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Questions Answered by Brad S Kane
2 Answers | Asked in Employment Law for California on
Q: Does PTO count towards "returning to work" after taking FMLA leave?

I will be taking twelve weeks of FMLA leave when my next child is born in October. After my FMLA leave expires I will be using six weeks of accrued PTO (which has already been approved by my HR department). During my leave, I plan on finding a job with a new company. My HR department has said that... Read more »

Brad S Kane
Brad S Kane answered on Sep 13, 2021

Using vacation time is highly unlikely to be deemed a return to work. In fact, employers are allowed to require you to use your sick leave and PTO during during your FMLA leave.

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4 Answers | Asked in Employment Discrimination, Employment Law and Personal Injury for California on
Q: Can you help me sue my employer, the city of Oakland.

I have a workers comp case (Psych) as a result of bullying and threating by an operations manager. 1. I was retaliated against for filing a complaint (Denied a promotion, interference by Director of Public Works in the Workers Comp process) . 2. I was also harassed, discriminated against and... Read more »

Brad S Kane
Brad S Kane answered on Sep 13, 2021

First, this is an educational forum, so we are not permitted to solicit clients.

Second, the attorney client privilege does not apply to communications on a public forum.

Third, if your employer harassed and/or discriminated against you based on hostility toward your religious...
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2 Answers | Asked in Employment Law for California on
Q: My previous employer hasn’t given me my last check. What should I do?

I quit my job last Monday on 8-30-21 it is not 9-7-21 and I still haven’t gotten my last check. When I called and ask about it they just tell me it’s in the mail. But I don’t think it would take that long to receive the check.

Brad S Kane
Brad S Kane answered on Sep 7, 2021

First, it is your option to pick up your check. They need your authorization to mail it.

Second, the employer has 72 hours to send it after you quit. For each day late, you are entitled to 1 day's waiting time penalties up to a max of 30 days.

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2 Answers | Asked in Employment Law for California on
Q: Min wage in my area was to go up to 15/hr july 1 2021. I was still being paid 14.25/hr plus i had overtime
Brad S Kane
Brad S Kane answered on Sep 5, 2021

If the minimum wage is $15.00 dollars per hour and you only receive $14.25. Your employer is underpaying you $0.75 per hour. Further, you would be entitled to an equal amount of liquidated damages. You could also recover late wage payment penalties and inaccurate wage statement penalties. Finally,... Read more »

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2 Answers | Asked in Employment Law for California on
Q: Is it legal to only be given a 25 minute uninterrupted lunch break?

I'm allowed 25 minutes to an uninterrupted lunch break. At the 25th minute, a buzzer sounds and my coworkers and I are supposed to make our way back to our work stations within those five minutes and get back to work. At the 30th minute, the buzzer sounds again and that's when our lunch... Read more »

Brad S Kane
Brad S Kane answered on Sep 5, 2021

No. You are entitled to a 30 minute uninterrupted meal break. If you have to return to your station 5 minutes early or otherwise do things at your employer's direction, you do no have a complete 30 minute break. Please note if you are still free to engage in activities of your choice until the... Read more »

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1 Answer | Asked in Employment Discrimination and Employment Law for Washington on
Q: Does Employer Lawyer get a chance to bring their witness in the trial or only the employee lawyer can?
Brad S Kane
Brad S Kane answered on Sep 5, 2021

Both sides get the opportunity to call witnesses at trial. However, there are rules requiring disclosure in advance, so the other side can prepare.

1 Answer | Asked in Employment Discrimination for Washington on
Q: I am doing a depo for my employer, can I refuse it? What's the consequence if I refuse?
Brad S Kane
Brad S Kane answered on Sep 5, 2021

If you are suing you employer and refuse to participate in the deposition, your employer can move for an order to compel your attendance and monetary sanctions, and if you still refuse to comply, the Court can dismiss your case.

