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Retaliation in California

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  • Retaliation in California

    I was working for an employment agency in CA, referred by the client who I was placed with (I had previously worked for them through another agency). I was placed on assignment away from my home (Texas), provided per diem for living expenses (construction project, all standard).

    After nearly 3 months, my boss (with the client) decides he wasn't going to sign my timesheet but didn't inform me there was any issue or question with my time or work. Upon seeing my paystub and lack of payment for any hours, I inquire with him and then the employment agency about this. They tell me I wasn't directed to work, for which I provided a sample of emails from my boss clearly directing and instructing me to do work and had specific tasks for me. After a few days of minimal back and forth, the timesheet for my new work week is now being returned to me and my boss starts with same complaint amongst a few others. One being that I did not deduct for a lunch and that there was miscalculation with my OT. I explained myself, 1) that I was instructed to do work, you (my boss) engaged in work with me, and not once was I ever told not to work, 2) I did not deduct for lunch because I'm not provided with a full 30 or 60 minutes of uninterrupted lunch break (our site is also 60-120 minutes from any city, and we're otherwise prohibited from leaving the site due to the time it takes to get on/off), and 3) that the timesheet format itself was incorrectly calculating the OT and I could not override it.

    My boss never responded to me, and the agency otherwise is unresponsive, only kissing *** to their client and doing what they say. With two weeks now not being paid, and a third workweek had begun, I had to provide essentially an ultimatum, if I'm not going to be paid, I will have to return home (to Texas) and will file a complaint with the labor commission. I could not afford to work 1500 miles away from home, maintain two places of living, and not be paid. I asked several questions to be clarified about the situation, mostly asking/requesting for clarification on procedures as I had never been provided policy on circumstances that had been going on, and how to handle them. I did work as I thought I was required, needed and asked.

    No discussion, no response other than to be patient and they would respond. Next day, the agency called me and told me my job duties had been reassigned, my position was over, and I would be paid for the two weeks in question and the current work week up to that day.

    Looking for advice if I likely have a retaliation claim, and whether it's worth it to seek an attorney versus just filing a complaint with the state.

  • #2
    There are a few issues here.

    Meal breaks: As long as you were allowed to be free from doing work for over 30 minutes you should have clocked out during your lunch break. It doesn't matter that you couldn't leave the worksite or that there was no place to go.

    Not being paid for time you did work: You should be paid for all hours you worked including any earned OT. But it sounds like you are being paid for it with your final check.

    Calling your termination retaliation: You are in an employment at will state. And while it does sound like retaliation it isn't illegal retaliation. It is simply a client that isn't happy with you.

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    • #3
      Do you have much experience in California?

      I wasn't able to take a lunch due to not being allowed to be off duty. If an issue happened, I needed to be able to respond immediately and the nature of the work never allowed for it. California states in one of their labor sections that employers who do not permit employees to leave the site must pay them for lunch regardless. Just curious.

      All states are at-will, so I'm surprised that continues to be mentioned. Although I understand some have more protections that others. CA Labor Code section 98.6 states that retaliation is illegal when I've exercised my right or threatened to exercise my right to file a complaint:

      For filing or threatening to file a claim or complaint with the Labor Commissioner, instituting or causing to be instituted any proceeding relating to rights under the jurisdiction of the Labor Commissioner, or testifying in any such proceeding, complaining orally or in writing about unpaid wages, or for exercising (on behalf of oneself or other employees) any of the rights provided under the Labor Code or Orders of the Industrial Welfare Commission, including, but not limited to, the right to demand payment of wages due, the right to express opinions about, support or oppose an alternative workweek election, or the exercise of any other right protected by the Labor Code. A civil penalty of up to $10,000 may be awarded to an employee for each violation of Labor Code section 98.6.

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      • #4
        If the employer mandates that you take a lunch break, they can terminate you if you fail to follow that directive. This is especially true in CA where the law requires meal breaks be offered. Are you actually required to stay on site or is it just not practical to leave? There is a difference.
        I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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        • #5
          The employer never directed me to take a lunch and deduct for one. In fact an early discussion between my boss and I, for which I have in writing via email, stated he understand that sometimes the nature of our position and duties did not allow for an unpaid lunch.

          But the portion about my lunch is the most insignificant part of my overall question about retaliation. I really don't care as untimely I was paid for all time I worked and it just happened to be a last minute attempt to try and deny my last time sheet.

          Seems like I have a case of retaliation and one that's illegal in CA.

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          • #6
            You have no case for illegal retaliation because your case rests on you being fired for asking about unpaid wages. However, you haven't been fired. The client did not fire you because the client was not your employer and therefore has no legal authority to fire you. The client simply told the agency - your employer - that it no longer had any work for you. The agency - your employer - did not fire you, the agency - your employer - simply advised you that its client no longer had any work for you to do.

            If in the future the agency - your employer - refuses to give you work at any of its client sites, even when you know there is appropriate work available, then (and only then) can you consider yourself to be fired. It's at that point (not now, but in the future, and only if the agency - your employer - refuses to give you appropriate work) that you might want to think about how you might have been illegally retaliated against.

            Meanwhile though, you are legally free to file an unpaid wage claim against your employer - the agency - for any wages you believe haven't been paid to you.
            Last edited by eerelations; 02-08-2017, 12:11 PM.

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