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Entries in wage and hour (16)

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.

 

Wednesday
Mar222017

Whacky Employment Claims: Who's Whackier? Management or the Employee?

Lawyer for EmployerEmployment Defense

by Nicole Kamm

818.907.3235

 

 

As employment defense attorneys, we see many strange situations arise in the workplace.

The question is, how prepared are you as an employer to handle the wackiness that may potentially arise when your employees make bizarre requests, do odd things, or intentionally violate company rules? And what if those oddball employees happen to be your managers responding to perfectly legitimate claims…?

It's time to illustrate with another Whacky Employee Claims blog. We hope you will find the following employment situations educational, if not entertaining.

 

#5:  Milking Punctuation Errors for All They’re Worth

Seventy-five milk truck drivers in Maine may be getting a $10 million pay day. Three of those drivers filed a class action lawsuit in 2014, claiming Oakhurst Dairy failed to pay them four years of overtime wages.

The problem arose not from a miswritten company policy or employment agreement, but from a state law (known as Exemption F) identifying which employees were exempt from overtime:

“The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of . . .”

One more comma after “packing for shipment” would have distinguished packing and distributing as separate activities. But as the law is written without the serial or “Oxford comma” as it is sometimes known, the Plaintiffs were able to argue their duties fell outside Maine’s exemption law and they were entitled to overtime pay.

A trial court focused on the spirit of the law, and awarded partial summary judgment to the employer. But an Appellate Court disagreed, stating:

Given that the delivery drivers contend that they engage in neither packing for shipment nor packing for distribution, the District Court erred in granting Oakhurst summary judgment as to the meaning of Exemption F. If the drivers engage only in distribution and not in any of the stand-alone activities that Exemption F covers . . . the drivers fall outside of Exemption F’s scope and thus within the protection of the Maine overtime law.

Employer Tip: You don’t have much say in how state and federal laws are written, but when something seems unclear or ambiguous, consult counsel. Additionally, be ultra-careful in how your company policies and employment agreements are written and stay apprised of frequent changes in employment laws. 

 

#4: Simply Not Suited

Jessica Zelinske was an ad accountant at Charter Communications in Minnesota. She was also very attractive, and when she won a modeling gig to pose for Playboy in a 2011 "Hot Housewives" issue, Zelinske contends she got the “o.k.” from her boss.

Zelinske alleged her supervisor assured her she would not be fired if she posed nude, but once the magazine hit sales racks, she received a “Corrective Action Report” notifying her of her immediate termination. The company informed her: "You have violated Charter's professional conduct policy by making the personal choice to pose nude in a well-known publication."

Zelinske sought $150,000 for emotional distress, compensatory damages and legal expenses.

Employer Tip: Management should be familiar with the implications of all company policies to avoid making promises to employees they can't keep. 

 

#3: The Importance of Being Earnest (in Record-Keeping)

John Sederquist and Brenda White sued employer Steven Miller for unpaid overtime. This bothered Miller immensely because a.) He was pretty sure he paid all of his workers all monies owed on time, and b.) He couldn’t remember ever hiring White. So he did some digging.

Some of his other employees knew White, but no one ever remembered hiring her or actually working with her. But she did appear on his payroll for several months a few years before she jointly filed the lawsuit. For those several months, she was paid over $21,000 for work she never did. Suing for unpaid overtime was just salt in the wage and hour wound.

As it turned out, White and Sederquist were romantically involved. At the time of White’s supposed employment, a coordinator who is currently serving 20 years’ probation for thievery was handling Miller’s payroll. Miller decided to litigate, White cracked under pressure during deposition, and both sides dropped the lawsuit.

Employer Tip: If possible, take steps to enforce some checks and balances when it comes to handling payroll. While litigation can be costly, pursuing a case all the way is sometimes the way to go. 

 

#2: "I Dreamed a Dream" (of not being harassed for my weight)

Laura Ziv filed a $6 million lawsuit against her boss and perfumer employer, alleging verbal assaults regarding her looks, and in particular, her weight. Ziv claims her supervisor compared her to Britain's Got Talent star Susan Boyle, and sometimes called her "Fatty" in front of coworkers. 

Additionally, Ziv claims her supervisor wanted her to develop a competing perfume brand with him, while on company time. When she refused a second time, her supervisor removed her from the company's biggest account and took away a promised bonus. Ziv took a medical leave for high blood pressure and was threatened with termination. She claimed she suffered a brain hemorrhage due to stress.

Employer Tip: Comments regarding an employee’s weight or appearance are generally inappropriate, and could potentially lead to hostile work environment claims. Ensure entire staff knows they may report such incidents to people other than their direct supervisors, and that inappropriate remarks will not be tolerated. 

