We at Justice at Work Law Group seek to work proactively with small businesses to prevent and resolve disputes with employees and their representatives when mistakes have been made.

OUR PHILOSOPHY

Immigrants are the backbone of America, and come to find success for themselves and those they love. In doing so, they make our country stronger and better. Immigrants have found many ways to succeed, including starting their own businesses and developing promising careers through hard work and dedication.

Disputes at work primarily occur because of an ignorance of the law or not appreciating the exposure that is caused by not complying with federal and state laws that regulate the workplace. These disputes can restrict the ability of the…

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OUR ADVOCATES

TOMAS E. MARGAIN, ESQ

ABOGADO DE EMPLEO

HUY TRAN, ESQ

LUẬT SƯ

EMPLOYMENT LAWS

ALL IMMIGRANTS HAVE RIGHTS

Your immigration status is simply not relevant in a case involving the non-payment of wages and penalties. California law protects you. Federal law has also echoed the protection afforded workers regardless of their immigration status to basic worker protection laws, including penalties, when one is not paid correctly.

California also recently passed laws that protect immigrant workers.

First, on October 11, 2013, Governor Brown signed AB 263 creating momentous protections for immigrant workers against employer retaliation. The bill expands existing law by prohibiting employer retaliation against workers who come forward to enforce their…

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RESOURCES

Fact Sheets and Explanation of Laws Affecting Payment of Wages:

State of California Worker’s Rights Information Flyers by Language:

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OUR PHILOSOPHY

Immigrants are the backbone of America, and come to find success for themselves and those they love. In doing so, they make our country stronger and better. Immigrants have found many ways to succeed, including starting their own businesses and developing promising careers through hard work and dedication.

Disputes at work primarily occur because of an ignorance of the law or not appreciating the exposure that is caused by not complying with federal and state laws that regulate the workplace. These disputes can restrict the ability of the employer and the employee to be successful. While we see case after case of worker exploitation, many cases occur because an employer simply did not know any better.

We at Justice at Work Law Group seek to work proactively with small businesses to prevent such disputes from occurring. We also help to resolve these disputes with employees and their representatives when mistakes have been made. Justice at Work Law Group also seeks to stand by and stand up for workers who are being taken advantage of and need legal assistance.

Our approach to representing owners is simple. There is no secret formula or way to game the legal system. If you have been sued, you need an advocate that can aggressively resolve the problem. You also need someone on your side that will not expose you to exaggerated, bogus or claims that overreach. At the same time, we will not sugar coat your problems. We will seek to resolve your problem in a cost effective manner. We will not let you get pushed around and will vigorously defend you. We represent employers in hourly pay arrangements.

Our approach to representing workers is simple. We work for you. We are hired to resolve your case and not to teach anyone a lesson. Justice is not retribution. We will determine the issues in your case, its value, and stand by your side and fight until you are offered a fair settlement. If not, we will fight for your rights through trial.

We represent workers in contingency matters. If you do not prevail, we will not charge you any moneys for our fees or costs invested.

TOMAS E. MARGAIN ESQ.

Tomas E. Margain has been a licensed attorney since 1997. He was born in Mexico City and moved to the United States in 1979 when he was eight years old. He sees the story of his family mirroring the type of law he practices. An emphasis is placed on rights of immigrants in our society and the role of small businesses to both employ and offer immigrants the opportunity to become business owners.

Tomas E. Margain moved to California in 1989 to study English literature at U.C. Berkeley. While in college he worked in cafes and restaurants and was exposed to a multicultural and multilingual workplace. This led to a passion for workplace and immigrant rights. It also led to his pursuing first a Master’s Degree in Latin American Studies at UCLA and then the study of law at UC Hastings College of Law.

In 2001, after practicing law for four years, Tomas opened up his office in San Francisco’s Mission District representing restaurant, janitorial and construction workers in cases involving wage theft.

In 2008, Tomas relocated his practice to San Jose and expanded his practice to also include representing small business.

