San Francisco Employment Law Firm Blog

On February 23, 2004, the City of San Francisco established a minimum hourly wage for the employees pursuant to Administrative Code section 12R (the Minimum Wage Ordinance or MWO). Under MWO section 12R.4, San Francisco employers shall pay to employees no less than the minimum wage for each hour worked in the geographic boundaries of the City. The local minimum wage in the City and County of San Francisco exceeds the State minimu wage, and it is adjusted each year based on increases in the regional Consumer Price Index for urban wage earners and clerical workers.

Under section 12R.3(a) of the ordinance, an employee is any person who, in a particular week, performs at least two hours of work for an employer within the geographic boundaries of the city. The local San Francisco minimum wage during the past few years have been as follows:
$8.82 per hour during 2006; $9.14 during 2007; $9.36 during 2008; and $9.79 during and till the end of 2009.

In addition to paying the minimum hourly wage under the MWO, San Francisco employers are required to pay overtime under California law in in compliance with the IWC Order No. 4-2001.

Thus, typically, the retail businesses such as stores and restaurants are subject to the following overtime requirements:

Employees should be paid one and a half time of their regular rate of pay for all hours worked in excess of 40 hours per workweek or 8 hours in any workday and for the first 8 hours of work during the seventh consecutive day of work. An employee shall be compensated double the regular rate for all hours in excess of 12 hour workday and for any overs beyond the first 8 hours of work on the seventh consecutive workday.

The California courts have long recognized that fact that direct evidence of discrimination or retaliation at workplace is rarely available. Employers whose mindset and who actions are discriminatory will rarely admit it to other or to themselves and will of course almost never openly tell an employee: "I am terminating you because you are a black / christian / disabled / participate in the union activity". Workplace discrimination and retaliation is usually subtle. It can and should be proven through circumstantial (indirect) evidence. While each type of circumstantial / indirect evidence might not be enough to meet the burden of proof, several types combined may well established a real risk for the employer to lose at trial and face a significant verdict for violation of an employee's civil rights.

Here are five common, subtle and "circumstantial" ways in which employers engage in discrimination against employees:

1. Applying the Rules of Discipline Unequally. If you have been terminated for being tardy 3 times but there are other employees who are in the same or similar position and rank as you are, who are late to work more often than you are without facing any discipline, it might be evidence of the employer's attempt to get rid of you for reasons other than tardiness.

2. Stating Untrue Reasons for Termination. The easiest justification for employee's termination from the perspective of any employer is poor performance. However, if you have a history of good performance with awards, bonuses and other kinds of recognition for your work, and your "poor" performance is clearly fabricated and highly subjective, the employer is likely concealing the true reason for your termination.

3. Asking About Your Plans to Retire. Asking and "reminding" an older employee about his option to retire, discussing the benefits of retiring and otherwise encouraging a senior employee to abandon workforce is one kind of significant indirect evidence of age discrimination.

4. Not Investigating Complaints or Allegations Prior to Terminating the Accused Employee. If you have been accused of theft, harassing another employee, or other misconduct at work, but the employer puts no effort into investigating whether the allegations are true, it is possible that lack of investigation is part of a larger scheme to get rid of you for unlawful reasons that have nothing to do with the accusations.

5. Terminating an Employee Shortly After He Exercises His Rights. Although proximity in time alone is usually insufficient to prove discrimination, an employee with a good track record of performance, who gets demoted or terminated a few days or weeks after being injured, or asking for disability or religious accommodations, or complains about harassment, was likely retaliated against for exercising his legal rights.

The are more indirect ways in which employers try to discriminate and retaliate against employees, incorrectly believing that they will never face liability as proving unlawful conduct would be virtually impossible. A careful investigation of all facts, in addition to the testimony of witnesses, is effective in revealing the true reasons for adverse employment action against a certain worker.

Under California Labor Code and a number of orders of the Industrial Welfare Commission, almost all employees (with few exceptions), who work for over 5 hours are entitled to a meal break of at least 30 minutes. The only way the employer may be relieved from this obligation is that if (1) the employee's workday is no longer than 6 hours; and (2) the employee expressly consented to waive the right to a meal break.

An employer has to provide the employee with a second 30-minute meal break, if the same employee works for over 10 hours. This second meal break period can be waived by mutual consent, but only if the employee took advantage of the first meal break. In other words, the employee cannot waive both breaks if he/she works for over 10 hours.

Some positions make it impossible or impracticable for an employee to leave the work site in order to have a meal break (night employees at gas stations who work alone, security guards at different sites, etc...) In such cases, the employee is considered as having "on-duty" meal break because he is not relieved of all duties (being forced to stay at workplace during his lunch break), and he must be compensated for that time at a regular rate of pay.

An employer who fails to make meal breaks available to its employees will have to pay the amount of one hour of regular rate of pay of that employee for each meal break not provided, in addition to any other potential damages, and penalties. This means, that the employer will have to pay at least one hour of the employee's work time for each 30 minutes of meal break time that the same employer fails to provide.

In 1994, the California legislature enacted Civil Code section 51.9 to address the relationship between providers of professional services and their clients. The statute sets out a non-exclusive list of such providers, which includes physicians, psychiatrists, dentists, attorneys, real estate agents, accountants, bankers, building contractors, executors, trustees, landlords, and teacher; also falling within the statute's reach is sexual harassment in any relationship that is substantially similar to the ones specifically listed. Thus, for instance, a certified nursing assistant's relationship with a patient is either a service or professional relationship with that patient, and would support statutory liability for sexual harassment within this section within a "business, service, or professional" relationship.

Under Cal. Civ. Code section 51.9, the victim must establish not only that a qualifying "relationship" exists, but also that the relationship is one that the claimant cannot easily terminate. The claimant must also show both that the harasser made sexual advances, solicitations, sexual requests, demands for sexual compliance, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe. The standard for determining whether the conduct is severe and pervasive is similar to the one applicable to the sexual harassment at California workplace.