Robert Nuddleman has accepted an opportunity with Sayar Fausto LLP in Los Altos. We have enjoyed Robert’s assistance over the last 9 years and wish him luck in his new venture. Robert has created a new blog post at:
Phil Griego will continue to post at this blog.
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Posted by Phil
Jessica Hawthorne, an employment attorney with the California Chamber of Commerce, has some good suggestions regarding holiday parties and preventing sexual harassment lawsuits.
As holiday decorations start to go up around the office and everyone is full of seasonal cheer, many businesses may find that work parties, along with a more relaxed environment, can lead to sexual harassment claims.
Much too often especially if the event is off-site and the alcohol flows freely the office holiday party becomes a breeding ground for this sort of behavior. It seems that some employees can get the impression that professional behavior isn’t necessary at the festivities.
But that’s not the case. If its a work-sponsored event, workplace etiquette applies. And unfortunately for employers, liability can be the unexpected Christmas delivery if things aren’t handled properly.
Every year, claims and lawsuits over sexual harassment problems cost companies millions of dollars. In 2007, for example, the Equal Employment Opportunity Commission received nearly 25,000 sex-discrimination complaints and fined businesses more than $135 million for violating these workplace protections, the highest level since 2002.
But businesses can protect employees against legal turmoil by taking simple steps to prevent harassment from occurring at the office holiday party or anywhere else:
Advise employees of all relevant policies, such as harassment, dress code and appropriate workplace behavior.
Make sure all supervisors have received sexual harassment training.
Make sure everyone knows how to report unwanted or unwelcome behavior.
Remind all employees that the company’s sexual harassment policies will be in full force and effect during the event.
Despite training and preparation, sexual harassment claims could arise, so employers should also be aware of how to mitigate the situation. Its important to act swiftly if there are any complaints to determine what happened and how best to deal with the claim. That way, you will have done your harassment prevention due diligence if any legal situation arises later.
The best way to accomplish this and follow California law is to conduct proactive employee training and awareness against all forms of harassment.
All organizations, and that includes businesses, government agencies and non-profits, with 50 or more employees are required to train all supervisory personnel in sexual harassment prevention. Employers must prove that all of these employees take an interactive, two-hour harassment prevention course within six months of hire and every two years thereafter.
So keep in mind that while sexual harassment prevention is relevant all year round, now is a good time to give your office a refresher course. Your business should enjoy this festive time of year by keeping employees aware and preventing sexual harassment before it starts.
Jessica Hawthorne is an employment attorney the California Chamber of Commerce.
Phillip J. Griego & Associates 95 South Market Street, Suite 520 San Jose, CA 95113 Tel. 408-293-6341Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.
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Discrimination, Harassment or Retaliation, Policies & Best Practices, Seminars | 
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Posted by Phil
Effective Jan. 1, 2009, the standard mileage reimbursement rates for car be reduced from the current 58.5 cents to 55 cents per mile for business miles driven. Recent DLSE and court decisions make it clear that employers can comply with their expense reimbursement requirements (see Labor Code Section 2802) by following the IRS guidelines.
Employer’s policies can be updated when the IRS updates its regulations, or the employer can simply say they will reimburse mileage at the current IRS rates. Reimbursing employees at a lower rate can subject the employer to a claim that the employer did not fully reimburse the employee for expenses incurred in the discharge of their duties. Failing to fully reimburse employees for work-related expenses may require the employer to pay interest and attorneys’ fees incurred in recovering the underpaid expense.
Phillip J. Griego & Associates 95 South Market Street, Suite 520 San Jose, CA 95113 Tel. 408-293-6341Original article by Robert E. Nuddleman of Phillip J. Griego & Associates
Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.
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New Laws, Policies & Best Practices, Wage & Hour | Tagged: 2802, expense, indemnification, indemnify, IRS rate, labor code, mileage | 
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Posted by Phil
Jennifer asks:
My employer just announced today that they will be closing the office the week of Thanksgiving, November 24-28. The 27th and 28th were already scheduled as holidays. I am a salaried exempt employee and thus, always get paid for the day after Thanksgiving while hourly employees in the office do not receive pay for this day. With today’s announcement, I was informed that exempt employees would not be paid for Nov. 24-26 and would have to use our PTO. Does the company have the right to do this or am I to get these days off with pay?
The quick answer is: No. As discussed in prior articles, employers do not have to pay exempt employees any part of their salaries if the employees do not perform any work during a full workweek. In order to avoid having to pay a full week’s salary for weeks when the employees only work a partial workweek, some employers simply close down for a full week. Employees can, of course, use any accrued PTO or vacation, but the employer is not required to pay the employee’s salary because the employee does not perform any work during the workweek.
Phillip J. Griego & Associates 95 South Market Street, Suite 520 San Jose, CA 95113 Tel. 408-293-6341Original article by Robert E. Nuddleman of Phillip J. Griego & Associates
Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.
