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Entries in wage and hour (16)

Wednesday
Apr132016

California Wage & Hour: Employer Q&A

Wage and Hour DefenseEmployment Litigation Defense

by Sue M. Bendavid

818.907.3220

 

Recently, the California Labor Commissioner cited a residential care provider for multiple wage theft violations, including for failure to pay minimum wage and overtime.

Wage Theft DefenseAs a result of the Labor Commissioner’s investigation the company was found to owe approximately $192,000 in pay. However, in addition to back wages, this particular employer will have to pay nearly $450,000 because of penalties, interest, liquidated damages and other fees.

The lesson for all employers is this:

Ensure proper payment of all wages now, or double (or perhaps triple) the costs later.

So what can employers do to stay compliant and reduce the risk of wage claims? Here’s a Q&A regarding some of the bigger pitfalls in timekeeping and payroll.

 

Payroll & Timekeeping FAQs

Q:  When should an employer change an employee’s time entries?

 

A:   An employer should change an employee’s time records when the employee forgets to record his or her start or end time or meal period on a timesheet or time clock. Further, an employer can record an employee’s work time if the employee is out sick, on vacation, or absent on some other form of time off.

If the employee forgets to clock in or out, or record a meal period, the employer may enter the actual in or out time to ensure the employee is paid correctly. If an employee is out sick or out for some other form of time off, the employer can change the time record to show the reason for the time off. 

Important: Employees should initial any changes to their timecards to confirm they are accurate.

 

Q:  What are some of the common mistakes employers make when tracking time?

 

A:  Don’t assume an employee only works 8 hours a day or 40 hours in the week or takes a 30-minute or 1-hour meal break each day, regardless of the hours the employee was scheduled to work or the Company’s meal break policy or practice.

An employer may not change a time record to show fewer hours than actually worked. For example, an employer may not reduce an employee’s time record from 10 hours in a work day to 8 hours to avoid overtime payment. This is true even if the employee consents to the change.

If an employee wants to take personal time off during a particular day and make up the time later in the same week, consider whether the “makeup” rules can apply.  If done correctly these rules can allow an employee to work up to 11 hours in a workday (3 hours of makeup time) without triggering overtime, as long as the employee does not work more than 40 hours in a workweek).

 

Q:  What are some of the potential claims if the employer fails to accurately pay an employee?

 

A:  Under California law, if an employer does not pay an employee correctly, they can expect to see some or all of the following claims: 

  • Failure to pay minimum wage (for off the clock work/hours that may not have been recorded on time records)

  • Failure to pay wages for hours worked

  • Failure to pay overtime

  • Waiting time penalties (up to 30 days wages)

  • Paystub violations (up to $4,000 in penalties or damages)

  • Failure to keep accurate records

  • Penalty claims under the Private Attorneys General Act (PAGA)

  • Liquidated damages

  • Missed Meal Break Penalties (one additional hour of pay per day missed)

  • Missed Rest Break Penalties (one additional hour of pay per day missed)

  • Violation of Business & Professions Code Section 17200 (restitution and injunctive relief)

  • Interest

  • Attorneys’ fees

  • There is risk of both civil and statutory penalties under various Labor Code provisions.    

Not only is the employer potentially liable, there is a recent move to try and hold individuals liable for penalties (against those who caused the violations to occur).

 

Q:  What is the statute of limitations on these claims?

 

A:  Under California Business & Professions Code Section 17200, employees can assert various wage claims going back up to four years. This includes claims for wages, meal breaks, rest breaks, overtime, minimum wage, failure to pay all wages, etc. Some claims go back one – three years, depending on the particular statute at issue.

 

Q:  How can an employer avoid (or at least reduce the risk of) claims?

 

A:  Strict compliance is critical. Employers should minimize unnecessary changes to time records, including requiring all employees to accurately record and maintain their own time records. Employers should prohibit changes to time records unless pre-approved and signed off by the employee.

