July 8th, 2010 
James PetersIf you have not heard about this, a Best Buy employee recently got into trouble for creating and posting a video poking fun at the iPhone and Apple in general.
Although the video was more of a parody based on observations about iPhones and those who buy them, Best Buy understandably did not take kindly to an employee publicly criticizing one of its major customers (and also… Continue reading
April 4th, 2010 James PetersThe New York Times recently published an article about the increased use of companies that specialize in contesting unemployment claims for employers.
We often attend unemployment appeal hearings on behalf of clients because they are also pursuing wrongful termination claims against their former employers. This is both as a precautionary measure and a chance to obtain vital information at the outset of a case.
These hearings… Continue reading
November 12th, 2009 James PetersGeorge Washington once said:
Discipline is the soul of an army. It makes small numbers formidable; procures success to the weak, and esteem to all.
Letter of Instructions to the Captains of the Virginia Regiments [July 29, 1759]. The advocates of consumer rights, viewing the resources of defense firms and corporate defendants, can relate to the trepidation felt by the out-numbered and out-gunned Continental… Continue reading
September 25th, 2009 James PetersThe Los Angeles Times recently reported on a new bill headed to Governor Schwarzenegger for possible signature (though I believe it is likely to be vetoed) generally prohibiting California employers from requiring applicants to allow them to examine their credit report as part of the application process.
The new California employment law would allow employers to do checks on employees who handle large amounts of money or other sensitive positions. While I recognize that in these situations there may be some correlation between a history of poor financial choices and the ability to do certain jobs, in today’s economy the usefulness of this information is, in my opinion, declining at the same time employers’ use of it as a hiring tool seems to be increasing. Continue reading
December 2nd, 2008 James PetersIn most layoff situations, especially these days, the layoff is legitimate and a necessary evil in cutting costs. However, just because an employee has not been wrongfully terminated in a layoff does not mean they have no California employment law rights. One common example is receiving all unpaid vacation pay.
Under California employment laws, once employees have accrued… Continue reading
November 17th, 2008 James PetersThis is our second post in a series on employees’ rights when they get laid-off from work. In our last post, I pointed out that even though an employee may have been “laid-off” with several other employees, that does not necessarily mean they were not wrongfully terminated in being chosen for layoff. This post deals with the situation where a large group may be “singled out”… Continue reading
November 14th, 2008 James PetersIt seems like every day another company announces mass layoffs in the United States. While we are fielding more calls from potential clients than usual, they have not increased quite as much as overall unemployment.
I think part of this might be attributable to a common employment law misconception among employees, which is that they somehow have less rights if they are “laid off” than… Continue reading
August 7th, 2008 James PetersOver the past couple of months I have been dealing with a case against a major national bank on behalf of one of its former employees. The case involves his “discretionary” annual bonus, which most employers would say is just that-discretionary. However, the term discretionary is misleading because except in some very limited circumstances a party to a contract does not have absolute discretion.
This… Continue reading
Posted in Wages : Other 
Tags: Bonuses, California Employment Law, Cases, Employment Contracts, Wages and Hours 
1 Comment » August 3rd, 2008 James PetersThis past Friday I spoke with a potential client who was recently terminated by his employer. I concluded that he did not have a case worth pursuing and any claims he did have were likely not worth pursuing if it meant giving up the severance his employer had already offered to him.
At the end of the consultation he said he was surprised at my response because he had spoken to… Continue reading
June 29th, 2008 James PetersSome employees (and some employee-rights attorneys) believe that if they are wrongfully terminated and able to get a new job just days later, they will only be able to recover a few thousand dollars and it would not be “worth it” to pursue a claim, especially if they have to pay an attorney to get it. However, in California victims of employee rights violations can recover their own attorney’s fees… Continue reading
June 22nd, 2008 James PetersThis post is part of our ongoing series dealing with “family status” discrimination. Family status claims implicate several employment laws, depending on the facts of a given case. For example, the federal Equal Pay Act (“EPA”) and also California law mandate “equal pay” between men and women.
The fact that women disproportionately care for children in the United States is likely a direct contributor to the fact that women still tend… Continue reading
May 17th, 2008 James PetersThis is our third post in our series on “family status” discrimination. The last post dealt with examples of “moral stereotyping” where an employer’s belief on what women should do motivates their discrimination. This post deals with what I call “assumption” stereotyping, which deals with instances where an employer is motivated by their beliefs about what women will do, given their family status…
In these situations, the employer’s concerns Continue reading
May 3rd, 2008 James PetersThis is my second post in our multi-part series on “family status” discrimination, which is becoming more and more common under both federal and state law.
