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Entries in employee agreements (3)

Wednesday
May032017

Working Families Flexibility Act Means Little to California Employers

Lawyer for EmployerEmployment Defense

 

by Nicole Kamm

818.907.3235

 

 

The House of Representatives just passed U.S. H.R. 1180, a bill that could potentially give certain businesses and their employees more flexibility in federal overtime compensation. The Working Families Flexibility Act (WFFA) would allow employers to award workers compensatory (“comp”) time off, in place of overtime premium pay for hours worked over 40 in a week.

Federal and State Overtime RulesUnder this bill, employers may choose to offer this option, and employees may decide if they would rather receive regular overtime pay or take compensatory time off at a later date. This “banked” comp time may be cashed out at a later date should the employee decide s/he would prefer to have monetary compensation rather than the time.

From an employer perspective, this could result in significant savings in operational costs, though it could be more challenging in the administrative sense. But for employers with staff in California, this bill would have little practical effect.

What Does H.R. 1180 Mean for California Employers?

First, there’s no word on whether or not the WFFA will pass the Senate. In the past, similar bills often cleared the House only to be killed on the Senate floor. (A more business-friendly political administration may mean greater possible success this time around, however.)

Second, and more importantly, state laws are clear regarding California overtime requirements. California employers are mandated to pay overtime at time-and-a half or double-time, depending on how many hours/days are worked.

CA overtime requirements are as follows:

  • All hours worked in excess of 8 hours in a workday or 40 hours in a workweek are paid at the rate of one and one-half times the regular rate of pay.

  • The first eight hours worked on the seventh consecutive day of work in the workweek are paid at the rate of one and one-half times the regular rate of pay.

  • Hours worked in excess of 12 in any one workday and hours worked in excess of 8 on the seventh consecutive day of the workweek are compensated at a rate of two times the regular rate of pay.

Employers should ensure they have clear, written policies regarding overtime compensation. For example, all employees should be aware (preferably via an Employee Handbook outlining company policy) that:

  • Overtime hours must be approved in advance by supervisors.

  • Unauthorized overtime will be paid, but could result in discipline or even termination.
  • Hours worked on weekends do no automatically count as overtime.

  • Sick, vacation, holiday or other paid time off cannot be used to calculate overtime compensation (unless your “company” is the Los Angeles Fire Department!). 

Nicole Kamm is an Employment Defense Attorney

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

Tuesday
Feb232016

Money, Money, Money...Must Be Funny...in the Employee Training World

Lawyer for EmployersEmployment Defense Attorney

 

by Tal Burnovski Yeyni

818-907-3224

 

 

 

Score one for the employers this year:

An appellate court decision issued last month determined that an employee who chooses to partake in the employer’s voluntary training program is required to reimburse the employer for related expenses if the employee does not stay with the employer for a “reasonable period of time” following completion of the program.

In USS-POSCO Industries v. Case, UPI faced a shortage of skilled Maintenance Technical Electrical (MTE) workers. To address this, UPI decided to implement a Learner Program. Accordingly, UPI and the representative union in the workplace entered into a Memorandum of Understating (MOU) which stated: 

[D]ue to strong demand for [MTE workers] the Company needs to retain successful candidates as employees for a reasonable period of time in order to recoup the substantial $46,000 investment in their training. . .UPI may require candidates in the Learner Program to sign [a reimbursement agreement] that would require reimbursement for a portion of the training should a candidate voluntarily terminate employment within 30 months of completion of the Learner Program.

The employee (Floyd Case) signed a one page reimbursement agreement acknowledging UPI would pay his “wages, benefits and training expenses” while he was in the Learner Program, but there would be no guarantee participation in the program would ensure promotion, transfer, or continued employment with UPI.

He further agreed that if he was fired for cause or voluntarily left UPI within 30 months after completing the program, he would, absent a compelling hardship such as a serious injury or family death, refund $30,000 of the expenses of the training, less $1,000 per month of subsequent service at UPI.

Two months after completing the program, Case left UPI to work for a different company.  When Case refused to reimburse UPI, the company sued for breach of contract and unjust enrichment. Case cross-complained, asserting the reimbursement agreement was unenforceable and UPI had violated the Labor Code and other statutory provisions in seeking reimbursement. Both the trial court and an appellate court sided with the employer.

