1. Update Your Handbook

You must now add “gender expression” and “genetic information” to the list of protected characteristics in your EEO and Anti-Harassment policies.

You must now maintain an employee’s health insurance benefits at the same level of benefit during an employee’s Pregnancy Disability Leave.  Handbooks must be modified to reflect the new requirement.

2. Revise or Create Offer Letters & Commission Agreements

All employers must now provide the terms of employment in writing prior to commencing work.  In addition to standard information regarding pay rates, the offer letter must specify overtime rates, the regular paydays, and the contact information for the company’s Workers’ Compensation Carrier.  You will also need to provide written notice when any of the designated items changes.

12/29/11 UPDATE

The Labor Commissioner has drafted a template employers should use to comply with new Labor Code Section 2810.5(a).  You can download the template here.

Beginning January 1, 2013, all employees paid on a commission basis must receive written copies of the commission plan specifying “the method by which commissions shall be computed and paid.” Given the complexity of many commission plans, do not wait until the end of 2012 to contact your employment counsel to review the plan and ensure your bases are covered.

3. Rethink Your Hiring Practices

The penalties for willfully misclassifying employees as independent contractors just went up.  This is an extremely high-risk area; so consult with knowledgeable counsel about your workforce status.

Stop conducting financial background checks on applicants or employees until you speak with knowledgeable counsel regarding revisions to California’s privacy laws.  A new law limits which employers can conduct financial background checks and which employees can be the subject of such background checks.

There are many more laws coming into effect in 2012. If you would like to receive a more detailed review of the changes, please send us an email at update@griegolaw.com with the subject line: “Send me the update.”

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.

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.

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.

“President Obama announces a new rule that will ensure in-home care workers are included in the same minimum wage and overtime protections afforded to other workers under the Fair Labor Standards Act.”

Last year the California legislature failed to pass legislation that would have added substantial burdens to families hiring home workers, including personal attendants or other in-home care providers.  President Obama is taking credit for newly proposed Department of Labor regulations modifying overtime and minimum wage requirements for in-home care workers.  The DOL previously attempted to make similar changes in 1993 and again in 2001, but those rules never became formalized.

A copy of the currently proposed regulations can be downloaded here. To save you the time of having to read the 186-page document, I’ve summarized the proposed changes below.  The new regulations would not take affect until after the public is allowed the opportunity to comment on the proposed changes.

Current regulations provide an exemption from the FLSA for in-home companions.  Like babysitters, the in-home companions care for the elderly or infirm and are typically employed by the household or family as opposed to a third-party employer.  There are a number of regulations defining what a “companion” can or cannot do and still remain exempt from the overtime and minimum wage obligations of the FLSA.  The new regulations make it clear that a companion is someone who provides fellowship and protection, but does not perform general household work.  The legislative history uses the example of a neighbor who comes over to help with grandma or grandpa.

Under the new regulations, an exempt companion can:

• Occasionally help the elderly person get dressed or undressed, but this cannot be a part of the regular duties.
• Occasionally assist the elderly person with grooming including combing and brushing hair, assistance with brushing teeth, applying deodorant or washing face/hands following a meal.
• Assist the elderly person with using the toilet or changing diapers.
• Occasionally driver the elderly person to appointments, but this cannot be a part of the regular duties (the regulations suggest the companion should typically accompany the elderly person using a taxi or public transportation).
• Cook meals so long as the meals are going to be eaten by the elderly person while the companion is there (e.g., no more preparing a week of meals at a time) and is not to be eaten by other members of the household.
• Do some “light laundry” for the elderly person (but not for others), which can include putting clothes in the washer or dryer and assisting the elderly person with putting away or folding the clothes.
• Occasionally assisting with bathing, but this cannot be a part of the regular duties.
• Provide reminders of medical appointments or a predetermined medicinal schedule (e.g., provide pills out of a presorted pill box)

Under the new regulations a companion cannot:

• Do household chores for the benefit of other household members.
• Vacuum, wash windows, dust or other similar “housekeeping” chores.
• Provide medical care such as changing bandages, taking vital signs, evaluating health or other diagnostic or medically-related tasks (pulse, blood sugar, respiration, temperature) – The DOL is requesting comments on whether companions should be allowed to apply band-aids.
• Determine whether prescription medications need to be taken.

The new regulations make it clear that third-party employers (e.g., agencies) cannot take advantage of the exemption.  Even if the if agency is a joint employer with the family/household member, the employee must received federal minimum wage and overtime.  The definition of what constitutes family or household member for the purposes of determining the employer includes “an individual who is a child, niece, guardian or authorized representative, housemate, or person acting in loco parentis to the elderly or infirm individual needing companionship or live-in services.”