Employers should develop policies prohibiting off-the-clock work, ensure employees are authorized and permitted to take all rest periods and meal periods as required by law, and have employees review, sign and date their own time records each pay period.

All work hours must be recorded, even if the work is performed remotely or before or after regular work hours.

PAGA DefenseEmployers who may be exposed to litigation risk because of previous violations should consider a payroll audit (under the attorney-client privilege) to determine the scope of potential liability. Ensure you have non-retaliation policies in place and inform employees there will be no retaliation if they complain about errors or “wage theft” or raise questions about timekeeping, breaks or pay.

It is also important to analyze classification of workers as independent contractors vs. employees and exempt vs. non-exempt. Non-exempt employees are entitled to overtime premiums. Exempt employees must be paid at least two times minimum wage on a salaried basis. Recent minimum wage increases must be complied with and there are many local minimum wage ordinances to be aware of as well.

Pay stubs must be reviewed to ensure accuracy and compliance with the law.

 

Q:  What documentation would be important when changes are made to time records?

 

A:  When changes are made to a time record, employers should keep the original and create a modified record, or line through the error on the original, make the correction, and have both the employer and employee sign and date the corrected record. The reason for any changes should be noted and signed.

If engaging in a wage audit, enlist the help of an experienced employment attorney.

 

Paying Employees in California

Don’t forget the new laws that went into effect in various metro areas like Los Angeles, as well as new state laws affecting pay, including: 

  1. The Fair Pay Act, ensuring equal pay for all genders.

  2. Senate Bill 3, signed by Governor Jerry Brown earlier this month, SB3 amends the Healthy Workplaces, Healthy Families Act and provides an increase in minimum wage as of January 1, 2017.

  3. The Los Angeles Minimum Wage Ordinance also mandates a minimum wage increase as of July 1, 2016. 

Remember, in cases where a city or county law conflicts with state or federal law, employers should always pay the higher standard.

 

Sue M. Bendavid is the Chair of the Employment Practice Group 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.

Tuesday
Feb102015

Employers: CA Court of Appeal Rules On-Duty Rest Breaks Permitted

Lawyer for EmployerClass Action Defense Attorney

 

by Nicole Kamm

818.907.3235

 

 

 

In late January, a California Court of Appeal issued a ruling in Augustus v. ABM Security Services, Inc., overturning a $90 million award against the company because ABM required its security guards to keep their radios and pagers on during rest breaks, remain vigilant, and respond as needed.

Wage and Hour Law California

The ruling came nearly three years after a trial court certified a class of thousands of current and former security guards, and awarded summary judgment to the plaintiffs following a lengthy legal battle. The lower court held California law requires employers to relieve workers of all duty during rest breaks.

The facts of the case were not in dispute: ABM provided – and security guards took – regular rest breaks. 

Plaintiffs alleged, however, the breaks were not compliant with California law because the guards were required to remain “on-call” during rest breaks.  They contended California law requires employees be relieved of all duties during such breaks.

Rest Breaks Distinguished From Meal Breaks

On appeal, the Court held California law only requires employees be relieved of working during rest breaks.  Contrary to meal breaks – which are unpaid time – the law does not require employees be relieved of being on duty or all employer control during paid rest breaks. 

The Court considered the nature of a rest break, and whether being on-call means performing work, and found that it did not. The Court noted ABM security guards engaged in various activities while taking breaks, including surfing the net, making personal phone calls, etc.  "Admittedly, an on-call guard must return to duty if called to do so, but remaining available to work is not the same as actually working.”

As noted above, the Court distinguished the law regarding California’s meal break requirement and that relating to rest breaks.  While meal breaks specifically require employees be “relieved of all duty,” there is no similar language for the provision of rest breaks.

The Appellate Court reiterated that being on-call does not necessarily mean that employee is performing work, and remaining available to work is not the same as actually working

Employer Takeaway

Prior rulings and Department of Labor Standards Enforcement opinions were contradictory as to the extent of control employers could impose on employees during rest breaks. 

