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Your Rights as an Immigrant Worker

Your Rights as an Immigrant Worker

As an immigrant worker, your rights under state and federal law depends on your immigration status. While your rights to receiving back pay, benefits, and insurance may be limited, federal laws and California laws provide many protections for immigrant workers who were not paid their earned wages or overtime, have been wrongfully terminated, or were retaliated against for asserting their rights. California law declares that “All protections, rights and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.”

If you have been a victim of wrongful termination or layoff, immigration status may affect the remedies available for you under federal law. Remedies such as lost pay and reinstatement may be unavailable for you if you are not legally authorized to work in the U.S. However, under certain California laws, you may be eligible to receive back pay if your employer found out that you are not authorized to work after they had already wrongfully terminated you. You may also be eligible for an order of conditional reinstatement under state law, which would require your employer to reinstate you after your immigration status has been adjusted and you are authorized to work.

Federal law offers protections for all workers facing workplace retaliation regardless of immigration status. The U.S. Department of Labor’s Wage and Hour Division enforces the Fair Labor Standards Act (FLSA), which prohibits employers from retaliating against all employees who file a wage claim or a claim against their employer with the Department of Labor, cooperate with an FLSA investigation, or assert other workplace rights. It is against the law for an employer to report undocumented workers to immigration authorities in retaliation to the workers filing a wage claim or another type of complaint against their employer. For more information about the protections enforced by the Department of Labor involving employer retaliation, visit their website.

In regards to employment-related benefits, as an immigrant worker, you may be eligible for workers’ compensation benefits and State Disability Insurance. However, you would not be able to collect Unemployment Insurance.

If you are an immigrant worker who has suffered injustice on the job, you can contact our office to file a lawsuit for the amounts owed to you.

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Alternative Workweeks and Your Rights in California

Alternative Workweeks in California

Employees who work under an alternative workweek schedule are exempt from California state (daily) overtime requirements. An alternative workweek schedule is any regularly scheduled workweek where an employee works over eight hours a day. This means that employees can be scheduled for up to 10-hour workdays without being paid overtime, so long as that they only work a 40-hour workweek. However, with an alternative workweek, workers in the healthcare industry and the offshore oil and gas industry can be scheduled for 12-hour workdays without overtime pay. Examples of common alternative workweek schedules include the 4/10 schedule in which employees work hour days a week with 10-hour workdays, and the 9/80 schedule in which they work four 9-hour days and one 8-hour day (usually Friday), and have every other Friday off.

Employees are still entitled to overtime pay at a rate of one-and-one-half times the regular rate of pay under an alternative workweek schedule if they work in excess of their regularly scheduled workday or if they work an excess of 40 hours a week. Employers must pay employees double the regular rate of pay if they have their employees work over 12-hour days or if they have employees work more than 8 hours on a day that the employees are not regularly scheduled for work.

There are specific rules for establishing alternative workweek schedules under the Industrial Welfare Commission (IWC) Wage Orders for different types of workers. Alternative workweeks are provided for workers under IWC Wage Orders 1-13, and 16-17. Under most IWC Wage Orders (all except 4, 5, 9 and 10) employers are required to give employees who work alternative workweeks two consecutive days off per week. However, under IWC Wage Orders 14 and 15, those who work in agricultural occupations and household occupations cannot work alternative workweek schedules. To see what alternative workweek schedule requirements are applicable in your industry, see the list of IWC Wage Orders.

To establish an alternative workweek schedule, employers must meet the requirements of both Labor Code section 511 and IWC Wage Order section 3. One of the requirements for establishing an alternative workweek schedule is to hold a secret ballot election and for the results to be reported to the Division of Labor Standards Enforcement (DLSE), which will be listed on the Alternative Work Database.

Please note that It is illegal for employers to reduce an employee’s regular rate of pay in exchange for the adoption of an alternative workweek schedule, or to reduce an employee’s pay if the employee discontinues the alternative workweek schedule.

If you have issues with your employer’s implementation of an alternative work week, feel free to give our office a call at (323) 208-9171 or email us at info@kyletodd.com.

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Pay for Civic Duties in California

Pay for Civic Duties in California

California law requires employers to pay employees for taking time off work to perform civic duties such as voting in a statewide election, serving on a jury, and appearing in court to comply with a subpoena or court order. It is illegal for employers to retaliate against employees for taking time off for these reasons.

Voting

Both public and private employees are given protections under the law to be able to have enough time to vote in a statewide election. If an employee does not have sufficient time outside of normal working hours to participate in a statewide election, employers must allow them up to two hours of time off to go vote and still pay employees for those two hours. This paid voting time must occur either at the beginning or the end of the work shift, unless the employer agrees to allow the employee to go vote during other times in the shift. If the employee knew about the election at least three working days before and knew that they would have to ask for time off to go vote, the employee needed to give their employer at least two working days’ notice in order for the time off to be paid.