In its affirmation, the Court of Appeal noted: 

  • Labor Code provisions re employer payment of costs of business operations do not apply in this case, as the training program offered by UPI was strictly voluntary and optional.  

  • Case did not make any expenditure or suffer any loss in direct consequences of the discharge of his duties. Rather, it was UPI that fronted the costs of his voluntarily training.

  • Case had alternative options: He could have passed the MTE test without additional training or education, self-studied for the test, or completed the program and then passed the test. Case, however, chose the 3rd option “presumably because he would get training during the workday, would earn wages during the lengthy training period, and would obtain the training without any upfront cost and potentially without any cost at all.

  • Finally, the Court also held the reimbursement requirement was not an invalid restraint on employment. The employee “voluntarily agreed to participate in the training program and understood UPI would front all the costs of the program and expected reimbursement of training costs if he chose to leave within 30 months. This was an agreement concerning advanced educational costs. It did not restrain Case from working for a competitor or any other entity…” […] “Repayment of the fronted costs of a voluntarily undertaken educational program, the benefits of which transcend any specific employment and are readily transportable, is not a restraint on employment.

Bottom Line for Employers

This decision centers on one main issue – UPI did not require the employee to participate in the program. Rather, it offered the option to employees who sought employment as MTEs as UPI thought it would benefit as well. Accordingly, UPI was entitled to seek reimbursement from employees who did not stay following completion of the program. 

  • Don’t label a required training program as “voluntary” – that will not allow you to seek reimbursement.

  • Note that an employee’s participation in a mandatory training program might also count as hours worked.

Tal Burnovski Yeyni is an Employer Defense Attorney at our firm. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
May012013

Social Media and the Workplace: Federal Court Rules Facebook Posting Does Not Violate Non-Solicitation Agreement

Lawyer for EmployerWage and Hour Defense

 

by Nicole Kamm
818.907.3235

In the first holding of its kind, an Oklahoma court ruled a former employee’s Facebook posts did not violate non-solicitation agreement with prior employer.

Pre-Paid Legal Services, Inc. (PPLSI) recently received a partial denial from a federal court in response to PPLSI's request for a preliminary injunction. PPLSI alleged a former sales manager’s posts to Facebook and Twitter put the employee in breach of his non-solicitation agreement.

Workplace Social Media PolicyWhat did the employee do, exactly, to prompt PPLSI to seek an injunction?

  • As a new employee at PPLSI, the employee signed an agreement that prohibited him from soliciting other PPLSI employees for two years after his departure or termination from the company.

  • While working for PPLSI, he was promoted to regional sales manager. The employee created incentive programs to reward & encourage members of his sales team – he also created Facebook pages specific to these programs.

  • When he took a job with another company, the employee used those social media pages to announce his transition.

  • The sales manager also posted messages on his personal social media pages regarding his new employer.

  • The employee further requested PPLSI's employees to follow him on Twitter, after he made the transition to his new company.

PPLSI claimed the former employee's posts to Facebook and Twitter put him in breach of the non-solicitation agreement. The company sought the preliminary injunction to keep the sales manager from “soliciting” current PPLSI employees using those social media sites.

The court found the employee’s Tweets and Facebook posts did not constitute direct solicitation of PPLSI employees.  Rather, they were merely general posts about job opportunities not specifically targeted to the employee’s former coworkers.  

The court looked to a case involving solicitation via Facebook, where the employee’s new employer posted an announcement about the employee’s new position and the employee then “Friended” several of his former employer’s clients on Facebook.  In that case, the former employer’s injunction request was also denied absent evidence the posts resulted in any actual departures from the former employer to the new employer.

Be advised: California employers should note the law on employee non-solicitation agreements remains unsettled.  If you have questions about such agreements or how this case may impact you, please let us know.

 

Nicole Kamm is an employment defense attorney dedicated to protecting employers from employee claims. Contact her via email: nkamm@lewitthackman.com for more information about employment agreements and protecting your company's assets.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
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