The new regulations also change the record-keeping requires for live-in domestic workers.  Currently employers can avoid formal pay records for domestic live-in domestic workers if the parties have an agreement setting forth the agreed upon work hours with notifications for any deviations from the standard hours.  The DOL has determined that such lax record-keeping is no longer sufficient, and that even live-in domestic workers will be required to turn in accurate records of the actual hours worked, and employers are required to maintain those records as specified in the Act.  It is my understanding that companions employed by the family/household, regardless of whether they are live-in companions or not, will not have to keep records of hours worked, but that is not entirely clear.  Companions employed by third-parties will have to keep accurate records of hours worked.

If you are interested in submitting your comments to the DOL regarding the proposed changes, you will eventually be able to log onto www.regulations.gov and search for RIN 12350AA05.  When I searched for it today, it was not available, likely because the regulations are not yet ready for public comment.

If you or someone you know uses, employs or works with companions or other domestic workers, familiarize yourself with the proposed regulations and submit your comments.

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.

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.

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.

The Labor Commissioner has drafted a template employers should use to comply with AB 469.  You can download the template here.

The California legislature has been busy, and Governor Brown has penned his signature on several new laws impacting businesses and employees in California.  AB 469, the Wage Theft Prevention Act of 2011, is just one example.  Effective January 1, 2012, employers must provide new hires with the following information:

• The employee’s rate or rates of pay;

• Any applicable overtime rates;

• Meal, lodging or other lawful allowances to be used against minimum wage;

• The regular paydays;

• The employer’s name and/or DBA’s used by the employer;

• The employer’s main office or principal place of business address, and a mailing address, if different;

• The employer’s telephone number;

• The name, address and telephone number of the employer’s workers’ compensation insurance carrier;

• Any other information the labor commissioner deems material and necessary.

With the exception of the workers’ compensation insurance carrier, most of this information is typically included in a standard offer letter (something that I think is always a good idea).  Employers could be required to provide the same notice to existing employees if there is a change to any of the required policies.  The Labor Commissioner is devising a template employers can use, but that is not expected until mid-December at the earliest.

The Wage Theft Prevention Act also increases a number of penalties, allows recovery of liquidated damages for minimum wage violations before the Labor Commissioner, increases several statutes of limitations and the length of time employers must retain wage records.

If you employ any workers in California, contact your employment attorney to see how AB 469 will impact your business.

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.

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.

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.

The new law requires:

(a) By January 1, 2013, whenever an employer enters into a contract of employment with an employee for services to be rendered within this state and the contemplated method of payment of the employee involves commissions, the contract shall be in writing and shall set forth the method by which the commissions shall be computed and paid.
(b) The employer shall give a signed copy of the contract to every employee who is a party thereto and shall obtain a signed receipt for the contract from each employee. In the case of a contract that expires and where the parties nevertheless continue to work under the terms of the expired contract, the contract terms are presumed to remain in full force and effect until the contract is superseded or employment is terminated by either party.

Commission wages are compensation paid to any person for services rendered in the sale of such employer’s property or services and based proportionately upon the amount or value thereof.  Under the modified statute “Commissions” does not include short-term productivity bonuses such as are paid to retail clerks; and it does not include bonus and profit-sharing plans, unless there has been an offer by the employer to pay a fixed percentage of sales or profits as compensation for work to be performed.

There are no penalties associated with a violation of the newly worded statute, but it could be a basis for suit under California’s Labor Code Private Attorney General Act (PAGA).

If you pay your employees a commission, you must have the commission plan reduced to writing by January 1, 2013.  The contract must state the method of calculating the commission and how it is paid.  Employees must also receive a copy of the executed commission agreement.

Commission plans can be simple or complicated, but many employers forget to include provisions in the commission agreement regarding when the commission is earned (versus when it is paid out), what conditions have to be met to earn the commission, and what happens to unpaid and/or unearned commissions when the employment is terminated.  Failure to consider and include such provisions can lead to costly litigation.

If you have a commission plan at your work, review the plan with knowledgeable counsel to ensure the terms are clear and lawful.

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.

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.

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.

The show segment will be live today from 2:00 to 2:30.  Hope you can tune in.

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.

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.

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.

The Recorder reports that three bills, AB 267, AB 325, and AB 559, are currently sitting before the Governor Brown.