Leave a Comment » | Policies & Best Practices, Wage & Hour | Tagged: California, exempt, holiday pay, minimum wage, office closing, overtime, plant closing, San Francisco, San Jose, Silicon Valley | Permalink
Posted by Phil
Another appellate court decision was issued today regarding whether an employer is obligated to ensure employees take required meal and rest breaks. In Brinkley v. Public Storage, Inc. (B20513), the Second Appellate District rejected the employee’s argument that employers must force employees to take meal and rest breaks. The court adopted the arguments previously set forth by several federal court cases as well as the now-famous Brinker case. The Supreme Court recently granted review of the Brinker case, which left many employers wondering what they should do. For now, at least, employers may be able to breath easy once again.
Public Storage took some well-advised steps that helped them defeat the employee’s claims. The employee handbook specified that employees were required to take rest and meal breaks. The company held a district meeting wherein it informed employees that they were required to take breaks and reprimanded employees who did not take required breaks.
Employers can still be held liable if they create a work environment that discourages or makes it difficult for employees to take meal or rest breaks. See, e.g., Cicairosv. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949.
The court also rejected the employee’s claim that an inadvertent error on the paystub subjected the employer to penalties under Labor Code Section 226. The employer avoided penalties because (1) the error was inadvertent and corrected when discovered; and (2) the employee did not suffer any injuries. The court noted that the defendant met its burden of production by filing a declaration stating that the misstatement was inadvertent and, when discoveered, corrected. The burden then shifted to the employee to produce evidence that the conduct was “knowing or intentional.”
A copy of the Brinkley case can be downloaded here.
Phillip J. Griego & Associates 95 South Market Street, Suite 520 San Jose, CA 95113 Tel. 408-293-6341Original article by Robert E. Nuddleman of Phillip J. Griego & Associates
Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.
Leave a Comment » | Policies & Best Practices, Wage & Hour | Tagged: 226, 226.7, Bay Area, California, labor code, meal break, pay stub, penalties, penalty, rest break, San Jose, San Mateo, Santa Clara, Silicon Valley | Permalink
Posted by Phil
EG asks:
If I’m not satifsied with the outcome of my DFEH complaint what is the next step?
If the DFEH makes a determination that they have not been able to find sufficient evidence that the employer violated the law, the DFEH will close the file and issue a Right to Sue Notice. The Right to Sue Notice allows the employee to file a lawsuit in court. The employee has one year to file the lawsuit in most cases. Failure to file the lawsuit within the applicable time frame will bar the employee from pursuing the claim in court. There may be additional claims that have different statutes of limitations.
Proceeding with a lawsuit in court should only be done after careful consideration and is best done with the assistance of an attorney. While an individual can represent himself/herself without an attorney, I do not recommend filing a court case without an attorney competent to handle the case. I know of more than one meritorious case that has been lost because an employee decided to forego hiring an attorney. If you cannot locate an attorney willing to handle your case, that may be an indication regarding the likelihood of being able to prevail in a court of law.
Phillip J. Griego & Associates 95 South Market Street, Suite 520 San Jose, CA 95113 Tel. 408-293-6341Original article by Robert E. Nuddleman of Phillip J. Griego & Associates
Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.
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Posted by Phil
On September 30, 2008, Governor Schwarzenegger signed AB 10 which modifies Labor Code Section 515.5 – the statute that exempts computer software field employees from the overtime requirements of California law. Last year the “Governator” signed SB 929 which reduced the hourly rate computer workers must earn in order to be exempt from the overtime regulations of California law from $49.77 per hour to $36.00 per hour. Prior to passing AB 10, employers could pay computer software workers $36.00 per hour or the salary equivalent: $74,880.00. The new law, which is effective immediately, requires employers to either pay the $36.00 per hour rate or a salary of $75,000.00 per year, in no less than monthly payments of $6,250.00 per month.
I’m not sure why the Governor would sign a bill that requires employers to pay computer software workers $220.00 more per year than previously required. As with the hourly rate, the Labor Commissioner will continue to increase the minimum salary for computer workers each year based on the California Consumer Price Index for Urban Wage Earners and Clerical Workers.
Phillip J. Griego & Associates 95 South Market Street, Suite 520 San Jose, CA 95113 Tel. 408-293-6341Original article by Robert E. Nuddleman of Phillip J. Griego & Associates
Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.
Leave a Comment » | Hiring, New Laws | Tagged: Computer, exempt, exemption, hourly rate, New Laws, overtime, salary | Permalink
Posted by Phil
I didn’t come up with the title … Congress did. In 1945 Congress enacted a new law declaring the first week in October “National Employ the Physically Handicapped Week” to educate the American public about issues related to disability and employment. In 1962, the work “physically” was removed to acknowledge the employment needs and contributions of individuals with all types of disabilities. In 1988, Congress expanded the week to be a montha dn changed the name to National Disability Employment Awareness Month.”
