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Stephen Anthony Sommers

Stephen Sommers’s Answers

20 total


  • Does my employer have an obligation to make me take a break if I work as a server in a restaurant?

    I am a server in a restaurant and although I only occasionally take breaks, my employer does not remind me to go on my break

    Stephen’s Answer

    • Selected as best answer

    Yes, restaurants are not different than any other employer. Your employer must provide rest breaks and meal breaks just as any other employer. For meal breaks, they have to permit you to have a 30 minute off-the clock meal break for every five hours you work. For rest breaks, they have to provide you one every four hours or major major fraction thereof.

    Good luck.

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  • Once terminated how long does an employer have in CA to pay all monies due to the employee like reimbursements of expenses?

    I was due a reimbursement and was not paid out with my final check. I did not return a company cell phone but I did not sign any agreement to return it or pay for it if I failed to return it. Can they deduct that cost from my reimbursement?

    Stephen’s Answer

    Your company must pay you all that is owed to you, including expenses on the same day your were terminated, provided the reason for the termination did not occur on the day of termination. If the reason for the termination occurred on the same day as your termination, they have three days to pay you everything they owe you. If they fail to pay you everything you are owed, they are required to pay what is called a "wait time penalty" of a full day's wage, up to 30 consecutive days for everyday you must wait.

    Regarding the unreturned cell phone. It is company property and you should return it. So, if you fail to return it, they can offset what the cost of the phone from your final paycheck.

    Good luck.

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  • I was shorted on my paycheck by 7 hours this last paycheck....and shorted overtime hours on previous...I told my employer

    I was shorted on my paycheck by 7 hours this last paycheck....and shorted overtime hours on my previous...I notified my employer and hv been waiting for abt a week...wht time frame are they supposed to correct this for me

    Stephen’s Answer

    The answer is simple - today. Employers cannot short employees, bounce checks and the like. If your employer refuses to pay you for all hours worked and overtime, you can bring a claim by yourself with the Labor Commissioner. It's a fairly user friendly process and most Labor Commissioner offices have counselors to help you fill-out the necessary forms. Your employer cannot legally retaliate against you for filing a claim (although your employer might try). If your employer does retaliate, your can file a lawsuit or make a complaint with the Labor Commissioner.

    Good luck

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  • Is there a statue of limitations on a resignation letter in the state of California? If I retracted my letter.

    I resigned from the job due to gender racial discrimination for being a male Mexican American. I made an internal complaint with an outsourced HR department. Is it important to note that I am taking medication due to high blood pressure and anxiet...

    Stephen’s Answer

    • Selected as best answer

    I would argue (effectively I believe) that you were terminated. Whether or not you quit nearly two months earlier, they at minimum rehired you. Without knowing more, it looks from the outside that you were retaliated against for making your complaint. Accepting the resignation letter cold easily be viewed as pretextual for the actual reason for the termination.

    This would be a case where there is no direct evidence of unlawful retaliatory motive. So, you would have to demonstrate that you were in a protected class (complaining to HR about racial and gender discrimnation will do that) and you suffered an adverse employment action (termination). Then the employer has to proffer a "legitimate" business reason for your termination. The court will not question the rationale behind the businesss reason, just that it was "legitimate." Then, you will have to prove that the reason offered is not true. This can be done in several ways, but the two most common are to disprove that factual assertions or prove that the employer does not terminate employees for this reason (other employees in same situation were not terminated). At that point, you can ask the judge or jury to presume the unlawful retaliatory reason.

    I'd recommend talking at an attorney to vet the possibility of having a wrongful termination claim.

    Good luck.

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  • What penalties does my employer need to pay for not keeping records of hours worked and meal breaks?

    I am a non-exempt employee. However, my employer does not have me clock in and out, and it always pays me as if I work 40 hour weeks, even though I often work overtime. My employer also does not have me record my meal break times, and I often am...