This case provides helpful guidance for employers regarding obligations pursuant to California’s rest break requirements.  Pursuant to this case, employers may not require employees to work, but are not required to relieve employees of all duty, during rest breaks.

 

 

Nicole Kamm is an Employer Defense Attorney experienced in wage and hour and other employee class action law suits. Contact her via email: nkamm@lewitthackman.com or by phone: 818.907.3235 for more information.

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
Dec022014

California's New Sick Leave Law: New Posting & Notice Requirements Effective January 1

Lawyer for EmployerEmployment Defense Attorney

 

 

by Nicole Kamm

818.907.3235

 

 

Big changes await employers in 2015, but even before the New Year begins, employers should add this item to their lists:

Download the new Division of Labor Standards Enforcement (DLSE) poster regarding California’s new sick leave law and Notice to Employee (links below), which now includes required information about paid sick leave. 

 

Employer Compliance

 

The new poster notifies employees of their rights under Assembly Bill 1522, or the Healthy Workplaces, Healthy Families Act of 2014 – which obligates employers to provide most California employees at least one hour of paid sick leave for every 30 hours of work, or no less than 24 hours (three days) per year.

Employers must display the poster in a conspicuous location, i.e. in the break room, near the time clock, etc. Employers may use the template poster or create their own, however self-made posters should make sure to comply with the requirements of the new Labor Code §247.

While an employee’s entitlement to paid sick leave does not go into effect until July 1, 2015, according to the DLSE website, the posting requirement is effective January 1, 2015. Click here to download the new DLSE Paid Sick Leave Poster.

The DLSE also issued a revised "Notice to Employee," which must be given to all non-exempt employees. As required by the amended Labor Code §2810.5, the notice must include information regarding how sick time is accrued and state that an employer may not retaliate against or terminate an employee for using paid sick leave.

In addition to the previous required  information such as name, address, pay, etc., the employer will now need to choose one of four options on page two of the form, indicating:

□ Accrues paid sick leave only pursuant to the minimum requirements stated in Labor Code §245 et seq. with no  other employer policy providing additional or different terms for accrual and use of paid sick leave.

□ Accrues paid sick leave pursuant to the employer’s policy which satisfies or exceeds the accrual, carryover, and  use requirements of Labor Code §246.

□ Employer provides no less than 24 hours (or 3 days) of paid sick leave at the beginning of each 12-month period.

□ The employee is exempt from paid sick leave protection by Labor Code §245.5. (State exemption and specific subsection for exemption):______________.

As with the poster, the revised Notice to Employee must be used for all new hires starting January 1, 2015. Employers who already provide paid sick time will need to review their policies to ensure compliance with the new law. 

Nicole Kamm is an attorney in our Employment Practice Group. Call her direct line: 818.907.3235, or email: nkamm@lewitthackman.com for more information.

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.

Monday
Sep152014

Paid Sick Leave Now Required by Law

Lawyer for EmployerWage and Hour Defense

by Nicole Kamm

818.907.3235

On Wednesday, Sept. 10th, Governor Jerry Brown signed the paid sick leave bill (Assembly Bill 1522) into law. This means that, effective July 1, 2015, California employers, regardless of size, must provide most employees paid sick leave. Eligible employees will be entitled to at least three paid sick leave days per year.

California Employment LawCalifornia is the second state to enact such a law (Connecticut was the first), but AB 1522 – the Healthy Workplaces, Healthy Families Act 2014 – is even more expansive, according to the bill's author, Lorena Gonzalez (D-San Diego):

We become the first state in the nation to guarantee paid sick days for every single private-sector worker in the state — no matter what industry they work in, no matter if they are part-time or seasonal, and regardless of the size of their employer…This means more than 6.5 million more workers in this state will be able to take up to three days off when they or their child is sick without fearing the loss of income, hours or their job.

Paid Sick Days – Employer Responsibilities

Employees who work 30 or more days in a year are now entitled to one hour of paid sick leave for every 30 hours worked. (Employers in San Francisco and San Diego may have to award more days, under certain city ordinances.) Employers may cap annual sick leave use at three days (24 hours) per year; however unused, accrued sick leave must roll over from year to year. The rollover may be capped at six days (48 hours).

