“Can a Manager qualify for Over Time even though I am Exempt?”

Last night I responded to a sent question that should receive special merit and mention because it was such a good one and a common abuse in employment law –

“Can a manager be paid overtime even if they’re considered an exempt employee?”

This question in detail would take up a 10 page blog filled with ambiguous terms and multiple cross references – but the situation really depends and is dependent on different factors.    

In simpler terms – if you have a manager title, work a lot of overtime, and don’t get paid for that overtime – can my BOSS get away with this? It’s a case by case scenario.

It depends on what classification of employment you fall into? – Hourly or manager – Exempt or non-exempt?

Just because you are have a Manger’s title does NOT mean you are an exempt employee and you May qualify for overtime pay under a misclassification of employment.

Key words are “May” and “Misclassification of Employment”

There have been cases even class action lawsuits against employers that have misclassified their employee’s as managers when in fact they are not managers, per se, just for pay.

The differences being a manager or are in the “Duties” performed not in the “Title” assigned when hired. Review your job description to determine if your duties are more of managerial responsibility or non-managerial, and if your duties are not managerial than yes you may be owned some overtime pay.   

What you actually do during working hours is what classifies you as exempt versus non-exempt or hourly versus manager.

If you suspect you may qualify for overtime pay but are exempt by title, there is a test to determine if you are a manager under duties or title.

California uses a quantitative asking whether more than 50% of employee’s duties are administrative, this favors the employee and is simple to prove and understand.

Under federal law the test is qualitative, taking into account factors such as the importance of the exempt duties to the job, the amount of time spent on them, the employee's freedom from direct supervision, and differences between the employee's pay and that of hourly workers. This federal test favors employers and is ambiguous and lengthy and an uphill battle.   

So Yes and No, “Can a manager be paid overtime even if they’re considered an exempt employee?” Best advice thought; Get a good lawyer to help you figure this out. At the Arroyo Law Firm we handle employment questions such as these and make sure that your best interests are covered.

Give us a call at 714-566-4112 or email us at Arroyofirm@gmail.com for any questions on employment law, Bankruptcy law, and DUI defense.

“The Internet or your Job!”

As far I know there are no formal laws or statutes prohibiting the use of the internet for non-work related activities. There are no statutes employers can use directly to fire you and there is no public policy against it protecting you from being fired. It would be too difficult to explain how one person out of all the rest is terminated for directly using the Internet during working hours when Internet use is wide spread in the work place during working hours. 

I’ve heard of companies disabling there office gateway to restrict employees from surfing the internet during working hours to increase employee productivity, but with so many WEB based work applications and software this has turn out to be impossible. 

They are multiple access point to the internet that an employee doesn’t necessarily have to use the business internet access point to get access to the Internet. An employee can simply be using a smartphone or texting on company time from their own devices to be equally accused.

“Surveys Says,” the average employee spends between one and two hours each day using the Internet for personal reasons. The reasoning that many give for using the Internet at work ranges from a faster connection at work to accessing the Internet as a result of boredom.

So a question messaged to me via Facebook last week was, “Can I get fired for being on the Internet on working hours?”

I haven’t seen or heard of cases involving wrongful termination directly related to using internet while working. What I have seen are that companies are attaching violations found in there “Company Handbook.”

 A “Company Handbook” is usually the most ignored material given to a hired employee that gives the rules and regulations of what can be used against you in a termination or even what can be used against the company in an unlawful termination lawsuit. Trust me when I say, keep that book handy.

The “Company Handbook” has 101 catch 22’s, meaning that like a law book, some terms are ambiguous, lengthy, and not in laymen terms.  Rule and regulations found in the “Company Handbook” can tie certain non-protected employment actions to a related legal action that can result in termination with good cause.

For example, if you’re suffering the net for Christmas shopping or you’re on Facebook hosting 500 friends publishing a quote now and then, you can admit to being on the net during working hours or for long periods of time.

Scenario: You’re issued a company phone with Internet access and they say use this and then you receive a business issued laptop for work and you begin to get the Internet itch and you pop open some screens and you get your internet mojo going.  Then as weeks pass and this internet itch becomes habitual, HR calls you into their office and terminates you for a catch 22 from the “Company Handbook” that’s holding up the backend of your sofa back at your apartment.

