Tom the Lawyer

Has this happened to you or someone you know? You’ve enjoyed where you work, always done well, your efforts were appreciated. Then it seems like nothing you do is any good. Suddenly, you’re put on a 90-day period Performance Improvement Plan (PIP). “Improve your work – or you’re out!”

“Wait! What???”

Perhaps your work has suffered, because of ill health, for instance, and you haven’t been doing the fine job you did before.

Or maybe the boss is trying to fire you illegally and the PIP is being used as a means to get rid of you with the pretext that it’s your fault.

Ask yourself. Are you or do you feel like you’re suddenly being discriminated against because of your age? This happens. People 20 years younger than you can decide you don’t know what you’re doing, you’re not up to date, you’re too slow to get the work done, and so they want you out.

Or maybe you’re not of the right religion or race or nationality or belong to some other protected group. If that’s why they want you out, that would be illegal as well.

Whether that’s happening to you or someone you know, when it does, perhaps you should consult an attorney to discuss the facts.

Last week’s discussion was about using your phone at work. This week is about being “on-call” – where you might have to use that phone to call in to see about work that day.

There are at least two kinds of “on-call” status.

The obvious one is where you might be called at any time, over a week-end say. You’re able to see to a movie, attend church, go dancing, something personal. But during that time, you have to be available within a certain period of time to start working. If you’re called and have to be at a job location or working within a short period of time, less than a half hour, say, you might be owed wages.

The second is where you might be called into work each day at a certain time, and you have to call in to find out. You have to set aside that time, making your life and monthly pay unpredictable. You have to be ready to go to work that day at that time, unless your boss tells you otherwise.

Are you working under either of those scenarios?

Have you been doing so for a while? Maybe you’re owed back wages for those on-call duty days, and should get legal help to find out. We’d be glad to hear from you.

Whether you’re driving or working at a desk, your employer might have chosen to ask you to use your phone as an everyday tool.

Do you have to use your phone to clock in or out from work? Or to go on or off breaks? How about to communicate with clients of your employer throughout the day? Or to talk with dispatch as they tell you your next stop or drop-off?

You should be getting reimbursed for your phone being used during that time. If you’re not, then perhaps you need to start tracking the calls and time you’re on the phone – especially if it’s before or after you clock in.

Do yourself a favor. Just like with your earning statements, schedule and time sheets, hold onto your phone bills! Maybe one day you’ll be paid for the fact that your phone was a rent-a-tool for your boss.

Last week it was ‘Background Checks.’

This week it’s about ‘Bag Checks.’

Where you work, before you go on a meal break, or when you leave work, do you have to go through a bag check? Do they look in your bag, or make you take off a jacket or coat and hat or cap, to inspect you, because you might take company merchandise?

Do you have to first clock out? And then walk to get in to the security line at the end of a shift? Is the timeclock in the back of the warehouse and the security line in the front? Suppose you bring your lunch, go old school and bring a lunch pail. Do you have to open it up?

Lots of major companies have been sued about the time spent in line for such a bag and clothing check, including Apple, Coach, Converse, Staples, Williams-Sonoma, Tapestry, Stuart Weitzman and TJ Maxx (not to be confused with PJ Masks). Is your employer making you stand in line before you can get to lunch or at the end of your work day? Maybe you’re entitled to off-the-clock unpaid wages.

Probably each time you’ve applied for a job, you’re asked to sign a package of documents. It may even be online, where you’re simply asked to ‘docusign’ what you see on a screen.

If you can, you might want to consider asking to obtain a complete copy of everything you sign. If possible, you might ask if that’s possible even before you first start signing. That way, later on, if HR says you signed something, you’ll have your own copy with which to compare anything you’re shown.

One of the things you might be asked to sign, might be an authorization for the company to do a background check on you. The Fair Credit Reporting Act (FRCA) limits how that can be done. Disclosures about obtaining a background check are supposed to be a stand-alone document so as to not confuse the applicant.

Prospective employees need to watch out for when a company not only asks for permission to search out criminal history but also seeks permission to inquire from other people, schools, companies and businesses. The FCRA requires that employers seeking those things must tell applicants via clear, conspicuous disclosures contained in separate forms.

Would you want to agree that a company could get your permission – in writing – that you authorized anyone at all to give up what might be private information?

As you’re probably aware, religious discrimination in employment is, for the most part illegal. Here are four types of instances where it might arise.

The first has to do with hiring. If, for example, you told a prospective employer that due to your religion you couldn’t work on a Friday or Saturday or Sunday, for example, and a job offer was suddenly withdrawn, that might well be illegal.

Or once you were hired, you might inform your boss that your religion required you to have a certain day available for religious practices and ask to be excused for that time. If it were denied, that could possibly constitute an illegal act by your employer.

Or perhaps you had been working months or years, and had been given a particular day off for religious observances. Suddenly that might cease due to a new manager or company policy. Again, that might give rise to a possible breach of the law.

Finally, your religion might require you to dress in a certain way, or groom yourself in a certain manner. Discrimination might arise, either in terms of termination, or unfavorable treatment, e.g., more stressful routes, less eager customers/clients, fewer hours, lower pay, etc.

If you’re aware of any of these instances, you might want to think about the effect upon you or others of such practices, and consider acting upon that realization.

This Week’s Comment is about how a company might be able to avoid paying back wages by filing for bankruptcy. That’s what might happen because Sears did file for bankruptcy, back in October, 2018.

You’ve heard that Sears filed for bankruptcy, right? Maybe you know people who worked or work for Sears in California because you shop there. Bankruptcy is not the end-all of a case! Take Sears, for Instance! It’s Not Over Yet! Ken More has not yet left the building!

What about people who were owed wages that Sears didn’t pay for whatever reason?

Bankruptcy might cut off those back, past wages. But it might not!

What if you could help a Sears employee in California collect unpaid wages? You’d want to do that, right?

We need witnesses, if our case gets to trial. We need people to tell us what happened to them, how Sears paid them, if they were paid for missed meal and rest breaks. Or if they were ever denied overtime.

Or worst of all, if they were paid on commission, what if they never knew what the commissions might be – because it kept changing! And if they didn’t know their commission, how were they going to know if they got paid what they were owed?

Tell your friends who work or worked at Sears in California. They might still get paid back wages. But we need their help. They need your help.

Most people work a day shift, don’t you think? Most businesses are open during the day, closed at night, right?

But what about “Swing Shift”? That’s usually considered to mean the hours from around 4 p.m. until midnight. In fact, it may have come about in America because of the employees in the aircraft factories and such going out to dance the swing during World War II. Or maybe the shifts were called “swing shifts” because they seemed to “swing” between the established day and night shifts. (By the way, for what it’s worth, there are at least two swing dances, the one known by most as “swing” and also the West Coast Swing – danced in tandem rows).

Then there’s the Graveyard Shift. It’s also said to be called the Graveyard Watch. This term was reputed to have been coined for those work shifts that started midnight and maybe ran until 8:00 a.m., over a hundred years ago.

Have you – do you – work either of those two shifts? If the shifts are of 3 equal 8-hour durations, but you have to start a few minutes before any shift, or work a few minutes after that shift, are you getting paid for that extra time worked? You should be.

If you’re not, maybe there’s something you could do about it. Maybe you should call an attorney.

Feel free to call me at 626-795-0205 or email me at Tom@Falveylaw.com.