Under the Americans with Disabilities Act and the Fair Employment and Housing Act, employers are required to provide reasonable accommodations to individuals with disabilities unless the accommodation would create an undue hardship. If an employer knows, or should know, that an employee requires an accommodation, the employer must engage in an interactive process of determining what, if any, reasonable accommodation will enable the employee to perform the essential functions of the job. Failing to engage in the interactive process can subject the employer to liability. Conversely, if the employee fails to to engage in the interactive process the employee may destroy an otherwise viable discrimination claim.
Accommodating employees or obtaining an accommodation from an employer is sometimes not an easy task. Each party bears responsibility and the process works best when the employer and the employee work together. Because this is an area of increasing litigation, both parties should educate themselves regarding their rights and responsbilities.
Phillip J. Griego & Associates 95 South Market Street, Suite 520 San Jose, CA 95113 Tel. 408-293-6341Original article by Robert E. Nuddleman of Phillip J. Griego & Associates
Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.
Leave a Comment » | Disability Discrimination and Failure to Accommodate, Medical Leaves of Absence, Policies & Best Practices | Permalink
Posted by Phil
Our office is teaming up with Dan Powers (COO of McEwan & Associates) and Meriwest Credit Union to conduct an educational seminar regarding how to protect and build your business. The presentation is part of Meriwest’s Business Banking Educational Seminar series.
Dan Powers will be talking about Four Ways to Grow Your Business.
Phil Griego & Robert Nuddleman will be talking about the Top 10 Honest Mistakes Employers Make.
There is no charge for the seminar and light refreshments will be served. It promises to be an enjoyable and educational evening.
The presentation will be held at 5:30 p.m. on September 25th at the Downtown San Jose Financial Center (1 North First Street, Suite 120)
Anyone interested in attending should contact Kelly Nyugen, Downtown San Jose Financial Center Manager, at (408) 365-6392. Space is limited, so RSVP early.
You can download a flyer for the event here: 10-4-on-9-25.
Leave a Comment » | Hiring, Policies & Best Practices, Seminars | Tagged: avoiding business mistakes, credit union, Employment Law, grow your business, medical leave, overtime, seminar, termination, top employer mistakes, unemployment insurance, wage and hour | Permalink
Posted by Phil
The California Supreme Court issued a decision today wherein it held that a general release of claims does not encompass non-waivable statutory protections under Labor Code Section 2802.
Raymond Edwards II was hired as a tax manager by Arthur Andersen LLP. After some problems with the government, Andersen started selling off its practice groups to various entities. Edwards’ group was scheduled to be purchased by HSBC USA, Inc.
In order to accept employment with the new company, Edwards was asked to execute a Termination of Non-Compete Agreement (”TONC”). The TONC contained a fairly typical clause releasing Anderson from any liability related to Edwards’ employment. Edwards refused to sign the release. As a result, Andersen terminated Edwards.
Edwards filed suit claiming the original non-compete agreement violated Business and Professions Code Section 16600. Edwards also claimed that the TONC’s release of “any and all” claims violated Labor Code Sections 2802 and 2804. Labor Code Section 2802 requires an employer to indemnify its employees for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer. Labor Code Section 2804 voids any agreement to waive the protections of Labor Code Section 2802 as against public policy.
Although the release did not specifically mention Edwards’ rights to indemnification under Labor Code Section 2802, the lower appellate court found that the broad general release unlawfully release claims under Labor Code section 2802. The Supreme Court reverse that portion of the appellate court’s decision because (1) the release did not expressly reference indemnity rights and courts should not read language into a contract that does not exist; and (2) a contract provision “releasing ‘any and all’ claims . . . does not encompass nonwaivable statutory protections, such as thje employee indemnity protection of section [sic] Labor Code 2802.”
The Supreme Court also held that Andersen’s original non-compete agreement was invalid. The original non-compete agreement prohibited Edwards from “performing professional services of the type he had provided while at Andersen, for any client on whose account he had worked during 18 months prior to his termination.” The non-compete agreement also prohibited Edwards from providing professional services to any client of Andersen’s Los Angeles office. The Supreme Court found that the non-compete agreement “restricted Edwards from performing work for Andersen’s Los Angeles clients and therefore restricted his ability to practice his accounting profession,” and was therefore invalid.
In doing so, the Supreme Court refused to adopt a “narrow-restraint exception” to Business and Professions Code Section 16600. Several Ninth Circuit cases adopted a narrow-restraint exception to uphold non-compete agreements that barred one party from courting a specific named customer or a limited number of customers. Today’s Supreme Court decision rejected any such exception, finding the language of Business and Professions Code 16600 unambiguous.
Phillip J. Griego & Associates 95 South Market Street, Suite 520 San Jose, CA 95113 Tel. 408-293-6341Original article by Robert E. Nuddleman of Phillip J. Griego & Associates
Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.
1 Comment | Non-Compete, Wage & Hour | Tagged: 16600, business and profession code, expenses, indemnification, indemnify, labor code, Non-Compete, noncompete | Permalink
Posted by Phil