HR doesn’t bring up your Internet use while at work use directly, but makes a slight inference to it, and terminates you for an indirect violation to the company’s rules and regulations ----- It’s a good cause termination. Ouch!  

Companies will use NOT terminate you directly for using the Internet while at work, because in reality, you’re not the only one, and this is called singling you out.  “Singling you out” for one thing, when it is a common office practice, may result in a lawsuit against the company for harassment. So as long as everyone in the office has access to the Internet and is using the Internet, you cannot be fired for using the Internet directly, because everyone is doing it.

So the question again, “Can I get fired for being on the internet on working hours?” the answer is not directly, but like I said, in my experience a company will reach into the “Company Handbook” and attach a company violation to it and fire you for that on good cause.

Other issues can arise while using the internet at work. Current US laws only prohibit employers for intercepting email while it is in transit, not from reading it prior to sending or once it has been received. The law also prohibits the gathering of personal information such as bank account and credit card information.

Though legal issues have arisen from workplace surveillance, most final rulings favor employers because they have a right to protect their business, which is viewed as their property.

“So Yes and No, you can be fired for being on the Internet at work.” Best advice thought; get a good lawyer to help you figure this out. At the Arroyo Law Firm we handle employment questions such as these and make sure that your best interests are covered.

Give us a call at 714-566-4112 or email us at info@arroyofirm.com for any questions on employment law, Bankruptcy law, and DUI defense.

 

Veteren's Day

* Image credited to http://www.almadenseniors.org/images/veteransday.jpg

The Arroyo Law Firm would like to take a moment and THANK all the veterans and their families who have served our Nation. Because all your sacrifices, and dedication we are thankful.

“I was FIRED “At Will,” What can I do?”

Employment law can be difficult to interpret. It’s not as straight forward as it should be. Situations range from cases that are dismissed before the ink is dry to some worthy trail blazing claims that set precedent for future claims.

The understanding of employment law in layman’s terms is essential when we admit that we spend more time at work with fellow colleagues then at home with family. 

Employment law can opens up a can of worms when we talk about things that can happen at work – sexual discrimination, age discrimination, wrongful termination, unpaid wages and earnings to mention a few.

In my last blog I wrote on “constructive discharge” in “Can I quit my job and sue my boss?”  In this blog I want to distinguish the thin line behind what California’s employment “At Will” clause and wrongful termination.

In California, an “At Will” employment clause means that you can be discharged for NO specific reason and NO explanation need be given. Sounds cold and callous, but it’s Not personal--- it business is the generic cliché.

In my legal experience the clause was built on an uneven surface.  An employer is betting that the employee won’t do anything about it. They usually bet that the average person really won’t have any options but to move on.  They hope that you’ll find another job and the lingering feeling of filing a lawsuit against them fades away with their healing process. 

Not too long ago, I had a client who was fired, the softer term is he was laid off, for what the boss said was a financial downsize of the company. He was replaced by a younger and less expensive employee that was doing the same job as he was doing in his now former desk and office.

My client felt cheated and primarily just wanted to vent.  He didn’t want to sue, or thought he couldn’t sue, primarily because he had a feared the company would fight his unemployment benefits, his only income during his transition. The company even held back his check until he had signed all essential paper work.

He had worked at this company for 10 years 10 hours a day 5 days a week and he was fired via a letter in an envelope given to him by the secretary. He understood “At Will” employment in California after doing his own research on Google and simply started searching for other employment before he meet me by taking advantage of my free legal consulting.

I reviewed his case and explained that termination can be “At Will” …..BUT… the flip side to this policy is that an employer can not fire an employee when it is a violation of public policy.

He went on to explain to me that he had suspect his lay off may have been as a result of him not filing false paper work to the workmen’s compensation board in which had caused the company’s insurance premium to rise and against his boss’s wishes.

So we filled a wrongful termination claim against the company for retaliation under the Whistle Blowers Act and Age Discrimination Act, two public policies that are exception to the “At Will” doctrine.

So the gist of this article is that even though California is an “At Will” state, the doctrine is not bullet proof and a lawyer can advise you on proper methods of handling situations such as these.  

Best advice thought; get a good lawyer to help you figure this out. At the Arroyo Law Firm we handle employment questions such as these and make sure that your best interests are covered.

