I have litigated cases in ten California counties and nearly all of its federal districts. I have secured favorable settlements and arbitral awards for employees and individuals who have been the victims of fraud, civil rights violations and unfair business practices. My written work has resulted in courts granting summary judgment in favor of my clients, both employers and employees. I have particular experience in the wage and hour arena. At Sebastian Miller Law, I represent executives and employees in many types of employment litigation, including the areas listed below. More details and information appear on my blog.
Misclassified Independent Contractors
It is quite common in Silicon Valley for individuals to work full-time for a single company but be classified as independent contractors. Although the employer saves money on payroll taxes by calling someone an independent contractor, in most instances this classification is inaccurate and often the individual ends up incurring tax-related penalties.
A misclassified independent contractor may be entitled to recover significant damages from an employer including compensation for: overtime, minimum wage, meal and rest periods, stock options or other equity, various penalties, and attorneys’ fees.
Unless certain narrow exemptions are met, federal and state laws require that all employees be paid overtime if they work more than eight hours in a day or forty hours in a week. Nevertheless, many Silicon Valley employers simply pay all their employees a fixed salary regardless of the number of hours worked under the sometimes mistaken and sometimes knowingly-incorrect belief that all such employees are exempt from overtime. A misclassified employee can recover for unpaid overtime, meal and rest periods, various significant penalties, and attorneys’ fees. This blog post provides some basic details about California wage and hour laws.
Positions that are very commonly misclassified as exempt from overtime include:
- Recruiters (e.g. Talent Acquisition Specialist)
- Customer service positions (Customer Service Representative and other call center positions)
- Inside salespersons (e.g. Inside Sales Representative, Customer Account Representative, Sales Account Representative, Sales Executive)
- Lead generators (e.g. Business Development Executive (BDE), Sales Advisor, Sales Development Representatives (SDR), Account Executives, Account Managers).
Failure To Reimburse
Section 2802 of the California Labor Code prohibits an employer from passing its costs of doing business onto its employees. If you use your cell phone for work-related emails or calls, you must be reimbursed for that expense. If you work from home for your employer’s convenience, you must be paid for the costs related to your office.
If you drive or travel for work, your employer has to make you whole. An employee who is not receiving this reimbursement can recover expenses (with interest) plus penalties and attorneys’ fees.
Discriminatory Parental Leave Policies
Many employers—large and small—do not offer parental leave policies that comply with applicable law. For example, some employers provide illegal disincentives to taking a protected leave by refusing to pro-rate bonuses or other incentive compensation targets to account for an employee’s absence.
Other employers’ policies vary according to gender. Sometimes these policies use loaded, undefined terms in an effort to convince men not to apply for a paid leave of absence to which they are otherwise entitled. Others constitute overt sex discrimination, giving paid leave to female employees in order to bond with a child but no comparable time off to men.
Bonus and Commission Plans
Many bonus and commission plans contain fine print that basically says an employer can change its mind and not pay you the bonus or commission that you thought was earned. Others contain onerous requirements around the timing of a payout or recoupment of funds paid.
In many instances this language is plainly unenforceable and an employee can recover the amount of the unpaid bonus or commission as well as six additional weeks of salary, attorneys’ fees and interest.
Non-competition agreements are generally unenforceable against employees in California. Some employers still attempt to flout the Business and Professions Code with creative attempts to penalize former employees who compete (e.g. forfeiting vested equity, bonuses, etc.). Courts do not hesitate to declare these sorts of non-competes unenforceable and they will restore the funds the employee lost as a result of this unfair business practice. A developing area of law is to what extent a non-compete is enforceable in the context of pure acqui-hire transaction. A blog post on this issue is forthcoming.
Representative Cases (Client In Bold)
Contreras v. United Airlines, Inc., Case No.: 3:10-CV-05127-WHA (N.D. Cal.)
Jenkins v. Newtalk, Inc. Case No.: 3:14-CV-01400 (N.D. Cal.)
McLean v. Infinera Corporation, Case No. 1-12-CV-219463 (Superior Court of Santa Clara County)
Marchelos v. Reputation.com, Inc., Case No. 12-CV-01899 YGR (N.D. Cal.)
Pasillas v. Agility Fuel Systems, Inc., Case No. 30-2014-00701465-CU-OE-CXC (Superior Court of Orange County)
Former Partner in Investment Fund v. Investment Fund, (JAMS, San Francisco)
Hays v. Commonwealth Land Title Insurance Company, Case No. 3:10-cv-05336-JSW (N.D. Cal.)
Farahzad v. Lawyers Title Insurance Company, Case No. 10-CV 6010 (JS) (AKT) (E.D. N.Y.)
Washington v. Duncan, Case No. 3:05-CV-02775 WHA (N.D. Cal.)
Washington v. Harrington, Case No. 12-16996 (9th Cir.)
Northern District of California
Eastern District of California
Central District of California
District of Utah (pro hac vice)
District of South Carolina (pro hac vice)