For years, employees in California have struggled to get justice for workplace retaliation. That’s because workers couldn’t prove their employer’s actions were retaliatory — even if they were fired or demoted soon after they spoke up about problems in their companies. 

In fact, the legal standard was so difficult to meet that many employees decided it was better to stay silent. According to a 2022 survey of California workers, 38 percent had experienced a workplace violation, but only 10 percent of those workers filed a report with a government agency. Nearly half didn’t report it to anyone.

Fortunately, a recent update to California labor law is trying to change this dynamic. California SB 497, the Equal Pay and Anti-Retaliation Protection Act, puts more of the initial burden on employers to prove that firings, suspensions and other actions are not retaliation. 

SB 497 took effect in January 2024. It creates a prima facie, rebuttable presumption that an employer engaged in retaliation if it took action against an employee within 90 days of that employee engaging in a protected activity under Labor Code section 98.6 or the Equal Pay Act (Labor Code Section 1197.5), which forbids sex-based wage discrimination. 

Among other things, protected activity could include: 

 

• Making a written or oral complaint over unpaid wages
• Filing a bona fide complaint about other violations of your labor rights
• Disclosing how much you make
• Talking or asking about other workers’ wages
• Helping or encouraging others to use these and other rights
• Refusing to participate in an activity that would violate a state or federal statute
• Testifying or providing information to a public body conducting an investigation, hearing or inquiry if the employee believes their information reveals a violation of law 

In addition to firings and suspensions, retaliation can take several forms, including a reduction in work hours, a demotion or some other negative action. 

Employers can challenge the presumption by showing they had a nonretaliatory reason for any adverse actions. The burden of proving retaliation would then fall back on the employee. 

This is still helpful for employees. Hearing their bosses’ justifications could give them a greater ability to challenge those arguments in court. It might also make employers think twice before retaliating against their workers. 

California’s labor code already allows for rebuttable presumptions in other types of cases, such as retaliation against workers who took paid sick leave or employers that threaten workers with deportation. 

SB 497 makes an important change in one other area: If an employer has to pay the civil penalty for retaliation, the money will go to the affected employee.

Under the law, if an employer engaged in retaliation, it can be assessed a civil penalty costing up to $10,000 per employee per violation. Thanks to SB 497, those funds will be given to the employees who suffered retaliation, not the state’s General Fund, where the money used to go. The state’s labor commissioner will determine the exact size of the penalty, based on the violation’s nature and seriousness, as shown in the evidence. 

And of course, workers can still press for reinstatement and reimbursement of lost wages and benefits, too.

Workplace retaliation can inflict significant harm on employees who have already suffered unfair treatment in the workplace. Loss of income, loss of opportunity, punitive work conditions — those are just some of the burdens that affected workers face. 

At Keller Grover, our team has decades of experience representing employees who were targeted for workplace retaliation. If you have been impacted, learn more about your options by contacting our firm for a free and confidential consultation. 

California may be known for its progressive labor standards, but most hourly workers in the state routinely face labor law violations, and few report them, according to a new analysis.

Ninety-one percent of workers surveyed had experienced at least one type of violation at work during the past year. Forty-one percent had experienced a serious violation of the Fair Labor Standards Act (FLSA), such as working off the clock, not being paid required overtime, not being paid for all their work hours, receiving less than the minimum wage, or not being paid bonuses, tips or paid time off that they had earned.

The insights came from a survey this spring of more than 1,000 service-sector workers by researchers from the Shift Project, based at Harvard Kennedy School and the University of California-San Francisco.

“Based on our evaluation of survey responses, we find that the aspirations of California’s progressive labor standards are frequently undermined by widespread employer noncompliance with the basic requirements of FLSA, paid sick leave, paid rest break, and meal break mandates,” researchers wrote.

But what’s particularly problematic: Workers often put up with these violations because either they are unaware of their legal protections, or they don’t have an advocate who can help them both take action and avoid retaliation.

Here is a summary of common employment law violations and worker rights:

• Less than a quarter of workers who described violations made a report, and most of the time they made the report to their own employer. Just 2 percent reported the violation to local, state or federal authorities.
• More than half of workers who reported a violation said they faced some form of retaliation, such as fewer working hours, worse schedules or tasks, or even unsafe tasks.

All of these things are wrong — from the abuse to the retaliation, whatever form it may take. Based on this survey, it is very likely that an hourly worker you know has experienced mistreatment in the workplace. 