Give us a call or text at 714-566-4112 or email us at Arroyofirm@gmail.com for any questions on employment law, Bankruptcy law, and DUI defense.

 

  

“Can I quit my JOB and SUE my BOSS?”

“Can I quit my JOB and SUE my BOSS?”

On a recent lay over, I met a man who worked for an insurance agency in California. He spent most of his time discussing how he could be a better employee if not for his boss. He told me his life would be better if not for his boss. His life was affected in every way by his boss at a job that he spends more time with than his family and what made him, what he called, a miserable man because of his boss.

When I mentioned I was an employment lawyer in California he belt out the questions faster than I could answer them. Can I do this? Can I do that? Can they do this? Can they do that? The gist was can, Can I quit job and sue my boss? 

Well then I told him that the grim news is that “being a mean Boss in not illegal.”

His eyes dropped when I mentioned that it’s not illegal to be a bad boss and that in California, employment is “at will.” Not to really bum him out and add to myth that lawyers are useless if not paid, I mentioned a legal term employers never bring up or is rarely mention in employment law, “Constructive discharge.”

Constructive discharge occurs when an employee resigns as a result of the mean boss creating horrible work conditions becoming intolerable and heinous or making life so difficult that an employee’s has no choice but to quit.  

In California, constructive discharge is a defined under Turner v. Anheuser-Busch, an employee must plead and prove that an employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employees resignation that reasonable employer would realize that a person in the employees position would be compelled to resign – This is called constructive discharge.

What does intolerable mean? An example of a common intolerable condition can be continuous yelling and screaming or even an extended campaign aimed at getting you fired orchestrated by your mean boss.  

It’s important though that you let your employer know of your discomfort of working with a mean boss as to place your employer on notice and allow them to look into your bosses actions and rectify the situation. This is referred to as placing them on notice.

I am not saying quit and sue, but there are things that can be done in your case. In the case of constructive discharge your mean boss coerced you to quit. But if you quit when there were other options or you failed to mention it to human resources, then most likely it can appear that you quit for other reasons.    

So Yes and No, you can quit your job and sue your boss. Best advice though; get a good lawyer to help you figure this out. At the Arroyo Law Firm we handle employment questions such as these and make sure that your best interests are covered.Give us a call at 714-566-4112 or email us at Arroyofirm@gmail.com for any questions on employment law, Bankruptcy law, and DUI defense.

Great news!

The State of California has taken a great step.  

This Bill, would change the way employment law and bankruptcy law can go hand int hand.

The existing state law, an employer may request a credit report for employment purposes so long as he or she provides prior written notice of the request to the person for whom the report is sought.

This bill would prohibit an employer or prospective employer, with the exception of certain financial institutions, from obtaining a consumer credit report, as defined, for employment purposes unless the position of the person for whom the report is sought is (1) a position in the state Department of Justice, (2) a managerial position, as defined, (3) that of a sworn peace officer or other law enforcement position, (4) a position for which the information contained in the report is required by law to be disclosed or obtained, (5) a position that involves regular access to specified personal information for any purpose other than the routine solicitation and processing of credit card applications in a retail establishment, (6) a position in which the person is or would be a named signatory on the employer’s bank or credit card account, or authorized to transfer money or enter into financial contracts on the employer’s behalf, (7) a position that involves access to confidential or proprietary information, as specified, or (8) a position that involves regular access to $10,000 or more of cash, as specified.
This bill would also require the written notice informing the person for whom a consumer credit report is sought for employment purposes to also inform the person of the specific reason for obtaining the report

Bankruptcy and Student Loans

The website AVVO is a great resource for anyone who has a legal or medical question.  As an attorney, I am interested in seeing what others attorney opinions are.

There are a number of lawyers who have opinions, and their opinions.  From what I have encountered most of their opinions are really spot on. Yes you will have some wrong ones, but there always has to be a bad bean in the bucket.

This Article was written by an attorney who is licensed in California.  However, many of the articles are from out of state so you have to pick and choose which one best fit your local rules. However, in bankruptcy the Federal Rules are universal so a lot of what other attorneys state apply to California as well.

The Article is great resource for your options regarding student loan debt and bankruptcy........ Hopefully it will give you some insight as to what your options are.