• AB 267 prohibits “choice of law” or “forum selection” clauses in employment contracts if those clauses require the use of non-California law or litigation outside of California.
• AB 325 would allow up to 3 days bereavement leave and would prohibit discrimination against employees who take time off for the  death of a spouse, child, parent, sibling, grandparent, grandchild, or domestic partner.  A successful plaintiff could recover back wages and attorneys’ fees.
• AB 559 would modify a rule denounced by the California Supreme Court (Chavez v. City of Los Angeles, 47 Cal.4th 970) granting courts the authority to limit attorneys’ fees awards when the case could have been brought in limited jurisdiction as opposed to unlimited jurisdiction.

The California Chamber of Commerce and other pro-employer entities oppose these bills, and in the past have successfully defeated similar bills while Schwarzenegger was in office.

Governor Brown has already signed into law the following bills affecting employers and employees in California:

• AB 240 Compensation recovery actions: liquidated damages.
• AB 587 Public works: volunteers.
• SB 117 Public contracts: prohibitions: discrimination based on gender or sexual orientation.
• SB 374 Gambling control: key employee licenses.
• SB 559  Discrimination: genetic information.
• SB 609 Public Employment Relations Board: final orders.

Of course we can’t forget about AB 889 regarding domestic workers, which I’ve discussed before.

If you work or do business in California, especially if you do business on any public works projects, you should familiarize yourself with any new requirements applicable to your industry.

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.

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.

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.

Putting aside the issue of whether personal attendants/caregivers should or should not be entitled to overtime, AB889 broadens the definition of an employer.  Under most wage orders, an employer is anyone who exercises control over the wages, hours or working conditions of the employee. (See Martinez v. Combs.) Court decisions have agreed that corporate officers and directors are not considered employers.  AB889, however, includes corporate officers or executives who directly or indirectly through third parties exercise control over wages, hours or working conditions of employers.  In essence, the bill eradicates the typical corporate shield that is a significant benefit of the corporate structure.

Let’s consider how this broad definition could impact the typical independent contractor relationship most homeowners have with non-caregivers.  I’m talking about the gardener, the roofer, the pool cleaner, etc..  If you, as the homeowner, control the working conditions, then you are the employer.  If you decide on the wages you will pay or what hours the person will come into your home, then you are the employer.  You will not be able to hire a sole proprietor with no employees because otherwise you are arguably controlling the wages, hours and working conditions of the employee.  If you hire a company with employees, then hopefully the company will control the hours and wages, but I’m not so sure about the working conditions.

Additionally, AB889 modifies the workers’ compensation laws to apply to any person who performs any work at or on your home regardless of how long they work at the home.  Labor Code Section 3351 defines who is an employee for workers’ compensation purposes.  Workers’ Compensation laws not only require workers’ compensation insurance coverage for all employees, but also requires employers to provide notice of certain rights under the Workers’ Compensation laws.  Currently, Labor Code Section 3352(h) excludes person employed by the homeowner for less than 52 hours in the 90 calendar days preceding the date of injury from the definition of employee.  AB889 deletes the 3352(h) exemption.  What that means is that you, as a homeowner, will need to carry workers’ compensation insurance for any person providing services to your home, such as gardeners, construction workers, pest control servicemen, cable installers, etc.  You will have to have workers’ compensation insurance for them even if they only come to your house one day for a couple of hours and even if they are covered by their own workers’ compensation insurance.  You will also have to provide them notification of their workers’ compensation rights.

AB889 deletes a similar provision in Labor Code Section 226.  Labor Code Section 226 requires employers to provide itemized pay stubs to all employees.  The pay stubs must have specific information such as hours worked, wage rates, last four digits of the employee’s social security number, etc.  Currently, there is an exemption to that rule for employees employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance or use of the dwelling.  AB889 takes away that exemption.  Like the Workers’ Compensation laws discussed above, that means you will have to provide a pay stub to your gardener, cable installer, home improvement contractor, etc.

Regardless of which side of the aisle you are on regarding overtime entitlements for caregivers, the other changes proposed by AB889 create a significant burden on everyone, overly broadens the definition of employer, and imposes unwieldy requirements in situations that do not need reform.  I encourage you to read the bill.  Talk about the issue with your friends, families and co-workers, and come to your own conclusions regarding whether this bill is the appropriate way to resolve the problems.  Then, write your representative and let them know your thoughts.  That’s what I’m going to do.

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.

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.

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.

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.

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.

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.

I represent a number of clients in the home caregiver industry – both employers and employees – and I have mixed feelings about the bill.  The bill will require homecare agencies to obtain licenses to provide in-home care.  The owners of the businesses as well as the employees must undergo criminal background checks and annual TB testing.  The employees must received two-hours of mandatory training every year in areas pertinent to their industry, and they must receive annual performance reviews that include on-site observations by the employer.  Several of my clients already conduct background checks and medical testing as well as conduct regular performance reviews, which I think just makes good business sense.  I have my doubts regarding the efficacy and efficiency of adding a layer of bureaucracy to running the business and suspect the bill will do little to stem “underground caregivers” from working with/for homeowners.