There are many ways family status discrimination can happen in the workplace, some of which are very subtle and difficult to prove. Other types are not subtle at all, such as the topic of today’s post, which is what I call “Moral Stereotyping”… Continue reading
April 16th, 2008 James PetersOne employment law claim that has been quickly becoming more popular these days is “family status discrimination”. That is, discriminating against someone based on their familial obligations or simply because they have a family in the first place.
Widespread use of this claim is so recent that it does not even have a consistent name in legal circles. We call it “family status discrimination”, but others call it “family… Continue reading
March 29th, 2008 James PetersIt is fairly common for sweeping employment law legislation to be introduced in the California legislature and I usually do not pay much attention to these bills because they usually do not become law.
One of two things almost always happens: (1) the republicans introduce a pro-employer bill that will never pass the democratically-controlled legislature or (2) the democrats introduce a pro-employee bill that passes but is then vetoed by… Continue reading
Posted in Wages : Other Tags: Breaks, California Employment Law, Policy : Legislation, Wages and Hours 1 Comment » February 6th, 2008 James PetersOk, so this topic has been blogged to death by not only me, but the blawgosphere as a whole. However, I just received this update to the story.
Sam Zell, the head of Tribune Co., met with his employees/journalists last week at the Orlando Sentinel, one of the newspapers covered by his idiotic or inspiring (depending on which side you are on in the debate) new employee handbook…
One employee asked Continue reading
February 6th, 2008 James PetersApparently there is a new game show out called “Moment of Truth” that gives contestants a lie detector test before the show and then the host asks them the same questions on the air. If the contestant’s answer on the air is different from the results of the polygraph, they lose (up to $500,000).
Questions include topics such as whether the contestant has cheated on their spouse, wishes to… Continue reading
January 28th, 2008 James PetersA Reuters story this morning deals with what is both one of the most liberal paid leave policies I have ever seen and also one of the most blatantly discriminatory.
Hime & Company, a Tokyo-based marketing firm, offers paid leave to employees who have a bad breakup, termed “heartache leave”. While this is quite generous and one could argue that such a leave is often necessary to regain your… Continue reading
January 25th, 2008 James PetersA timely study by the Institute for Corporate Productivity (I4CP) that was released on Tuesday finds that the vast majority of corporations have some sort of formal anti-discrimination policy.
However, failure to adequately communicate such policies is a frequent problem, where only 80% of those companies rate anti-discrimination training “either somewhat or very important”.
This study is certainly timely in the debate over Tribune company’s hopelessly… Continue reading
January 24th, 2008 James PetersWell, the California Supreme Court finally released its opinion in Ross v. Ragingwire Telecommunications, Inc., S138130, today and I have to say I am disappointed with the opinion, although I think the dissenting opinion was completely on the mark.
The Court decided that employers can terminate employees in California who use medical marijuana with a doctor’s prescription for a valid medical reason and not be held liable for doing so… Continue reading
January 23rd, 2008 James PetersWell, my post about the Los Angeles Times article on their new employee handbook seems to have set off (or at least contributed to) a firestorm throughout the web. Some of the reaction seems off-the-mark, though.
Comments: The Good, The Bad and the Ugly
The overwhelming majority of mail I received is in agreement with my comments on the handbook, but I also received the most hate mail for any… Continue reading
January 19th, 2008 James PetersAn article in Thursday’s Los Angeles Times discusses their own parent company, Tribune Co.’s new employee handbook that was introduced by their CEO, Sam Zell, via a recent e-mail to employees.
This caught my eye because it is not every day that a company publicly releases or discusses their employee handbook. In fact, many handbooks actually state that its pages are the employer’s property and must be returned… Continue reading
January 17th, 2008 James PetersIn this third and final installment in our series on Ron Paul’s comments about employee rights in his book Freedom Under Siege, we examine his views on civil rights legislation in general, which can be found in several sections of his book, but is best summed up with the following quote found on page 39:
“[P]eople have the right to discriminate…in choosing…an employee…. Civil rights legislation of… Continue reading
January 16th, 2008 James PetersThis is the second in our series of posts based on Presidential Candidate Ron Paul’s musings on employee rights in his book Freedom Under Siege. This installment’s “Paulism” can be found on page 17 of the book:
The idea that the social do-gooder can legislate a system which forces industry to pay men and women by comparable worth standards boggles the mind…The concept of equal pay for equal… Continue reading
January 15th, 2008 James PetersI have tried to tune out most of the political primary hysteria because I (1) made up my mind about who I would be supporting in the election long ago and (2) I live in California, so my opinion is not really that important at this stage.
