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James Yunhao Wu
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James Wu’s Answers

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  • Firing an Employee 2 weeks before Jury Duty

    I have an employee who works for me who told me they have been summoned for Jury Duty 2 weeks from now. In the past week he has made some performance related mistakes in which I need to fire him. He has been given written warnings in the past for ...

    James’s Answer

    Under CA Labor Code Section 230 (see link), an "employer shall not discharge or in any manner
    discriminate against an employee for taking time off to serve as ..." on a jury. If you are truly terminating the employee for performance issues, the analysis will come to how well you can "prove" that the reason for the termination is the performance issues. So, you should consider how well the performance issues are documented, how well did you communicate the poor performance to the employee, have you treated other employees with similar performance issues similarly, do you have an Employee Handbook, and if so, do you have a policy reflecting the jury duty law? All of these issues, and more, should be considered. This is so even though CA is an at-will state. Employees/former employees can almost always bring a lawsuit for wrongful termination - but then the question is how well can the company defend such a lawsuit and prove that the termination had absolutely nothing to do with his jury duty summons. I hope you found this to be helpful to you.

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  • California Severance Agreement. When must employee be given x days to review and a right to rescind? Only when they are over 40?

    I read that an employer giving a severance package and release to an employee must give them 21 days to consider whether to sign and a 7 day right to rescind if the employee is over the age of 40? Is that true? Does it only matter if you are talk...

    James’s Answer

    You have received two comprehensive answers. You asked for a resource, so I would add that a great resource on this topic of Severance Agreements, including ADEA issues, was published by the Equal Employment Opportunity Commission (EEOC), and I have attached a link to that resource below.
    I also agree with Mr. Pedersen that you should form a relationship with an employment attorney.
    Finally, I disagree with something Mr. Diep wrote. Employers need only provide the separating employee 45-days notice when performing a group (two or more employees) layoff or group (two or more employees) exit incentive program. So, if you are only separating one employee, and offering that person a severance package (incentive), you only need to provide 21-days notice in order for the Agreement to properly contain a waiver of federal age claims. (Please note that in addition to the 45-day notice period, there are additional items you must provide in a group layoff or group exit incentive program).

    I hope you found this answer helpful. I have over 17 years of experience with these very issues.

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  • Do my managers have any right to keep me from going on breaks to pump?

    My managers never wanna cover me when we are short handed at work this is the second time this has happened they re not respecting the fact I need to go every 3 hours they like to make funny remarks about me pumping and it's always consistent I've...

    James’s Answer

    You managers may be in violation of CA Labor Code Section 1030. Under that section, every employer must provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee's infant child. If you take other rest breaks during the day, the break time for pumping should coincide with your other rest breaks. Also, your employer must make reasonable efforts to provide you with the use of a room or other location, other than a toilet stall, in close proximity to your work area, for you to express milk in private. The room or location may include the place where you normally work. Note, however, an employer is not required to provide an employee break time for purposes of lactating if to do so would seriously disrupt the operations of the employer. You can find more information at the link below.

    You may also have a potential claim for harassment and discrimination. I hope you have found this reply to be helpful.

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  • I was terminated today (unlawfully) how long does my employer have to give me my final check?

    yesterday i was called into work i addressed my manager that i had to be off by 10:30 pm it was okay ed. so about 2 hours into my shift i was asked if i can do another position i then said i would but i have to be off work by 10:30 he say okay. so...

    James’s Answer

    Unless you have a contract that specifies something different, your employer should have paid you your final paycheck at the time it terminated you. That is required under CA Labor Code section 201. Thus, your employer may be in violation of the Labor Code. Additionally, you could be entitled to waiting time penalties. The waiting time penalty is an amount equal to the employee's daily rate of pay for each day the wages remain unpaid, up to a maximum of thirty (30) calendar days. You can find more information, and also file a wage claim if you wish via the attached links.

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  • If I forgot to clock in, can my employer pay me hours owed on the next paycheck or do they have to give me a manual right away?

    I worked 80 hours in a pay period but forgot to clock in and out one day. My employer will not pay me the 8 hours until the next pay period, is this legal?

