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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 35379
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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Do you think I have a case against my employer/manager?

Customer Question

Do you think I have a case against my employer/manager?
Wrongful classification as being exempt as I am a shift supervisor who works 12:00pm-9:00pm. Manager treats me as an hourly employee and not as an exempt employee. Feel harassed as she watches every step I take. Manager will send a colleague of mine in during night hours to see where I am at and then report it back to my supervisor. If I get my work done early or ask to leave for the day, I either have to take unpaid or PTO for the remaining hours as an exempt employee who has to clock in and clock out manually.
I turned in my manager to HR for asking me if I wanted to see a picture of a males "penis" while sitting in her office. I am a gay male and felt that she would have never asked that to a straight male. HR took very small measures and nothing happened to the supervisor minus retaliation against me and her treating me
My manager wrote me up for a situation that was brought to her attention in regards ***** ***** staff member in our department. Manager did not guide me on what steps I should take. Two months later this staff member wrote an email to other staff about how bad of a manager our manager is and it got back to the manager. Manager fired the employee, but on the grounds of what I had previously brought to her attention that she just let go to the way side even though I brought it up continuously. Over a month later from when the employee got let go for stating he wanted to "blow up the hospital" I got written up on the same day (45 minutes before interview started) that I had an interview for a new position. This write up automatically disqualified me from getting out of the department and I had to be on a 6 month probation for something that I was trying to take action on 4 months before. I was written up due to my manager not taking action when it was brought to her attention. To add on to this situation, I rebuttled the write-up and I never received a response from my manager or HR. The organizations grievance policy was not followed. I then found out by employee relations that my write-up was used to make them change the whole policy, which I think is unfair. The employee relations guy tried to then cover up that he stated that my write up and rebuttal was used as the reason to make the policy more detailed and specific.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  LawTalk replied 1 year ago.

Good afternoon,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today.

Before I get to the issue of whether you were misclassified as a salaried exempt employee, let me address what I see as the greater evil here, and that is the apparent discrimination against you.

I've been a licensed CA attorney for three decades now, and for two of those, I have handled employment discrimination law and litigated cases against employers. Your description of the situation seems to indicate that there may well be discrimination going on based on your race/national origin.

CA law prohibits harassment and discrimination in the workplace and if this is happening to you, you do have a legal remedy.

Workplace harassment/discrimination is any unwelcome or unwanted conduct that denigrates or shows hostility or an aversion toward another person on the basis of any characteristic protected by law, which includes an individual's race, color,religious creed, sex
(including pregnancy, childbirth, or related medical conditions), sexual orientation, physical or mental disability, medical condition (including cancer, a record or history of cancer, or genetic
characteristics), registered domestic partner status, marital status, age,family care leave, national origin, or ancestry, or other personal characteristic protected by law. A conduct is considered unwelcome if the employee did not solicit, instigate or provoke it,and the employee regards ***** ***** as undesirable or offensive.

In CA you have two possible avenues of approach to dealing with discrimination.If your goal is to ultimately sue in Federal Court, then you will file a complaint with the EEOC, and if you want to be in the CA Superior Court---local to your county---then you will file with the DFEH and, if you want to, with the EEOC as well. You must file a formal complaint of discrimination with the EEOC within 300 days o fthe alleged discriminatory act, and within one year for the CA DFEH.

You may file a formal complaint with the CA Department of Fair Employment and Housing alleging discrimination based on your sexual orientation.

To do this you must first make an appointment with the Department to be interviewed, either over the phone or at a local DFEH office. You may call the DFEH at(###) ###-#### ***** apply on line by using the Department’s "Online Appointment System." The system will guide you through questions to determine whether an appointment is right for you.

Alternatively, you may file a complaint with the EEOC (Equal Employment Opportunity Commission). If your company has 15 or more employees (the DFEH only requires that there be 5 or more employees, and only one if the claim is based on harassment), they are prohibited from discriminating against you. To file a complaint with the EEOC, contact the nearest Equal Employment Opportunity Commission field office. To be automatically connected with the nearest office, call(###) ###-#### ***** website: www.eeoc.gov

Federal law specifically prohibits discrimination, based upon the Ethnicity,Color, Religion, National Origin, Age, Sex and Disability of an individual,with regard to hiring, promotion and firing.

After you file the complaint, your employer will be prohibited from any retaliatory action against you. The EEOC will investigate your claim, and 180days after the filing of the complaint you may ask for a "right to sue letter". The EEOC will issue you the letter which gives you the right to institute a private civil action against your employer and seek monetary damages.

As for the salary exempt issues let me explain.

In the US, a majority of jobs held by the nation’s employees are governed by the Fair Labor Standards Act (FLSA). Jobs are divided, in terms of wages payable and overtime wage eligibility, by whether the jobs are deemed to be Salary Exempt, or Non-Exempt positions. Non-exempt employees are entitled to overtime pay, while Salary Exempt Employees are not.

For salaried employees involved in sales positions, overtime pay depends on whether they are considered primarily outside sales, or inside sales (working in the employer’s store). Employees with primarily Outside Sales positions are not entitled to overtime pay, while those with Inside Sales positions are.

The test to determine whether a salaried employee is exempt or non-exempt for most other jobs other than sales depends on several factors:

A. The amount of monthly salary,

B. How the salary is determined, and

C. The type of work done by the employee.

Under the majority of circumstances, In CA, to be considered exempt, an employee must be:

1. Paid a minimum of $640 per week----which works out to $33,280 per year;

2. They must be paid on a salary basis---meaning whether they work 40 hours a week or20 hours a week they earn the same minimum salary; and

3. They perform job duties which are considered exempt.

In almost all circumstances, only white-collar jobs may be considered Salary-Exempt. Whereas, jobs such as manual labor, working with your hands constructing items or repairing things, and workers who perform work involving repetitive operations with their hands, physical skill and energy may not be classified as Salary-Exempt.

With the while-collar jobs, there are further restrictions on which ones may be considered Salary-Exempt, and there are further tests applied to those positions. The primary tests of these positions looks at whether the employee meets one or more of the following criteria:

1. Supervises at least two employees and whose job is primarily supervisory/management related, and has the authority to make decisions on behalf of the employer such as hiring and firing of employees.

2. Acts in an Administrative capacity in a position that involved non-manual labor related to management and/or the general business operations of the employer and requires the use of independent judgment by the employee over important matters of the employer’s business. This exemption includes computer programmers who spend more than 50% of their time on analysis and design of software.

3. The third test for Salary-Exempt positions looks at whether the position is one which requires an advanced college decree---generally considered to be a Master’s Degree or higher. This is known as the Learned Professional exception. This exception generally expects that the work performed by the employee will be primarily intellectual in nature and like the Administrative and Supervisory exceptions, involve the exercise of discretion and judgment by the employee.

The bot***** *****ne is that, under the FLSA, Salary-Exempt employees do not have rights to overtime pay---regardless of the hours worked. They are entitled to their salary and nothing more. They may even be required to punch in and out or otherwise account for the time they spend working for the employer. The employer may even demand the Salary-Exempt employee work regular overtime hours without any additional pay or benefits.

If you believe that you have been mis-classified, or denied the benefits based on being forced to use PTO for time off when you were finished early, then you may sue for the lost wages as well. And if you were mis-classified and not paid overtime because of the mis-classification, then you may sue fo the unpaid wages,

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 relatively 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 Reply 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 so that I can be compensated for helping you.

I wish you and yours the best in 2015,

Doug

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