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The New York Times ran an blog article regarding an interview with Select Home Care regarding ways some employers are considering to survive recently enacted and currently pending changes regarding in-home care.  The implementation of AB241 requiring overtime for caregivers in California and soon-to-be-imposed federal regulations requiring overtime for caregivers throughout the nation have employers scrambling to consider how they can keep in-home care affordable and profitable.

The article suggests three alternatives employers are considering:

  1. Raise rates to cover the increased costs, which will mean fewer people will be able to afford in-home care.  Raising the costs will not increase the profit margins, but will result in fewer clients which means companies will have to do more with less.  Companies could hire more workers so the employees each work less hours, but that will reduce the employee’s income and require more managers to oversee the work.  This doesn’t result in more money for the workers, but could help keep the cost to the client down.
  2. Switch employees to independent contractors.  The article makes it seem like this is a viable option, but I have serious doubts this will be an effective solution.  Particularly in California where there are hefty fines for willfully misclassifying an employee as an independent contractor, and given the broad definition of “employer,” under AB241, I don’t recommend this course of action in most cases.
  3. Change the business model to a referral agency.  Referral agencies do not employ the workers, but can still help families locate and hire quality workers.  This could lower the costs for the families because they are not having to pay the profit margins for the caregivers, but it comes with its own sets of risks.  Most likely, the family will become the employer, which means the family needs to understand and comply with the myriad of laws impacting employers and employees.  This can be a daunting concern.

The article quotes a few other industry professionals, and most seem to agree that the first option (raising prices to cover the costs) is the safest route.  I agree.  Hiring more caregivers, each working fewer hours, will help keep the costs down, but can impact the continuity of care.  This is particularly important for clients with Alzheimer’s or dementia.  Instead of having one worker working a 24-hour shift, you’ll end up with two to four workers working shorter shifts.  Financially this is the best option.  I don’t know if this will be the best option for providing quality care to the elderly and disabled.

Governor Brown (CA-D) has taken the position that the best way to deal with the increasing costs is to limit the number of hours the employees work.  That is why his budget proposal does not allow caregivers under the state’s In-Home Support Services program to work more than 40 hours per week.  Of course, Governor Brown hasn’t indicated how the clients will care for themselves during the remaining 128 hours of the week.

There is one last assumption in the article that bears addressing.  All of the sources seem to imply that they can deduct up to 8 hours of sleep time for 24-hour shifts.  Because the California Supreme Court granted review of Mendiola v. CPS Security Solutions, Inc. in the fall of 2013, we cannot guarantee that an employer can deduct for sleep time.  While the federal regulations allow employers to deduct for sleep time, the issue has not been decided in California.  Employers in California that deduct for sleep time may run the risk of having to go back several years to pay for the uncompensated hours of work.

The New York Times blog promises to do a follow-up with Select Home Care to check on their progress.  If you, or someone you know, uses or provides in-home care, you should speak with a knowledgeable employment attorney to understand the rights and obligations imposed by the law.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
East Bay 925-364-4655

Original 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.

The attorneys of Phillip J. Griego & Associates represent employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Possibly not. An employer is obligated to pay an employee for all hours worked. Most Wage Orders in California define “hours worked” as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.”

Several federal court cases have held that “suffered or permitted to work” means only work that is performed “with the knowledge of the employer.” For example, in Forrester v. Roth’s I.G.A. Foodliner, Inc. (9th Cir. 1981) 646 F.2d 413, the court held that “where an employer has no knowledge that an employee is engaging in overtime work and that employee fails to notify the employer or deliberately prevents the employer from acquiring knowledge of the overtime work, the employer’s failure to pay for the overtime hours is not a violation of §207” Id. at 414. “An employer must have an opportunity to comply with the provisions of the FLSA.”

The courts point out that an employer cannot escape responsibility by negligently maintaining required records or by turning its back on a situation, but if the employee “prevents the employer” from acquiring knowledge of the uncompensated overtime, the employer has not “suffered or permitted” the employee to work in violation of the FLSA.

