Employment Legal Questions

Employers may not encourage or coerce an employee from taking rest breaks as required by law.  (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040.) An employee and an employer may mutually agree that the employee will waive a meal break. (Labor Code § 512(a).) There may be a number of reasons why the employer and employee agree to such a meal break waiver; for example, the employee may want the additional 30 minutes of pay, the employer might have a need for low staffing during the employee’s shift, or the employee simply may have lunch or dinner plans after work. However, even a meal break waiver is only allowed in very limited circumstances. If an employee’s shift is 6 hours or less, the meal period may be waived by mutual consent of the employer and employee. So, if an employee works six-and-one-half hours, she and her employer are prohibited from a meal break waiver. Likewise, if an employee’s shift is 12 hours or less, the second meal period may be waived by mutual consent only if the first meal break was not waived. This means that an employee who works, for example, 14 hours may not waive this second meal break, regardless of whether or not the first meal break was waived. If you are working the number of hours you indicated, your employer cannot require you to waive your breaks.  If you are in the North Bay Area of California, contact me for further information.  ... Read Answer

I would be happy to review it with your husband.  My office is in Santa Rosa, CA, but if you are some distance away, we could arrange a teleconference or video conference to go over it together.  I charge $225/hour, with a one-hour minimum charge.  I also accept credit card payments.  Let me know if I can help.  It's always a good idea to have separation agreements reviewed before signing them.... Read Answer

Parents should be reminded that once a hospital photo is on line it violates their child's HIPAA rights. A potential employer might discriminate against that child down the road. Remind them that privacy is important for both you and the child. No one should be able to identify where you work unless you consent. Ask the parent if they would consent to having their picture taken with "psychiatric wing" printed above the child's head? Or of the actual intimate procedure being performed on the kid? Pictures are for outings. Going to the hospital does not qualify. Education is key. Unfortunately social media is out of control and many have no idea of the potential harm it creates. HR could make it a policy. But enforcing it would require in hospital security removing the parents. Kind of tough to forbid cell phones in hospitals or have security run around and tell parents no photos like they do at the Met. Not the Mets. If you used the former example their response might be "where is that"?... Read Answer

If your employer is changing clock time in an effort to avoid paying you for hours worked, it is likely a violation of both Federal and State law.  For example, if your employer is changing clock time to avoid paying overtime hours, that would be a violation of the Fair Labor Standards Act.  If you and your co-workers are being cheated out of time, and therefore money, you should contact an employment attorney to assist you with the recovery of your wages.  Most wage and hour laws allow for the collection of attorney's fees from the employer, so there is no cost to you.  If you would like to discuss your case in more detail, please feel free to give me a call.... Read Answer

Why is your union not involved in this matter on your behalf to assist?  I don't think it'll make sense to "sue" over a 3 day suspension in any event and no, it is extremely unlikely that you'd be awarded punitive damages in the unlikely event that this matter results in litigation.  ... Read Answer

These are difficult cases in that the former employer can make life difficult for you and for your new employer. I would use an attorney to see if you can negotiate a settlement with the former employer. This will not be an easy journey. Please call if you need help. Ed Dimon, Esq. 732-797-1600... Read Answer

You should make a formal complaint in writing to human resources and document everything in writing that happens. Be sure to put everything in writing and don't depend on a verbal complaint with a manager or HR. If you don't put it in writing it will be as if it didn't happen. Once you make the formal complaint, follow up to make sure the issues are addressed. You will likely face opposition, but you have a right to be able to work without all the petty gossip and backbiting that appears to be going on.  If you think the negative activity is based on race, gender or other Title VII protected status, then you could file a complaint with the Texas Workforce Commission and EEOC.... Read Answer

