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What is Wage Theft?

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Archive: Jul 2017

What is Wage Theft?

Southern California workers beware. Wage theft is rampant in our state. If you think being hired for a job automatically means that you can count on receiving a fair day’s pay for a hard day’s work, think again. Unscrupulous employers are all around us.

Wage theft is illegally avoiding paying workers what is owed to them. In pursuit of greater profits, greedy employers employ any number of nefarious tactics to deprive their workers of part of their wages. Wage theft is especially common in lower paid occupations in which employees may be less likely to complain for fear of losing a desperately needed job.

What Methods Do Employers Use to Steal Wages?

The methods of underpaying workers are many, and include, among others:

  • Paying less than the legal minimum wage. Employers nationwide steal an estimated $15 billion annually by paying workers less than the law requires.
  • Misclassifying employees as contractors to avoid the employer’s required payroll contributions: social security, unemployment, etc., and depriving the worker of benefits.
  • Failing to pay overtime, often by misclassifying the regular worker as “administrative” personnel
  • Paying employees with bad checks.
  • Failing to pay a worker’s final paycheck.
  • Failing to pay for accrued vacation and/or sick time when a worker is terminated or leaves the job.
  • Failing to pay reimbursable expenses, such as uniform, required cell phone, mileage on your vehicle, and so forth
  • Forcing employees to work off the clock.
  • Making excessive deductions from an employee’s paycheck.
  • Failing to provide required breaks and meal time.

What Are the Costs of Wage Theft to individuals and Society?

With a rising minimum wage in California, wage theft is becoming ever more pervasive. California’s workers lose nearly $2 billion every year to wage theft by their employers. The state minimum wage is currently $10.54 per hour. But workers the low end of the scale are being cheated out of $64 per week, on the average, or around $3,300 per year. That’s more than fifth of their earnings being lost by those who can least afford it. Not only are the individual workers affected, but also their families and the rest of society, as the underpaid are often forced to apply for public benefits in order to obtain food, housing, and health care.

What Solutions Are Available to California’s Wage Theft Problem?

Wage theft often goes unreported, and even when it is reported, it is extremely difficult for an employee to actually collect what is owed. Even if a worker is able to obtain a court ordered judgment against the employer, it may be close to impossible to collect. Employers who routinely engage in this illegal activity often go out of business, change their company name and business license, or disappear entirely.

The problem has become so severe that many California cities are beginning to establish special agencies to deal with wage theft, and the state has a law in place law, SB588, which has made it easier for the California Commissioner of Labor to assist workers in getting the pay that is owed them, not only from corporations but also from individuals who have failed to pay those they hire at the required minimum rate.

Still, for many people who have unpaid wages coming to them, depending on the circumstances, it may be more efficient to hire a California labor lawyer to attempt to go after the employer to enforce payment. This may be accomplished through negotiation or litigation, and when necessary, enforcement proceedings to collect on a judgment issued by the court. A lawyer can also track changes of business name and license when an employer has attempted to evade their responsibility by performing a disappearing act. Many attorneys will agree to take these cases on contingency, so you don’t have any out-of-pocket expenses, and courts typically include an award for attorney’s fees and litigation costs.

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Can You Receive Workers’ Compensation for an Injury from a Fight at Work?

Fights in the workplace are not all that uncommon, and occasionally injuries occur. While workers’ compensation typically covers any injury that occurs in the course of performing one’s work, any deliberate or illegal act on the part of the injured person will generally preclude that person from receiving benefits. Fights between employees can pose a dilemma, often falling within a gray area of the workers’ comp law.

If you were recently involved in a fight at work and sustained an injury, speak to a workers compensation lawyer in Orange County today. We can provide the legal guidance you need.

What the Law in California Says

In California, the initial physical aggressor in a fight will be barred from collecting benefits. The problem is, how to determine who the initial physical aggressor was. It may not necessarily be the one who made the first physical contact.

Say, for example, Worker A, a 250 pound, a six-foot-five-inch tall bodybuilder who practices boxing in his spare time; worker B, is a five-foot-three, 130-pound computer programmer. Worker B curses under his breath when Worker A, while moving some boxes, passes his desk and knocks some files to the floor. Worker A then uses a pejorative word referring to Worker B’s sexual preference as he invades Worker B’s personal space. Worker B shoves him away. Worker A slams Worker B into a wall and proceeds to punch him repeatedly, resulting in a brain injury. Although the first physical contact was made by Worker B, Worker A had no reason to believe he was under any threat of physical harm from Worker B. His reaction to the minor contact was out of line and excessive. In this case, Worker B has a good case for collecting Workers’ Compensation benefits for his injury.