 

#1: It's a Tough Sell

Think you've heard the last of the Wells Fargo fake accounts scandal? Think again. A class action lawsuit by former employees alleges Wells Fargo fired them for ethical behavior – i.e., for refusing to meet sales quotas by opening bogus additional accounts for bank customers.

Alexander Polonsky and Brian Zaghi represent a class of Wells Fargo current and former employees over the past ten years, who may have been terminated, demoted, or retaliated against for not meeting their sales quotas. They allege employees are pressured into coercing family members and friends to open accounts to meet quotas, and were required to work "beyond a typical work schedule" without compensation – or they were threatened with demotion and termination. Plaintiffs seek $2.6 billion, "and possibly more."

Employer Tip: It is important to “walk the walk.” Comply with the law, and don't encourage or incentivize management or employees to act in violation of the law.

 

Nicole Kamm is a Shareholder in our Employment Practice Group

 

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
Dec202016

California Employer Compliance 2017

Lawyers for Employers

by: Lewitt Hackman's Employment Practice Group

818-990-2120

 

There have been significant changes to state and federal laws in 2016 affecting employers of all sizes and in many industries. We'd like to help our clients stay apprised of some of the more critical changes by reminding all of the important dates below. Except where otherwise indicated, new laws and regulations go into effect as of January 1, 2017.

 

Federal Minimum Salary Threshold

A federal court blocked the Department of Labor's Final Rule with an injunction in late November. As a result, the minimum salary threshold required for overtime exemptions that was to be met December 1, 2016 no longer applies. This may be a temporary reprieve for employers, as the DOL recently filed a Notice of Appeal.

In the meantime, employers should ensure they meet all state and local overtime exemption requirements.


Affordable Care Act

IRS Affordable Care ActUnder the Affordable Care Act, employers must provide employees forms 1094-B (Health Coverage) and 1094-C (Employer-provided Health Insurance Offer and Coverage to Employees) by March 2, 2017.

Information reporting via Forms 1094 and 1095 with the IRS is February 28, 2017 (hard copies) or March 31, 2017 (electronic filing). 

 

New I-9 and Immigration Protections

Employment I-9A new I-9 Form (Employment Eligibility Verification) was released in November. Employers must begin using the new form for new hires by January 22, 2017

Federal law prohibits employers from asking for additional documents other than those required by the I-9. A new California law (Senate Bill 1001) prohibits this practice as well -- violations may incur penalties of up to $10,000. 


California Fair Pay Act

Fair Pay EthnicityThe Fair Pay Act prohibits employers from paying employees of opposite sex different wages for substantially similar work. Any pay differentials must be based on seniority, merit system, quantity or quality of production, or other bona fide factors such as education or experience. Additionally:

Senate Bill 1063 amends and expands the different rates of pay prohibitions to employees of another race or ethnicity.

Assembly Bill 1676 clarifies that prior salary history cannot justify compensation disparities. 


Criminal Background Checks

Background Checks in CaliforniaCalifornia: Employers are prohibited from asking about arrests or detentions that did not result in a conviction, or about those incidents that have been judicially sealed or dismissed. Assembly Bill 1843 expands protections to protect job applicants with juvenile criminal histories as well. 

Los Angeles: Ban the Box, or the Second Chance Initiative, prohibits employers with ten or more employees from including questions about criminal history on job applications. Employers may ask about criminal history AFTER a conditional offer of employment is made to the applicant. There is a process involved regarding the consideration of such information, written notices, maintaining records; and notifications that must be included on all job posts. Read our Ban the Box blog for more information. 


Payroll, Wage Statements & Notices

Employee NoticesCurrently, employers cannot discriminate or retaliate against employees who are victims of domestic violence, sex assault or stalking – and cannot prohibit employees from taking time off to seek treatment or legal actions for these crimes. Assembly Bill 2337 now requires employers to provide written notice of their employment rights should they become victims of these crimes to all new hires and to other employees as requested. Employers are required to comply with the notice requirements when the Labor Commissioner develops a form notice, on or before July 1, 2017.

Employers who must notify employees of eligibility for federal Earned Income Tax Credits (EITCs) must also notify employees of California EITCs per Assembly Bill 1847.

Employers are not required to track hours worked for exempt employees on itemized wage statements. The clarification comes under Assembly Bill 2535.

Employees of Temporary Staffing Agencies must be paid weekly. Assembly Bill 1311 makes this law applicable to security personnel employed by private patrol operators who are also temp service employers, as of July 2016.


Single User Restroom Facilities

Restroom LawAs of March 1, 2017, single-occupant toilet facilities in any business or public building must be identified as "all gender" facilities with signage compliant with Title 24 of the California Code of Regulations. Single-occupant bathrooms have no more than one stall and one urinal. See Assembly Bill 1732.