    James’s Answer

    I agree with the answer already provided. I do want to add, however, if your employer requires that you clock in and out daily, your employer can discipline you for not clocking in and out properly. They still need to pay you for you work, but they can reprimand you, write you up, or take other disciplinary action.

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  • Dismissed Misdemeanor From 10 yrs ago on Background Check

    I was cited/arrested for a petty theft-shoplifting of $113 at Macys in Sep 2002 which I did not commit on purpose and later on my case dismissed by the court. Now, I have received a job offer from a fortune 100 company contingent upon clearing my...

    James’s Answer

    In California, in general, under Labor Code 432.7, your potential employer cannot ask about arrests that did not lead to convictions. Your employer is also prohibited from trying to find out from other sources whether you have been arrested. If your employer somehow learns of your arrest record, §432.7 prohibits it from considering any arrest that did not lead to a conviction, or any arrest that led to a diversion program, in making decisions regarding your hiring. There are some exceptions to this, however.

    I hope you found this helpful.

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  • I was not paid my final paycheck after resigning from the job.

    I recently resigned from my job and they said i would get my pay on payday. I did not receive it and they said the payroll lady is on vacation. How do I go about getting my final paycheck after not receiving it on our regular payday? Can they not ...

    James’s Answer

    Your former employer has strict time deadlines in which it must pay your final paycheck. Generally, if you resigned and gave your employer at least 72 hours of notice, then your employer should have paid your final check within those 72 hours. If you resigned, but did not give notice, your employer has 72 hours to pay your final paycheck. Your final paycheck should include all wages due, and any accrued and unused vacation time you had.

    Also, your former employer may be subject to "waiting time penalties" - for paying your final check late. The penalty is calculated by multiplying your daily wage by the number of days that the your final paycheck was late, up to a maximum of 30 days.

    If you wish, you can file a claim with the California Labor Commissioner. You can file a claim in person, or by mail. See http://www.dir.ca.gov/dlse/

    I hope you found this information helpful.

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  • CA Labor law

    We are a new company (1 year old. We had only 1 employee that we discussed vacation benefits with. He has left the company and wants us to pay him vacation pay. We did not offer vacation benefits to anyone else in the company. If we pay the emp...

    James’s Answer

    I want to add that a key to what you should do is also whether he is entitled to the vacation benefits. It is unclear from your question, because did you just "discuss" vacation benefits with him, or did you clearly offer vacation benefits to him, and if so, when did you make this offer? If he can demonstrate that he was entitled to accrue vacation during his employment, then he is entitled to be paid that out, and there are strict timing rules for your company to pay it out depending upon if he quit, or if he was discharged.

    These are important details, and not appropriate for a public forum. And, I would agree that you should have an employee handbook put in place to cover this, and other issues.

    I hope you find this answer helpful.

    James Wu
    Employment lawyer in Walnut Creek

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  • Can a California employer fire an employee for excessive absences/tardies when employee has a doctors note for most days missed?

    We have an employee who has been absent/tardy/left early on 25% of the days she worked. She has doctors notes for about half these dates. We are a small company (less than 20 employees) and her absences affect everyone who has to pick up the sl...

    James’s Answer

    I agree with the other attorney responses. I want to add a nuance that they did not touch on. You should also be sure to check your company's employee handbook (policies on sick days, attendance, tardiness, etc.) to make sure you are following your own policies. If you do not have a handbook, you many wish to develop one with the help of an employer-side attorney. I'd be happy to refer some to you if you'd like.

    I hope you find this answer helpful.

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  • Can SS#'s and birthdays be on personnel paperwork?

    I work for a city in California and our attorney is saying that we can no longer have SS#'s and birthdays on any paperwork in the personnel and payroll files, do you know why?

    James’s Answer

    • Selected as best answer

    Yes, generally to protect against identity theft. Also, there are many laws in California that pertain to the use/protection of Social Security Numbers in the workplace, including California Civil Code Sections 1798.85-1798.89 and Labor Code Section 226(a). Hope you found this answer to be helpful.

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