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Entries in employer compliance (24)

Wednesday
Oct242012

Employers: Methods for Computing Commissions Must be Put in Writing

Employment Defense Attorney Los Angeles

 

by Sue M. Bendavid
818.907.3220

 

Beginning January 1st, all companies employing commissioned workers in California must provide written agreements describing the method by which commissions are computed and paid, per Assembly Bill 1396

The new requirement comes from recent legislation which amends the California Labor Code. Formerly, it applied only to out-of-state employers who employ California-based workers. 

Employee CommissionsThe Labor Code defines a commission as compensation paid to any person for services rendered in the sale of such employer's property or services and based proportionately upon the amount or value thereof. 

Since commissions are actually wages, it's important for you as an employer to make sure you pay them correctly and on time, to prevent wage and hour claims. 

 

Avoiding Employee Claims for Unpaid Wages 

 

It is not enough to merely outline how commissions are computed and earned.  As someone who hires commissioned employees, you must describe the calculation methods into a written contract, sign it, and then obtain a signed receipt for the contract from the commissioned employee. 

You should clearly define when a commission is “earned.”  Will your employee earn commission when a sales agreement is signed, when products are shipped, or when the company receives payment from the client for the products or services? 

Make sure you follow the terms of your agreement with your employee. 

 

AB 1396: Other Considerations 

 

The new law affects employers who routinely compensate employees through commissioned pay structures, as well as those who use this method on an occasional or even rare basis. 

Also per AB 1396: 

  • If your commission agreement expires, the terms of your signed agreement will remain in effect until you supersede it, or until the agreement is terminated in writing. 
  • You won't have to include short-term productivity bonuses (i.e. for retail clerks) or bonuses and profit sharing plans as commissions, unless you offer to pay a fixed percentage of sales or profits as compensation for work to be performed. 

This may seem like extra paperwork, but there is some good news for employers, as AB 1396 repeals a Labor Code provision making an employer who violates this section liable for “triple damages.”  Still…to prevent employee claims in the first place, get your agreements in order now, before the New Year. 

Sue M. Bendavid is the Chair of the Employment Practice Group, which defends employers from wage and hour and other employee claims. Email her for more information: sbendavid@lewitthackman.com.

 

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
Oct102012

Rumble in the Employment Law Jungle: Campaign 2012

by Robert A. Hull

It’s a grudge match – a political campaign versus a law whose consequences could tilt the election. Who wins?  A fascinating battle ensued this past week between President Obama’s presidential campaign and the Worker Adjustment and Retraining Notification (WARN) Act.

In this corner, the WARN Act mandates that businesses of a certain size must give notice of a possible mass layoff or plant closing 60 days before such a layoff/closing (even if those businesses are not certain such layoffs will occur).

The reason?  To give workers a chance to look for new employment and prepare themselves for probable job losses.

In that corner, a lean, mean presidential campaign on guard against any dramatic events which could tip the election.

 

Background to the WARN Act Showdown

 

Certain dramatic across-the-board budget cuts (i.e., ‘sequestration’), including very deep defense cuts, are set to take place January 2nd, as the result of the failure of Congress to find a solution to the budget impasse. No solution is forthcoming.

Thus, many federal contractors are facing the likelihood that they will need to lay off many thousands of employees on January 2nd. Under the WARN Act, they would need to give notice to those employees by November 2nd, right before the general election.

To make matters worse, many of these employees are located in the battleground state of Virginia. Needless to say, workers receiving layoff notices immediately prior to an election would tend not to favor the incumbent.

 

Political Punch, Corporate Counter-punch

 

The bell rings. The President’s campaign looks confident, strong. Lockheed Martin plans to issue WARN Notices before the election, in Virginia.

A sharp uppercut: The Obama campaign is stunned, just for a moment. The White House requested that Lockheed hold off on the notices. In July, the Labor Department issued guidelines saying the contractors do not have to provide WARN notices before making layoffs January 2. They anticipated this bout.

The need for layoffs is “uncertain” because Congress can come to an agreement before then. Nice combination – jab, jab, straight right. But Lockheed responds that, if they don’t give WARN notices, they’ll face liability for failure to warn or else be forced to delay layoffs, a devastating counterpunch.

The Obama campaign struggles to keep its feet. But, wait – it's up and throws a haymaker!

The Office of Management and Budget issues a memo on September 28th saying that the government will pay for any employee compensation costs as determined by a court, as well as the litigation costs and attorney’s fees (irrespective of outcome), owed by the federal contractors for failure to give the WARN notices. WARN is down! Lockheed and other contractors agree not to issue layoff notices before the election. The campaign is victorious.

Lessons?  A presidential political campaign can be a force to be reckoned with, for certain. But, if you’re a business with a possible mass layoff or plant closure and are thinking about not providing WARN notices, be forewarned. Unless you face sequestration on January 2nd, you will have to pay for all of your compensation costs, litigation costs and attorneys' fees as a result of your failure to give such notice.

Final Word:  Lockheed and all others should TAKE heed. The September 28th memo appears to only cover liabilities associated with the failure to give notice under the FEDERAL WARN Act. (Read the full White House Memo.)

Many states, such as California (but not Virginia), also have certain STATE WARN-type provisions. If mass layoffs or plant closures occur in those states, and state laws are not complied with, companies like Lockheed may still be on the hook.

