Should the employer deduct credit card processing fees from my tips?
Any credit card charges (processing fee) are considered as the employer’s responsibility. It’s also the responsibility of the employer to keep all the record of the tips you receive. Violation of this law is considered a misdemeanor. If your employer has been crediting the tips against your wages, you’re being underpaid.

Is tip pooling legal?
Yes. Tip pooling refers to the collection of all the tips from employees and then splitting them according to the agreed percentages. In California, this is considered legal so long as the previously agreed conditions are met. A general rule of thumb is that the tips included in the pool should be given to the employees only. Supervisors and managers should not share in the tip of the pool. The law also requires that the servers should get the lion’s share with a smaller portion going to busboys and bartenders.

What are the legal consequences of the violations?
Employees who don’t receive their tips are required by law to bring to their employer’s attention their outstanding tips and gratuities. Any employer who violates the California Laws on dispersing tips and gratuities is considered to have committed a misdemeanor. Therefore, you should file a claim at the labor commissioner’s office to recover any wages or tips that are being illegally withheld. Alternatively, you can seek the services of UELG (united employee law group) to file a lawsuit against your employer. And the best part is that an employee cannot be punished for exercising these rights.

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As an employer, no matter how much you want to monitor your employees, you need to understand their rights according to California Laws to avoid litigation. While these rights are long and complex, they have been summarized below.

Video Monitoring

You are allowed to install surveillance cameras in several locations in your office premises but you must notify your employees of where the cameras are. It is believed that you should install them only in areas where work is being performed and not in areas like the restrooms or the dining room. And if you need the footage of any of your employees for anything, you must seek his or her express consent before going ahead with whatever you want to do.

It is advisable to get a written and signed consent as a disgruntled employee may deny giving you his consent later and even sue you for the violation of his privacy rights.

Usernames and Passwords

You don’t have the right to ask your employee for his username or password to access his workstation. Even if your IT team needs to work on an employee’s workstation, they can access it through the administrator’s password. When your employee is logging on, you need to step away from him, otherwise you may be accused of looking over his shoulder to get his login details.

Phone Calls

When any official phone call is being monitored, you must alert both parties that the call is being monitored. It is also important to remember that monitoring and recording are two different things. A lot of employers believe that notifying employees that their calls are monitored suffices for notification for call recording. This is wrong. Monitoring may mean that someone else is listening. If the calls will be recorded, you must also state that too.

GPS Tracking

This is a pretty new one and its limit is yet to be fully defined. However, employers only have the right to track company’s properties like cars and laptops. This is accepted for the safety of the properties. You should never track any employee that is not in possession of any company’s property. It means you are already encroaching on the employee’s privacy rights.

Drug Testing

You may subject your employees to drug test before hiring them and you can also subject them to post-employment drug test when any issue that warrants it occurs. Aside the two scenarios, you should never subject your employees to drug test. In addition, if drug test is part of your screening process, you must notify applicants beforehand.

Workstation Monitoring

Although there are several applications that can be used to monitor your employees’ activities on their workstation, you must let them know. Never assume that they will never know. They may find out. A glitch may occur and expose you. Don’t risk litigation.

Conclusively, this article has outlined and simplified the most important clauses in California laws on workplace privacy and employee monitoring. Adhering to them is not an option but a necessity.

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A tip refers to money voluntarily left by a satisfied customer for an employee for the goods or services rendered. Under California law, employees are entitled to keep their tips and gratuities left by customers. And because tips are not technically a wage, the employer cannot take any part of the tip. Additionally, they should not be included when calculating the employee’s hourly rate. It’s also worth noting that the employee cannot be forced to share the tips with managers, supervisors or other employees. Here are a few rules you should know about California Laws on
dispersing tips and gratuities.

Are tips used to calculate overtime and regular rate of pay?

Tips are not part of an employee wage and should not be included in the calculation of the regular rate of pay. According to California labor laws, they must be paid immediately as they are received without any interference from the employer. And if the customer pays the tip via credit card, the employee is entitled to it on the next regular payday the credit card payment is authorized. Because the law is committed to upholding labor laws, the employee must receive the minimum wage regardless of the tips received.

Should the employer deduct credit card processing fees from my tips?

Any credit card charges (processing fee) are considered as the employer’s responsibility. It’s also the responsibility of the employer to keep all the record of the tips you receive. Violation of this law is considered a misdemeanor. If your employer has been crediting the tips against your wages, you’re being underpaid.

Is tip pooling legal?

