Author Archives: michael

Judgment for Unpaid Overtime Obtained in Kern County

On March 10, 2016, the Kern County Superior Court entered judgment in favor of Warren Davis against his former employer, Komoto Pharmacy, Inc., for nearly $80,000 in unpaid overtime and interest thereon. Davis, a licensed pharmacist and the “pharmacist-in-charge” of Komoto Medical Pharmacy in Bakersfield, alleged that he was not paid overtime when he worked over eight hours in a day or 40 hours a week, as required by California law. Medical Pharmacy argued that Davis, as the “pharmacist-in-charge,” was exempt from overtime pay. Davis also brought additional claims, including a claim for wrongful termination.

Judge David R. Lampe of the Kern County Superior Court found for Davis on the claim for unpaid overtime after a bench trial. The court found that Komoto Pharmacy failed to prove that Davis was exempt from overtime pay, and that Davis worked on average 15 hours of overtime per month. Including interest, the court awarded Davis $79,341.32 on his claim for unpaid overtime.

Michael Strauss, who represented Davis at trial, was pleased with the outcome. “Mr. Davis worked hard for Medical Pharmacy, and I’m happy that he is finally being awarded the overtime that he earned.”

By California law, pharmacists cannot be exempt from overtime under the “professional” exemption, which is available to professionals such as doctors, lawyers, architects, dentists, optometrists, engineers, teachers, or accountants. Pharmacists can only be exempt from overtime under the “administrative” or “executive” exemptions set forth in California’s IWC Wage Orders and the Labor Code. (See Lab. Code, § 1186.)

A copy of the court’s statement of decision is below.

Firm Name Change to Strauss & Strauss, APC

We are pleased to announce that Palay Law Firm, APC has become Strauss & Strauss, APC. The name change is effective immediately. The law firm’s headquarters will remain at its current location: 121 N. Fir St., Suite F, Ventura, California 93001.

Los Angeles Port Drivers Awarded Millions in Back Pay

On December 22, 2015, the Los Angeles Times published an article titled: “Port Drivers Win Millions in back pay from Trucking Firm.” In that case, the California Labor Commissioner ordered a Carson port trucking company, Pacific 9 Transportation, to pay 38 truck drivers nearly $7 million in back pay.  The Labor Commissioner found that Pacific 9 had misclassified their employee drivers as independent contractors, ordering them to compensate their drivers for illegal paycheck deductions, back wages, and legal costs.

There are significant benefits for being an independent contractor and some workers who have specialized talents or technical expertise, may insist or indicate a strong preference that they be retained on an independent contractor basis. Their reasons for making such a request may include tax considerations, such as being able to lawfully deduct more business expenses under the tax code than if they were employees, a desire to maintain control over their work schedules or because they wish to be their own boss. However, it is very common for trucking companies to misclassify their employee drivers as independent contractors. They do this for a number of reasons, including:

  • Businesses do not have to pay independent contractors the minimum wage or overtime pay for working more than 8 hours a day or 40 hours in a workweek.
  • Businesses do not have to provide 30-minute meal periods for each work period of five hours or more to independent contractors.
  • The federal labor laws do not afford independent contractors the right to be represented by a labor union, whereas workers who qualify as employees are capable of organizing.
  • Independent contractors sign Form 1099 rather than Form W-2. Therefore, businesses are not required to make Social Security and Medicare contributions or withhold taxes.
  • Businesses do not have to pay unemployment and workers’ compensation premiums for independent contractors.
  • Employee benefit plans, including group health insurance and 401(k) plans, only cover employees, not independent contractors, and do not have to be accounted for under the Affordable Care Act.
  • Independent contractors generally do not have the right to sue companies for discrimination.
  • Businesses are not required to pay or reimburse owner operators for business expenses, including but not limited to: fuel, vehicle maintenance, and insurance costs.
  • Businesses are not liable for the injuries and accidents caused by independent contractors.

While the extent of employee misclassification is unknown, studies suggest that it could be a significant problem with adverse consequences. In 1984, the IRS estimated that U.S. employers misclassified a total of 3.4 million employees, resulting in an estimated revenue loss of $1.6 billion (in 1984 dollars). In 2000, the Department of Labor found that up to 30 percent of firms audited, in 9 states, misclassified at least some employees.

The attorneys at Strauss & Strauss, APC have become leaders in the field of representing truck drivers who have been misclassified by their employers as independent contractors. We have obtained awards for hundreds of thousands of dollars for our owner operator clients, often times hundreds of thousands per person. Take our independent contractor misclassification test. We hope that the information here will help you determine if you are misclassified as an independent contractor and, if so, what we can do to help.

