The latest job figures reflect a still-strong labor market, with the U.S. economy adding a higher-than-expected 187,000 jobs in August.

Amidst a controlled cooling in the bid to fight inflation, unemployment remains low and job seekers still hold a strong position. Many workers have been using current conditions to aim for better positions. But some employers have been cutting corners in the cutthroat race for workers.

At Keller Grover, we advocate for workers; be on guard for these five risks:

1. Overpromising/misrepresentation. Whether it be about the meat of a job or vague promises of remote work flexibility, some employers have been misleading potential hires to make jobs more attractive. For example, perhaps an employer entices you to move by describing a long-term management role but knows the role will be short-lived, or offers you high pay but plans to quickly slash your salary. In certain cases, California law gives you protections and the potential to recoup double damages in civil court.
2. Promotions — with a catch. Some employers offer what amounts to a fake promotion — basically a fancy title with little functional difference — to take advantage of a loophole in overtime wages. Federal law does not require businesses to pay overtime wages to salaried managers who make more than $455 a week ($23,660 a year). Thus, a deceptive “promotion” with a minimal raise may actually bring a pay cut. Do the math before accepting a promotion, particularly if the name and job description seem sketchy — a recent study found a nearly 500 percent increase in use of misleading managerial titles for low-paying salaried positions during the 2010s.
3. Job posting scams or “ghost” listings. With remote work so common these days, we may be more susceptible to the plethora of job posting scams, which often target personal information and/or money. The Federal Trade Commission recommends starting with an online search of a potential employer, along with the words “scam,” “review,” or “complaint.” It also suggests talking about the offer with someone you trust, never paying up front for job-related expenses, and watching for fake check scams. Even if a job isn’t a scam, many legitimate companies maintain listings for “ghost jobs,” just to keep a ready pool of candidates in case someone quits, according to The Wall Street Journal. These can be a waste of time for job seekers; experts suggest filtering these by checking time stamps and the level of detail in the job description.
4. Clauses in employment contracts. Don’t be too eager to sign on the dotted line — take sufficient time to read and comprehend an employment contract. Pay attention to the description of duties, the various types of compensation/incentives, benefits, work from home policies, leave policies, termination clauses, and any other specifics. In particular, watch out for noncompete clauses, which may limit your potential work options should you leave that employer. Pay attention to non-solicitation, non-disclosure and other confidentiality agreements, as well. These could open you up to risks should you leave the company. We have written about these types of issues, including national efforts to ban noncompete clauses.
5. Consequences for job hunting. If you are on the job hunt, keep that knowledge guarded — including asking the interviewer to keep the information confidential — and operate on the up-and-up. Use PTO for interviews, or schedule them on your own time, and continue fulfilling your responsibilities at work. Also, abide by confidentiality or other requirements of your current job. This protects your credibility, and guards against your being fired or other potentially thorny issues with your current employer.

If you have been mistreated by an employer, contact Keller Grover for a free and confidential consultation. With our proven track record of advocating for workers, we can help you understand all your options, protections, and best next steps. In more than 25 years litigating fraud and employment cases, Keller Grover has recovered billions for its clients.

 

 

California’s largest wildfire of the year has been burning through the California desert, threatening habitats, to be sure, but also adding to a growing health risk for people working outdoors in smoke-tainted air.

As of July 31, California had reported 3,880 wildfires that burned nearly 96,000 acres, according to CAL FIRE. A recent report published in the peer-reviewed Proceedings of the National Academy of Sciences attributed the surge of wildfires in recent decades almost entirely to climate change, according to USA Today, meaning the risks are unlikely to abate.

As California’s Department of Industrial Relations notes, smoke from wildfires contains potentially harmful chemicals, gasses, and fine particles that can irritate the lungs. Potential health effects can include diminished lung function, bronchitis, asthma complications, or heart failure.

Employers that should reasonably expect workers to be exposed to wildfire smoke — basically, companies that involve outdoor work — needs to monitor air quality and, if it’s problematic, take steps to protect employees. The benchmark is an Air Quality Index for airborne particulate matter 2.5 millimeters or smaller of at least 151 (this may be abbreviated as a current AQI for PM2.5 of 151 or greater).

There are some exceptions; basically, firefighters, workers who are exposed to poor air quality for an hour or less, or workers who are in enclosed buildings/vehicles that have adequately
filtered air.

But for all others, here is a rundown of required protections:

● Determine worksite air quality at the start of each shift and as needed afterward.
● Make sure employees understand the risks of breathing wildfire smoke.
● Effectively train workers who may be exposed to wildfire smoke.
● Reduce exposure to harmful air if possible.
● If reducing exposure to harmful air isn’t possible, take administrative steps to mitigate risks. This could include adjusting work schedules, assigning less intense work, or offering more breaks.
● If necessary, provide adequate respiratory protective equipment.