Jury Duty

Employers must give employees time off to partake in jury duty and allow employees to use any available vacation, personal leave, or compensatory time off to cover lost wages as a result of attending jury duty. Private employers, as well as many public employers, are required to pay employees for their time spent for serving on a jury.

However, if an employee is a part of a collective bargaining agreement that does not allow them to use available time off for jury duty or pay wages for jury service, then the employer is not required to do so.

Court Appearances

Public employers are required to pay employees their regular wages for time spent testifying as a witness under subpoena or other type of court order, unless the employee is a party to the case as a plaintiff or defendant, or expert witness. Private employers, however, are not required by law to pay employees for testifying in court, unless the employer is having the employee testify. If the employer is requiring an employee to testify, they must provide the employee with regular wages for the time spent testifying.

If you were not paid for performing civic duties according to these guidelines or if you were retaliated against for performing them, and you would like to take legal action, you can contact our office at (323) 208-9171 or email us at info@kyletodd.com.

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Employee Bonuses in California

Employee Bonuses in California

Many workers receive bonuses at work without knowing about the intricacies of the laws around them. There are many rules surrounding bonuses, which is money promised to an employee in addition to their hourly wage, salary, commission, or piece rate. When an employer promises to give an employee bonuses, it is enforceable as a contract and is considered a form of wages. Since bonuses are a form of wages, it is considered failure to pay wages if an employer does not pay an employee their promised bonuses, and workers can take legal action against their employer to recover unpaid wages.

There are two types of bonuses: bonuses based on a definite promise and discretionary bonuses/special occasion bonuses. Bonuses based on a definite promise by the employer must be included in an employee’s regular rate of pay when calculating wages for overtime. On the other hand, discretionary bonuses, which are made by the discretion of the employer and not based on a prior contract, and special occasion bonuses, which are gifts to the employee not based on work performance, are not included in the regular rate of pay when calculating overtime pay.

Employers are obligated to pay employees bonuses based on a promise once the employees have started working and have met the conditions required to receive the bonus, such as satisfactory work performance or reaching goals for a project.

It is illegal for employers to deduct amounts from earned bonuses for any reason, even if the employee made mistakes on the job such as mishandling merchandise or causing money shortages. Employers also may not make deductions to earned bonuses to retaliate against employees who have filed a workers’ compensation claim or third-party personal injury claims against the employer. The only time that an employer can deduct from bonuses is when they provide employees bonuses based on a profit-sharing plan, and the deduction is related to profit performance.

Employees who have been terminated may still be entitled to receive a prorated share of their bonus if they were let go before the date they were supposed to be paid a bonus, but only if their termination was not a result of employee misconduct or unsatisfactory work performance. However, if the employee voluntarily quit before the date they were promised a bonus, then they will generally not be entitled to any payment for it.

If you are having issues with your employer’s treatment of bonuses, feel free to give our office a call at (323) 208-9171 or email us at info@kyletodd.com.

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Prevailing Wages on Public Works Contracts

Prevailing Wages on Public Works Contracts

Privately employed workers who perform work under a public works contract are paid prevailing wages, which is a special kind of minimum wage. The prevailing wage rate varies depending on the type of craft and the local area where the work is performed. The prevailing wage rate is an hourly rate plus an amount for benefits, and if the employer does not provide benefits, then the amount for benefits established by the prevailing wage determination must be paid as wages. Prevailing wage determinations are calculated differently twice a year, and determinations are given out on February 22 and August 22 of each year. Each determination goes into effect ten days after it is given out, so they go into effect on March 3 or 4 depending on the leap year, and September 1. Information about prevailing wages and determinations can be found here.

Employers such as contractors and subcontractors performing work for a prevailing wage job must keep accurate payroll records so that it is available upon request for inspection by employees or their representatives, the body that awarded the prevailing wage contract, or labor commissioner representatives. These payroll records are also available to the public through the California Department of Industrial Relations’ online database.

Employers who violate state law and do not want to pay their employees prevailing wages may try these tactics: 1) falsely claiming that the employees performed lower-paying unskilled trades work rather than higher-paid skills work, 2) underreporting how many hours their employees worked, or “shaving hours,” and/or 3) having employees “kick back” a portion of their wages back to their employer. In a kickback situation, the employers give employees a check with the full amount of prevailing wages, have their employees sign the checks, then require their employees to pay a portion of the wages back to them.

Employees who have been underpaid by employers violating prevailing wage laws can contact our firm to file a lawsuit against their employer to collect wages and penalties.

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