Keller Grover offers free and confidential consultations to advise workers of their rights, protections, and prudent next steps. In more than 25 years litigating fraud and employment cases, we have recovered hundreds of millions of dollars for clients and class members.

This year, Berkeley became the latest California city to enact a “fair workweek” law, which gives workers in certain industries – primarily those who employ hourly workers using floating schedules – the right to receive advance notice of their work schedules and additional compensation if changes are made to their schedule with little notice. 

As described in the ordinance, the law is designed to enact and enforce fair and equitable employment scheduling practices that do not unreasonably prevent workers from attending to their family, health, education, and other obligations, as well as requiring employers needing additional hours to first offer those hours to current part-time employees.

In Berkeley, as well as in San Francisco and Emeryville, covered employers are required to give covered employees their schedules at least 14 days in advance. Specifics vary by ordinance, but generally if workers accept these schedules, their employers are bound to these good-faith estimates unless an exemption in the law allows them to make schedule changes. Otherwise, employees could be entitled to “predictability pay” if their agreed-upon schedules are changed at the last minute.

In San Francisco, the Formula Retail Employee Rights Ordinance applies to Formula Retail Establishments with at least 40 stores worldwide and 20 or more employees in San Francisco, as well as their janitorial and security contractors. If changes are made to an employee’s schedule with less than 7 days’ notice, the employer must pay a premium of 1 to 4 hours of pay at the employee’s regular hourly rate. If an employee is required to be “on-call” but is not called in to work, the employer must pay a premium of 2 to 4 hours of pay at the employee’s regular hourly rate.

In Berkeley and Emeryville, if any changes are made to the length of a covered employee’s shift with less than 14 days notice but more than a 24 hour notice, 1 hour of their regular hourly pay is owed. If hours are reduced or canceled with less than 24 hours notice, the employee is owed 4 hours of pay, or the number of hours in their affected shift, whichever is lesser. If any other changes are made with less than 24 hours notice, 1 hour of pay is owed to the employee. 

Additionally in Berkeley and Emeryville, the ordinances address so-called “clopenings,” giving covered workers the right to rest 11 hours between shifts and refuse shifts that start less than 11 hours after the end of their previous shift. They can accept to work these shifts, but they will receive time-and-a-half pay for work performed during their 11-hour rest window. For example, a worker closes a restaurant at midnight and their next shift starts at 8 a.m. They would receive time-and-a-half pay for the period worked between 8-11 a.m.

The Berkeley law covers employees who perform at least two hours of work per calendar week for covered employers in the city and 

• Qualify as an employee entitled to minimum wage from any employer under the California minimum wage law, including learners; and
• Are not exempt from overtime pay; and 
• Are paid less than a monthly salary equivalent of at least 40 hours per week at a rate of pay of twice the city’s minimum wage: which is $18.07 in Fiscal Year 2024.

Employers covered under Berkeley’s ordinance are those with 10 or more employees in the city that are primarily engaged in the building services, healthcare, hotel, manufacturing, retail, or warehouse services industries, and 

• Employ 56 or more employees globally; or
• Are primarily engaged in the restaurant industry, and employ 100 or more employees globally; or
• Are a franchisee primarily engaged in the retail or restaurant industries and is associated with a network of franchises that employ 100 or more employees globally; or
• Are a not-for-profit corporation primarily engaged in the building services, healthcare, hotel, manufacturing, retail, warehouse services, or restaurant industries and employ 100 or more employees globally. 

If you’re covered by a fair workweek ordinance and think your work schedules aren’t following the law, Keller Grover is here to help. We help workers in employment-related disputes better understand their rights, protections and options. In more than 25 years litigating fraud and employment cases, we have recovered hundreds of millions of dollars for clients and class members. Contact us today for a free, confidential consultation.

 

Are you still on the clock in California if your workday is over but you are still waiting to pass an employer-mandated security inspection before heading home? 

Yes, under certain conditions, the California Supreme Court said last month in its ruling in Huerta v. CSI Electrical Contractors. The opinion follows similar worker-friendly rulings by the court. In 2020 the court said Apple needed to pay employees for bag searches after the end of their shifts and in 2018 it ruled Starbucks hourly workers were owed pay for short periods of off-the-clock work to close the store, for example.