Strauss & Strauss Hires Rabiah Rahman

Rabiah RahmanStrauss & Strauss is proud to announce that Rabiah Rahman has joined our team of attorneys. Rabiah obtained her undergraduate degree in Political Science from UCLA and her juris doctor from University of California, Berkeley, School of Law. While at Berkeley Law, Rabiah served as the Boalt Hall Student Association Vice President, Managing Editor of the Berkeley Journal of African American Law and Policy, and taught street law for the Advocates for Youth Justice’s Juvenile Hall Outreach program. During law school, Rabiah interned for the California Department of Justice, Office of the Attorney General in the Criminal Appeal Division, where she defended criminal appeals on behalf of the State of California. After law school, Rabiah traveled around the world advocating on behalf of refugees from Africa and the Middle East.

Rabiah now focuses her practice in the area of employment and labor law.

Rabiah is a member of the Ventura County Bar Association, the Co-chair of the Ventura County Bar Association: Business Litigation Section, and sits on the Boards of Barristers of Ventura County as well as Women Lawyers of Ventura County.

Rabiah enjoys doing Improv, hiking, and is an avid skier.

We are very excited to have Rabiah with us and look forward to having her help in our fight for workers’ rights.

Top Five Ingredients of a Good Resident Apartment Manager Wage Claim

We have seen a drastic increase in resident apartment manager wage claims in recent months. These cases usually involve an employer (an apartment owner, apartment management company, or both) who gives free rent to an apartment manager in exchange for labor. The problem is that California law strictly regulates how much the employer may charge for rent, and how much of a “rent credit” the employer can give the apartment manager. If the employer makes a mistake, the result is an apartment manager who can be owed unpaid wages and penalties. If you are a resident apartment manager and think you may have a case for unpaid wages, look at these top five criteria for a good resident apartment manager wage claim:

1. The lack of a contract authorizing the exchange of work for free or reduced rent.

The lack of a contract authorizing an exchange of rent for labor is the single biggest indicator of a good apartment resident manager wage claim. In order for an employer to give a rent credit to a resident apartment manager, the employer and the resident manager should have a written agreement stating that the employer will provide free or reduced rent in exchange for labor. If there is no such contract or agreement, any rent credit given by the employer is likely invalid. What this means is that, even though the employer may have been giving free or reduced rent to the resident apartment manager, the resident manager can likely go after the employer for the full amount of any unpaid hours that he or she may have worked, plus additional penalties, interest, and attorney’s fees. If you do not have a contract with your landlord or apartment owner or apartment management company, and yet you get free or reduced rent in exchange for your labor as a resident apartment manager, you may have a great claim for unpaid wages.

2.  The existence of accurate time records.

You may remember having worked many hours as an apartment manager, but unless you have some records showing how many hours you worked, you may have a tough time proving your case. The best records that we see are those kept contemporaneously by managers. Records made up weeks, months, even years after the work was performed are not as valuable as records kept on the day that the work was done. The very best records record work by the minute. If your employer does not keep records, it is likely a great idea to do so on your own. The US Department of Labor even has an iPhone app that can be used for this very purpose.

3.  The size of the apartment complex that you manage.

If you don’t have time records, you will have to use circumstantial evidence to prove your hours. In that event, bigger may be better for resident apartment manager wage claims. The bigger the complex that you manage, the more work you likely have to do. These cases are all about how many hours you worked, and it is a good bet that you would work more as an apartment manager in a complex of 50 units than you would in a complex of 15 units. That is not to say that managers of smaller complexes do not have a case; it just means that the larger the complex you manage, the more likely you worked longer hours managing that complex.

4.  Clear and organized employment records.

We see it every day: an employee may have a great wage claim, but his or her records are in tatters, with pages missing and handwriting all over them. If you plan on filing a wage claim, get your information organized — and do not write on it, because it’s evidence!  So keep your employee handbook, lease, payroll records, receipts, and other evidence of work performed or expenses incurred organized and easily accessible.

5. Work performed up until the recent past.

A wage claimant can go back as many as four years for unpaid wages in California. But the measurement goes backward from the date you file your claim or lawsuit. So, for example, if you file your lawsuit today (and it has the correct legal allegations), you can try to recover wages going back four years from today. So if your last day of work was yesterday, you can recover your unpaid wages for almost the entire four-year period. But if your last day of work was two years ago, you’ll only be able to go after unpaid wages for two years. So if you have a claim for unpaid wages, don’t sit on your claim!

If your wage claim has any of these five ingredients, your odds of a good outcome are likely better. Contact Strauss & Strauss now for a free case evaluation and see if you really do have a good wage claim.

Learn more about resident apartment manager wage claims here.

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