2 Answers | Asked in Employment Law for California on
Q: What can I do if my employer haven’t given me my final paycheck yet? It’s been a week since I’ve been fired.

I’ve messaged him multiple times regarding my final paycheck but he hasn’t responded yet. I live and California and I know that employers have to give you your final paycheck the day you are fired. Am I entitled to waiting time penalty?

Brad S Kane
Brad S Kane answered on Sep 2, 2021

If you are terminated, you are entitled to your final paycheck within 24 hours. If your employer willfully fails to provide it timely, you are entitled to waiting time penalties equal to 1 day's pay for each day late up to a max of 30 days.

Keep your documentation and you may want to...
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2 Answers | Asked in Health Care Law, Employment Law and Employment Discrimination for California on
Q: My mental health breaks may cost me my job.. I’m not sure if they are supposed to count against me?

Recently diagnosed with bipolar 2. Have been having huge episodes happening and 1 recently while on break at work. I am taking a 2nd mental health day to try and get all this under control with my meds. My position has a rule of no more than 3 incidents (absence) within 6 months. This would be my... Read more »

Brad S Kane
Brad S Kane answered on Aug 31, 2021

If you qualify for the California Family Rights Act or the Federal Family Medical Leave Act, those mental health breaks should not count against you, if you get a certification of your need for intermittent leave from your doctor.

In order to qualify, you must have worked 1,250 hours in...
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2 Answers | Asked in Employment Law for California on
Q: Is it legal for a company to hire you and pay you cash until your 90 day probation is up and then put you on payroll?
Brad S Kane
Brad S Kane answered on Aug 31, 2021

While an employer could legally compensate you in cash, it is much more likely an indication of multiple labor law violations. Your employer should be providing you with paystubs for each pay period detailing your compensation, including hours worked and hourly rates as well as all tax deductions.

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2 Answers | Asked in Employment Law for California on
Q: Management is trying to AWOL me or not showing up to work even though I was on my scheduled vacation.

The vacation was scheduled by the mailhandlers union and the dates were posted up on the bulletin boards I am new so I am guessing that I had to let them know before I left but I was never told that What should I do if they try to take disciplinary action

Brad S Kane
Brad S Kane answered on Aug 29, 2021

Ask your union for the scheduling documentation and share it management.

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2 Answers | Asked in Employment Law for California on
Q: Does the minimum exempt salary include IRA and Health Care benefits?

I just want to know what is included in the Exempt Salary Minimum wage? Does include certain benefits I know you can include 10% of a bonus but can my employer include company contributions, and health benefits?

Brad S Kane
Brad S Kane answered on Aug 28, 2021

Bonuses, but not benefits, are counted toward the minimum salary requirements for exempt status.

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3 Answers | Asked in Employment Law for California on
Q: Can my boss legally tell me to take more Ritalin to work more hours?

I confided in my boss that I have ADHD and had to go back on my Ritalin prescription to help with the increase workload, specifically with numbers and spreadsheet type activities. Normally I can manage my ADHD without stimulants but I am essentially covering 2 jobs at the moment and finding it... Read more »

Brad S Kane
Brad S Kane answered on Aug 13, 2021

No. Your boss cannot legally require you to take Ritalin and it was inappropriate for your boss to even suggest it.

You should document your concerns in writing.

Finally, if your doctor feels you need work related restrictions, including that you are working too many hours, then...
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2 Answers | Asked in Employment Law for California on
Q: Am I required to explain to an ex employer where to find documents on a company computer I no longer have access to?

My ex employer is saying that I did not properly save information to the company file sharing database, and they can't find something they think I know where it is. I no longer have access to the computer, the files in question are just somewhere on the computer (unless the computer was wiped... Read more »

Brad S Kane
Brad S Kane answered on Aug 12, 2021

First, if you believe you were wrongfully terminated, then you should consult with an employment lawyer to discuss your options. Most employment lawyers provide free consultations. If you bring a wrongful termination claim, then you may be penalized for refusing to offer assistance to your former... Read more »

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2 Answers | Asked in Employment Law for California on
Q: Am I required to provide a 2-factor authentication code to an ex employer account that was set up on my personal phone?