    Stephen’s Answer

    Under Labor Code section 226, your employer is obligated to provide you with an accurate earning statement with your paycheck which must include an accurate count of the number of hours your work. So, there are civil penalties for 226 violations provided you can demonstrate you were "injured" by your employer's failure. Generally, not being able to figure out if you are getting proper overtime is good enough to demontrate injury. The penalty for violating section 226 is the greater of actual damages (probably zero) or $50 for the initial pay period in which the violation occurs and $100 for each subsequent violation for up to one year. The total aggregate amount cannot exceed $4000. You are also entitled to attorneys' fees and costs. This is not a penalty you can obtain from the Labor Commissioner, you would have to file in court. So, you would probably want to bring your OT claim and tack on the failure to provide accurate earnings statement with it.

    Good luck.

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  • California - must employer pay for travel time when I have a different starting time daily?

    I am a per diem employee that works at different sites. I understand I'm not paid for a commute to my closest field office (30 minutes one way). However, from my field office I must pick up materials using my personal vehicle required for me to ...

    Stephen’s Answer

    • Selected as best answer

    Your employer is obligated to pay for your travel time to a location that is not your normal worksite. So, if your employer is asking you to travel an hour to pick-up materials, they need to pay for your time and vehicle expenses (usually the IRS rate). You should also be paid time and a half for all hours worked over 8 in a day. The federal law provides for overtime pay after 40 hours in a workweek, but in California, it's all hours over 8 in a day (with some exceptions). Depending on how much overtime you are working and your rate of pay, your overtime claim could add-up pretty quickly. You may want to consider speaking with an attorney in your area about any potential claims and what to do to prepare for filing one.

    Good luck.

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  • Is it legal to place a video and audio camera in a security car and the security office is unable to turn off the audio .

    Is it legal to instal a video camera in security petrol car the It has an audio also, however the petrol officer is unable to turn the audio off ?

    Stephen’s Answer

    Unfortunately, the right to privacy does not extend into the workplace. There are some narrow exceptions, most of which are obvious (rest rooms, changing areas, etc.). It is illegal in California to monitor or record conversations without first notifying those being montiored or recorded. So, as long as you are told by your boss that they are listening, they can listen.

    There was a good overview of your right to privacy in the LA Times a couple months ago. Check it out.

    http://articles.latimes.com/2013/apr/08/business/la-fi-mo-what-are-privacy-rights-in-workplace-20130408

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  • Can my boss tell me what time to cash my check?

    My check is always at my workplace on the right date, but my employers tell us not to cash them until 2 pm.

    Stephen’s Answer

    This practice is not unlawful provided that you are actually getting paid on the right date, meaning the check clears on the proper date.

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  • Unfair Hiring Practice.

    What are my recourse against an employer who hires only young female employees as hostess. I applied for the post as a host (I am a male of 51 years old), and had a positive interview with a manager, followed by a one night try-out. The next day ...

    Stephen’s Answer

    I had a case similar to this once before where a restaurant cycled out all the older servers for younger ones. What you have to prove is a pattern. If you came into my office with these facts, my first question would be how do you know this place never hired a male host? Employers are required to hold onto applications for two years, so it is possible to obtain the applications during the discovery phase of litigation and see what their track record actually is. I think it would also be relevant to see the hiring practices for the servers, since they similarly deal with the public.

    It can be difficult with cases like this to determine at the outset whether there is good evidence to prove a gender based pattern. If after the case is filed and it turns out no such pattern exists, then you would be on the hook for the other sides costs and could be on the hook for their attorneys' fees. So, you want to make sure you are very confident that the evidence will show what you think it will show.

    Good luck

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  • California labor code on IP Assignment Question. My brother works for one branch of a large company with various endeavors.

    Section 2870 states: (a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the em...

    Stephen’s Answer

    These issues can become quite complicated. In California, Business and Professions Code section 16600 prohibits non-comptes. California is fairly unusual in this regard. California courts tend to view trade secret provisions strictly to somewhat counter-balance the fact employers cannot restrict an employee's movement. This area of the law is highly litigated. Each case presents different factual scenarios that courts have to grapple with. So, your brother should contact an attorney that works in both trade secret law and employment law to tease out how the current state of the law would affect his specific situation.

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