Another case where the person who made the first contact might not be considered the initial aggressor might be if one worker comes upon another just as he has reached into the company’s cash box and removed several hundred dollars. The thief refuses to return the money when asked and attempts to leave with it. The coworker grabs the thief’s wrists in an attempt to recover the money, but the thief breaks loose, grabs him around the neck, and shakes him viciously, resulting in a serious injury with paralysis. The victim, in this case, would also likely qualify for workers’ compensation benefits, as the initial contact was an attempt to thwart a crime.

Horseplay on the Job that Results in Injury

Some other cases are more difficult to sort out. Sometimes two workers will be engaged in horseplay or goofing around on the job, which then escalates into a verbal confrontation and ends up in a fight, and a worker is injured. Horseplay is not generally considered appropriate behavior at work. A worker engaging in horseplay is not at that moment performing his job; on the contrary, he is deliberately engaging in a potentially unsafe activity. He entered into the act voluntarily, it escalated, and now he is injured. Should he be able to collect benefits? Can he reasonably say he was injured while performing his job, even though he was present and clocked in at the worksite? Were his own actions responsible for his injury, even though it was inflicted by someone else? Did the employer clearly discourage horseplay on the job, or in some way encourage it?

Horseplay is one of those gray areas of the law, not specifically addressed by statute, and thus often left up to interpretation by the courts. In a 2011 court decision, Nufio v. Bridge Hospitality L.L.C., involved two employees who were engaged in horseplay that turned into a fight with injuries. The court ruled that the claimant should be allowed to receive workers’ compensation benefits because it could not be said that he was the initial physical aggressor.

In a clear-cut case where the injured was the unprovoked aggressor, benefits will usually be denied. In others, however, where the facts are less straightforward, the lawyers for the claimant and the employer may have to fight it out in the courts.

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Can Inmates Receive Workers’ Compensation Benefits?

In California, certain categories of prison inmates are able to earn very small amounts of money and credits toward early release by working for government agencies or private companies, either inside or outside the walls of the institution.

One of the main ways the state’s prisoners are put to work is as firefighters, combating the state’s notorious wildfires. The inmates ─ around 4000 of them ─ are able to be in a somewhat less confined environment in a camp situation, rather than being behind actual bars, and to earn a bit of money to use upon their eventual release. Fighting wildfires is an extremely dangerous job. Inmates can face massive fires, with scorching flames towering as high as 100 feet, and there have been fatalities in the past. Firefighters risk smoke inhalation, burn injuries, danger from falling trees, and death. The inmates earn a dollar an hour when they are actually engaged in fighting a fire, and $1.45 to $3.90 per day while in training.

Another example of a dangerous inmate work program is electronics recycling. At the Solano State Prison in Vacaville, California, and three other state penitentiaries, prisoners are put to work recycling donated computers. Where this type of work takes place, toxic chemicals, including leadcadmiumchromium, and beryllium, seep onto floors and create dust that pollutes the air, causing illness in the workers (and prison staff as well!)

So, the question arises, are inmates who work at these and other jobs while serving a sentence in federal and state prisons entitled to workers’ compensation benefits if they are injured, or death benefits if they die as a result of the work being performed during their incarceration? While not the case in all states, in California, the answer is yes.

California Workers’ Compensation Law Applies to Prison Inmates

California’s Workers’ Compensation law gives inmates the right to receive benefits for injuries and illnesses related to the performance of their jobs that are part of a prison work program, as long as the injury meets the basic requirements of any California workers’ compensation claim:

  • The injury or illness must have occurred in the course of the person’s employment.
  • The illness or injury must be related to the worker’s performance of job-related duties.
  • The worker must not have harmed himself or deliberately caused the injury.
  • The claimant must not have been under the influence of alcohol or drugs.
  • The injury must not have been caused by an illegal act by the worker.
  • the injury must not have been caused by a fight in which the claimant was the aggressor.

Section 3370.1 of California’s labor code not only entitles the injured inmate to benefits, it also allows certain surviving family members to claim monetary compensation for a worker who was killed on the job while serving time in prison.

How Permanent Disability Rates Are Determined for Prisoners

In the outside world, permanent disability benefits are based on the claimant’s actual earnings, along with the type and severity of the disability. Since prisoners are paid almost nothing for the work they do, a different method has to be applied, which in this case is the inmate’s projected future earning capacity.

Benefits are not paid to the inmate during the incarceration but are payable upon release, when the sentence has been satisfied. This can give an ex-offender some funds to fall back during the often difficult period of reintegrating into the community after serving time in prison. And when anyone, be it a prisoner or any other laborer, puts his or her health on the line on the job, it is only fair and just that any injury or illness that results if compensated. Fortunately, the California legislature is more enlightened than some other states in this regard and provides much-needed protection for inmates who perform dangerous work.