In May 2014, a California Court of Appeal applied this rule to claims under the California Labor Code. See, Jong v. Kaiser Foundation Health Plan, Inc. (2014) 171 Cal.Rptr.3d 874. California courts often look to federal law in interpreting state wage and hour claims. Although the California Supreme Court implicitly endorsed the federal interpretation of hours worked in Morillion v. Royal Packing Co. (200) 22 Cal.4th 575, 585, the specific question presented in Jong was not addressed. At least one federal court decision (White v. Starbucks Corp (N.D.Cal. 2007) 497 F.Supp.2d 1080, 1083) applied the “no knowledge” rule to a California wage claim, but California courts are not required to follow federal interpretation of state laws. To my knowledge, Jong represents the first instance in which a California court specifically held that if an employer does not know an employee worked overtime, the employer is not liable for the unpaid overtime compensation.

There are a number of key facts that allowed the court to conclude the employer had no knowledge of the off-the-clock hours. The plaintiff testified that he was aware that it was Kaiser’s policy to pay for all hours worked and to pay for all overtime hours employees recorded, even if an employee should or could have obtained pre-approval before working the overtime but failed to do so. The plaintiff also testified that he was familiar with the applicable time keeping rules and that he knew how to use the timekeeping system. The plaintiff also signed a document confirming he knew employees were not supposed to work off-the-clock. The nail in the coffin was the fact that the plaintiff testified he did not know whether anyone in Kaiser management was aware he was performing off-the-clock work. The two other named plaintiffs in the case had discussions with supervisors about working off the clock, and the court allowed those cases to proceed to trial.

Jong emphasizes the importance of having policies that prohibit off-the-clock work and require employees to record all hours worked. The case also confirms the importance of ensuring the employer knows about all hours worked. If an employee is going to bring a claim for unpaid wages, the employee needs to ensure that a management employee knows the employee is working off-the-clock.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
East Bay 925-364-4655

Original 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.

The attorneys of Phillip J. Griego & Associates represent employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

If you live in the San Francisco Bay Area and work for an employer with 50 or more full time employees, the answer will soon be yes.  Unfortunately, many employers have not heard about this new requirement and may be out of compliance.

According to the Bay Area Quality Management District, “Transportation is the largest source of air pollution in the [San Francisco] Bay Area, and commute travel accounts for nearly half of total motor vehicle travel on an average weekday.”  In order to help combat air pollution and commuter traffic, in 2012 the California legislature passed SB 1339.  SB 1339 authorized the Bay Area Air Quality Management District (Air District) and the Metropolitan Transportation Commission (MTC) to jointly adopt a regional commute benefit
program to promote the use of alternative commute modes such as transit, ridesharing, bicycling, and walking.

Unbeknownst to many in the Bay Area, the Air District and MTC adopted regulations that require employers with 50 or more full-time employees in the San Francisco Bay Area to provide commuter benefits to its employees.  Employers must offer one of the following commuter benefits:

  • Allow employees to exclude their transit or vanpooling costs from taxable income;
  • Provide a transit or vanpool subsidy to reduce or cover employees’ monthly transit/vanpool costs;
  • Provide a low-cost or free shuttle, vanpool or bus service, operated by or for the employer; or
  • Provide an alternative commuter benefit that would be as effective as the other options in reducing drive-alone commuter trips (and/or vehicle emissions).

It appears the only no- (or at least low-) cost option is to allow employees to exclude their transit or vanpooling costs from taxable income.  This option requires the employer to set up a section 132 plan allowing the employee to make a pre-tax payment for commute costs (similar to an HSA or Flexible Spending Account for health benefits).  Employers will likely incur some administration costs to set up and maintain the 132 plan.  Employers can check with their existing payroll companies about setting up a commuter benefits plan.

