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Released:  10/9/2009 12:30:11 PM
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Which Line is Longer?
Published By Duvel & Duvel Attorneys at Law


Groundbreaking Lawsuit: The Cheesecake Factory Hit With Sexual Harassment Lawsuit

Employees being fired after reporting sexual harassment seems to continue to grow unfettered everyday. My Orange County Law Firm has been receiving numerous calls regarding this issue. Most recently, a former employee of the Cheesecake Factory filed a lawsuit accusing the company of subjecting him to a barrage of sexual harassment from other male line chefs and punishing him when he complained.

The former employee's attorney has filed a federal lawsuit against the company seeking compensation for "mental anguish (and) loss of dignity. He says line chefs continually grabbed each others' buttocks and genitalia and simulated sexual intercourse in front of him. He contends he was mocked, punished and ultimately wrongfully terminated in September 2008 after he expressed his discomfort and complained.

According to the lawsuit filed by the employee's attorney, the Equal Employment Opportunity Commission issued a letter stating the evidence showed the employee "was subjected to severe sexual harassment and that the sexually hostile environment was pervasive."
According to the lawsuit, someone put a sanitary pad on a serving of meatloaf that the employee was about to prepare for a customer, and when he showed it to the person in charge of quality assurance, that person smirked.

In November 2009, the Cheesecake Factory settled a different sexual harassment lawsuit for $345,000. In that case, six male employees said they were subject to sexual harassment.

Have You Been Wrongfully Terminated?

My Orange County Law Firm receives calls daily regarding this issue. California's Labor Code specifies that an employment relationship with no specified duration is presumed to be employment "at-will." This means, at least in theory, that an employer or employee may terminate the employment relationship at any time, with or without cause. There at exceptions to the at-will rule created by the statue, the courts or public policy.
Federal and state laws and regulations protect employee's rights. For example, an employer can be liable for damages if they terminate an employee because of race, color, religion, sex, national origin. Additional information can be found by visiting the website for the Equal Employment Opportunity Commission.

In proving wrongful termination, a plaintiff must prove either that the termination violated the FEHA, a statue, or a "common law" (non-statutory) cause of action such as wrongful termination in violation of public policy.

Wrongful termination cases are fact driven and therefore each case must be carefully and separately analyzed. It is therefore important that the employee keep copies of the Employee Handbook or other written policies and procedures, any letters or phone logs evidencing communications with the employer or its management, and performance evaluations so that the reviewing attorney can better assist the client in evaluating the potential case. If you feel you have been wrongfully terminated please contact Duvel & Duvel, PLC., for a free consultation.

Is My California Employer Required To Give Me Severance Pay?

Lately, our Orange County Law Firm has been receiving calls regarding this issue. Employee reductions and terminations have been an unfortunate result of the current economic downturn. In California, there is no requirement in the Fair Labor Standards Act to provide Severance Pay. However, "Severance Pay" is often granted to employees upon termination of their employment. A Severance Agreement is a contract, or legal agreement between an employer and an employee that specifies the terms of an employment termination, such as a layoff. Often times this agreement is called a "Separation" or "termination" agreement or "Separation Agreement General Release and Covenant Not to Sue." The consideration offered for the waiver of the right to sue cannot simply be a pension benefit or payment for earned "vacation pay" or sick leave to which the employee is already entitled but, rather, must be something of value in addition to any of the employee's existing entitlements.

To minimize the risk of potential litigation, many employers offer departing employees money or benefits in exchange for a release (or "waiver") of liability for all claims connected with the employment relationship, including discrimination claims under the civil rights laws enforced by the Equal Employment Opportunity Commission (EEOC) -- the Age Discrimination in Employment Act (ADEA), Title VII, the Americans with Disabilities Act (ADA), and the Equal Pay Act (EPA). While it is common for senior-level executives to negotiate severance provisions when initially hired, other employees typically are offered severance agreements and asked to sign a waiver at the time of termination.
An example of consideration would be a lump sum payment of a percentage of the employee's annual salary or periodic payments of the employee's salary for a specified period of time after termination. The employee's signature and retention of the consideration generally indicates acceptance of the terms of the agreement. If an employer decides to offer the employee a severance package, quite often the employer will have the employee sign a release, that's an agreement not to sue the employer in exchange for receiving certain benefits. The employer must give the employee a certain period of time to review the release, allow them to revoke the agreement for a limited time after they sign, and advise them in writing to consult with an attorney. If you have been presented with a written severance agreement or release of claims and you would like to discuss your rights and obligations under it please contact us.

Can My California Employer Deduct Credit Card Processing Fees From My Tips?

/Pile_of_Money.jpgLately, my Orange County Law Firm has been receiving calls questioning this issue. The answer is No. Your employer may not pass any costs associated with doing business on to you. You are entitled to receive the full amount of any tip left by patrons paying with credit cards without any deductions for such processing fees. Your employer is also required to keep accurate records of any such transactions. Failing to do so, could place the burden on the employer to prove that your estimates of the tips due are not accurate. Note: credit card tips must be calculated and paid to you by the next regular business day.