Today I happened to stumble across some of Ron Paul’s comments in Freedom Under Siege, a book is a bit shocking… Continue reading
January 15th, 2008 James PetersIn the United States, employers must actively engage in an “interactive process” with disabled employees to try and find a “reasonable accommodation” for their disability, even if no such accommodation actually exists.
What is an “Interactive Process”?
What this means is if an employer knows one of their employees is disabled and they suspect that employee might need some sort of accommodation (e.g. ergonomic keyboard, wheelchair ramp, a chair to sit in… Continue reading
January 12th, 2008 James PetersLet me first say that I rarely disagree with decisions by California state or federal appellate courts (at least those I am not personally involved in and therefore biased against). However, I occasionally come across a case where I just think the court got it wrong. In Mokler v. County of Orange, et.al. (Cal.App.Dist.4 11/26/2007), No. G036029, a former Orange County employee sued under several different claims, including sexual… Continue reading
January 9th, 2008 James PetersThe information contained in this website is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this site, clients or otherwise, should act or refrain from acting on the basis of any content included in the site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney Continue reading
November 20th, 2007 James PetersAccording to an article in today’s Los Angeles Times, Congressional Republicans are pushing to amend federal anti-discrimination laws to do away with the provision that prohibits employers from requiring employees to only speak English at work.
Currently, under Title VII of the 1964 Civil Rights Act such an “English-only” policy is considered national origin discrimination. There is a “business necessity” exception to this rule where speaking English is necessary to… Continue reading
November 12th, 2007 James PetersSometimes employees use their employer’s e-mail address or computer to contact us. This is understandable, especially for long-term employees who spend most of their waking time at work or using a company-issued computer at home.
The problem is that using an employer’s computer or e-mail address to communicate with your attorney might mean these communications are not confidential and may have to be divulged in future litigation… Continue reading
November 7th, 2007 James PetersYesterday the California Supreme Court heard arguments in Ross v. Ragingwire Telecommunications, Inc.
In this case, the employee was refused employment because his pre-employment drug test came back positive for marijuana. The employee had been using medical marijuana at the direction of his physician to deal with lower back strain and muscle spasms.
Under California’s Compassionate Use Act, patients cannot be prosecuted under state law for using or possessing… Continue reading
November 6th, 2007 James PetersYesterday the California Supreme Court issued its decision in Gattuso v. Harte-Hanks Shoppers, Inc., ruling that employers may reimburse employee expenses in the form of “additional wages” payable in a “lump sum” instead of reimbursing each separate expense for the exact amount incurred.
This case deals with a scenario common to sales employees where the employer simply gives the employee a set automobile “allowance” or a “per diem” payment that is… Continue reading
November 6th, 2007 James PetersAs explained in various posts on this blog, California employees are presumed to deserve overtime pay for any hours worked over 40 in one week or 8 in one day, even if they are paid a salary, unless the employer can prove that an exemption to that rule applies.
The “computer software professionals” exemption is rarely used successfully by employers in overtime cases and such employees are usually non-exempt employees… Continue reading
Posted in Wages : Overtime Tags: California Employment Law, Wages : Overtime, Wages and Hours 2 Comments » November 5th, 2007 James PetersCalifornia Senate Bill 836 was heralded nationwide as the first law prohibiting employer discrimination against employees based on their “family status”.
For example, discrimination against employees who are single parents who have to take their child to the doctor would be… Continue reading
November 4th, 2007 James PetersThis is a real dilemma for many employees who have their own immediate families to also think about and cannot afford to be terminated, but are also needed to care for other close family members.
These are the kinds of protections that should be “no brainers” under California law. If an employee’s domestic partner is seriously ill, they should be able to take time off to care for them. Period. Continue reading
November 3rd, 2007 James PetersAs the end of the year approached, Governor Schwarzenegger vetoed several employee protections the California legislature passed in 2007. While he felt it was important to give full protections to military spouses whose husbands or wives were on leave, he deemed other employees to be less deserving of similar rights.
This is the first in a series of posts on several important employee rights bills that the legislature passed this… Continue reading
November 2nd, 2007 James PetersCalifornia has passed a law providing employees whose spouses are on active military duty with protected leave from work to be with their spouses when they are on leave from duty.
Governor Schwarzenegger signed Assembly Bill 392 into law last month and it became effective immediately. The Bill has two main components:
1. An employer of more than 25 people must provide an employee with up to 10 days of unpaid leave… Continue reading
March 5th, 2007 James PetersEmployers could avoid a LOT of lawsuits if they would just follow the “No Bad Apples Rule”, which has its origins in a book written by Dr. Robert Sutton called “The No Asshole Rule: Building a Civilized Workplace and Surviving One That Isn’t”. I agree with Dr. Sutton that “bad apples” probably is not a strong enough word… Continue reading
March 4th, 2007 James PetersSometimes it is easy to forget that discrimination against women, minorities and (of course) minority women still occurs in this country.