To comply with the Program, employers must select one (or more) of four commuter benefit options, notify employees about how to take advantage of the benefit, and register with the Program  by September 30, 2014.  Employers can contact the Air District at commuterbenefits@baaqmd.gov for questions or comments.

Many employers do not even know they will be required to offer these benefits.  Employers should not wait until the last minute to choose an option, as it may take time to set up whichever option the employer chooses.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
East Bay 925-364-4655

Original 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.

The attorneys of Phillip J. Griego & Associates represent employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

 

When settling an employment claim, many employers insist upon a confidentiality clause.  The clauses vary, but oftentimes provide for liquidated damages or the return of the settlement payment if the person discloses the existence or amount of the settlement agreement.  So how enforceable are those agreements?  According to a story by the Palm Beach Post, one Florida teen’s Facebook post cost the father his $80,000.00 settlement.

According to the article, Patrick Snay settled his age discrimination case against his former employer, Gulliver Preparatory School in Miami.  The settlement agreement included a confidentiality clause.  Upon learning of the settlement, Mr. Snay’s daughter posted the following on her Facebook page: “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”  When the school learned about the post, they accused Mr. Snay of violating the confidentiality clause and refused to pay the settlement.

Snay won an early victory to enforce the agreement, but the school appealed the decision and won.  Mr. Snay could appeal again, but there’s no guarantee he’ll get the money back.

The moral of the story: If you sign an agreement promising not to disclose something, keep your mouth shut.  Perhaps even more importantly, know that what you post online may come back to bite you.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
East Bay 925-364-4655

Original 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.

The attorneys of Phillip J. Griego & Associates represent employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

 

Some employees want to work longer hours each day in exchange for working fewer days per week.  These “alternative workweeks” are permissible, provided the employer follows prescribed methods of adopting and implementing the policies.  The most common alternative workweek situation allows employees to work four ten-hour days without receiving overtime.  Without the alternative workweek policy, the employee would be entitled to two hours of overtime every day. With a proper alternative workweek agreement, the employee can work the schedule without the employer incurring overtime pay.

Many alternative workweek agreements are invalid because employers fail to follow the appropriate procedures for adopting the policy or they fail to notify the Labor Commissioner about the policy.  To be enforceable, an alternative workweek agreement must comply with the following:

(1)           The employer must present a written schedule available for the employees (this can be one option or several options from which the employees can choose).

(2)           Employees can submit alternatives to the employers options with the employer’s approval;

(3)           The written schedule must specify the number of days and amount of hours offered (the actual days do not have to be specified);

(4)           There must be at least two (2) consecutive days off during the week;

(5)           If the employees elect an alternative workweek, they can switch between the various alternative workweeks offered by the employer;

(6)           Each workday must consist of at least four (4) hours but not more than ten (10) hours;

(7)           The employer must inform the employees what effect the alternative schedules will have on wages and benefits;

(8)           If more than 5% of the workforce does not speak English, the notice of available schedules must also be in the language of that portion of the workforce;

(9)           The employees must meet at least 14 days before they vote on the alternative workweek and the employees must be given advance written notice of the meeting;

(10)        If all employees cannot attend a single meeting, the employer must hold multiple meetings;

(11)        The employer must mail a copy of the disclosure to any employees who could not attend the meeting;

(12)        The ballot must be all affected employees;

(13)        The “affected employees” can be limited by division, department, job classification, shift, separate location or recognized subdivision of a work unit;

(14)        The vote must carry by a 2/3 approval;

(15)        The ballots must be confidential (i.e., no names or employee ID)

(16)        The election must occur during work hours at the worksite;

(17)        The vote cannot be used to retroactively allow an alternative workweek;

(18)        The results of the election must be filed with the Labor Commissioner within 30 days of the election (do not send the ballots).  The results can be mailed to:

Division of Labor Statistics & Research,

Attn: Alternative Workweek Election Results

P.O. Box 420603

San Francisco, CA 94142

(19)        The Labor Commissioner must receive the following:

  • Company name, phone, address and contact person;
  • Date of the election
  • Election results summary
  • Description of alternative workweeks from the election
  • Statement that the election was by secret ballot, written, and passed by a 2/3 vote

(20)        The employer cannot require employees to work the new work hours for at least 30 days after the announcement of the final election results – The regulations do not appear to prohibit allowing an employee to work the alternative workweek if they voluntarily choose to do so.