We’ve also written about your employer’s responsibilities when it comes to heat exposure this summer. Is your employer taking the required steps to protect your lungs this wildfire season? If not, Keller Grover can help. We provide confidential, free consultations to advise those who have been mistreated by employers, and we can aid you in determining the best path forward, helping you minimize the impact of reporting, protect your rights and achieve the best possible outcome for your situation.

A patchwork of laws during the past few years lays the groundwork for monetary relief for people who have suffered sexual assault, harassment and other types of discrimination.

The latest in California, what is sometimes referred to as a “lookback window,” opened a three-year period — from 2023 through Dec. 31, 2026 — for adults who allege sexual abuse by another adult to pursue civil litigation.

Importantly, this joins recent laws that ban confidentiality and non-disparagement clauses regarding harassment or discrimination (in severance and employment agreements) and prevent forced arbitration clauses when there are allegations of sexual assault or harassment.

Altogether, it means victims of sexual assault and harassment can have their days in court, despite prior legal hurdles such as statutes of limitations and clauses wrapped into employment contracts.

Among those now facing lawsuits under California’s new law: actor Bill Cosby, whom former Playboy model Victoria Valentino accused of sexual misconduct after they met at an audition in
1969, NBC News reported last month.

But let’s look at the specifics of Assembly Bill No. 2777, known as the Sexual Abuse and Cover Up Accountability Act — and particularly at aspects that could apply to the workplace.

The existing law limited time for civil lawsuits stemming from alleged sexual assault against adults to within 10 years from the date of the last act or attempt, or within three years from the
date the victim realized an injury or illness resulting from the act — whichever was later.

In a nutshell, the new law temporarily (through 2026) extends the statute of limitations on sexual assault, citing — among other things — how common it is, the emotional and psychological toll, and the difficulty of confronting a perpetrator.

“Moreover, when these data are combined with widespread news reports of major companies being accused of covering up sexual assaults by their employees, it is self-evident that statutes
of limitation for sexual assault need to be crafted in a way that does not cause the covering-up company to enjoy the fruits of their cover-up solely because our statutes of limitation permit, and
thus motivate, such behavior,” the law reads.

Key points:
● Victims now can pursue any claim seeking damages suffered because of a sexual assault that happened on or after Jan. 1, 2009, that would otherwise be barred solely because of the statute of limitations.
● If there was a coverup, the timeline isn’t limited, so long as allegations include sexual assault, name a specific legally responsible party(ies), and allege a coverup of prior sexual assault instances or allegations by the alleged perpetrator or agents of the perpetrator. Notably, the law specifies that a cover up can include use of nondisclosure or confidentiality agreements.
● Any claims related to an alleged sexual assault, such as wrongful termination and sexual harassment, also are revived.
● Exceptions: Claims that were litigated to finality or that reached written settlement agreements by Jan. 1, 2023, are not eligible. The law also specifies that it revives cases that would be barred solely because the statute of limitations had expired.
● Criminal prosecution or conviction is not required to pursue a civil case. A separate lookback window applying to people over 40 who suffered abuse in California as children closed at the end of last year, prompting a rush of lawsuit filings, according to a report in the Los Angeles Times. If you’ve been the victim of assault, harassment, discrimination, or retaliation in the workplace, don’t hesitate to seek legal advice. These violations are illegal and wrong, and we are passionate about advocating for victims. Start with a free consultation — the experienced employment lawyers at Keller Grover can help you understand your 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. Let us add you to that list.

As California marches into its hottest months of the year — accompanied by predictions of above-normal temperatures — people whose livelihoods happen outdoors face potentially life-threatening dangers from exposure to that heat.

Whether they’re harvesting produce, working in construction, or landscaping, California’s outdoor workers deserve basic protections from their employers.

The Golden State boasts some of the nation’s strongest heat laws; the state has been tweaking them over the past two decades, and it’s currently working on regulations about heat in indoor workplaces. 

However, not all employers take seriously their responsibility to keep workers safe and well. For example, state law requires every employer of outdoor workers to share with employees a written heat-illness prevention plan. However, a Farmworker Health Study by the UC Merced Community and Labor Center, released earlier this year, found that 43 percent of surveyed workers reported never getting such a plan from their employer. 

With climate change pushing temperatures ever higher, the urgency of protections under state law rises, as well. The National Weather Service’s Climate Prediction Center predicts above-normal temperatures in the western United States this June through August. California temperatures have been rising over the past century, particularly at night. 

