Top Employment Lawyer in San Jose
Recently, ThreeBestRated.com identified Steven P. Cohn as a leading provider in the field of employment law in San Jose. Based on reviews and testimonials, the company determined that Mr. Cohn stood out from other attorneys, and duly selected him as one of the top three employment lawyers in San Jose. Mr. Cohn has more than 35 years of legal experience and specializes in workplace discrimination and harassment, disability, whistleblowing, unlawful business practices, and wrongful termination . Congratulations on the recognition, Mr. Cohn!
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Why Employment Status Matters [INFOGRAPHIC]
If you’re like most people, you work hard at your job to make a living and provide for yourself and your family. No matter what industry you enter, your employer should be classify you as either an exempt or non-exempt employee. Non-exempt employees are entitled to overtime pay for time worked more than 40 hours per week, while exempt employees are paid the same amount, regardless of time worked. If you are an exempt employee in San Jose but feel you are entitled to the same benefits as a non-exempt worker, you may need an employment lawyer to get you the wages you deserve. Take a look at this infographic to learn more about employment status, and to learn why your classification matters. Please share with your friends and family.
A Guide to Your Rights as a Minimum Wage Worker
The Fair Labor Standards Act governs employment law in San Jose through federal minimum wage provisions. As of July 24, 2009, the federal minimum wage is $7.25 per hour. However, many states have their own minimum wage laws, with some states providing greater employee protections.
1. Covered Employees
The Fair Labor Standards Act establishes minimum wage, overtime pay, and child labor standards throughout the country. While states can implement a higher minimum wage, they must also comply with the federal minimum wage standards. The employment law provisions of the FLSA apply to businesses with employees who participate in interstate commerce, produce goods for interstate commerce, or work with goods that have been moved in or produced in the stream of interstate commerce. However, the Act does not regulate hospitals, institutions engaged in the care of sick, schools, or institutions of higher education. As a result, these types of employees must file their wage claims under other legal remedies.
2. Basic Provisions
The Act requires covered employers to compensate their employees a minimum wage of $7.25. Additionally, employers cannot pay workers under the age of 20 less than $4.25 an hour during the first 90 consecutive calendar days of employment. It is also illegal for an employee to displace a separate employee to hire a youth worker. Even though employers may pay on a piece-rate basis, employees can file hour claims if they don’t receive the equivalent of the required minimum hourly wage rate and overtime. While the Act does not limit the number of overtime hours an employee can work, it does require employers to compensate employees at least one and one-half times their regular pay rate for overtime pay.
3. Penalties and Sanctions
An employee can speak with an employment attorney about FSLA violations, but the Department of Labor also uses a variety of remedies to enforce compliance with the Act. If the Wage and Hour Division Investigators notice violations, they will recommend changes in employment practices so that the employer is in compliance with the Act. They will also require employers to pay employees for any back due payments.
Employee Misclassification: Are You a Victim?
In 2011, Levi Strauss made national news when the company agreed to pay more than one million dollars in back wages to employees it misclassified as exempt from overtime pay. Unfortunately for a non-exempt employee in San Jose , many companies struggle with the definition of exempt and non-exempt employees. While the rules governing this type of employment law are complex, the practical implications of these classifications are rather straightforward.
1. Tests for classification
The Federal Labor Standards Act outlines three tests for classifying an exempt employee and a non-exempt employee. In most cases, the employee must satisfy all three tests to meet the definition of exempt. First, an employee is considered exempt if he or she earns more than $100,000 per year. Employees earning less than $23,600 per year are classified as non-exempt. The second requirement is the salary basis test, which classifies employees as salaried if they receive a guaranteed minimum amount of money for weekly work. The final test is the duties test, which looks at the actual job tasks and how the position fits into the employer’s overall operations.
2. Reclassification of employees
Identifying misclassified employees is just the first step in solving this employment law issue. The employer needs to calculate a new hourly wage rate and compensate the employees for any overtime wages owed. If the employee salaries were already quite high, it may be difficult to convert those to an hourly rate that isn’t considerably higher than competitive market rate. In this type of situation, it may be useful to meet with an employment attorney about reclassifying employees and providing compensation for back wages.
3. Management training
Employers may need to meet with an employment attorney to calculate the amount due to each misclassified employee and benchmark a competitive new hourly rate. This ensures that the affected employees don’t earn any less than they did with their exempt statuses. Next, employers should train managers on workplace rights for hourly employees and how to educate their employees on rights regarding overtime wages. An attorney can help the employer reach a settlement for back pay with the affected employees.
What Deductions Can Your Employer Make from Your Salary?
Unlike a non-exempt employee, an exempt employee works for a salary. This means that an employer pays an exempt employee the same amount every week. Even though employers can make deductions from the salary of an exempt employee in San Jose, these deductions are limited to very specific circumstances.
In this video, an employment attorney outlines the reasons why an employer may be able to deduct an exempt employee’s salary. For example, if an exempt employee has exhausted or has not accrued enough sick leave, then the employer does not need to pay for a full day taken off of work. However, the key to this deduction is that the exempt employee must take the entire day off of work. An employer may also suspend an exempt employee without pay if the employee commits a serious violation, such as disregarding a major safety rule or instigating sexual harassment.
What to Do If You Were Fired Without Cause?
If you are the victim of wrongful termination near San Jose, you need to meet with an employment attorney to determine whether or not your employer was able to terminate you without cause. California is an “at-will” employment state, but this generalization does not apply in every employment situation. If you and your employer agreed that you would work for a certain period of time, employment law typically requires your employer to provide cause for termination.
Government employees as well as employees in a union also require cause for termination, even if they are at-will employees. In addition, termination due to sexual harassment or whistleblower retaliation is also exceptions to the “at-will” employment law doctrine. An employee may also file a wrongful termination claim if his or her termination was retaliation for requesting overtime pay. The best way for a terminated employee to assess the validity of his or her wrongful termination claim is by meeting with an employment lawyer. The employment attorney can determine whether the circumstances surrounding the termination fall into one of these “at-will” employment exceptions.