The name Justice at Work Law Group represents the vision of the founding partners. Justice at Work has to be seen both from the employer and employee perspective. While there are cases of clear worker exploitation, many times the dispute arises from ignorance of the law or shortcuts taken by struggling businesses. We help employers who want to comply with workplace laws and are in a situation where they need someone on their side to resolve their dispute.

Tomas represents clients in the following:
Wage disputes;
Public Works Construction and Prevailing Wage Disputes;
Employers in employment litigation.

 

 

HUY TRAN, ESQ.

Huy Tran was born in Hawthorne, California to Hai Tran and Kim Ho, Da Nang natives who escaped Vietnam by boat.  They moved to the Bay Area soon after arriving.  Huy’s parents provided for their family by taking on any work they could find, including Hai Tran doing landscaping and Kim Ho sewing and mending clothes.  Eventually, they were able to open a nail salon, which became successful and led to the opening of other locations.  Huy Tran graduated from Middle College High School in San Pablo before attending San Jose State University.

While he was a Spartan, Huy Tran was active as a brother and Vice-President of Alpha Phi Omega community service fraternity, President of the Vietnamese Student Association, and in various roles in student government.  He led a coalition of student organizations and worked with the faculty union at SJSU to challenge budget cuts to the California State University system, tuition hikes, and other statewide issues.  He also found a passion for community organizing, and helped initiate regional and national networks for Vietnamese youth based organizations across the country.

After graduating from SJSU with a degree in political science and minors in Asian American Studies and Economics, Huy Tran joined the labor movement as an organizer for UNITE HERE International.  He spent three months in Mississippi organizing Casino workers, but was transferred to Washington D.C. after Hurricane Katrina decimated the Gulf Coast, where he was a business agent for hotels that were already unionized.  He also spent time working for Cindy Chavez’s mayoral campaign and organizing hotel workers in San Jose before he was accepted into the Class of 2012 at Santa Clara University School of Law.

At SCU Law, Huy Tran focused his curriculum on labor and employment law.  He developed experience by volunteering at the Worker’s Rights Clinic at the Katharine and George Alexander Community Law Center.  Through the clinic, he successfully settled a discrimination claim and a misclassification claim before even graduating.  While at SCU, he also clerked for the National Labor Relations Board, where he investigated claims under the National Labor Relations Act, and the Equal Employment Opportunities Commission, where he processed initial charges and reviewed active charges for merit.

Huy is admitted to practice in the following jurisdictions:

– Superior Court of California, all counties
– United States District Court, District of Northern California
– United States Court of Appeal for the Ninth Circuit

Huy is also a member of the following Professional Associations:

– American Bar Association
– California State Bar Association
– Vietnamese American Bar Association of Northern California
– California Employment Lawyers Association

 

 

WAGE AND HOUR LAWS

Common exemptions to wage and hour laws include executive, administrative, and professional employees. A non-exempt employee, oftentimes paid on an hourly basis, are entitled to at least the minimum wage and overtime pay. Though employees can be paid in different ways, a non-exempt employee must be paid at 1.5 times their regular rate of pay for time exceeding 8 hours a day; 2 times the regular rate for time exceeding 12 hours a day; 1.5 times the regular rate for any time exceeding 40 hours in a week; and 2 times the regular rate for time exceeding 8 hours a day on the seventh consecutive day of a workweek. The Statute of Limitations for claiming unpaid regular wages, overtime, and missed breaks through civil court or the Labor Commissioner is three years.

Non-exempt employees is also entitled to meal and rest breaks for working more than 4 hours. Every 4 hours, an employee is entitled to a paid, uninterrupted 10-minute break. Every shift worked for more than 5 hours entitles the employee to an unpaid, uninterrupted 30-minute meal break. Shifts 10+ hours long entitle the employee to two unpaid, uninterrupted meal breaks. If employees are not provided with rest or meal breaks, then the employer owes the employee an additional hour of pay for each workday where a break was missed.

 

 

OVERTIME SALARIES

Contrary to popular misconception, people who are paid a salary can indeed be entitled to overtime. If you are paid a salary, you are entitled to overtime unless you meet the requirements for either the executive, administrative, or professional exemption. Employers must prove every point of an exemption for it to apply, as determined by the Supreme Court in the 1947 case of Walling v. General Industries Co. These additional requirements can be difficult to meet. Job titles do not determine exemption. If an employer tells you that you are not entitled to overtime, they may be incorrect.

