Advise your client to save any documentation regarding the job (such as a newspaper ad, flier, etc), especially if it details the number of hours that your client will work or the rate of pay.
Advise your client to define what her responsibilities will be as a worker. Will she cook, babysit, or clean? This is important because different laws apply to domestic workers and "personal attendants", individuals who take care of a person's physical needs. Yet if a "personal attendant" spends more than 20% of her time doing domestic worker duties (such as making beds, cleaning the house, washing dishes, etc), she is considered a domestic worker .
Always remind your client to take a friend or spouse to job interviews or negotiations. Not only could this help overcome language barriers, but the other person could be a witness to the original terms of employment. Similarly, your client should document whatever her and her future boss discuss, note the date,
and then keep the notes in a safe place.
Always remind your client to negotiate terms and to never settle for a term that might be unsatisfactory or economically unfavorable (for example, not having her transportaion costs paid by the employer would further reduce her salary). Although negotiation is hard and uncomfortable, how an employer treats an employee during the negotiation stage will be a precursor to how she will be treated as a worker. For a sample contract that is being used in New York City, see the National Employment Law Project (NELP) website by clicking
here .
Also remind your client, that they should never be asked to sign a document that she can't read or understand. Many of these contracts attempt to force workers to waive their rights (such as the minimum wage, overtime, breaks, or to waive wages due to training). Of course, many of these contracts are illegal, but there is a risk that your client might waive some legally uneforceable benefits (such as vacation time or sick days)if they sign contracts they cannot understand.
| Make sure that your client always keeps a record of the days that she worked, the rate of pay that she was promised, the duties that she performed on any given day, and whether anything happened that would make her feel uncomfortable (such as a racial joke, a sexual comment, or a job responsibility that seems offensive).
Always make sure that your client knows their employer's full name, address, and phone number. Other information such as their employer's license plate number(s) and social security number(s) might be helpful, but is not necessary to file a claim with the Labor Comissioner.
Remind clients to keep original stubs or copies of paychecks that they are given. If payments are made in cash, ask them to keep handwritten records of payments. Along with this, clients should record the hours or days that this pay period covers.
Remind clients to also keep a record of the name and number of all other employees that work for their employer.
Ask your client to always review their paycheck and any deductions that were taken off. An employer can only make authorized deductions off an employee's paycheck (for example, for Social Security and income taxes). They cannot deduct wages if an employee broke or spoiled something.
It is illegal for an employer to retaliate against an employee if they file a complaint with a State agency, contact a community organization, or demand that health and labor code violations be corrected.
Wages should always be in U.S. dollars and every hour worked should be paid.
| Always reasure clients that their immigration status does not matter when it comes to a wage and hour dispute.
To file a wage claim, the client may file with the Labor Commissioner or with small claims court. At La Raza Centro Legal, we file wage claims with the Labor Commissioner because this is the only type of case handled by the Labor Commissioner. Note, if the client does not want her address disclosed to the employer, the client may file with another address.
As with wage claim cases, for other employment law cases, refer clients to the appropriate State agency . For wage claims refer clients to the
Labor Commissioner . For discrimination cases refer client to the
DFEH or the
EEOC . For Workers Compensation, provide a list of attorneys as provided by the
Worker Compensations Appeals Board . For unemployment insurance, if the client has appropriate immigrantion status which allows the client to work, refer the client to the EDD . Further, the client may find more information from private attorneys through the
lawyer referral service of the county where the client lives .
As a preventive measure, your client can also send a letter requesting that their presonnel file be cleared and that an employer not make negative recommendations.
Also, if the client is interested in pursuing the case, advise the client that the process can be lengthy. For example, a wage claim will usually not be resolved until one year after it is filed.
If a former employee will lose their health insurance due to their termination, they should look into the Federal and California version of COBRA. COBRA allows workers to maintain their health insurance for 18 or 36 months (depending on the program) as long as they pay their former employer's insurance premium.
However, the most important tip that you can sometimes give someone who has lost their job is that they should move on. Many times, the stress and emotional upsets that result from these types of cases can be worse for someone than not getting paid for a few hours worth of work.
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