Due to recent developments and question involving the law, the US Department of Labor has issued a revised Final Regulations which help interpret and clarify several provisions of the Family and Medical Leave Act or FMLA.
The Final Regulations also contain the recent FMLA amendments expanding the coverage of the law which now includes military families in deployment situations.
The complete copy of the regulations can be reviewed by policy implementers at http://www.dol.gov/esa/whd/fmla/finalrule.htm. The same will take on the 16th of January next year.
The FMLA is a federal law, which protects employees by allowing those who are eligible to take paid or unpaid job-protective leave which can last up to 12 weeks per calendar year.
But as the law is worded to include the families of a covered service member, the leave now can last up to 26 workweeks from the original 12 weeks per calendar year.
Because of these laws, employee can take a job-protected leave provided his/her reason/s fall under any of these:
• He/she is unable to work because of a serious health condition
• To care for an immediate family member – spouse, child or parent, with a serious health condition
• There is birth in the family or adoption of a child or foster care placement of a child
In a recent decision by the Ninth Circuit of the United States Court of Appeals, the Court has the occasion to decide whether non-residents working intermittently within the State of California are covered by the California Wage Laws.
The non-residents individuals here were instructors who go from state to state, giving trainings to customers of the Oracle software as regards their use. They performed work in California from five to thirty days every year. They were not paid overtime.
The plaintiff thus filed suit against their employer for overtime claims. They alleged that they were wrongfully classified as exempt employees and weren’t paid the overtime – either daily and/or weekly.
When the case reached the Court of Appeals, the Court sustained the plaintiffs. It ultimately concluded that during the days the instructors were in California, the California Wage Laws, including the requirement of payment of overtime, must be applied to them. Therefore, the non-resident employees are entitled and must be paid overtime.
Overtime law mandates that employees who are not otherwise included in the list above, 18 years of age or older, or any minor employee 16 or 17 years of age who is not required by law to attend school and is not otherwise prohibited by law from engaging in the subject work, are entitled to overtime pay.
Meaning, they shall not be required to work beyond 8 hours in any workday or beyond 40 hours in any workweek unless they receive one and one-half times their regular rate of pay for all hours worked over eight hours in any workday and over forty hours in the workweek.
A day’s work consists of eight hours. Beyond that, we know that we are entitled to overtime. For those that for some reason or another didn’t receive overtime pay, they filed suits for the recovery of the same.
Doing and proving the same is hard. Even if there was clear violation, i.e. that overtime pay due an employee was not given; the hard part still comes when it comes to quantifying the damages. That is, really, how many hours do the employee worked beyond the regular working hours or shift?
There are hardships due to the following:
• The records of the employer are incomplete or most probably inaccurate
• The employee cannot provide secondary materials and/or documents supporting the supposed overtime record
• There were no “convincing substitute”
When this happens, an employee, by simply producing evidence sufficient to deduced a just and reasonable inference as regards the extent of the overtime work, would suffice to constitute satisfaction of the burden imposed by law to the employee, in an action for the recovery of overtime pay.
However, as if to adapt to the change of time, a new modern way of getting proof or evidence has emerged. That is, the use of GPS. An article from Law Technology News has expounded on the same.
“Geopositioning will aid civil cases, too. The day is not long off when we will be able to place price fixers or cheating spouses in the same room, or calculate the speed, path and braking action of colliding drivers. We'll gauge exposure to environmental toxins, challenge a witness' ability to observe, calculate wage and hour abuses, prove an employee was asleep at the switch and precisely determine a claimant's proximity to an explosion”
With the use of GPS in employees’ mobile phones, it could now be easily determined the employees’ location and for how long, really, has he been working. This might be especially helpful in overtime claims suit – to the employers as well as to the employees.
Victims of discrimination in the workplace have several legal options to take to seek redress for their grievances. Under federal and state discrimination laws, a worker may file a charge with the Equal Employment Opportunity Commission (EEOC) against any person or employer, provided he follows the usual procedure in filing for a discrimination complaint.
The article, “DFEH (Department of Fair and Equal Housing)”, posted on November 2, 2008, discussed the special task of the state department to deal mainly with employment and housing discrimination. In addition, the DFEH, as the article mentioned, is also tasked to” receive and investigate discrimination complaints throughout California”.
The department was created to implement the state discrimination provisions of the Fair Employment and Housing Act. The FEHA is the major California statute that prohibits employment discrimination “covering employers, labor organizations, employment agencies, apprenticeship programs” and any person or entity who “aids, abets, incites, compels, or coerces the doing of a discriminatory act”.
In addition, the state law also bans discrimination based on color or race, national origin or ancestry, religious beliefs, disability or medical conditions, sex or gender and sexual orientation, age and pregnancy and related medical condition.
The FEHA also prohibits retaliation against the victim for filing a complaint, testifying, or assisting in proceedings under the FEHA.
As discussed further in the article, several remedies may be available to a discrimination victim, which include back pay, reinstatement, policy change, reasonable accommodation, affirmative relief and actual damages, among others.
In determining whether to award emotional damages in a discrimination claim, the Fair and Employment Housing Commission considers the following relevant evidence:
• the victim’s physical and mental well-being
• his ability to work and his employment status
• personal integrity and dignity
• professional reputation
• family relationship
• ability to associate with peers and coworkers and access to the job
Workers who complain of discrimination are often humiliated and harassed in the workplace. Sometimes, they may even find it difficult to file a complaint. When this happens, an aggrieved worker may consult with a skilled employment lawyer to help him with his claims.
Under federal and California law, employees are entitled to enjoy certain privileges as workers, which include meal and rest breaks, among others. An employer who deprives his employee of this right may be held accountable for the violation and will be asked by the court to compensate the employee for any missed breaks.
In the article, “Another Court Of Appeal Holds That To ‘Provide’ Meal And Rest Periods Means "Make Available" , posted on October, 2008, the issue of missed meals and rest breaks were properly addressed. The article, which was based on rulings of both California Supreme Court and Court of Appeal, further confirmed the employer’s obligation to provide adequate meal and rest periods for their workers.
Is it the employer’s fault if an employee misses his meal or rest period?
In California, employers are obliged to provide meal and rest periods to their employees. If an employee misses his meal or rest break, despite being given the time to take them, an employer may not be faulted for it.
Rather, employers only need to make sure that meals and rest periods are “made available” or provided to employees. In addition, they should also ensure that workplace rules regarding these breaks comply with current statutes and laws and that these policies are well explained to employees. In sum, employers can only be held liable if employees are denied meal or rest breaks.
An employer who denies such breaks to his employees may be penalized for the violation. According to the California Supreme Court, “the remedy provided in Labor Code section 226.7 constitutes a wage or premium pay and is governed by a three-year statute of limitations and that the trial court properly considered the additional, but related, wage claims during the de novo trial.”
If you believe you have been denied certain employment privileges, you should immediately consult with an experienced labor law attorney to help you with your issues.