According to Assemblymember Ammino’s website:

[T]he bill seeks to remove the exclusion of domestic workers from all rights provided to all California workers under Wage Order 15. The current exemptions for domestic workers are confusing and leave well-meaning employers vulnerable to liability. AB 889 sets industry-wide standards that will help keep the industry above-ground.

I agree that the current exemptions for domestic workers are confusing and need to be revised, but I don’t think this bill helps the situation.  The bill does nothing to assist “well-meaning employers” or to fix any of the vulnerabilities they face.  I doubt the “industry-wide standards” that it sets will help keep the industry “above-ground,” and suspect it will have the opposite effect.  Assemblymember Ammino’s premise that domestic workers are excluded “from all rights provided to California workers under Wage Order 15″ is simply incorrect.

If you, or someone you know, work in the in-home caregiver industry, or if you have a family member that receives care from an in-home caregiver, I highly recommend you read the bill thoroughly.  Do not rely solely on the rhetoric pronounced in various websites regarding the bill, because I have seen arguments for and against the bill that are just plain incorrect.  Like any political issue, talk about the bill with other interested parties and make an informed decision regarding whether this bill will improve the situation or make it more difficult.  Then, write to your representative expressing your opinion.  That’s what I’m going to do.

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.

Many employers used this exception to fit the realities of the job.  If an employee was regularly scheduled to work 50 hours per week, the employer and employee would agree the employee would receive $8.00 per hour for the first 8 hours per day & 40 hours per week, and $12.00 per hour for any hours in excess of 8 per day or 40 per week.  Employers could then pay a set salary without violating the overtime requirements, so long as the employee did not work more than the amount set forth in the explicit mutual wage agreement.

This also had the added benefit of lowering the employee’s regular rate of pay.  If a non-exempt employee is paid a salary without an explicit mutual wage agreement then the employee’s regular rate of pay is calculated by dividing the weekly salary by 40 (the maximum regular hours the employee could work) instead of the total hours worked.  This sometimes resulted in a higher regular hourly rate than the parties contemplated.

The legislature later modified Labor Code Section 515(d) to state: For the purpose of computing the overtime rate of compensation required to be paid to a nonexempt full-time salaried employee, the employee’s regular hourly rate shall be 1/40th of the employee’s weekly salary.

The Labor Commissioner opined that this modification eliminated the “explicit mutual wage agreement” exception to the general rule.  According to the Labor Commissioner, a non-exempt employee who is paid a fixed salary is paid nothing for the overtime hours even if the employer and employee had an explicit mutual agreement that the salary would cover the regular hours and overtime hours.

A California Court of Appeal disagrees with the Labor Commissioner.  In Arechiga v. Dolores Press, Inc. (11 C.D.O.S. 1733), the employer and employee agreed to pay the employee $11.14 per hour for the regular hours worked and $16.71 for the overtime hours, and that the employee would regularly work 66 hours per week for a weekly salary of $880.00.  Relying on the Labor Commissioner’s position, the employee brought suit claiming the $880.00 only compensated the employee for the first 8 hours in a day and the first 40 hours in a week.  The Court of Appeal reaffirmed that the Labor Commissioner’s manual is entitled to no deference, and upheld the parties’ right to negotiate a weekly salary based on a specified agreed hourly rate.

There is no word yet whether this decision will be appealed, or if appealed what the Supreme Court might do.

I expect many employers may take the opportunity to modify their payment arrangements with their employees because Arechiga may help significantly limit exposure.  Employers should be sure to enter into an explicit mutual wage agreement before the work is performed.  As in most cases, the employer should also put the agreement in writing.  We highly recommend consulting with attorneys familiar with California wage and hour law before modifying your policies.

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.

In 2000, the California legislature added some teeth to California’s meal and rest break laws.  Prior to 2000 employers were required to give employees meal and rest breaks, but there was no penalty if the employer refused to allow employees to take their legally mandated breaks.  In 2000 the legislature enacted California Labor Code Section 226.7 which requires employers to pay an additional hour’s pay for each day in which a meal and/or rest break is not provided.

The California Supreme Court later decided that the additional hour’s pay is a “wage” and not a “penalty.”  See Murphy v. Kenneth Cole.  Since that time we have since a proliferation of suits alleging a violation of Labor Code Section 226.7.  If court filings are to be believed there is hardly an employee in California that is allowed to take the required meal and rest breaks.  I rarely see an overtime case filed that does not include a missed meal and/or rest break claim.