If you’re looking to learn more about workers compensation laws, speak to one of the Orange County workers compensation attorneys at DiMarco | Araujo | Montevideo today.

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CHILD ABUSE IS BAD FOR SOCIETY AND IT IS AGAINST THE LAW

Article 17-19

¡No Se Deje!

Child abuse is an enormous problem in our society.  Child abuse includes physical, emotional, verbal, and sexual abuse as well as neglect.  Statistics reveal that child abuse and neglect violations have been increasing for many years.  A report by the CHILD ABUSE PREVENTION CENTER indicates that in a given year 4 children died every day in this country because of abuse or neglect.  In addition to the deaths, it was estimated that around 905,000 children are seriously mistreated and about 18,000 are permanently disabled each year due to child abuse.  And the financial cost to the taxpayers of this country is estimated to exceed 100 Billion dollars per year.

 

California child abuse laws state:

 

Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in a state prison for two, four, or six years. Fines of up to $6,000 can also be imposed.  Cases which are not “Likely to produce great bodily harm or death” are misdemeanors in which the maximum incarceration is one year in county jail.

 

If probation is granted by the court, convicted child abusers must be required to serve 4 years on probation.  The court must issue a protective order to protect the victim from future violent acts or threats and can order the abuser excluded from the home.  And, abusers must attend a child abuser’s treatment counseling program for at least one year.

 

Anyone who has custody of a child under 8 years old who assaults the child by means of force which causes death will be sentenced to 25 years to life in state prison.  Prosecutors may also file murder charges in these cases.

 

Doctors, teachers, nurses, school employees, and many other people that work with children are required by law to report suspected incidents of child abuse to the police.  Many child deaths may have been avoided if violent previous conduct had been reported.  Reporting child abuse ensures that the abuser and family will finally get professional help to deal with this very serious and potentially deadly problem.

 

Child abuse experts advise everyone to watch for the following signs that child abuse may be occurring:

 

Unexplained Injuries, Changes in Behavior, Fear of Going Home, Changes in Eating Habits, Changes in Sleeping Habits, Changes in School Performance, Failure to Keep up Personal Appearance and Hygiene, Engaging in Risk Taking Behavior (using drugs or carrying weapons) and Inappropriate Sexual Behavior.  Children are helpless and unable to free themselves from the painful and deadly consequences of abuse.  Please report even suspected child abuse; you do not have to have proof.  A child’s life may depend on it.  ¡NO SE DEJE! ® 

 

JESS J. ARAUJO, ESQ.

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EL ABUSO INFANTIL ES DETESTABLE Y ES CONTRA LA LEY

 

Artículo 17-19

¡No Se Deje! ®

El abuso infantil es un problema enorme en nuestra sociedad.  El abuso infantil incluye el abuso físico, emocional, verbal y sexual, así como también la negligencia o fallar en proveer las necesidades básicas de la vida.  Las estadísticas revelan que las violaciones por abuso infantil y la negligencia han estado aumentando por muchos años.  Un reporte del CENTRO PARA LA PREVENCIÓN DEL ABUSO INFANTIL (en inglés CHILD ABUSE PREVENTION CENTER)  indicó que en un año determinado murieron 4 niños por día en este país a causa de abuso o negligencia. Además de las muertes, se estimó que aproximadamente 905,000 niños son maltratados severamente y que cerca de 18,000 quedan incapacitados permanentemente cada año debido al abuso infantil.  Y para atender este problema el costo financiero para quienes declaran impuestos de este país se estima que sobrepasa los 100 mil millones de dólares anualmente.

 

Las leyes de California sobre abuso infantil disponen:

 

Cualquier persona que, bajo circunstancias o condiciones con probabilidad de producir gran daño físico o la muerte, intencionalmente cause o permita que cualquier niño sufra, o le provoque además dolor físico injustificable o sufrimiento mental, o teniendo el cuidado o la custodia de cualquier niño, intencionalmente cause o permita que el niño  sea puesto en una situación donde se arriesgue su persona o su salud, será castigada con prisión en una cárcel del condado sin exceder de un año, o en una prisión estatal por dos, cuatro, o seis años. También se pueden imponer multas de hasta $6,000.  Las condiciones de peligro que no tengan “Probabilidad de producir gran daño físico o la muerte” son delitos menores (misdemeanors) en los cuales el máximo encarcelamiento es un año en la cárcel del condado.