George Huerta was hired by a subcontractor to assist CSI Electrical Contractors (CSI), which provides “procurement, installation, construction, and testing services” at the California Flats Solar Project, a facility owned by First Solar Electric, Inc. Huerta was told the “Security Gate” was the first place he needed to be each morning, but the gate was a 10-to-15 minute drive from the site’s parking lot. When he left work each day, inspections at the Security Gate caused delays up to 30 minutes.

In addition to not being paid for the time it took for him to enter and leave the site, Huerta was also not paid for his meal periods. His employment was governed by two collective bargaining agreements (CBAs) that included a daily unpaid 30-minute meal period, but CSI did not allow workers to leave the site during the workday.

Huerta filed a wage and hour class action seeking payment for unpaid hours worked that made its way to the Ninth Circuit, which sought answers from the California Supreme Court to several specific questions about what “hours worked” are under the Wage Order:

• First, when an employee is required to spend time on his employer’s premises awaiting and undergoing an employer-mandated exit security procedure that includes the employer’s visual inspection of the employee’s personal vehicle, is the time compensable as “hours worked”? 
• Second, is the time that an employee spends traveling between the Security Gate and the employee parking lots compensable as “employer-mandated travel” if the Security Gate is the first location where the employee’s presence is required for an employment related reason?
• Third, when an employee is covered by a collective bargaining agreement and that agreement provides for an “unpaid meal period,” is that time nonetheless compensable under the wage order as “hours worked” if the employer prohibits the employee from leaving the employer’s premises?

The court answered “yes” as to all three questions, citing Morillion v. Royal Packing Co.: “An employee who is subject to the control of an employer does not have to be working during that time to be compensated under the applicable wage order. Likewise, an employee who is suffered or permitted to work does not have to be under the employer’s control to be compensated, provided the employer has or should have knowledge of the employee’s work.” 

At Keller Grover, we advocate for workers in all industries to be fairly compensated under California and federal wage and hour laws. If you are working off-the-clock without being paid, contact us today for a free and confidential consultation.

 

It’s been four years since the start of the COVID-19 pandemic, but a law protecting the rights of California hospitality and building services workers laid off for pandemic-related reasons remains in force, through the end of 2025.

The “Right to Recall” law requires employers in these industries to offer job openings that are similar to ones held by workers laid off during the pandemic, based on company seniority. The law defines a “laid-off employee” as one who was employed by the employer for 6 months or more in the 12 months preceding January 1, 2020, and whose most recent separation from active service was due to a reason related to the COVID-19 pandemic, including a public health directive, government shutdown order, lack of business, a reduction in force, or other economic, nondisciplinary reason due to the COVID-19 pandemic.

The California Labor Commissioner’s Office has been pursuing cases against companies who’ve violated this law. Last year, it cited the Hyatt Regency Long Beach $4.8 million for not offering 25 employees their jobs back, some of whom had two decades of experience. 

The Labor Commissioner’s Office investigation started after it received complaints from Hyatt Regency Long Beach workers. The law allows for damages of $500 per worker for each day the employee’s rights are violated, and the hotel was cited for 8.983 aggregate days of violations. The entire amount of the $4,799,564 citation will be paid to the 25 affected employees.

Last year, the commissioner’s office reached a $1.5 million settlement with Terranea Resort in Rancho Palos Verdes after citing it for failing to offer job positions to 53 laid-off employees that included housepersons, banquet servers and bartenders, junior sous chefs and massage therapists. The commissioner’s office also cited an airport caterer for more than $1.2 million for failing to timely rehire 18 employees at its Los Angeles International Airport site and three employees at its San Francisco International Airport site who had been employed as station attendants, dishwashers, drivers, porters, equipment liquor set-up attendants, cooks and cook helpers.

“This law was intended to end the displacement of workers during the pandemic due to no fault of their own and that’s exactly what we are pursuing in this case,” said Labor Commissioner Lilia García-Brower. “Workers invested up to 10 years in this employer and the employer failed to rehire them pursuant to the law. We will continue to investigate until workers are made whole.”

The law was scheduled to expire at the end of 2024 but was extended by one year. If you’re an employee in one of these industries who was laid off in California as a result of the pandemic, you could be affected. Keller Grover has recovered millions in dollars for workers In more than 25 years litigating fraud and employment cases. If you have a question about how this law affects your rights, contact us today for a free, confidential consultation.