Orange County California Employment Attorney Frank Pray

Employee Rights Attorney Frank Pray Unlocks the Answers to California Employment Law Questions as a Public Service [Not Offered as Legal Advice].


Orange County Employment Law Attorney

The Anonymous Employment Law Question 10-22-15 

— Can I legally walk away from an unpaid internship?  The Answer is “Yes.”

I took this unpaid internship because I thought it would be extremely beneficial for me.  This is a software development internship and I would be part of the software development team learning C# and asp dot net.  This is a summer internship where they wanted someone full time for the summer. The money issue is not that important as I would be given a chance to work with and learn from real software developers with years of industry experience.

It has been three weeks since I have been on the job and I have done no software development or anything related to it.  For the past three weeks, I have been testing the GUI of their software products.  It is a very mundane job that is very repetitive in nature which requires 99% mouse clicking and 1% use of the keyboard.  I have not seen a line of code and the only mildly interesting aspect of the job has been writing very detailed bug reports which I get commended for on a regular basis.

I am not being paid.  Can I tell them that I am quitting?  I don’t even want to give 2 weeks notice.  From an emotional standpoint, I feel scammed.

This is in the state of California.

I did sign an employment contract but unfortunately I don’t recall the details and they never gave me a copy of it.

The Straight Employment Law Answer

You are due wages, benefits, and penalties for non-payment.  The primary reason is that you are receiving little supervision, and performing tasks that a paid employee would otherwise perform.

The federal government has established six criteria — embraced by California and many other states — to determine when internships can be unpaid.  Here they are:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment.
  2. The internship experience is for the benefit of the intern.
  3. The intern does not displace regular employees, but works under close supervision of existing staff.
  4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded.
  5. The intern is not necessarily entitled to a job at the conclusion of the internship.
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

The Department of Labor has taken the position that for the exemption to apply, all of the factors listed above must be met.  This requirement means you need only find one missing factor.  As you present the facts, factors 1 through 4 are clearly missing.

You reference a contract.  Legally, the contract is pre-empted by the actual conduct of the employer and the work performed by the employee.  That is, you can’t create an “Alice in Wonderland” escape clause to a wage violation.

Should you quit?  Of course.  You’re being manipulated.  But . . . demand your wages before you leave, and state this public service opinion as the basis for your quitting.  Then file a claim with the California Labor Commissioner.  Instructions are available at:  How to file a wage claim.  You are entitled to the minimum wage and any overtime.  You are also entitled to 30 days of extra pay as a penalty for non-payment.

You impress me as an ambitious and curious person with a passion to learn coding.  Don’t let this unscrupulous employer slow you down in the pursuit of your dream.  Success is ahead.

Orange County Employment Law Attorney

The Anonymous Employment Law Question 10-21-15 

— Is Looking Happy a Legit Job Requirement or Discrimination?  The Answer is “Discrimination.”

Is it considered workplace discrimination to be told continually to ‘be happier’?

I’ve suffered from depression for over 20 years and it’s impacted my personality, making me very quiet, stoic, and not quick to smile. My workplace is aware of the depression. I’ve been passed over for several promotions, despite outstanding annual reviews, the only negative comment being I need to be more positive. I feel like I’m being discriminated against because I’m not the bubbly person they expect me to be.

The Straight Employment Law Answer

Yes, it is a form of discrimination, and it can transition into harassment depending on the frequency of the comments. I’ve represented a person with a similar “flat mood” related to diagnosed depression. Your case is more supportable than hers because you have chosen to be transparent in explaining to your “workplace” that your lack of facial expression is a symptom of your depression.

Now, for the inevitable attorney-talk qualifiers: a disability must be accommodated only if doing so will result in the employee performing the “essential functions of the job.” A related question is whether a “happy face” is a “bona fide job qualification” [“BFQ”] for your particular job description. This question may depend on whether you interact in a highly visible sales or public relations position, for example, or at a secluded office desk location with little customer/client contact. interaction. Assuming you are doing the job satisfactorily, and the problem is simply that people around you are uncomfortable with your flat or negative mood, that is not reason to deny you promotion or equal opportunity. I would compare the frequent encouragement to “look happy” to encouraging a person with a knee disability to walk without a limp.

Your logical next step is to work with your human resources department to commence a formal “interactive process” that will marshall input from your psychiatrist describing work limitations. You employer should provide you with a job description to deliver to your doctor for that purpose. Then negotiate an accommodation with your employer that will include an explanation to co-workers and managers that they are not to badger your to improve your mood. Likewise, ask for a review of the promotion denials, and seek assurance the next promotion review will be non-discriminatory.

Finally, depression is an illness, not a personality flaw. Your managers and co-workers obviously feel uncomfortable, perhaps even anxious, because they may be unfamiliar with the disease. Part of a compassionate solution is education. It may be an opportunity for the “workplace” you describe to be more accepting and aware. This approach involves something of a trade off — your privacy in exchange for their education and adaptation. But you state you are already transparent about the condition, so it just may work.

Orange County Employment Law Attorney

The Anonymous Employment Law Question 10-20-15

— Can My Employer Closes Shop Without Paying Employees.  The Answer is “No.” 

The company that I work for is closing my store for no apparent reason our last scheduled day of work is October 28th the company is refusing to give us our last paycheck on the last day. stated we need to wait 2 weeks. Also we have not been given any sick pay since law went into effect. And for several months the company wasn’t taking taxes state nor federal out of my paychecks. Is any of this legal?

The Straight Employment Law Answer 10-20-15 

California Labor Code Section 203 provides for 30 days of continuing pay as a penalty for failure to pay wages due at time of termination. Go to California Labor Commissioner Wage Claim Info to learn how to file a  with the Labor Commissioner. Bankruptcy is a real risk in your matter. Wages are “unsecured claims” that is, without collateral. After the collateral is used to pay debts, wages receive first priority. The bankrupt creditor is required to list unpaid wages, and notify employees of the pending bankruptcy. As for taxes, you can claim a credit against taxes you owe in the amount of the taxes your employer should have withheld and paid, whether the company actually paid the taxes. Concerning sick day accrual, that accrual is not paid as “wages” at the time of termination. You can report this employer to the state and federal agencies, and they can bring actions to collect those funds. You should of course also apply for unemployment, and explain at the time of the application that if the funds are not recorded by account to the state agency, it is because the employer failed to make contributions.

Orange County Employment Law Attorney