 

Si la Corte concede la libertad condicional (en inglés, probation), a los convictos de abuso infantil se les debe requerir que sirvan 4 años de libertad condicional.  La corte debe emitir una orden de protección para resguardar a las víctimas de futuros actos de violencia o amenazas y puede ordenarse que se saque al abusador de la casa.  Y, los abusadores deben asistir por lo menos un año a un programa de consejería para el tratamiento de abusadores.

 

Quien tenga custodia de un niño menor de 8 años de edad y ataque al niño por medio de la fuerza causándole la muerte será sentenciado de 25 años a vida en una prisión estatal. En estos casos los Fiscales también pueden registrar cargos por asesinato con malicia y premeditación.

 

Doctores, profesores, enfermeras, empleados de escuelas, y muchas otras personas que trabajan con niños tienen obligación bajo la ley  de reportar a la policía los incidentes sospechosos de abuso infantil. Reportar el abuso infantil garantiza que el abusador y la familia finalmente recibirán ayuda profesional para tratar con este problema muy serio y potencialmente mortal.

 

Los expertos en abuso infantil aconsejan a todos estar atentos a las siguientes señales de que puede estar ocurriendo abuso infantil:

 

Lesiones Inexplicables, Cambios en el Comportamiento, Temor de Ir a Casa, Cambio en los Hábitos de Comida, Cambio en los Hábitos de Dormir, Cambios en el Rendimiento Escolar, Descuido al Mantener la Higiene y la Apariencia Personal, Participar en Comportamientos que Conllevan Riesgo (usar drogas o portar armas) y Comportamiento Sexual Inapropiado.  Los niños son indefensos y no pueden por si mismos librarse de las consecuencias dolorosas y mortales del abuso.  Por favor reporte aún la sospecha de abuso infantil; usted no tiene que tener prueba.  La vida de un niño podría depender de ello.  ¡NO SE DEJE! ®

 

JESS J. ARAUJO, ABOGADO

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U.S. Supreme Court Says Police Have No Duty To Enforce Court Orders To Protect Any Individual

Article 17-18

¡No Se Deje!

Jessica Gonzales sued the city of Castle Rock, Colorado because the Police refused to take action to enforce a court restraining order against her violent husband.  The court protective order required Simon Gonzales to stay away from her home and her children and also stated, “Police shall use all reasonable means to protect her and her children.”  Simon Gonzales abducted their three daughters, Rebecca, Kathryn, and Leslie from their home and, several hours later, shot and killed them.

 

When Jessica Gonzales realized that her three daughters were missing, she immediately called the Castle Rock Police Department.  She showed the Court Restraining Order to the officers and requested help.  Colorado law requires the police to arrest anyone who violate a restraining order.  Mrs. Gonzales stated that the police officers did not seem very concerned.  They told her to call back in a few hours if the girls had not been returned home.

 

Simon Gonzales finally called Jessica to tell her that he was with the girls at a well-known amusement park.   Jessica called the police and asked them to please go get the girls and bring them home.  She was told that they could not because the park was not in their jurisdiction.  They refused her request to call the police in that jurisdiction.  After her third call, the police asked her to call again at midnight if the girls still were not home.  She drove to the police station after her fourth call and again told the officers about the restraining order and again asked for help before going home.

 

At 3:20 in the morning, Simon drove his car to the Castle Rock Police Station and began shooting at the building with a semi-automatic pistol that he had just purchased.  Police officers shot and killed him and found the dead bodies of the three girls in his truck.

 

The Police Chief said that Simon Gonzales had recently been cited for road rage and for trespassing in a private section of the Police Department.  Colorado is one of 30 states that have laws that require the police to arrest people who violate court protective orders.

 

The U.S. Supreme Court ruled 7 to 2 that Mrs. Gonzales had no “Entitlement” to police enforcement of the restraining order.  They said “neither the U.S. Constitution nor any Federal law give her or her children the right to individual police protection.  They also said that the states have no duty to protect the rights of an individual from violation by third parties.

 

The reaction to this surprising decision of the Supreme Court has been hostile and intense.  Women’s groups and domestic violence advocates have expressed their disbelief and disappointment with the decision.  They correctly state that women who have court protective orders against violent husbands may not be safe.  Others have said that since police officers are paid from our tax dollars, they should be required to provide individual protection to all taxpayers.  Some say that it is also unfair to refuse to provide individual police protection after making it illegal for people to own and use guns to protect themselves.

 

Women’s Rights activists have said that the fight against domestic violence is meaningless if police have no duty to act.   Jessica Gonzales reasonably assumed that she would be protected by the court order.  Court orders mean nothing if police officers can legally decide not to enforce them.  This ruling by the Supreme Court should make us all very nervous because the police, it seems, do not have to enforce court orders if they choose not to. ¡NO SE DEJE! ®

 

  

JESS J. ARAUJO, ESQ.  

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