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Questions Answered by Jonathon Howard Kaplan

1 Answer | Asked in Civil Litigation and Employment Law for California on

Q: Recently terminated, as a cook. Was informed by letter that I was recorded on audio, I was unaware, nor had I consented.

What steps do I take from here? There are other issues related to termination (coming to employer several times with health and safety issues, schedule, prep, etc., demotion after repeated raising of concerns, and a verbal agreement prior that wasn't being adhered to, of which I also voiced... Read more »

Jonathon Howard Kaplan answered on Apr 5, 2018

It sounds like you might have a case for wrongful termination. In addition, you may have a claim against your employer if they recorded you without your consent, which is a felony in California. Contact an employment lawyer for help.

1 Answer | Asked in Employment Law for California on

Q: I worked full-time and decided to go to on-call status. During my full-time status, I accrued 40hrs PTO.

I did not request this as cash out since I was staying as on-call. During that time, 2 months or more passed and I only worked one on-call shift, but stayed on the list and still did not request PTO cash out, just in case I was offered a shift in the future that I could take.

I recently... Read more »

Jonathon Howard Kaplan answered on Apr 5, 2018

If you are no longer working for the company, they were required to cash you out immediately. If they do not do so, they could be liable to you for a waiting penalty equal to your daily rate multiplied by the number of days you haven't been paid, up to 30 days. Consider contacting an employment... Read more »

1 Answer | Asked in Employment Law for California on

Q: I am terminating an employee. He was paid already for the last job he completed. Do I need to issue a final paycheck?

I am terminating this employee for attendance. We pay our employees after jobs are completed. He completed his last assignment and was paid. Do I need to issue him a final paycheck with the amount $0 (since he has not worked since his last paycheck) or am I not required to do this and only serve... Read more »

Jonathon Howard Kaplan answered on Apr 4, 2018

Under California's Labor Code you must pay the employee all wages that were earned and unpaid when you fired the employee on his last day of work. For purposes of the law, unpaid wages includes earned and unused vacation, missed meal breaks and rest periods, as well as overtime. If you did not cash... Read more »

1 Answer | Asked in Employment Law for California on

Q: Can an employer force me to not clock in on my 5th work day if I’ve already worked 40 hrs by my 4th day?

I’m a remote field service technician employee based in California and my company is based in Nevada. We have a policy that states the remote employees labor laws will be based on their home location.

My job is forcing us to cut OT. For example, if I already have worked 40 hours by my... Read more »

Jonathon Howard Kaplan answered on Apr 4, 2018

The answer to your question does NOT fall in a gray area. It is unlawful for an employer not to pay you for your work. If you are a non-exempt employee, when you work overtime your employer must pay you premium pay. An employee must be paid one and one-half times his or her regular rate of pay... Read more »

1 Answer | Asked in Employment Law for California on

Q: Offer letter states that company will not pay if employee/contractor is terminated from project within first 10 days.

In the employment contract/offer letter I signed it says company will not pay if employee/contractor is terminated from the project due to his performance for a minimum of 10 working days from the start of the assignment. Is this legal? Company is in Michigan however I and the work location are in... Read more »

Jonathon Howard Kaplan answered on Apr 4, 2018

In California, employees must be paid for all work performed. An employer's failure to pay the promised wage--or at least minimum wage--for work is considered wage theft and carries stiff penalties. This is not a lawful provision in the employment contract, and if you were not paid for your work,... Read more »

1 Answer | Asked in Employment Law for California on

Q: Can an employer invoke the respondeat superior doctrine in a civil lawsuit ? Or does only the plaintiff can ?

Jonathon Howard Kaplan answered on Apr 4, 2018

Respondeat superior is a well-established doctrine that says an employer is liable for the acts of its employees that are committed within the scope of their employment. The doctrine is used by plaintiffs to make businesses pay for damages caused by their employees. For example, if you are hit by... Read more »

2 Answers | Asked in Civil Rights and Constitutional Law for California on

Q: Don't laws prohibiting gun ownership violate the 2nd Amendment.?

2nd Amend has the words "shall not be infringed." Statutory construction states that "shall" is mandatory. Any law, statute, code or regulation that prohibits a person from owning a gun is an infringement. Wouldn't the clear language of the 2nd Amendment prohibit this making those laws null and... Read more »

Jonathon Howard Kaplan answered on Apr 4, 2018

No. The right to bear arms guaranteed by the Second Amendment is not absolute. It must be balanced against other rights and interests.

The United States Supreme Court stated as much in the landmark case of D.C. v. Heller:

"Like most rights, the Second Amendment right is not...
Read more »

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