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Steven M. Chanley

Steven Chanley’s Answers

9 total

  • What if employer refuses to pay waiting time penalties?.

    After sending a demand letters, employer send check for wages but refuses to pay waiting time penalties.

    Steven’s Answer

    California Labor Code section 203 provides for waiting time penalties if an employer “willfully” fails to pay a fired or resigning employee all wages within the time required under the Labor Code . If the employer has not acted “willfully,” there is no entitlement to penalties. The burden of proving “willfulness” is on the employee.

    The term “willful” is defined in the California Code of Regulations, and has been interpreted in numerous cases. Whether an employer has “willfully” to timely pay all final wages owed will depend on the circumstances.

    As other contributors have pointed out, assuming you have a reasonable and good faith basis for believing that you are owed waiting time penalties, you have a few possible avenues of redress. Filing a wage claim with the Labor Commissioner is probably the quickest and least expensive way to proceed.

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  • Can I hold my employee financially responsible for a mistake they made?

    If an employee makes a mistake and/or typo that costs the company money. Can I require them to pay for half of the mistake?

    Steven’s Answer

    Generally, no. The leading case on that issue is the Kerr’s Catering case, which essentially holds that employers may not hold employees accountable for losses, shortages, or breakage occasioned by simple employee negligence or error. Those are deemed to be a routine cost of doing business that cannot be passed along to employees, generally. In addition, an employer may not unilaterally take money out of an employee’s paycheck to pay for such losses shortages, or breakage.

    Under certain limited circumstances, and employer may properly charge an employee for losses occasioned by the employee’s intentional or wilful misconduct, including theft, and might even be able to take a unilateral deduction from a paycheck under certain circumstances. However, the Labor Commissioner and courts have made clear that employers take such unilateral deductions “at their own peril,” and if ultimately found not to have a proper legal basis for such a withholding can incur waiting time penalties, interest, and attorneys’ fees, depending on certain factors. Accordingly, an employer should always seek the advice of competent employment law counsel before taking such action.

    Disclaimer: The above response is posted subject to the AVVO.com Terms and Conditions of Use. The response does not create an attorney-client relationship of any kind. It is intended to provide general guidance, does not constitute legal advice, and should not be relied upon without first hiring and consulting in person or by telephone with legal counsel. The response is based on the limited facts disclosed by the questioner, and may change if different or additional facts exist. Finally, the above response is based exclusively on California law, unless federal law is expressly mentioned, and is inapplicable in any other jurisdiction.

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  • Where can I find an attendance policy for my small company?

    Currently having issues with an employee that works part time, wants to be laid off to collect unemployment, misses approx. 1 day out of every 6 that is worked.

    Steven’s Answer

    The law permits employers to implement and enforce reasonable attendance policies that are consistent with legitiamte business needs and employment discrimination laws.

    As for the policy language itself, you may purchase template employee handbook materials from the Calfornia Chamber of Commerce at a reasonable cost. The materials are very user-friendly. However, the template policy language is but a starting point, and you need to make sure that the policy language that you implement is suitable for your needs and is compatible with your legitimate business objectives. In additon, attendance polices must take into account the affirmative obligations employers have under federal and California laws to accommodate employee disabilities and to grant leaves of absences under ccertain circumstances. The policy must also be applied in an even-handed and consistent manner to avoid claims of disparate treatment employment discrimination. For these reasons, you should probably consult with comptent employment law counsel before you implement your attendance policy and/or apply the policy to discipline an employee.

    Disclaimer: The above response is posted subject to the AVVO.com Terms and Conditions of Use. The response does not create an attorney-client relationship of any kind. It is intended to provide general guidance, does not constitute legal advice, and should not be relied upon without first hiring and consulting in person or by telephone with legal counsel. The response is based on the limited facts disclosed by the questioner, and may change if different or additional facts exist. Finally, the above response is based exclusively on California law, unless federal law is expressly mentioned, and is inapplicable in any other jurisdiction.

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  • Can your employer take away sick benefits and put a cap on vacation accrual in Ca.

    had 5 days of sick ,accrual rate 0.0334 per semi-monthly. Reduce holiday benefits. There was no employee handbook in place, It was writing and distributed to staff. Does the employer has to right to make all of these changes after 4 or 5 yrs worki...

    Steven’s Answer

    The answer to your question will depend on whether you are an at-will employee and not covered by any collective bargaining agreement or memorandum of understanding. If you are truly an at-will employee under California law, your employer has the right to change all terms and conditions of your employment, on a going forward basis, upon providing notice to you. The notice would not affect any benefits or wages that are already earned or vested. Ordinarily, sick leave benefits are not considered a vested right, because they are contingent on your (or a family member's) being sick. Vacation benefits, on the other hand, are treated in California as a form of "wages," and may not be forfeited once they are earned.

    Employers have the right to place reasonable caps or limitations on the accrual rate and usage of vacation benefits. A newly implemented accrual cap or limitation would apply to vacation benefits to be earned in the future and could not be used to divest vacation benefits that have already been earned/accrued.

