One of the first things I ask people who have experienced discrimination and retaliation at work is whether they ever complained about it to a supervisor or HR. Many times they have. They’ve called HR or the employee hotline. Unfortunately, hotline complaints somehow always disappear. My entire career as a lawyer, I’ve seen one hotline complaint. No one at the company can ever find them. No one in HR ever remembers a call about the complaint either. Even if there are co-workers who heard the complaint and say they’ll testify it happened, the co-workers can be hard to track down or don’t want to risk their jobs by testifying against the employer.
Sometimes people write down their complaints and hand them to HR. But they don’t keep a copy. I’ve never seen a single one of those complaints. Like hotline calls, they all somehow disappear. The only written complaints I have ever seen are the ones that people emailed to HR or their supervisors and kept a copy for themselves. Texting a complaint or faxing a complaint are also fine too. The main thing is to have proof that you sent the complaint.
People win trials and get fair settlements even when they don’t have any proof that they complained. But a person who has a written complaint that they saved and can prove that they gave to management or HR has a better shot at winning at trial or a getting a fair settlement. Most importantly, if management or HR knows you have a copy of the complaint, you have a much better chance that they will actually do something about it, and you can get the problem fixed without having to take legal action.
California and federal companies that receive contracts for public works must pay their workers the prevailing wage. (Cal. Lab. Code § 1771). The prevailing wage is usually much higher than the rate companies pay their workers for non-government contract work. The prevailing wage is most commonly paid on construction related work. But many other kinds of government contract work such as tree-trimming, community projects, renovation, and other work may also be considered public works and require payment of the prevailing wage.
Unfortunately, many companies don’t pay the prevailing wage or the full prevailing wage when they’re supposed to. Workers often don’t know whether a job is subject to the prevailing wage. Or if they do know that they are working a prevailing wage job, they don’t know how much work they do should be paid at the prevailing wage rate. The prevailing wage rates are also hard to find and can be hard to understand, which makes them fertile ground for wage theft.
The California Department of Industrial Relations lists the prevailing wage rates for the state online at https://www.dir.ca.gov/oprl/2019-2/PWD/index.htm. Workers should receive the “Total Hourly Rate” listed on the applicable table. If the employer has certain kinds of benefits programs the rate is less, but many employers don’t have benefit plans that qualify.
If you believe you should receive the prevailing wage and aren’t or you aren’t sure if you’re getting the full prevailing wage, you should contact an experienced labor and employment attorney to determine your rights. The Law Offices of G. Samuel Cleaver has litigated multiple prevailing wage cases and offers free initial consultations on prevailing wage issues.
California employees and job applicants who are the victims of discrimination or retaliation because they complained about unpaid wages are now eligible to receive a civil penalty of up to $10,000. Many times employees begin working at a job only to find that their new employer is breaking the law by refusing to pay them at least minimum wage for all hours worked or overtime. The new employee complains and is promptly fired. Labor Code section 98.6 outlaws such conduct, but it is hard for the employee to take action because often the employee only worked a short period for the employer, and his or her damages may only be a few hundred dollars. The employee may not be able to find an attorney to take the case and the work required for the employee to take the case to the Labor Commissioner on his or her own may not be worth the very limited potential recovery.
By directing payment of the up to $10,000 penalty to the employee who has been harmed, California now makes it possible for employees to recover an amount closer to the value of their lost wages and the aggravation and upset of having been the victim of unlawful retaliation.
Smart phones have made it so much easier to record and secretly record conversations that many more people are doing it these days. At work, some people believe if they can record a conversation of their supervisor or others discriminating or retaliating against them that the recording will protect their job or will be strong evidence for a lawsuit. In some unusual, non-work situations, e.g. the outrageous remarks Donald Sterling made to his mistress V. Stiviano, secretly recorded conversations can cause extreme embarrassment and severe repercussions to the person who made them.
Secretly recorded conversations usually aren’t helpful for one important reason: Under California Penal Code section 632 recording a private conversation without the permission of all those involved is a crime. Section 632 also says an illegal recording can’t be used in a lawsuit. The harasser or discriminator might even sue the victim who made such a recording for invasion of privacy!
If you want evidence of illegal conduct, write it down. Keep a journal that lists the dates and time of what happened to you. Or better yet, look for evidence of the harassment or discrimination in the emails or other documents you receive. You can also complain in writing to a manager or use your employer’s complaint procedure if you think you can do so without suffering retaliation.
But unless the law changes, secretly recording a conversation may create more problems than it solves.
These days many employers require their employees to sign an arbitration agreement to get or keep their jobs. An arbitration agreement is a contract to skip going to court and have a private judge settle any lawsuit the employee brings. In other words, the employer is forcing the employee to give up his or her constitutional right to a jury trial as a condition of employment. Unbelievably, this is completely legal!
But it gets worse. Once the case goes to arbitration, the employer can stop the employee from ever getting to an arbitration hearing by refusing to pay the arbitrator. Of course, the employee can try to go back to court, but by then he or she will have wasted a year or two in arbitration and likely won’t get a trial date in Superior Court for another year.
The good news is that some employers are allowing employees to opt-out of arbitration agreements. Is this because those employers want to support and defend the constitution? No. If they wanted to do that they would forget about arbitration all together. Employers who do this want to strengthen their position to force employees to arbitrate. And it works. Recently the US 9th Circuit Court of Appeals, in a case called Johnmohammadi v. Bloomingdale’s, which covers California, forced a Bloomingdale’s employee to arbitrate her claims because she had signed an arbitration agreement, which allowed her to opt-out of the agreement if she had wanted to. If she had chosen to opt-out of the agreement, she would have been able to take her claims to court, and she could have served as a representative for a whole class of employees and help them bring their claims as well. Instead, she was forced to bring only her claims in private arbitration.
So if your employer gives you the choice to sign an arbitration agreement, just say thanks, but no thanks and keep your right to a jury trial in a court.