Yes. Tip pooling refers to the collection of all the tips from employees and then splitting them according to the agreed percentages. In California, this is considered legal so long as the previously agreed conditions are met. A general rule of thumb is that the tips included in the pool should be given to the employees only. Supervisors and managers should not share in the tip of the pool. The law also requires that the servers should get the lion’s share with a smaller portion going to busboys and bartenders.

What are the legal consequences of the violations?

Employees who don’t receive their tips are required by law to bring to their employer’s attention their outstanding tips and gratuities. Any employer who violates the California Laws on dispersing tips and gratuities is considered to have committed a misdemeanor. Therefore, you should file a claim at the labor commissioner’s office to recover any wages or tips that are being illegally withheld. Alternatively, you can seek the services of UELG (united employee law group) to file a lawsuit against your employer. And the best part is that an employee cannot be punished for exercising these rights.

Photo Credit: Shutterstock/maradon-333

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Interview questions are usually meant to establish how suitable the person being interviewed is for the available position. These questions also seek to establish whether the applicant has the mentality that will suit the job. However, some questions asked during an interview can be very personal. But in California there is a limit to the breadth of topics and questions that can be discussed during an interview, as some can considered illegal. These illegal interview questions generally violate the rights of the interviewee and usually seek to discriminate people based on different aspects of their life. This can therefore take the interview in a different direction and may not end up properly checking whether the applicant is a suitable applicant.

What interview topics/questions are considered illegal?

In California, there are guidelines for how to conduct a proper interview followed by a set of questions which can be deemed illegal by the law. Questions about the following areas of a potential candidate’s life that are illegal to inquire about include:

1. The sexual orientation of the person being interviewed.
2. Questions that seek to establish the religious beliefs of the applicant.
3. Questions regarding the applicant’s race or country of origin.
4. Asking the age of the applicant.

What do I do when an illegal topic arises?

It is always important to have done proper research before going for an interview to determine the illegal interview topics and questions that may arise. When one is aware of the illegal topics and questions it becomes easier to notice them while being interviewed. It is also the obligation of the employers to know the questions that they cannot ask the people they interview.

If during an interview an illegal topic or question is asked, it is important for the applicant recognize this and to notify the interviewer. According to California law, the interviewee is advised to refuse to answer the question, and report that the topic is illegal to cover. One should do it in a firm but polite manner without showing anger. The interviewee can also proceed to answer the question and then notify the interviewer that it is illegal if they wish to do so. This allows the interview to precede despite the inclusion of the illegal questions.

The California laws also give applicants the opportunity to file claims through contacting the local Equal Employment Opportunity Office. This particular office will look at the claim and take the necessary action against the interviewer to protect the person seeking employment. Therefore, when interviewing in California, it is always paramount to know the illegal interview topics or questions that can violate the civil rights of the person applying for a job.

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Payment Status 

The vacation time/paid time off cannot expire and has to be compensated to the employee. An employer does not have to give all employees equal vacation time/paid time off (VT/PTO) but they should not discriminate against employees due to their race, gender, or other protected statuses. An employer should also not discriminate against an employee because they reiterated that they were entitled to their VT/PTO. They will be liable for discrimination.

Contract Termination 

If the employee’s contract is terminated, they are still entitled to their paid time off and/or vacation time. VT/PTO Is viewed as wages and so is earned as work is performed.

California law recognizes floating holidays and personal days which are not counted in the employee’s VT/PTO if they separate. An employee may receive VT/PTO on public holidays or their birthday depending on company policy. However, they may not demand compensation for it upon termination of their contract.

VT/PTO can be given in advance but cannot be deducted from an employee’s income if for some reason an employee leaves before working for the set number of days. An employer can be required to pay a waiting time penalty for delaying in VT/PTO compensation. Currently, the time penalty varies but is up to an employee’s wages for 30 days of work.

Limits to Earned Vacation Time and Paid Time Off 

I.) An employee has the power to limit the number of hours of vacation time an employee earns over a period of time. There is no definition on what the cap should be only that it should be “reasonable.”

II.) An employee can set a limit to the amount of VT/PTO an employee earns before demanding payment. An employee can be required to receive a certain number of days before earning more VT/PTO.

III.) An employer can base their PTO and Vacation time compensation based on the employee’s status offering full-time employees compensation and part-time employees none.

IV.) An employer can decide when an employee takes their vacation time and can even make special dates when an employee should not take a vacation.

V.) Although PTO/VT is not protected by California’s Rules on Paid Time Off/Vacation Time, employees are entitled to paid sick leave by the Healthy Families Act of 2016.

Frequently Asked Questions 

1.) How Can I receive my VT/PTO if my employer is refusing to compensate me for work done?