    Disclaimer: The above response is posted subject to the AVVO.com Terms and Conditions of Use. The response does not create an attorney-client relationship of any kind. It is intended to provide general guidance, does not constitute legal advice, and should not be relied upon without first hiring and consulting in person or by telephone with legal counsel. The response is based on the limited facts disclosed by the questioner, and may change if different or additional facts exist. Finally, the above response is based exclusively on California law, unless federal law is expressly mentioned, and is inapplicable in any other jurisdiction.

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  • Wrongful Term? Does the company Policy manual create an employment contract?

    I am an RN fired from a hospital. I was a model employee for 3 years and was fired for a ridiculous reason. I have read previous postings that explain "at will employment" so I understand there must be legally defined discrimination or retaliati...

    Steven’s Answer

    Assuming you are not in a bargaining unit covered by a CBA or MOU, the answer to your question depends almost entirely on the terms of the Policy and Procedures Manual. If you are truly an express at-will employee under the terms of an acknowledgment form you may have signed upon receipt of the manual, the law would bar you from attempting to establish an implied contract regarding the reasons you may be discharged. However, depending on how the manual is written, certain mandatory procedures may be required before you may be properly disciplined or demoted.

    With respect to non-compliance with established policies, an employer may be liable for disparate treatment employment discrimination if employees in protected classifications are treated less favorably than similarly situated employees who are not in the same protected classification. Disparate treatment discrimination in violation of statutory law is a recognized exception to the employment at-will rule.

    Disclaimer: The above response is posted subject to the AVVO.com Terms and Conditions of Use. The response does not create an attorney-client relationship of any kind. It is intended to provide general guidance, does not constitute legal advice, and should not be relied upon without first hiring and consulting in person or by telephone with legal counsel. The response is based on the limited facts disclosed by the questioner, and may change if different or additional facts exist.

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  • Was I an "at will" employee?

    I was fired from my position for a silly reason. When I started my job we were a union hospital. I was asked to sign an "at will" employment agreement but was told that it doesn't apply to classes of employees who are unionized, which I was. Si...

    Steven’s Answer

    A definitive answer to your question would require additional facts. If the at-will statement you signed applied to non-union employers and you were a non-union employee at the time of the discharge, most likely you were an at-will employee.

    Labor Code section 2922 states that all employees in California who are hired for no definitive time frame are presumptively employees at will. At-will employees may lawfully be discharged for any or no reason, except for otherwise illegal reasons (e.g., in violation of anti-discrimination laws or in violation of public policy). Additionally, at-will employees may resign from employment at any time, and for any reason. The presumption of at-will employment may be rebutted with affirmative evidence that would establish the existence of an implied contract that the employment relationship could be terminated for cause only. Additional facts are needed to determine whether such an implied contract existed in your situation. In all likelihood, your signing the at-will employment acknowledgment would preclude the existence of an implied contract requiring good cause for termination.

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  • I need to know if i should seek legal advise.

    I have been employeed by the same company for nearly 10 years and in that time have a very good work record. recently I feel i am bieng targeted and infact have been told by my supervisor that his boss wants me fired or (SHOT) as he called it. my ...

    Steven’s Answer

    You may or may not have a viable legal claim, depending on the totality of facts relating to your situation. I suspect there are a lot more relevant facts than what you have disclosed. You should consult with competent legal counsel who represents employees only.

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  • Is there any liability against the probation department for providing incorrect information to the employer

    Current employee states on employment application they have no prior federal offenses. Without the new employer knowing, she is on probation for embezzlement. While on probation she reoffends for the same offense. The probation department nev...

    Steven’s Answer

    Your question is essentially whether the Probation Department had a legal duty to contact the employer unilaterally to disclose that the employee has violated the terms of probation. If such a legal duty exists, then the Probation Department might be liable for failure to make the required disclosure. If no such legal duty exists, then there would be no legal claim against the Probation Department for an monetary losses suffered on account of hiring or retaining the unfit employee. I do not know, without researching the issue, whether the Probation Department has a legal duty to make the type of disclosure you did not receive.

    You would have a much stronger case against the agency if it had affirmatively represented to you false information about the employee which you relied on to your detriment. That might give rise to a claim for intentional or negligent misrepresentation. However, this is quite a bit different than a claim for failure to disclose information when you never contacted the agency to take an inquiry..

    Your question also points up the need to perform a thorough background check on all employees, and especially those who will be employed in positions of trust where they will have access to money or sensitive information. it is best to use a reputable outside agency to perform the background screening, as they will be able to assist you in complying with the applicable Fair Credit Reporting obligations relative to applicant screening.

    Finally, you are permitted to ask about an applicant's convictions for both misdemeanors and felonies, with a few exceptions. Limiting the question to felonies might exclude some very relevant information bearing on an applicant's fitness for a position.

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  • Is it okay for your employer to keep a separate secret personnel file on their employees?

    Our HR Director is keeping documents that were supposed to be "removed and destroyed" per employee request as these documents expire and are not valid.

    Steven’s Answer

    I agree with the previous attorney response, but have a few things to add. Generally, an employee cannot dictate to an employer what can and cannot be kept in a personnel file. Unless the documents or information are prohibited from being kept, it is the employer’s prerogative whether to be over-inclusive in its record keeping. The other thing to bear in mind is that even “secret” or separately maintained employee files may be subject to disclosure in connection with litigation, and also subject to inspection requests by the affected employee, per the California Labor Code.

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