In California, as a matter of law tips cannot be used as an offset against your employer's obligation to pay your hourly wage rate. Your hourly wage rate must always be at least the minimum wage for the state of California. Any agreement to the contrary would be considered void and you would be entitled to the difference between the applicable hourly rate and the lesser rate you actually received as a result of such a tip credit.

When Must My California Employer Pay My Final Paycheck?

My Orange County Law Firm receives a voluminous amount of calls regarding this issue. The answer is, It depends. If your employer is letting you go (regardless of the reason), your final paycheck must be given to you immediately (i.e., your last day of work). If you are quitting without giving notice, your final paycheck must be given to you within 72 hours. If you are quitting with at least 72 hours advance notice, your final paycheck must be given to you on your last day of work. If your employer claims you owe him/her money, he cannot refuse to pay your final wages and he/she cannot deduct the amount he/she claims you owe from your paycheck this is an unlawful deduction from pay. Your employer must go through the legal process for collecting money as he/she would with a non-employee. If your paycheck is late, you may collect Labor code penalties from your employer which amounts to one day's pay for each day your paycheck is late up to 30 days.

Your final paycheck should include generally, all wages owed through your last day of work. This includes all hourly wages or salary, a pro-rata share of any accrued and unused vacation pay or paid time-off, and any other leave which can be used unconditionally by the employee. This would also include tips. Your employer cannot compel you to sign away your legal rights in a release or waiver in exchange for earned wages.

What if my Job Requires me to Work Through my Lunch Break?

It seems lately that my Orange County Employment Law Firm has had several calls about lunch break issues. Specifically, these California employees are being required to work through their lunch break due to the "nature of the job". This issue has come up several times recently as it relates to security officers. These employees are being told they cannot leave their post and as a result, cannot take a proper meal break.

As I discussed in a previous post about Labor Code Section 226.7 and lunch breaks, the law provides that an employee must get at least a 30 minute lunch break whenever they work for more than five hours in one workday. However, an employer may ask that an employee waive their right to a lunch break. This waiver must be in writing, and employees must be free to not sign the waiver. Similarly, if they do agree to sign it, they must be free to revoke the waiver at any time.

If you have not signed a waiver of your lunch break, your employer cannot require you to work through your lunch break. Such is often the case for security officers, who are told they cannot leave their post for lunch. If no relief security officer is provided, the security officer is still entitled to a lunch break (and by break, it needs to be duty free, not scarfing down a sandwich while sitting at your post working). If that lunch break is denied to you, you may be entitled to monetary penalties as result.

California Employers Cannot Offset Rent for Wages Without A Voluntary Written Agreement

My Orange County Employment Law Firm has recently handled two rental offset cases, one in Orange County and one in Los Angeles County. Generally, rent may not be credited against minimum wage without a voluntary written agreement between the employee and the employer. Both clients were property managers, one at a Hotel and the other at a large apartment complex. They earned low hourly wages, and had their rent offset from their wages. This is legal, however, there are strict guidelines as to what the employer can deduct as a rental credit.

Regardless if there is a written agreement or not, the amount of the rental credit must not be more than the following: (1) $37.63 per week for rooms occupied alone; (2) $31.06 per week for shared rooms; (3) Two-thirds of the ordinary rental value but never more than $451.89 per month for apartments; (4) Where a couple are both employed by the employer, two-thirds of the ordinary value but never more than $668.46 per month. (All listed amounts effective as of January 1, 2008.)

Any employer who has failed to abide by these limitations or who has otherwise failed to implement a voluntary written agreement as required, may be liable to the affected employee for not only the amount of wages unpaid as a result of the unlawful offset, but also for penalties, interest, and reimbursement of reasonable attorney fees and costs.


Industrial Welfare Commission Wage Order 5-2001, 10(c)

California Employers May Be Liable For Damages Caused By Its Employees During Business Trips

In the recent California Court of Appeals decision Jeewarat v. Warner Brothers Entertainment, the Court relied on what is known as the "special errand doctrine". This doctrine provides an exception to the "going and coming rule" which means that an employee who has an accident during travel time to and from home to work is solely responsible for the accident, not the employer.

My Orange County Employment Law Firm has handled many cases regarding travel time. However, those cases usually center on whether or not an employee is entitled to wages while traveling for his or her employer. In the Jeewarat case, the employee was driving home from the airport after a three day business trip when he struck three pedestrians, killing one of them and injuring the others. Those pedestrians then sued the employee and his employer, Warner Brothers.

The Court held that the "special errand doctrine" provided an exception to the going and coming rule. Because Warner Brothers paid for its employee's airfare, hotel, and other travel expenses, the entire trip was not concluded until the employee reached his home. Consequently, the Court found Warner Brothers to be vicariously liable (responsible) for its employee's actions, and thus liable for damages to the pedestrians.

EEOC Approves Amendments to the ADA.