Basic worker protections under state law include very common-sense steps that apply to all outdoor places of employment. In addition to the written heat illness prevention plan, which must be available at all outdoor worksites, employers generally are required to provide water, rest, shade and training.

Here’s an explanation of each element:

• Training: All employees and supervisors must receive training about heat illness prevention. That includes the risks, employer procedures and responsibilities, the importance of regular hydration, symptoms of heat illness, and how to respond to suspected heat illness.
• Water: Employers must provide enough fresh, pure water so that each employee can drink at least 1 quart (four 8-ounce glasses) of water per hour for the duration of a shift. Notably, employers also must encourage workers to drink this much water, and the water must be suitably cool, near to the worksite, and free.
• Shade: Anytime temperatures exceed 80 degrees, employers must make sure workers have easy access to shade, and they must encourage them to rest for at least five minutes in the shade anytime they feel the need to do so to prevent overheating. This must happen before any feelings of illness; if employees show signs of heat illness, they can’t be sent back to work until the symptoms have abated. In addition, the shaded areas must be either open to the air or ventilated/cooled, and they must be sufficient to allow all employees sufficient recovery periods while seated comfortably. Employees also should be monitored for signs of heat illness and provided with appropriate aid if necessary. Even when temperatures are below 80 degrees, shade must be available and provided upon request.
• Planning: Every employer is to develop and act upon written procedures that align with the Cal/OSHA Heat Illness Prevention Standard. The plan must be available in writing — in both English and any other primary language spoken by most employees — at outdoor worksites. 

California law includes other protections as well, such as specific supervisory procedures and a minimum 10-minute cool-down rest period every two hours when temperatures top 95 degrees. 

Is your employer taking the required steps to protect you from the heat? If not, Keller Grover can help. We provide confidential, free consultations to advise those who have been mistreated by employers, and we can aid you in determining the best path forward, helping you minimize the impact of reporting, protect your rights and achieve the best possible outcome for your situation.

Do you work as a server in a restaurant or banquet hall where your customers are charged a “service fee” on their bills? In California, if customers reasonably understand the service fee to be a gratuity, and haven’t been informed to the contrary, servers are entitled to the full amount of the fee paid by patrons as a tip.

A recent case, Ordono et al v. Marriott International Inc., shows how employers can violate this law. A California Superior Court judge ruled this month that the San Francisco Marriott Marquis hotel illegally kept about $9 million in service charges from 2012-17 that should have gone to banquet staff as earned tips. The judge ordered the hotel to pay that money to employees who worked as banquet servers during that time.

California Labor Code Section 351 prohibits employers from taking any part of a gratuity left for an employee by a customer. But what if gratuity isn’t explicitly defined on a bill? In the hotel case, according to the San Francisco Chronicle, the plaintiffs argued that banquet customers would have reasonably believed that the 23%-24% charge added to their bills for what was described in their contracts as a service fee was given to service staff as gratuity.

The case also included testimony that the vast majority of hotel banquet customers didn’t leave tips on the table because, according to the judge, they believed gratuity was included in the service charge.

The judge wrote in his ruling that “a reasonable customer would understand and intend the service charges to be a gratuity for service staff.” He said some of the contracts drawn by hotel managers for banquet customers described the entire charge as a gratuity.

“It was common practice for employees, including banquet servers and their managers, to refer to service charges as gratuities or tip pay.” the judge said.

According to the judge, the affected banquet servers made between $11 and $13.50 per hour and were paid $70 million in service fees during 2012-17 but the hotel kept the remaining $9 million. 

Starting in April 2017, according to the Chronicle, the hotel amended its contracts to say part of the service fee was a house charge that covered expenses and should not be considered a gratuity or tip. That meant the hotel could legally keep some of the service fees collected from customers as long as the rest was distributed to workers eligible to receive tips.

The ruling against Marriott follows a 2019 California Court of Appeals ruling in O’Grady v. Merchant Exchange Productions, which established that mandatory service charges could be found to be a gratuity. 

Part of the opinion in that case read: “The fair inference from the allegations is that the service charge is plainly perceived by the customer to be a gratuity, and is intended by the customer to be a gratuity. … An equally fair inference is that the customer would not intend a gratuity to be pocketed by defendant.”

If you are a service worker who is eligible to receive tips and your employer charges patrons a service fee as part of their bill, whether as part of a banquet contract, or for service at a large table, you may be entitled to all or some of this fee as gratuity. If you feel like your employer isn’t sharing all of the tips you’ve earned, contact us today for a free consultation.

Keller Grover’s attorneys have decades of experience in employment law and have successfully represented workers who’ve had gratuity withheld by their employers, as well as other wage and hour violations.