This might bring to mind examples where uneducated, unskilled women are denied employment and/or harassed by uneducated men who think of them as sex objects, such as in the movie North Country.
However, as discussed on Susan Cartier Liebel’s blog, this subject comes up… Continue reading
February 19th, 2007 James PetersMy employer pays me at one rate of pay for my regular work, but then pays me minimum wage for travel and attending seminars after-hours. How is my overtime supposed to be calculated?
A: Calculating overtime for an hourly employee who is paid at two separate hourly rates is a fairly complicated analysis and does not come up very often, but hopefully the explanation… Continue reading
Posted in Wages : Overtime Tags: California Employment Law, Commissions, Minimum Wage, Q&A, Wages : Overtime, Wages and Hours 13 Comments » February 15th, 2007 James PetersOne of the strongest job protections for employees in the United States is for those who take a leave of absence to serve in the armed forces. I have seen a dramatic increase in these claims in just the past year and I recently filed a federal lawsuit for a client in San Francisco for some egregious violations.
The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) requires… Continue reading
January 26th, 2007 James PetersYesterday, it was reported that Wal-Mart had reached a settlement with the Department of Labor to settle unpaid overtime claims by its employees.
The odd thing about this settlement is that Wal-Mart turned itself in to the Department of Labor and negotiated a quick settlement with the government and the employees had no say in what they settled for.
Apparently, the settlement included absolutely NO penalties, NO interest… Continue reading
Posted in Wages : Overtime Tags: California Employment Law, News, Wages : Overtime, Wages and Hours 1 Comment » January 25th, 2007 James PetersI quit my last job because my boss would not stop asking me out on dates. Now I am having a really tough time finding a new position. Every time I go through an interview they seem to love me, but then it falls through once they start checking my references. I think my former boss is bad-mouthing me when these employers call, even though… Continue reading
January 21st, 2007 James PetersAlthough this series on commissioned salespeople and overtime might not be the most exciting employment law topic, for those with large unpaid claims, it probably is the most exciting… Continue reading
January 21st, 2007 James PetersEven if you meet the criteria to be classified as “exempt” from overtime pay as a commissioned salesperson, the business your employer is engaged in can also automatically qualify you for overtime, regardless of how you are paid.
Commissioned salespeople can only be “exempt” if their employer is a “retail or service establishment”. Whether your employer qualifies is very complicated… Continue reading
January 18th, 2007 James PetersIn order for an employee to qualify as “exempt” from overtime pay as a commissioned salesperson, the main test that must be met is the employee MUST make more than 50% of their wages in the form of “commissions”. This test is not as straightforward as it might sound at first.
What are “commissions”?
Many employees receive what their employers call “commissions” as part of their wages each pay period, but… Continue reading
January 18th, 2007 James PetersThis is the first in a series of posts dealing specifically with the issue of commissioned salespeople and unpaid overtime. This is an area most employees, many employers, and even a large percentage of California attorneys do not understand correctly.
Top salespeople often make a very comfortable living and never even think about whether they are legally entitled to overtime pay.
Usually only salespeople who are wrongfully terminated or seek legal… Continue reading
January 17th, 2007 James PetersEmployers and employees are often confused about how many hours an employee must work before overtime must be paid. California law is more complicated than most states on this point, but it is also much more generous to employees than most.
Employers must pay all non-exempt employees overtime at the rate of time-and-one-half for all hours worked:
1) Over 40 in one week,
2) Over 8 in one day, and… Continue reading
Posted in Wages : Overtime Tags: California Employment Law, Wages : Overtime, Wages and Hours 3 Comments » January 17th, 2007 James PetersEmployers, either through ignorance or intentionally, often make big mistakes in calculating overtime rates of pay for their employees and these often turn into big claims by the employees for unpaid wages later on.
To calculate an employee’s “overtime rate” of pay, you first have to calculate their “regular rate” of pay, which is the number multiplied by 1.5 to get an “overtime rate”… Continue reading
Posted in Wages : Overtime Tags: Bonuses, California Employment Law, Commissions, Wages : Overtime, Wages and Hours 1 Comment » January 16th, 2007 James PetersI took a one-month FMLA medical leave for surgery, but my employer laid me off two weeks into the leave. I have always heard that an employer cannot terminate an employee who is on a medical leave. Is this true?
A: It is a common misconception among employees that employers cannot terminate them if they are on a medical leave. While in practice most… Continue reading
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