When deciding whether to adopt or offer an alternative workweek, the employer should consider:

  • What schedule(s) did you have in mind for the alternative workweek?  (i.e., hours, days, etc.)
  • Do you want to offer more than one option?  (i.e., four 9-hour days and one 4-hour day, plus four 10-hour days)
  • Will employees be able to choose not to work an alternative workweek?
  • Do you want to allow employees to submit alternatives to your options?
  • Will each employee get at least 2 days off?
  • What effect will the alternative workweek have on wages & benefits? (consider how vacation accrues, eligibility for health benefits)
  • What percentage of your workforce does not speak English? (if more than 5%, Notice of available schedules must be provided in their language)
  • Will all employees be able to attend a single meeting to discuss the proposed schedule? If not, how can all employees have a chance to meet?
  • Which employees will be “affected”?
  • How are you going to ensure the ballots are confidential? (use drop box and form)

If an employer adopts an alternative workweek wherein the employee is scheduled to work ten hours per day and the employee actually works more than ten hours, the employer must pay one and one-half times the employee’s regular rate of pay for all hours in excess of the alternative workweek schedule.  Additionally, if an employee works more days than scheduled under the alternative workweek agreement, the employer must compensate the employee at the overtime rate even if the employee works less than forty hours during the week. Employees are still entitled to double time for hours in excess of twelve hours per day.

You can search the Labor Commissioner’s database for employer names to find out if the employer has registered a valid alternative workweek election.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
East Bay 925-364-4655

Original 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.

The attorneys of Phillip J. Griego & Associates represent employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Am I Entitled to Holiday Pay?

With President’s Day coming up next week, I thought it would be a good time to answer and oft-asked question: Does the law require employers to pay employees for holidays?  In most cases, the answer is no.  Neither California nor federal laws require employers to pay employees for holidays, or to pay them a higher rate for holidays.  Some union contracts or public employment situations may require paid holidays, but otherwise it is up to the employer to decide whether it will offer paid holidays.

If an employer’s policies provides for paid holidays, however, then the employer is required to pay employees according to the employer’s policies.  Some employers offer paid holidays or pay a higher rate on holidays because it is one way to reward employees who have to miss time with their family in order to help the company meet its deadlines.  Other employers realize that if they want to attract and retain qualified employees, you can’t make them work on Christmas Day without some sort of premium pay (I’m talking about you, Ebenezer!).

Employer handbooks should identify the specific holidays the employer will observe (either by date or title), and explain whether employees will be paid a higher rate if they work on the holiday and the rate at which employees will be compensated for the holidays.  If you haven’t updated your handbook recently, now is an excellent time to review it with a qualified professional to ensure your policies are up to date.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
East Bay 925-364-4655

Original 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.

The attorneys of Phillip J. Griego & Associates represent employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

New Year and New Laws

A new year has come, and with it a slew of new laws affecting employers in California.  The courts and legislature were busy last year.  We created a short summary reviewing some of the more significant changes that will impact employers in 2014

Enjoy the reading, and we hope you have a great 2014!

Located in San Jose, California, the employment law lawyers of Phillip J. Griego & Associates, provide quality legal representation for both the employee and the employer. The firm was founded by attorney Phillip J. Griego in 1987, and its employment law attorneys have over 50 years combined experience in labor relations and litigation.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
East Bay 925-364-4655

Original 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.

The attorneys of Phillip J. Griego & Associates represent employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

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