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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27888
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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I know an hourly employee who is excellent at her job, with

Customer Question

I know an hourly employee who is excellent at her job, with a very strong work ethic and high energy that drives her to go above and beyond. She is an hourly employee with a small company of 13 (3 exec/mgrs, 8 sales agents and two hourly employees and no union). There constantly exists a very heavy workload for two sales support managers. For my friend, this includes coming in a little earlier than her agreed-upon schedule of 9am to 5pm with two 15 min breaks. Sometimes it's 5 or 10 minutes early to start up her PC and be ready for the heavy workload to start with phone calls and email from customers and her sales agents. She has a boss who monitors her time extremely close to the extent that she harasses her when she comes in 5 min early or leaves 5 min late. My friend always has her customers and sales agents and the success of the business as a priority but her boss (who knows nothing about the technical part of the business) focuses solely on time in the seat. My friend feels constantly harassed and sometimes starts her day in tears and has trouble sleeping. She seldom takes lunch away from her desk and often combines her two breaks to go for a walk to relieve the stress.Does she have any recourse here?
Submitted: 11 months ago.
Category: California Employment Law
Expert:  LawTalk replied 11 months ago.

Good afternoon Tom,

I'm Doug, and I'm very sorry to hear of your friend's situation. My goal is to provide you with excellent service today. In order to give you a clear and concise answer, I will need some additional information about the circumstances, please.

1. I don't mean to appear dense---but does she have recourse in terms of what? A poor excuse for a boss?
2. Is she not being paid for the time she works?
3. Is she being paid for the time she works through lunch at her desk?
4. Do you think that she should be able to refuse to work more than a certain of numbers a day?

What specifically are you wanting to accomplish here?

Doug

Customer: replied 11 months ago.

Clearly she has a poor excuse for a boss! She simply wants to get the boss off her back so she can concentrate on her work, her customers and her sales team. Is there any legal action she can take or even threaten to get this boss to back off. She believes it's affecting her health.


 


She would quit but she needs the money and would also lose her matching 401K dollars. Also, there are few jobs out there in our area.

Expert:  LawTalk replied 11 months ago.

Good afternoon,

No, Tom, as you likley expected, there is no legal remedy for a lousy boss. She can complain to the owner---but lousy bosses are always going to be there. Especially in a small company, with a boss who likely is friends with the owner---the choices are to put up with the bad employment conditions or quit. The CA law does not dictate civility or reasonableness.

You mention that she works through lunch. That, she MUST be paid for. Unless she is give a full meal break away from her desk, then she must be paid for the lunchtime---it is a working break and she is entitled to payment.

If she demands payment she cannot be retaliated against under the law either.

If they will not pay her for the time she works then she has a legal remedy. Have her read the following about her rights to wages that are not paid:

You may actually sue the employer in court and recover your wages/commissions. Additionally, if you sue in court, under federal laws (FLSA), you are also entitled to seek what is called Liquidated damages. Liquidated damages is equal to the amount of back wages that they owe you and must be paid in addition to the wages themselves---so you essentially get double the wages owed you in the claim based on their willful failure to pay you. Additionally, you will be entitled to be awarded costs of the court as well as your attorney fees incurred in filing suit and litigating it against your employer. http://labor-employment-law.lawyers.com/wage-and-hour-law/Liquidated-Damages-and-FLSA-Claims.html

A recent law signed by the CA Governor, allows CA employees to seek liquidated damages when making a claim to the Division of Labor Standards Enforcement (DLSE), just as they could if suing in court initially. So in CA whether you make a claim to the Division of Labor Standards Enforcement, or file an action in court on your own, you may seek liquidated damages. Here is a link to an article on the change---good for CA employees, but bad for CA employers: http://www.shawvalenza.com/publications.php?id=343

The award of liquidated damages is mandatory unless employer shows that (A) act or omission giving rise to violation was in good faith and (B) the employer had reasonable grounds for believing that act or omission was not a violation of 29 U.S.C.A. § 216(b). This is a very difficult standard for the employer to meet.

Here is an excellent article which deals with pursuing an FLSA claim---which you may do in either state court or federal court. Do take the time to review it:

http://www.thefreelibrary.com/Pursuing+an+FLSA+claim%3a+many+employers+have+figured+out+how+to+skirt+...-a0183316511


You may reply back to me using the Continue the Conversation or Reply to Expert link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Please remember to rate my service to you when our communication is completed.

I wish you the best in 2013,

Doug


LawTalk, Attorney
Satisfied Customers: 27888
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and other California Employment Law Specialists are ready to help you
Expert:  LawTalk replied 11 months ago.

Thank you for your positive rating of my service, Tom . It has been my pleasure to assist you and I hope than you will ask for me on JustAnswer should a future need ever arise.

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:
http://www.justanswer.com/law/expert-lawtalk/

Thanks again.

Doug

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (9-10) there as well. It would be tremendously appreciated.

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