You could file a lawsuit against your employer or a complaint with the Labor Commissioner’s Office

2.) My employer refused to give me paid time off over Christmas. Can I demand compensation?

It depends on the contract that you signed upon employment. If it states that you are entitled to PTO over Christmas or other public holidays then you can demand compensation.

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California law has clearly outlined the reasons for which termination of an individual’s employment is lawful and unlawful. People often lose their jobs by being fired at any time or for various reasons, however, if they feel their firing was unlawful, employees have the power to sue.

What are some unlawful reasons for firing an employee?

1. Discrimination.
All employees have a right to employment regardless of their identity. Thus, if one is fired for any reason such as gender, sex, race, religion, or age, their termination can be considered unlawful. In addition, medical issues such as pregnancy or disability are not justifiable reasons to fire an employee, as they too are considered forms of discrimination.

2. Refusing to take a lie detector test.
If one refuses to take a lie detector test then they should not be fired. This is because each employee has a right to accept or deny the test whether guilty or not. If fired for refusing to take the test, then one can sue the employer.

3.  Violation of public policy.
An employer cannot fire an employee for ethically or morally wrong claims. For example, one cannot and should not be fired for refusing to commit illegal acts like lying to auditors or making false insurance claims.

4.  Retaliation.
Employees should also not be fired for complaining about wages or exercising their legal right such as voting or wanting to take some time off on leave. If an employee wishes to retaliate or go on strike due to a change in their rights, they may not be fired for doing so.

As an employer, should I contact a lawyer?

Employers are advised to consult a lawyer in order to draw up a contract that highlights the process of termination within their workplace. By doing so, the employer may inform their employees of both lawful and unlawful reasons for which they may be fired, so no employee is uninformed.

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If you are military personnel in the National Guard or Reserves then you know what it’s like to be called to active duty and serve for a period that lasts for several months. But even when you are away, federal state laws are in place to protect your employment. One such protection involves the issue of military leave. In California as well as in other states, military personnel and their family members can claim the benefits of a military leave in the event of a contingency. So, if you would like to learn more about the topic of military leave in California then here’s what you need to know.

What is FMLA? 

Military leave is subject to the Family and Medical Leave Act or FMLA as well as the National Defense Authorization Act of 2010. The original FMLA was amended back 2008 to allow personnel to take time off to deal with certain “exigencies,” particularly those that result from a member’s military service.

What Are The Benefits of Military Leave in California? 

A military leave confers leave with pay of up to 120 hours in each federal fiscal year. This benefit is granted to members of all uniformed services for active duty for training and for inactive duty training.

If the training is not scheduled on the personnel’s off day then he or she may request that the work schedule be rearranged or the employee or use all unused portions of the total 120 hours leave with pay.

Are You Eligible for A Military Leave in California? 

To learn about your eligibility to get a military leave in California, visit the FMLA page of the Department of Labor website. Here, you will find the text for the Military Spouse Leave Law, including eligibility requirements.

If you are currently employed in the private sector, you may also consult your employee’s handbook, as this information is usually included in such materials.

How Do You Apply for Military Leave in California? 

If you are eligible to get a military leave then the first thing you need to do is to complete the necessary federal and state certification forms for the leave. Moreover, you will also need to notify your employer about your intended leave two business days after you have received the requisite notice for the leave.

You will also need to speak with your employer if they are subject to the FMLA. If they are subject to the FMLA then they are require by law to provide you with the necessary information about their policies with regards to military leave.

Finally, you should also look at your employer’s policy and provisions with regards to military leaves then comply with the necessary requirements. Once that you have done that you will be able to get the leave.

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It is very common for members of the military to have two careers- their temporary positions in the military along with a regular job in the private sector. Often, these service members are required to leave their regular job in order to serve. However, under state and federal laws such as USERRA, these service members are eligible for leave their regular job to serve in the military without coming back to the possibility of unemployment. Here’s what you need to know about military leave laws in California:

What is USERRA?

In California, there are certain federal laws that protect the employees who seek leaves from their regular jobs to serve in the military. One of these federal laws is called USERRA (Uniform Service Re-employment Rights Acts) which ensures that members of the military are not discriminated against for their absence during their service periods.

How does USERRA protect service members? 

After a member of the military returns from their leave, USERRA ensures that the employee is reinstated to the position they would have held had they not left for military service. This is inclusive of all the benefits and other advantages received in that line of employment. The employee must, however, apply for reinstatement 40 days after the leave.

Does USERRA apply to part-time employees? 