 

 

OFF THE CLOCK

Labor laws require employers to pay employees for all hours worked, forbidding them from withholding pay regardless of whether or not the hours are properly recorded. California labor law extends “hours worked” to time beyond any scheduled shift, including pre-shift and post-shift duties. For example, retail or restaurant workers who do any task, including cleaning and setting up shop, prior to a designated shift are owed pay. This also applies to construction workers who load tools at a shop, then travel to a job site. Work hours may not begin until the workers arrive at the job site, even though they have performed prior labor. We urge you to consult an attorney in these situations.

 

 

INDEPENDENT CONTRACTORS

The IRS defines an independent contractor as self-employed people who offer services to the general public in an independent business, trade, or profession. Their services are not controlled by an employer. Independent contractors are not entitled to overtime pay and are subjected to Self-Employment Tax. Even though an employer may deem a worker as an independent contractor, that may not stand true under California law.

To determine whether someone is an independent contractor or employee, judges consider various factors. For example, an electrician with his own tools, a license, that works on his own schedule is an independent contractor, whereas a worker who frames a house under a company license and adheres to a pre-determined schedule is an employee. Factors to consider include specialization, method of payment, supervision of labor, employer control of labor, and provision of tools and/or equipment.

The burden to prove whether or not a worker is an independent contractor is on the employer; if the employer cannot sufficiently prove that a worker is an independent contractor, then they are most likely an employee. Employees are legally entitled to benefits, such as compensation, insurance, and Social Security, whereas independent contractors are not.

 

 

ALL IMMIGRANTS HAVE RIGHTS

Your immigration status is simply not relevant in a case involving the non-payment of wages and penalties. California law protects you. Federal law has also echoed the protection afforded workers regardless of their immigration status to basic worker protection laws, including penalties, when one is not paid correctly.

California also recently passed laws that protect immigrant workers.

First, on October 11, 2013, Governor Brown signed AB 263 creating momentous protections for immigrant workers against employer retaliation. The bill expands existing law by prohibiting employer retaliation against workers who come forward to enforce their rights under California’s labor laws, or otherwise engage in protected conduct. The law took effect on January 1, 2014.

AB 263 protects workers who complain either orally or in writing about unpaid wages against employer retaliation and entitles workers to reinstatement and reimbursement for lost wages. Any person who violates this provision of the law is subject to a civil penalty of up to $10,000 per violation. Willful refusal by an employer to reinstate or reimburse an employee who is the victim of retaliation is guilty of a criminal misdemeanor.

The bill also makes it unlawful for employers to engage in unfair immigration-related employment practices. Such unlawful immigration-related employment practices include: threatening to call or contacting immigration authorities; threatening to file or filing a false police report; requesting new or different documents than required by federal immigration law for employment purposes; or using the federal E-Verify system to check the employment authorization status of a worker at a time or in a manner not required by federal immigration law.

The bill also creates a rebuttable presumption of retaliation if any adverse action is taken against a worker within 90 days of his or her exercising a protected right.

This bill also prohibits an employer from discharging a worker or discriminating, retaliating, or taking any adverse action against a worker because he or she updates or attempts to update his or her personal information with the employer, unless the changes are directly related to the skill set or requirements of his or her job.

The text of the bill can be found at http://leginfo.legislature.ca.gov/faces/billVotesClient.xhtml. Second, on October 5, 2013, Governor Jerry Brown signed eight immigration-related bills that expand workplace and civil rights for immigrants while making the declaration that “While Washington waffles on immigration, California’s forging ahead".

In particular, AB 524 enhances immigrant worker rights by making it a crime for employers to induce fear by threatening to report workers’ immigration status. SB 666 punishes employers who retaliate against workers based on citizenship or immigration status with a civil fine of up to $10,000 and suspension or revocation of their business licenses.

These laws help ensure that unscrupulous employers no longer pray on undocumented immigrants. The belief that one can exploit a worker and then threaten them if they dare complain was firmly.