 

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.
Thursday
Sep132012

Employment Defense | Governor Brown Expands Religious Accommodation Requirements

Lawyer for EmployerWage and Hour Defense

 

by Nicole Kamm
818.907.3235

 

Late last week, Governor Jerry Brown signed AB 1964 into law, clarifying the responsibilities of California employers with respect to religious accommodation in the workplace.

Also known as the Workplace Religious Freedom Act, AB 1964 was introduced by Assemblywoman Mariko Yamada and supported by a variety of faith groups – including Catholics, Muslims, Jews and Sikhs.

Several years ago, one of Assemblywoman Yamada’s Sikh friends was accosted by guards with guns drawn when he reported for jury duty. Around that time, another incident occurred during which two elderly Sikh men were shot and killed in what was believed to be a hate crime. And last year, a Sikh man settled an employment discrimination lawsuit against the California Department of Corrections and Rehabilitation (DOCR) after the DOCR refused to hire him unless he shaved his beard.

In the wake of these incidents, Assemblywoman Yamada proposed AB 1964 to address what she found to be workplace discrimination faced by Sikhs and other religious minorities. The bill, whose number commemorates the federal Civil Rights Act of 1964, is considered to be landmark legislation in protecting the civil rights of citizens of all religious backgrounds.

 

Religious Discrimination Claims by Employees & the New Law

 

California’s Fair Employment and Housing Act (FEHA) has long prohibited discrimination against applicants and employees based on their religious beliefs, and required reasonable accommodation of religious beliefs and observances.

Assembly Bill 1964 clarifies that “religious beliefs” under FEHA include religious dress and grooming practices – and that employers cannot discriminate against applicants or employees based on those practices. The bill further clarifies what it means for an employer to reasonably accommodate such practices in the workplace.

According to the new law:

the term 'religious dress practice' shall be construed broadly to include the wearing of jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed. 'Religious grooming practice' shall be construed broadly to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed.

The legislation states it is an unlawful employment practice for an employer to:

refuse to hire or employ a person...or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the person’s religious belief or observance and any employment requirement, unless the employer…demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship [on the company]….

The new law further explains, “An accommodation of an individual’s religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.”

Though intended to merely clarify existing law, the impact of AB 1964 could affect workplaces across California and bring increased focus on employer obligations to accommodate religious beliefs. Already on the rise, the new law could also bring an increase in religious discrimination lawsuits and claims.

In view of the above, employers are advised to review and update their anti-discrimination and equal employment opportunity policies and consult employment counsel if and when questions about religious accommodation arise.

Nicole Kamm is a Management-side Employment Attorney who works with employers in all aspects of defense and claim prevention.

 

 
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.
Thursday
Sep012011

Labor Laws 2011 - New NLRB Employment Law Poster

Wage and Hour DefenseEmployment Defense Attorney

by Sue M. Bendavid

818.907.3220

Employer Lawyer Los Angeles Google+ 

 

Attention Employers: There is a new labor law poster that must be displayed by most private-sector employers before November 14, 2011.

The poster is mandated by the National Labor Relations Board (the NRLB). The poster is intended to advise employees of their rights to organize under the National Labor Relations Act (the NRLA). Employers should be able to obtain the newest addition to the employer compliance posters before November 1st.

The compliance poster will contain information about the rights of employees to do the following:

▪ Act together to improve wages and working conditions;
▪ Form, join or assist a union;
▪ Bargain collectively with an employer; and
▪ To refrain from any of the above-listed activities.

The poster will provide examples of unlawful employer and union conduct, and it also provides contact information for the NLRB should employees wish to ask questions or lodge complaints.

Who Must Display the NLRB Poster?

Because the subject matter applies to all private-sector employers subject to the NLRA, as well as all union and non-union workplaces, almost all private employers in the U.S. will need to display this latest addition to employment law posters.

Certain industries and individuals are not covered by the Act. Exemptions include:

▪ Public-sector employees
▪ Agricultural and domestic workers
▪ Independent contractors and supervisors
▪ Workers employed by a parent or spouse
▪ Employees of air and rail carriers covered by the Railway Labor Act

Also, if you are a small employer (as defined by the Act) you might not be subject to the NLRB’s jurisdiction.

The notice is in English, but will also be available in other languages. If 20 percent or more of your work force is not proficient in English, you will have to display the notice in other languages as well. For example, if 20 percent of your employees speak Spanish, you will need a Spanish language poster.

Where Should You Display Employment Law Posters?

 

Employer compliance posters, including this latest one required by the NLRB, should be displayed in a conspicuous location where employees will readily see it. You should place these required notices anywhere you normally display personnel rules and policies.

If for example, you have a minimum wage poster displayed in an employee break room or by a time clock, you should post the new compliance poster in those areas as well.

You will not have to distribute the NLRB required poster electronically, but if you normally make notices of employee policy changes or display posters on a company intranet or website, you will have to add the new compliance poster to those platforms too.

If you have any questions about the new poster, labor laws or employer requirements, call me: 818.990.2120.

Sue M. Bendavid is a Los Angeles Employment Attorney and Chair of our Employment Law Practice Group. She represents employers throughout California.

 

 
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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