Under USERRA, part-time employees should be reinstated if there is an open position. Employers with more than 16 employees are required to provide 10 days unpaid leave to employees who are care givers are family members or caregivers to the injured militias in their line of duty. In addition, efforts should be taken to ensure that the employee is qualified for the new positions they may get or provided with a substitute. Firing should only be for a good cause after 180 days or 1 year. Unpaid leave is thus required from private employers to their employees who take 17 days of military training and drills in California.

How can I make sure I am protected under USERRA?

Under USERRA, it is the responsibility of the employee to provide a notice of their leave to their employer well in advance. To receive full protection by USERRA the employee must complete a few requirements. These requirements for the leave include:

• Notice to the employer for the military leave.
• Notice for being discharged from the military.
• Application of reinstatement before 40 days elapses after the leave.

What does this mean for employers? 

If the employee completes these requirements, they will receive all the benefits that USERRA provides. After the leave, the employer is prohibited from discrimination after their military service. In addition, the employer should  find out whether the employee was honorably or dishonorably discharged or whether they completed their service. In circumstances where the employee is disabled in that field of duty, their benefits of duties should not be terminated for up to 52 weeks.

For those employees who undergo discrimination after serving the military or they are denied their rights stated in the California state laws should feel free to report to the department of justice that is set to enforce the USERRA laws that protect the rights of all the employees who serve in the military.

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The Age Discrimination in Employment Act (ADEA) gives priority to older employees specifically 40 years and above. They can file a claim for compensation when they report unfair replacement by younger employees. However, they have to prove that their replacement was indeed “young” per the criteria of the law. Since its introduction, it has protected a lot of older employers, and has minimized the cases of age-related discrimination.

What counts as Age Discrimination?

The court has no set age to show who is “young”, but a three-year age difference is the minimum age required to file a claim.

Age Discrimination can take the following forms;

• Declining to give existing employees promotion due to their age

• Firing employees on attainment of a certain age

• Recurrent age harassment cases

• Refusing to higher older but qualified employees

How can I prove Age Discrimination?

In proving an age discrimination case, the claim must show one or more of the following:

• The employer discriminated against the employee based on age

• The job applicant or employee was at least 40 years.

• The employer in question was an entity under discrimination laws

• The job applicant or employee was negatively affected by an employment act

Other Protection Acts Combatting Age Discrimination

Older Workers Benefit Protection

The Older Workers Benefit Protection Act provides further security for employees by providing waivers that outline employee rights. Thus, if an employer wants to lay off some employees, they must abide by the requirements stated on these waivers before making any decisions in order to avoid age discrimination. If these requirements are not met and the employee feels wronged, they may outline the issue on the waiver and submit it for proof of age discrimination.

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In Trump’s bid to fulfill one of his major campaign promises, his administration empowered the federal immigrant system, such that the Congress is authorized to legislate for or against the entry and residency of people in the country. Moreover, the President is empowered to utilize the U.S. Immigration and Customs Enforcement (ICE) in order to oversee immigrant employees in the workplace as well. Employers thus have the obligation of protecting their employees in the event of a workplace raid by the ICE through California’s “Immigrant Worker Protection Act.”

What Does This Act Do?

Generally, California’s “Immigrant Worker Protection Act” protects employees from the federal Immigration and Customs Enforcement (ICE). The law imposes three major requirements:

1. Workplace Entry Consent

Employers may not permit immigration agents to enter into the non-public areas of the workplace. They will be allowed only if they provide a judicial warrant. The employer could allow an immigration agent into the non-public area in order to determine whether the agent has the warrant if none of the employees are present. However, the employer will not permit the agent to undertake a search on the area.

Any employer that violates this part will have to a pay a fine of $2 000 to $5 000 for the initial offense and $5 000 to $10 000 for the subsequent offenses unless the court found that the agent entered the non-public area without the consent of the employer.

2. Employee’s Records Reviewing

The employer may not permit the immigration officer to have access to the employee records unless the officer provides a judicial warrant or a subpoena. However, this provision does not apply to Form I-9, the document provided by the employee to the employer as a proof of identity and authorization of working in the US. Similar penalty as above is attached.

3. Form I-9 Inspection

Provided the employer received a notice of inspection from the federal government, the employer must inform the employee of the notice with a copy of the notice within 72 hours using the usual workplace communication medium. After all, the California Labor Commissioner has a template developed for this purpose.

After the employer has received the results of the inspection, the employer is given 72 hours to forward the results to the Commissioner. The same penalty is also attached.

Conclusion

Since this is a new law, many employers may get stocked in the middle of the controversy between the state and federal government laws. Therefore, it is imperative that employers seek legal advice from an experienced lawyer in California so as to know how to exploit the immigration protection law to stay ahead of the game when the ICE agents step up their crackdown.

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