Typically, unemployment benefits protections for workers are quite broad because the unemployment compensation system exists for the sole purpose of providing such benefits to eligible workers.  One exception to these broad protections is when an employee voluntarily quits their job.  However, there is an "exception to the exception," if you will, in California - in California, an employee who quits their job for "good cause" may still qualify for unemployment benefits.  California is a state that tends to define "good cause" rather generously.  "Good cause" means any substantial or compelling reason for quitting, whether work-related or personal.  I have seen many instances where workers quit due to a harassing or hostile work environment, and they still qualified and received unemployment benefits.  Quitting because you were asked to do something illegal is not likely to bar you from seeking and receiving unemployment compensation benefits, provided that you meet the other requirements of the system (apply timely, are actively seeking work, etc.) In addition, you may also have a claim against your former employer for constructive termination of your employment/whistleblower protection.  Constructive termination claims exist for employees who are essentially forced to quit their job for some reason, usually a reason that violates a statute or some other public policy protecting workers.  For an employer to essentially say, do this illegal thing or we will find someone else who will, would support such a claim.  Of course, you would need marshall proof of everything you are alleging, so it would be important for you to have documented everything that occurred with this employer.  For example, when you quit, did you provide a written reason that explained the problem?  Are there any communications in writing by you or the employer discussing this issue?  When you were told, do this or else, was that memorialized in any kind of writing?  These documents can be relatively informal like a short email, notes, etc. and do not need to rise to the level of formal correspondence.... Read Answer

If your employer is paying you at the reduced minimum wage for tipped employees ($2.13 per hour last I checked) then no, your employer cannot reduce or use your tips to pay non-tipped employees such as busboys and kitchen staff.  If your employer is paying you at regular minimum wage ($7.25 per hour) then it depends on your agreement with your employer as to the disposition of those tips. If you feel like your employer is not paying you correctly and it can't be worked out informally, you can complain to the U.S. Department of Labor, Wage & Hour Division.  There is an office in each of the major cities in Texas (DFW is in Arlington).  Good luck.... Read Answer

You may have a right to seek damages under the FLSA and Florida min wage act.  Failure to timely pay will subject your employer with additional penalities.  Contact a lawyer.  However, if your employer is going out of business, then not much you may do.  Make a request for immediate payment and if you cannnot get paid, then seek an attorney.  MLF... Read Answer

It's not clear when you got notice from the employer, or if the contract allows for different notice periods based on different circumstances. For example, no notice for a serious violation. Whether or not there is a cause of action for breach of contract, and the measure of damages, would largely turn on those timing and term of contract issues.... Read Answer

I know absolutely nothing about the facts of your case or its procedural history. I do know that you need legal counsel if you are in federal court. I also know that no employer, no matter how strong your evidence might be, has to settle or agree to settlement. If your case is not yet "at issue" you need to make sure it gets there. If you don't know what that means that's a great reason to retain legal counsel. Many, many many cases are dismissed before they are "at issue". Were the case to reach such point then all employment cases are referred to mediation but that does not assure resolution. If you are scheduled for mediation, then you absolutely, positively should have legal counsel to advise you during that process because you could miss a golden opportunity to resolve your case; regardless of the employer's stance at inception. Remember that nowadays, some of us will enter a limited appearance on a case just for a specific portion of that case, with the court' s permission of course. Were you to reach out to one of us for mediation only we might agree to undertake just that portion of the case. The reason for saying this is because we assume you have spoken to many attorneys before filing suit and there was no mutually agreeable representation arrangement reached which sometimes means that your claims may be tough to prove. Most are. Or that your case may not be as strong as you might think it is. Sometimes, if we can prepare the pre-mediation statement sufficiently to try to get whatever mediator is assigned to look favorably at your claim from the start, there might be a possibility of settling at that point. However, that will require a VERY candid discussion regarding what your expectations are and a written, signed, fee agreement before any representation occurs. A lawyer who appears at mediation without putting in substantial work to prepare for mediation is unlikely to be successful at mediation. And that's because you have done little if any discovery at that point. Laywer up as soon as possible or if you make it to mediation do so before that occurs; possibly just for that segment with court approval of course. For really tough to prove cases resolution is better than a loss and you will need a lawyer to help you see that if that's your situation.  ... Read Answer