Category: Wage & Hour Rights

So Who’s Paying for the Uniform?

Uniforms have been a point of contention for employers and employees. Who pays for them? Who keeps us the maintenance? It turns out; Federal and California law differ significantly in these answers.

Federal law stipulates that an employer can require an employee to provide their own uniform as so long as an employee’s does not fall below minimum wage.

In California, however, employers cannot pass the cost of a uniform on to their employees. Employers must pay for or reimburse employees for any mandated uniform or supplies, regardless of compensation.

So what is a uniform? According to California law, a uniform is defined as any apparel of distinctive color or design or apparel with an insignia affixed on to it, that the employer mandates an employee wears. Shoes/boots that cannot be used away from work can also be considered part of a uniform. If the clothing can be reasonably worn away from work or are easily findable or accessible, then they do not fall under the employer’s burden.

If the employer does provide the uniform, there are certain considerations to be aware of. Upon termination, if an employee fails to provide the uniform back, an employer may not unlawfully deduct from the employee’s final wages. This can only occur if the employer obtains a proper authorization from its former employee upon termination, not upon hiring. Another lawful means is by inquiring for a security deposit upon hire. Again, the employer cannot unlawfully deduct from the employee’s wages without approval or consent.

Questions regarding your employer’s decisions? Contact an Aegis attorney. Not so Prime

The United States Supreme Court has agreed to hear a case from former warehouse employees. The suit alleges that under the Fair Labor and Standards Act (FLSA), must compensate their warehouse employees for the time spent waiting for a security check at the end of their shifts.

As part of an anti-theft procedure, Amazon employees from Nevada had to wait at the end of their shifts to pass through a security check before being able to leave the premises. These checks took up to thirty minutes a day and were uncompensated. The U.S. Court of Appeals for the 9th Circuit ruled that suit could move forward in April 2013.

Integrity Staffing Solutions, Inc., the third party staffing company involved in the Nevada case, is being represented by former U.S. solicitor general Paul Clement. Clement argues that time spent waiting for security checks is comparable to other post-work duties that are not compensated for, such as walking to one’s car in the parking lot or waiting to clock out.

If heard by the Supreme Court and ruled like the 9th Circuit, this case could possibly invite a wave of other related cases.

Differences Between Employees and Independent Contractors

How do you know whether you are entitled to employee protections under California law such as overtime, meal periods and rest breaks, among other things?  The answer depends on whether you are considered an employee or independent contractor.

In order to be viewed as an employee, there needs to be an employer-employee relationship.  There are several factors that courts weigh to determine whether a person is an employee or independent contractor.  The primary factor courts consider is whether the individual or company has the right to control the manner and means in which the worker performs his job.  Other factors include (1) whether the worker is involved in his own enterprise independent of that of the individual or company, (2) whether the work performed by the worker is part of the regular business of the individual or company, (3) whether the individual or company provides the worker with instruments and equipment necessary to perform the essential functions of the position, (4) how long the working relationship is expected to last, and (5) how the worker is paid.

There is a strong presumption that workers are employees, which means the individual or company has the heavy burden of establishing the above factors.

A big misnomer is you are an independent contractor if the individual or company tells you that you are.  The fact a worker may be treated like an independent contractor is of no significance in determining employment status.  Even if a worker receives an IRS Form 1099 from the individual or company, which form is usually provided to independent contractors, this does not confirm that a worker is actually an independent contractor.

If you have any questions or would like more information on this topic, please contact the attorneys at Aegis Law Firm, PC.

Are Employers Legally Obligated to Offer a Severance?

moneyUpon termination, companies will frequently provide severance packages (also known also “termination pay” or “severance pay” or “separation pay”) so that the former employee may sustain his or herself for a period after separation with the company. The questions many employees have though is this: “are employers legally obligated to offer a severance?”

This is the general rule of thumb in California: no, employers are not obligated to provide you a severance upon termination except for particular instances that are outlined in the law. Some of the exceptions can be found below.

You employer is obligated to provide you a severance if:

1)      Severance pay is outlined in the employee policies and procedures. If your employee handbook indicates that every employee upon separation is entitled to severance compensation, you may have the right to recover those wages.

2)      A severance package is mandated by some sort of contract between the employee and employer during the course of the employment.

3)      A mass layoff occurs then a severance pay is mandated by the W.A.R.N. Act in California. For instance, if a company closes down, they must give their employees at least 60 days- notice of the closure. If such notice is not given, however, the company may be liable to continue paying their employees after the layoff, up to 60 days of pay.

In some instances, employers will provide a former employee with a severance package in exchange for a general release or waiver of claims. In this case, if you accept the severance, you are releasing any and all legal claims you potentially have against the company, as stipulated by California Civil Code 1542.

Just Tip It, Tip it Good

We previously blogged “Tips on Tips” regarding the lawful practice of tipping in California. Another facet of the tipping process has recently had a face lift in the law. How many times have you gone to a restaurant for a birthday party or office get together with a party of more than eight? And how many times have you seen an “automatic gratuity” or “mandatory service charge” tacked on to your bill as a result of your big party? Usually, when a patron sees that added gratuity, they feel that it is not necessary to add an additional gratuity since it has already been accounted for. Well, now, you’ll see that automatic service charge disappearing in restaurants in California.

The California Department of Labor has reinforced the definition of “tip” for servers in the food industry. Mandatory gratuities, essentially, is an oxymoron. “Gratuity” in itself is a voluntary practice on the part of the patron, who has the sole discretion to assign an amount as a tip. These mandatory service charges, however, does not allow for the patron to assign said amount, but rather, does it for the patron. This makes it non-discretionary as a tip should be.  And since the assignment of the gratuity is not under the discretion of the patron, it is at the discretion of the employer to hand out tip monies. Since the employer is responsible for assigning value to the server’s work, rather than the patron who might have tipped the server significantly more, employees might be getting shorted on tips.

So, if you are a server in the food industry, and you observe mandatory gratuities being tacked on bills for tables you wait or serve on, contact an attorney to evaluate a potential claim.