all might have worked on the city’s laundry. Since Cintas could not prove otherwise, the court found that all Cintas employees were covered by the LWO. Finally, the court found that because the LWO was intended to benefit employees who work on city contracts, they were third party beneficiaries who could sue their employer for breach of contract in failing to pay a living wage.

What this means for you?

If your business currently contracts with a city, county or other municipality with a living wage ordinance (LWO) in place, immediately review any contracts or agreements and the applicable LWO to determine whether all covered employees are properly compensated. Employers may be able to avoid paying the LWO to employees that do not work on the City’s project, but the employer will have to prove that the employee did not perform any work related to the project.

The Law Office of Phillip J. Griego

95 South Market Street, Suite 520

San Jose, CA 95113

Tel. 408-293-6341

 

Original article by Karen Crowe, a Summer intern at The Law Office of Phillip J. Griego.

 

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

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DFEH Uses YouTube To Teach Employee Rights

The California Department of Fair Employment and Housing has produced a series of youth outreach videos entitled “Equal Rights 101” under a grant from the U.S. Equal Employment Opportunity Commission. The content includes pregnancy discrimination, pre-employment inquiry, reasonable accommodation and sexual harassment in the workplace. Although the videos are geared toward youth in employment, the videos are an interesting training tool for both employers and employees.

The eight minute video can be seen at http://youtube.com/califdfeh, where you can watch, share, e-mail, post comments and rate the videos. In addition to YouTube, the videos will also be posted on a special link to DFEH’s Web under construction www.dfeh.ca.gov/equalrights101, California wiki, and other similar sites. Accompanying the videos will be the attached designs for wallet-sized cards and posters in the same contemporary design. In September, the DFEH will distribute the videos in the form of DVDs, along with posters and cards, to every California high school, State libraries and other venues.

The Law Office of Phillip J. Griego

95 South Market Street, Suite 520

San Jose, CA 95113

Tel. 408-293-6341

 

Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.

 

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

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Holiday Premium Pay Not Part of Regular Rate of Pay

Like many employers, Advanced-Tech Security Services has a policy of paying “premium pay” (1.5 times the regular hourly rate of pay) when its security guards have to work on particular holidays. While premium holiday pay is not required, it is an added benefit to employees and an attempt to compensate the employee for having to work the holiday. When Ester Roman worked 12 hours on Labor Day, she was paid 1.5 times her regular hourly rate for all 12 hours. Ms. Roman believed she should have received time and one-half for the first 8 hours (based on the holiday pay plan), and 1.5 times the holiday pay rate for hours worked in excess of 8 hours that day. The Second Appellate District disagreed.

The employer was able to show that Ms. Roman receive 1.5 times her regular hourly rate for all overtime hours worked that week and the court held that the “regular rate of pay” does not include premium holiday pay. This case is interesting because determining an employee’s regular rate of pay can oftentimes be very confusing. For example, bonuses and commission are supposed to be included in the employee’s regular rate of pay. Unfortunately, Labor Code Section 510 (which requires overtime compensation “at the rate of no less than one and one-half times the regular rate of pay for an employee”) does not define “regular rate of pay.”

Finding no direction in California law, the Appellate Court loked at the FLSA which provides that the

“regular rate” of pay includes all “remuneration for employment,” subject to several exceptions, including “extra compensation provided by a premium rate paid for work by the employee on Saturdays, Sundays, holidays, or regular days of rest, or on the sixth or seventh day of the workweek, where such premium rate is not less than one and one-half times the rate established in good faith for like work performed in nonovertime hours on other days.” (29 U.S.C. §§ 207(e)(1), 207(e)(6))

Employers should keep in mind that the exceptions noted above only apply when the employee receives at least 1.5 times the employee’s regular hourly rate for the premium pay situations.

Employers are free to offer premium pay to employees that have to work weekends or holidays without worrying that they will have to pay increased overtime. Those interested in reading the case can find it at http://www.courtinfo.ca.gov/opinions/documents/B205186.PDF.

The Law Office of Phillip J. Griego

95 South Market Street, Suite 520

San Jose, CA 95113

Tel. 408-293-6341

 

Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.

 

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

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