Employment and Small Business Services

Wage And Hour

Many businesses in California try to avoid paying their employees correctly under California law. There are many ways that an employer often improperly compensates an employee. For example, the employer may wrongfully classify an employee as “exempt” from overtime laws.

Kumin Sommers LLP represents individuals in court and before the Labor Commissioner. Kumin Sommers LLP also represents groups of employees who have had their rights violated in class action litigation.

Did your boss pay you correctly?

Overtime Exemptions: Many employers attempt to classify their employees as “exempt” from overtime laws by labeling them “managers” or “administrators.” However, if an employee labeled a “manager” spends most of his or her time working alongside the other employees doing the same job, then the employer must pay overtime.

There are three major categories of exemptions from overtime laws: the administrative, executive, and professional exemptions. For an employee to be qualified for one of these exemptions, the employee must spend more than 50% of working hours performing actual administrative, managerial, or professional duties. Other requirements apply.

Meal and Rest Breaks: In a typical 8 hour shift, California companies must permit their employees to take a half hour lunch break and two 10-minute rest breaks. If an employer fails to do so, the employee must be paid an hour of pay. California employees can sue for missed meal and rest breaks for meal and rest periods missed for a period of up to three years.

Full pay when you leave your job: Often, when employees quit or are fired, the employer does not pay those employees their full last paycheck, with accrued vacation and personal time off. Under California law, employers who willfully refuse to pay their employees upon termination may be penalized in an amount equal to 30 days wages. This penalty is known as a "wait time" penalty, because the employee had to wait to be paid.

Commissions: Often, sales agents leaving their jobs don’t get the paid their full commissions after they leave. However, California law dictates that the person who “shakes the tree” gets to keep “the fruit.”

Business expenses: Sometimes employers require their employees to shoulder the costs of running the business. That's unlawful in California. For example, if a restaurant customer eats and then leaves without paying for the meal, California law recognizes that as a cost of doing business, the employer may not pass that amount onto the waiter. Most business expenses cannot be passed onto the employee. Even if an employee breaks the employer’s equipment, the employer cannot “ding” the employee’s paycheck for repair costs.

Wrongful Termination

In California, employees are presumed to be employed “at will,” meaning either the employer or employee may severe the employment relationship at any time. However, an employer may not fire an employee if the discharge violates fundamental public policy. Such claims are called “Tameny” actions, named after a famous California Supreme Court case Tameny v. Atlantic Richfield.

Tameny claims exist when an employee attempts to enforce an employment right, such as overtime pay or make a sexual harassment complaint, and the employer retaliates against the employee for doing so.

To succeed in a Tameny action, the employee must prove:
the existence of an employer-employee relationship;
termination or other adverse employment action;
the termination was in violation of an existing public policy;
adverse employment action against that employee in retaliation for those acts; and
the employee suffered damages.

There are also specific statutory protections against retaliating against whistle blowers. For example, if an employee tells a law enforcement agency, like the Environmental Protection Agency or the Securities and Exchange Commission, that he or she reasonably believes the employer is breaking the law, then that employee is protected from retaliation.

Discrimination Law

It is illegal for an employer in California to discriminate against employees based on

  • Age (over 40 years old)
  • Gender
  • Sexual Orientation
  • Race
  • National Origin
  • Disability
  • Pregnancy Status

To sustain a claim for discrimination, you must:

  • be in a protected category,
  • have suffered an adverse employment action,
  • and be treated differently from other employees similarly situated employees.

There is rarely “smoking gun” evidence in discrimination cases, so circumstantial evidence will usually suffice.

Protected Category:
To qualify to be in a protect category, you must be discriminated on the basis of an inalienable quality, like race, gender, sexual orientation, national origin, disability or age.

Adverse Employment Action:
This usually means getting fired, but it could also mean not getting hired, being demoted, or having your wages lowered.

Treated Differently than Others Similarly Situated:
Finally, to sustain a claim for discrimination, you must show that other employees or applicants that are not in the protected category are treated differently. A common example is when a female employee is passed over for a job promotion but the similarly qualified male employee gets the promotion.

Sexual Harassment

While most working environments have come a long way regarding gender equality, at Kumin Sommers LLP, unfortunately, we still find astounding numbers of Bay Area employers that permit sexual hostile work environments.

Employers are required to monitor and maintain hostile-free work environments. This not only includes the traditional scenario of a male supervisor making unwanted sexual advances on female subordinates, but any combination. The attorneys of Kumin Sommers LLP have represented clients in all gender dynamics, such as employees subjected to same-sex harassment and male subordinates subjected to harassment from female supervisors.

Generally, there are two types of sexual harassment: quid pro quo and hostile environment. Quid pro quo harassment is a situation where a supervisor demands sexual favors in exchange for favorable treatment, or under the threat of unfavorable treatment. Hostile environment is a situation where an employee is surrounded by either a pervasive unwanted sexualized work environment, or is victimized by a severe sexual incident.

Small Business Consultation

Matthew Kumin, partner at Kumin Sommers LLP, is honored to have been named by KRON-4 Television as a “Best of the Bay” small business attorney for San Francisco County. Click below to see KRON-4’s featurette about us

We act as general counsel and transactional attorney for a wide range of small and medium size businesses including technology firms, transportation and construction companies, resorts, clubs and restaurants. Acting as general counsel, Kumin Sommers LLP handles a wide range of business matters and negotiations including drafting lease agreements, shareholder agreements, licensing related documents, sales commissions, and employment agreements. Additionally, as general counsel, we provide our clients guidance in areas involving shareholder rights, employment issues, partnership arrangements and ownership transactions.

If you are thinking about starting a new business and don’t know where to begin, we can help you get off on the right foot, counsel you on the process of business formation, and protect your personal assets from business liability.

Kumin Sommers LLP
870 Market Street, Suite 428
San Francisco, CA 94102
Tel. (415) 434-4500
info@kuminsommers.com
Fax (415) 434-8453

Small Business Litigation

Kumin Sommers LLP has experience representing small and medium-size businesses in a wide-range of litigation scenarios. Kumin Sommers LLP handles litigation that arises from issues with licensing, zoning, municipal and state authorities, intellectual property, employment relations, and partnership relations, just to name a few areas.

Kumin Sommers LLP will evaluate your situation and develop a plan for a cost effective solutions through litigation, or when applicable, pre-litigation negotiations. Our attorneys are also highly-trained negotiators who will, if possible, negotiate business disputes to achieve cost-effective results.

Kumin Sommers LLP
870 Market Street, Suite 428
San Francisco, CA 94102
Tel. (415) 434-4500
info@kuminsommers.com
Fax (415) 434-8453

Civil Rights

Kumin Sommers LLP carries out the work that both its partners, Matt Kumin and Stephen Sommers, committed to when they began their legal careers: fighting to maintain the precious constitutional rights that every day are challenged by overreaching governmental actions. Our attorneys have worked on over 50 federal civil rights cases, garnering over $15 million in verdicts and settlements.

If you have been a victim of police brutality, unlawful invasion or other civil rights violations, please contact us for a free case assessment:

Kumin Sommers LLP
870 Market Street, Suite 1142
San Francisco, CA 94102
Tel. (415) 434-4500
info@kuminsommers.com
Fax (415) 434-8453

Email Us

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