Any California employee who feels they were discriminated against at work due to a disability falls under the auspice of the EEOC (Equal Employment Opportunity Commission). As discussed in my prior blog post, disabilities used to be defined as "conditions that affect one or more of the body systems, such as the musculoskeletal and neurological systems, and that limit an individual's ability to participate in a major life activity." On September 23, 2009, the new Amendments to the ADA (Americans with Disabilities Act) were published, which included some of the following items:

  • The definition of "disability" was broadened, making it easier for an employee to establish that she has a disability. Specifically, where it once said "substantially limiting a major life activity", the new amendment does not require the disability to be significant or severely restricting a major life activity.
  • The definition of "major life activities" was significantly broadened.
  • If a disability is in remission but would substantially limit a major activity when "active" it still would be considered a disability.
These new amendments emphasize that a disability should be construed broadly in favor of the employee, which will make it much easier for employees to establish a disability under the ADA.


EEOC Notice Concerning the ADA Amendments Act of 2008

Riverside, California Jury Awards $26 Million on Age Discrimination Claim

A Riverside County Superior Court jury awarded $25 million in punitive damages to the nearly $1 million in compensatory damages they had awarded the previous day to a former Kmart manager for age discrimination. In the case of Harkins v. Kmart, the plaintiff alleged that Kmart's unlawful conduct was part of a sequence of events designed to get him to retire. Plaintiff had provided exceptional service to Kmart for 20 years, and claimed he was being terminated solely due to his age (64). He alleged that in the months before his termination, he was unlawfully demoted and disciplined in veiled attempts to "work on him" to quit or retire. When he did not "retire" or quit, he was fired. This firing, plaintiff alleged, was retaliatory due to his refusal to quit and due to his age.

1207444_courtroom_1.jpgMy Orange County Employment Law Firm was recently retained on a case where age discrimination was the primary claim. In assessing such cases, it is sometimes difficult to distinguish between a company's need to reduce its work force due to budgetary concerns and a company using that reason as a pretext for its true motive, ridding itself of an "old" employee. Factors that tend to sway the scales in one direction or the other tend to be things like whether other job positions were eliminated, if other employees lost their jobs (and their ages in comparison to the rest of the workforce) and if the company intends on hiring (or has hired) new employees to replace or fill the holes left by the dismissed employees.

What Happens to Vacation Pay After Resigning or Being Terminated?

In California, vacation pay is not required. However, many employers have chosen to implement various vacation pay policies for their employees. Those that have must then comply with California law pertaining to vacation pay.

With the state of today's economy, more and more employees are suddenly out of work. My Orange County Employment Law Firm has received a large increase in calls regarding vacation pay, specifically that employees have either been let go or terminated without getting all their vacation pay. So, what is the law? In California accrued (already earned) vacation days are just like wages, meaning once they have been earned, they become the property of that employee.

Many employers have a policy in place that states something to the effect of "Use it or Lose It", meaning that employees who have earned a certain amount of vacation days will lose those accrued vacation days if they are not used in a specific period of time. Such a policy is absolutely against the law! Employees are given two options with regard to accrued vacation:

  1. They must be permitted to carry-over the accrued vacation days; or
  2. The remaining accrued vacation days must be paid out to the employee at whatever rate the employee is earning at the time of the payout.

If an employee separates from an employer without receiving as pay all accrued vacation days, the employee may also then be entitled to waiting time penalties, which I detailed in a previous blog post, interest, and reimbursement of attorneys fees and costs from the employer.

However, having said all that, employers do have the right to determine the other criteria of their vacation policy, specifically which employees are entitled to receive paid vacation, at what rate or frequency vacation days accrue, and how much can be accrued at one time.

California Wrongful Termination, What Does it Really Mean?

Almost all California employees are "at will" employees, meaning they can be terminated for any reason, so long as it is not an unlawful reason. So, if most employees are at will employees, what separates a termination from a wrongful termination?

California employees can essentially be terminated for any reason, so long as the reason is not an unlawful reason. Here are some of the more common unlawful reasons that would make a termination a wrongful termination:

  1. An employee may not be terminated for lawfully reporting sexual harassment to a supervisor or to Human Resources;
  2. Similar to above, an employee cannot be terminated for participating in an investigation of someone else's claims of sexual harassment or unlawful discrimination;
  3. For exposing certain unlawful wrongdoings by the company or by a higher ranking employee of the company, commonly known as whistle-blowing;
  4. For submitting a worker's compensation claim from injuries suffered at work;
  5. For complaining to management or Human Resources about not receiving proper wages, overtime compensation, lunch breaks or rest breaks;
  6. For filing a complaint with a governmental or administrative agency such as the DFEH or the Labor Board; and
  7. Lastly, an employee is not at will if that employee has an employment contract designating a specific period of time.

All California Employers Should Have An Employee Handbook

As I have detailed in previous blog posts about labor code penalties, California has by far the strictest labor laws in the nation. Consequently, employers need to take all steps necessary to insulate themselves from employee lawsuits. One of the most important ways to do that is to have a properly drafted


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