 

Minimum Wage Hikes

Minimum Wage HikeCalifornia: Businesses with 26 or more employees must pay a minimum wage of $10.50 per hour as of January 1, 2017. Employers with 25 or fewer employers must raise minimum wages to this rate on January 1, 2018

Local Ordinances: In unincorporated Los Angeles County, Los Angeles City, Pasadena and Santa Monica, employers with 25 or fewer employees must begin paying minimums of $10.50 per hour as of July 1, 2017. Employers with 26 or more employees were required to start paying a rate of $10.50 per hour as of July 1, 2016; and will be required to pay $12.00 per hour as of July 1, 2017. (Click: Cty and County Wage Rates for more specific information.) 

 

Sick Time

Sick Leave CaliforniaCalifornia: As of 2015, employers in California must provide 24 hours of paid leave per year for employees who work at least 30 days per year. 

Local Ordinances: In Los Angeles County, employers must provide 48 hours of paid sick leave annually. The time can be front-loaded every 12 months or accrued at the rate of one hour paid sick time for every 30 hours worked. This requirement is part of the Los Angeles Minimum Wage Ordinance, and went into effect last July for employers with 26 or more employees. For employers with 25 or fewer employees, the requirements must be implemented as of July 1, 2017


Arbitration Clauses

Senate Bill 1241 prohibits employers from requiring employees, as a prerequisite of employment, to arbitrate employment disputes under the laws of another state or in another state. This protection applies to all employees who primarily live and work in California. 

An exception to the new law applies to employees represented by an attorney when negotiating terms of an employment contract, including those containing forum selection and choice of law provisions. 


New California Employment Laws: Industry Specific Legislation

 

Janitorial Services

Janitor LawPer Assembly Bill 1978, employers of property service workers (janitorial) must keep records of all employees to include: employee names and addresses; start/stop times and all hours worked; wage rates for each pay period; ages of any minor employees; and conditions of employment – for three years. The law applies to janitorial employees, independent contractors and franchisees. 

Employers in this industry must register with the Labor Commissioner each year as of July 1, 2018. Cost of registration is $500.00.

The new legislation also requires janitorial staff and supervisors to undergo sexual violence and harassment prevention training every two years as of January 1, 2019


Agricultural Workers

Farm Worker LawAssembly Bill 1066 eliminates the one day of rest per seven days worked exemption for California's agricultural industry. Employers cannot require agricultural employees to work more than six days per week.

As of January 1, 2019, agricultural employers must provide overtime wages for more than 9.5 hours worked (or more than 8 hours starting January 2022); meal breaks; and meet other wage and working condition requirements.

Employers with 25 or fewer employees have an additional three years to comply with the criteria above. 


Private Education

Private School Minimum Salary ThresholdAssembly Bill 2230 requires a new minimum earnings test for private school teachers to be exempt from overtime:  salaries for these employees must be comparable to those offered to public schools in the same district or county. The new test is effective as of July 1, 2017

 

 

Salon Services

Salon Worker LawBusinesses licensed by the Board of Barbering and Cosmetology (BBC) are required to post notices regarding wage and hour laws and workplace rights as of July 1, 2017, under Assembly Bill 2437.

Another new law (Assembly Bill 2025) will require BBC schools to provide basic labor law education to license applicants.

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
Sep202016

Employers' Legislative Update: Governor Brown Signs New Bills

Wage and Hour Defense Attorney

 

by Sue M. Bendavid & Tal Burnovski Yeyni

 

Tis the season for new laws in California and not all of it brings good tidings and cheer for employers.

Recently, Governor Jerry Brown signed several state Assembly and Senate Bills affecting those who employ domestic staff; agricultural workers; teachers; etc. Most companies with employees (or individuals with domestic staff) in California will be affected.

Here’s the current employment law update:

SB 1015 – Domestic Work Employees: Labor Standards

Previously, employees that worked as personal attendants were exempt from overtime and other wage and hour rules.

On January 1, 2014 the Domestic Worker Bill of Rights went into effect and provided that a “domestic work employee who is a personal attendant” is eligible for overtime at one and one-half times the employee’s regular rate of pay if the employee works more than nine hours per day or more than 45 hours per week. The Domestic Worker Bill of Rights was to be in effect until January 1, 2017 – at which time the legislature will decide whether to renew it.

SB 1015 deletes the repeal date, which means that the Domestic Worker Bill of Rights will remain in effect indefinitely.  

AB 1066 – Agricultural Workers: Wage, Hours, and Working Conditions

Federal, state and local laws require employers to comply with wage and hour rules and pay non-exempt employees overtime and minimum wage – and to comply with meal and rest break rules.

Currently, Wage Order 14 sets different standards for overtime for agricultural employees (e.g., 1.5 times the employee’s regular rate of pay for hours worked beyond 10 hours per day and for the first eight hours or the 7th consecutive day of work; two times the employee’s regular rate of pay for all hours worked over eight on the 7th consecutive day.)

