Category: Legal

Legal

I Got Fired Over The Phone: #Legal Reasons 36

Sanjay Sabarwal

While President Trump made “You are fired” a national slogan for some employers, California has set specific protections in place for employees no matter how “bad” an employer thinks they are. What happens on the television is particularly a fantasy as in order to be terminated, an employee must receive their final wages at the time of termination, along with reporting time pay if they are scheduled but have not begun work. For each day, they are late in receiving their final pay, they are entitled to a “penalty” of their hourly rate up to eight hours each day.

More often than not, these penalties can add up to more than the wages owed. Recently, a client received over five hundred dollars in penalties for the employers failure to pay wages that were in the tens of dollars. As an employer, be aware of what is owed, including reimbursement, mileage, and overtime.   Also, it is a good idea to do an exit interview as it may give you insight as to the goings on at the department the employee worked at. As an employee, it is always good to review the check and to know what hours and days you are being paid for.

Legal

Do You Know What You Are Worth? Legal Reasons#35

Sanjay Sabarwal

shutterstock_570748177The reality is that many employees do not review their pay stubs because of a common fallacy: trust. This is not to say employers are out to betray you, but businesses are biased towards decreasing costs, especially labor as that tends to be the largest expense.  Many employers also are not aware about premium overtime, rest break violation penalties, failure to give lunch break prior to the 5th hour and a host of other regulations. Thus, it is important for employees to periodically review their pay stubs. Also, review your job descriptions to see if you have been properly classified.

Are you being paid the same amount every paycheck (which should arrive on the 10th and the 26th as mandated by California law) even though you are an hourly employee?   Did you take your lunch, one minute later than 5 hours on a 8 hour shift? You are entitled to a one hour wage penalty?  Were you terminated over the phone and informed that the final check would be given on the next pay dates?  California requires that a final check, including reporting time pay (if you were on the schedule) be given to you at the time of termination.  It is prudent to check your pay stubs as well as know what your overtime rates should be. You never know when that information could come in handy.

Legal

I Don’t Get Overtime, I am Commissioned/Salaried/Partime#34

Sanjay Sabarwal

imagesI hear this from people all the time, and it amazes me how often employers convince employees that because they get paid a certain way or have a titled, they are not entitled to overtime. Titles, and being paid the same on pay dates does not guarantee what is known as “Exempt Status.” The name itself suggests that employees must perform certain duties/tasks as well be paid double the current minimum wage (wage rates now differ in cities) to quality for that status. Just because there is a commission or one is paid $2000 a month every two weeks does not make an employee an exempt employee.

If you are unsure on what your status is, check your job description. Can you make management decisions such as hire, fire, demote and write-up employees? Do you have varying hours or is it a set schedule? While not one factor can determine your status, the easiest way to is know if you are being paid twice the minimum wage (called the “Salary Test”) to see if you pass the first prong of the exempt status.  If not, you may be entitled to overtime, depending on your duties and how many people you manage.

Legal

Oh I Will Just Make Them Independent Contractors: Legal Reasons #33

Sanjay Sabarwal

2049877A recent client called and claimed that they would go the “Uber” route and classify all of their current employees as Independent Contractors as they no longer “wanted the hassle of overtime, lunch/rest breaks and payroll taxes.”  I listened politely as they continued to explain how so many companies they had heard of including call centers, delivery services and retailers now just used Independent Contractors instead of full-time employees, and saved hundreds of thousand dollars in labor expenses. I asked them a few simple questions.  Would the person control their time? An emphatic no.  Could they work from home? Maybe. Would they have to be in uniform. They sounded unsure.

Based on just those few answers, I told them that it was unlikely the employees could be classified as Independent Contractors. Moreover, while it sounded like an easy way to reduce costs, the costs and possible liability for a miss-classification by even one person could run into  those same hundreds of thousand dollars that my client wanted to save, making not only unwise, but potentially disastrous for their company.

It is always advisable to seek legal counsel for company wide changes especially those involving classifications, pay changes, and difficult terminations.

Brownness, Legal

I Don’t Have a Drinking Problem: Legal Reasons #33

Sanjay Sabarwal

dui_chartFar too many people appear to believe that they do not have issues with alcohol, and appear to think it normal to have “just a few” and drive. With the advent of Uber and Lyft, it amazes me people still think it OK to drive after two drinks in an hour. It may seem wise to save those few bucks, but you only need to get caught once, or worse, get into a car accident, to have your driver record be scarred for a long time to come. Not to mention thee cost of being in jail, bail, fines and the unsettling realization that all this could have been avoided. So don’t it. If you cannot seem to stop even at two drinks, even if you don’t drink daily, you may have a drinking problem.

Still, it pays to use common sense. In the unfortunate case, you are pulled over. NEVER admit you have been drinking or smoking, as that gives police officers probable cause to ask further questions, and inspect your vehicle. Refused to take the breathalyzer as they can be inaccurate and show a higher blood content level if you have recently had a drink. Request a blood test, which unfortunately, may mean a trip to the station, but also means your body has more time to metabolize the alcohol.

Legal

Making Spouses Pay, Custody Issues: Legal Reasons #32

Sanjay Sabarwal

3e89d2231548a7e09b67c33d1582ce86One of the toughest things during a divorce is determining visitation, support and decision-making rights over a child’s life. I see, too often, over eager parents determined to punish their former spouse by depriving them of the right to see their children or that the spouse should pay 100% for all costs in regards to their children. It is truly painful to see my clients experience that.  Also, there is always the issue of how much support a former spouse is entitled too especially when the duties are not equal. These are not easy issues to define, but more often than not, it is moments like this, it is best to mediate between the parties rather than act as a weapon to gouge the other side.

Luckily, the courts provide plenty of guidance on this, yet parties still remain either wilfully ignorant of these guidelines or just focused on the emotional aspects of the dissolution. I often recommend clients to look at it from the other side no matter how difficult because at the end of the day, unless there is abuse involved, there is no reason to punish parents through their children. While there are reams on legal guides on this issues, often, it comes down to just allowing yourself to get a representative who can help you be a bit more objective.