I set up an amazon account and turned on 2-factor authentication for my previous employer. They are now asking me to provide this information, which I would only like to provide if I am 100% legally obligated to.

Brad S Kane
Brad S Kane answered on Aug 12, 2021

Your desire to make things more difficult for your former employer may come back and hurt you. Be careful.

You set up the account as an employee and you were obligated to provide that information when you were an employee. Thus, a refusal to provide the information might be used to contest...
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1 Answer | Asked in Employment Law for California on
Q: Boss says they can remove an hour of wages worked from pay for not turning in report at a designated time, is that true?

I work for a private detective agency, and my pay is hourly. Today, my boss sent an e-mail claiming that if reports aren't turned in by 8pm PST, she will permanently remove an hour of pay from our paychecks, even if we worked that hour. I worked for the Department of Labor for a spell, and I... Read more »

Brad S Kane
Brad S Kane answered on Aug 11, 2021

Your employer is not entitled to discipline you by taking away your earned compensation. For failure to meet a legal work requirement, your employer can write you up, terminate you and/or change your future pay rate or hours.

4 Answers | Asked in Employment Discrimination for California on
Q: I believe I have a discrimination case against my prior employer of 11 years. In the time I worked for them I was

continually praised for my work by all of the personal. Last Aug I was laid of due to Covid-19. I wasnt called back when things opened up, and I have learned that a man had been hired to do my job and has been doing it since I was laid off. Do I have a case?

Brad S Kane
Brad S Kane answered on Aug 11, 2021

Under SB 93, employees who lost their position due to COVID related circumstances have a right of recall, including notice their employer is hiring for the same or similar position that they previously held. Below is a excerpt from a description of the law by an employer side law firm:

The...
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2 Answers | Asked in Employment Law and Landlord - Tenant for California on
Q: Workplace has became unsanitary out of our control, foreseeable closure until fixed. Wages owed?

Non-exempt, food service worker. I work in a cafe, where food and drinks are served to our customers, hosted on the first/ground floor of a mall. Recently, there was a leakage that started leaking from the second floor to our store, contaminating our food. Our manager still wants us to open in... Read more »

Brad S Kane
Brad S Kane answered on Aug 9, 2021

If your work closes unexpectedly, you are entitled to reporting time pay for the day equal to 1/2 your scheduled shirt. Otherwise, you are not entitled to pay from your employer during the shutdown, unless you have accrued vacation that you can use. Finally, you can and should apply for... Read more »

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4 Answers | Asked in Employment Law for California on
Q: I wanted to know if I have a case against my employer

Hi, I have a work situation. I work under a job agency and they found me employment working for a Cherokee Nation project. I was told if I worked in a certain area at that job that I would be paid time and a half. So I volunteered to work in that specified unit. When I tried entering my hours... Read more »

Brad S Kane
Brad S Kane answered on Aug 6, 2021

Unfortunately, native tribes have a form of "sovereign immunity", like states and the federal government. As a result, courts have held that many laws of general application, like the Federal Labor Standards Act, do not apply to them unless the tribe has expressly waived of their... Read more »

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2 Answers | Asked in Employment Law for California on
Q: Can I be paid my annual bonus and retroactive pay if I resign before it can be paid out?

At my company, we receive a bonus each year if we meet revenue and customer service goals. I have been with this company for a little over five years. Our latest bonus is going to be paid out soon, which measured progress from July 1st 2020-July 1 2021. Bonuses and retroactive raises should be paid... Read more »

Brad S Kane
Brad S Kane answered on Aug 4, 2021

Whether you would still be entitled to the bonus is determined by the language of your employment agreement and whether you have completed all things required to earn the bonus. Often employers require employees to be still employed at the time the bonus is issued, but it depends on the language of... Read more »

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