AB 1066 added sections 857 through 864 to the Labor Code which creates new overtime standards for agricultural employees (“under the same standards as millions of other Californians”), on a gradual basis: 

The Governor is authorized to suspend a scheduled “phase-in” only if the Governor suspends a scheduled minimum wage increase (SB 3, signed in April). If suspension occurs, all phase-in dates will be postponed by an additional year.

AB 2337 – New Notice Requirement to Employees 

Current law (Labor Code § 230.1) prohibits employers with 25 or more employees from retaliating or discharging employees who are victims of domestic violence, sexual assault, or stalking, for requesting time off to: 

  • Seek medical treatment;

  • Obtain services from a domestic violence shelter or program; or

  • Obtain counseling or participate in safety planning.

This act requires employers to give written notice to new employees regarding the right to take protected time off for the purposes stated above. The notice must also be provided to current employees upon request.

The Labor Commissioner will develop a form that employers may use to comply with this notice requirement. The notice will be available before July 1, 2017. Employers are not required to comply with notice requirement until the Labor Commissioner posts the form on the DLSE website.

AB 2230 – New OT Exemption Requirements for Certain Teachers 

Current law provides that individuals employed as teachers at private elementary or secondary academic institutions are exempt from overtime payment requirements if, among others, they earn no less than two times the state minimum wage for full time employment.

This bill will change the salary requirement for the exemption. As of July 1, 2017, an individual employed as a teacher will be exempt if, among other criteria, the employee earns the greater of:

  1. No less than 100 percent of the lowest salary offered by any school district to a person in a position that requires a valid California teaching credential (excluding individuals employed in that position pursuant to an emergency permit, intern permit, or waiver); OR

  2. No less than 70 percent of the lowest scheduled salary offered by the school district or county in which the private elementary or secondary institution is located, to a person who is in a position that requires the person to have a valid California teaching credential (excluding individuals employed in that position pursuant to an emergency permit, intern permit, or waiver).

In effect, AB 2230 ties private school teaching salaries to that of public school teachers – establishing a wage floor that increases with the public sector.

 

Sue M. Bendavid and Tal Burnovski Yeyni are Employer Defense Attorneys 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
May182016

Wage & Hour: DOL Doubles Down on Salary Threshold 

Lawyer for EmployersAttorney for Employers

 

by Tal Burnovski Yeyni

818-907-3224

 

White Collar Overtime ExemptionConsidering all of the political movements regarding minimum wage, equal pay and other wage and hour concerns over the past few years, most employers could read the handwriting on the wall regarding overtime rules. That handwriting has now become official:

The Department of Labor Final Rule regarding the minimum salary level required for the exemption of executive, administrative and professional employees was released today.

In the event of a conflict between federal and state laws, employers must comply with the rule most favorable to employees.  Prior to today’s Final Rule, an employee designated exempt under Federal law must have made at least $455 per week ($23,660 annually). This amount is substantially lower than the minimum salary required for exemption under California law, thus requiring California employers to comply with the state salary level test for exemption.

Here are the key changes: 

  • DOL Final Rule: Effective December 1, 2016, the "standard" salary level will increase to $913 per week (equivalent to $47,476 annually for a full-year employee), nearly double the current federal weekly threshold.  The DOL launched a Frequently Asked Questions page here.


  • California Employers: In this state, the current threshold is $41,600 ($3,466.67 monthly; $800 weekly), so California employers must comply with the higher Federal salary level (for exemption purposes) as of December 1st.  


  • Use of Bonuses to Satisfy the Test: Nondiscretionary bonuses and incentive payments (including commissions) may be used to satisfy up to 10 percent of the standard salary test requirement.

    Moreover, if an employee does not earn enough in nondiscretionary bonuses and incentive payments (including commissions) in a given quarter to retain their exempt status, the DOL now permits a "catch-up" payment at the end of the quarter. If the employer chooses not to make the catch-up payment, the employee would be entitled to overtime pay for any overtime hours worked during the quarter.


  • Automatic Updates: To ensure effectiveness of the salary level test, the DOL will update the standard salary compensation requirements every 3 years, with the first update taking effect on January 1, 2020.


  • Increase in California Minimum Wage Requirements: Note that last month, Governor Jerry Brown signed into law a bill gradually increasing California’s minimum wage to $15.00 per hour by January 1, 2022 (for employers with 26 or more employees).  As the salary level for exemption is an extension of California’s minimum wage (two times the state’s minimum wage), employers must pay close attention to the automatic updates of the DOL and the increase in California’s minimum wage, to determine which salary test they must comply with for the exemption. 

Here’s California’s newly approved Minimum Wage Schedule:  

Wage and hour and other employment laws can become very confusing given how state and federal regulations can trump one another. Employers should seek the advice of experienced employment counsel to stay compliant.

Tal Burnovski Yeyni is an attorney in our Employment Practice Group

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.

LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120