Employees may use accrued sick days as of the 90th day of their employment, after which time employees may use paid sick days as they are accrued.

Employers will be able to set a minimum increment for use of sick leave, however the minimum increment cannot be greater than two hours (e.g., employers may not require employees take sick leave in increments of four hours or more).

Employees will not be entitled to pay for unused sick leave on separation of employment. However, a separated employee who is rehired within one year from the date of separation will be entitled to have any accrued, unused sick days reinstated.

Employees will be able to use sick leave for their own illness or preventive care, to care for a sick family member, and/or to recover from certain crimes.

Employers are required to provide written statements of accrued, available sick time on the employee's pay stub, or on a separate written statement provided at the same time as wages. Pursuant to the new law, records documenting hours worked and sick days accrued or used, must be maintained for at least three years; however, we generally recommend employers maintain employment records for at least four years.

Employers will be required to post a paid sick leave poster, to be prepared by the Labor Commissioner. The Labor Commissioner will also issue a revised Wage Theft Notice (Labor Code §2810.5) for all non-exempt employees, which will include information about paid sick leave.

The new law prohibits retaliation against an employee for using sick leave and establishes a rebuttable presumption of retaliation if adverse action is taken against an employee within 30 days of the filing of a complaint with the Labor Commissioner, cooperation with an investigation, or opposition by an employee to a policy, practice or prohibited by this bill.

Employer Take Away

Employers who already provide paid sick leave should review their policies in view of these new requirements to ensure compliance. And employers who currently do not provide paid sick leave will need to review the new law and implement a compliant sick leave policy. Please let us know how we can help you with this process.

Nicole Kamm is an attorney focused on protecting and defending employers.  Contact her via email: nkamm@lewitthackman.com, or via phone: 818.907.3235 for more information regarding sick leave.

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
Sep042014

Employers: Governor Expected to Sign Off on Paid Sick Time for Most Employees

Wage and Hour DefenseEmployee Leave of Absence Claim Defense

by Sue M. Bendavid

818.907.3220

 

California lawmakers voted 52-25 to pass Assembly Bill 1522. Written by Lorena Gonzalez (D-San Diego), the bill would entitle most employees in California three days of paid sick leave to care for themselves, or for a family member. Governor Jerry Brown will more than likely sign the bill, given his official statement:

Tonight, the Legislature took historic action to help hardworking Californians. This bill guarantees that millions of workers – from Eureka to San Diego – won't lose their jobs or pay just because they get sick.

Wage and Hour Law: Sick Time

If or when Governor Brown does sign, the new law enacts the Healthy Workplaces, Healthy Families Act, and will go into effect on July 1, 2015. Here's how it will affect California employers:

  1. Employees who work 30 or more days within a year (part-time employees are also covered) of commencement of employment is entitled to one hour of paid sick time for every 30 hours worked.

  2. Employees will accrue this time beginning on the 90th day of employment.

  3. Employers can minimize paid sick time to 24 hours (or three days) per year.

  4. Employers cannot retaliate against employees who request paid sick days.

  5. Employers must post notices regarding this change in Labor Code.

 

Given that many employers already provide paid sick time, most will just have to post the appropriate notices and update their employee handbooks. But, for those employers who did not provide paid sick leave, this law represents a substantial change. If signed into law, California will be one of the first states to pass a paid sick leave law (Connecticut already has such a law).

The soon-to-be law would exclude some employees (e.g., employees covered under certain collective bargaining agreements). But it will affect restaurants, retailers and other businesses, including those that tend to hire more part-time employees.

Supporters for AB 1522 say about 40 percent of employees in California do not currently earn paid sick leave.

Sue M. Bendavid is the Chair of our Employment Practice Group. Contact her via email: sbendavid@lewitthackman.com or via telephone: 818.907.3220. 

 

 

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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