When the court first decided Murphy I recall thinking about how it would affect the attorneys’ fees provisions in the Labor Code.  Under Labor Code Section 1194 the prevailing employee is entitled to recover his/her attorneys’ fees in an action for unpaid minimum wage or overtime.  The employer can never recover its attorneys’ fees in an unpaid minimum wage or overtime case.  Labor Code Section 218.5, however, allows the “prevailing party” to recover attorneys’ fees in any action for nonpayment of wages other than minimum wages or overtime.

Based on Murphy and the language of Labor Code Sections 218.5 and 1194, I theorized that an employer that successfully defeats a claims for unpaid meal and/or rest breaks would be entitled to recover its attorneys’ fees. In the common unpaid overtime case where the employee “throws in” a claim for missed meals/rest breaks I believe the employee is at risk of having to pay a portion of the employer’s attorneys’ fees even if the employee prevails on the unpaid overtime claim unless the employee also prevails on the missed meal/rest break claim.

Well, the Third Appellate District agrees.  In Kirby v. Immoos Fire Protection (10 C.D.O.S. 9451), the court came to the same conclusion I did: because a claim for missed meal/rest breaks is a claim for “wages” other than minimum wage and overtime, an employee who does not prevail on those claims is liable for the employer’s attorneys’ fees incurred in defending against those claims.

Attorneys representing employees in unpaid overtime and minimum wage cases need to carefully consider whether to include the unpaid meal/rest break claim.  Considering the fact that employers are not required to force employees to take rest breaks (whether this is true with regard to meal breaks remains to be seen) or to track the rest breaks (which is not the true with regard to meal breaks) means prevailing on a rest break case may be difficult.  Good attorneys will carefully interview their clients, and hopefully other percipient witnesses, before deciding to add the rest/meal breaks claim as a matter of course.

Employers should not treat this as a license to violate the law.  To the contrary.  Although you may be able to offset a judgment against you by the amount awarded to you in attorneys’ fees, actually collecting an award of attorneys’ fees is usually problematic at best.  The best policy is to know the law, follow the law, and ensure you have accurate records reflecting what occurred.  But you already knew that!

One reporter who reviewed the “game” was amazed at the level of empathy he experienced.  While the game may not change every mind, it does offer men the opportunity to experience what can be viewed as an unending onslaught of inappropriate and unwelcome advances.  An interesting aspect of the game is that regardless of how the player deals with the remarks, the comments keep coming, indicating that even extreme violence is an unhelpful response to the situation.

The article can be viewed here.

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 clients 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.

Currently, under Wage Order 14-80, agricultural employees are entitled to overtime only when they work longer than 10 hours in a single day or more than six days during any workweek.  The wage order requires a meal period if the agricultural worker works more than five hours in a day, but is silent as to whether a second meal period is required after working ten hours in the day.

The proposed law would strike out the language in Labor Code Section 554 that says: “This chapter, with the exception of section 558, shall not apply to any person employed in an agricultural occupation, as defined in Order No. 14-80 (operative January 1, 1998) of the Industrial Welfare Commission.”

Proponents of the law, led by the California Applicants’ Attorneys Association, say the agricultural exemption is outdated and based on an obsolete federal provision in the Fair Labor Standards Act.  The proponents argue that California have long supported farmers through subsidies, and it is time for the State to support the people whose work in the fields makes California’s agricultural industry among the world’s most productive and profitable.

Opponents argue that the exemption is still necessary because the nature of the work does not allow a regular eight-hour workday.  Many farmers are at the whim of the water and the weather, and therefore must work when the time is right.  Opponents also point out that requiring overtime pay after eight hours instead of ten hours will raise the cost of doing business in an industry where the profit margins are already dismal.

I haven’t seen anybody point out the fact that since many farms are still subsidized, this bill will require the State to provide even more subsidies if our State’s farmers are to succeed.

The Senate already passed the bill in a 23-12 vote and he bill is now headed for the Assembly floor.  If the bill passes and is signed into law, farmers throughout our state will have to drastically modify how they do business.

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 clients 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.

On May 5, CNNMoney.com reported as follows:

“An all-but-overlooked provision of the health reform law is threatening to swamp U.S. businesses with a flood of new tax paperwork. Section 9006 of the health care bill — just a few lines buried in the 2,409-page document–mandates that beginning in 2012 all companies will have to issue 1099 tax forms not just to contract workers but to any individual or corporation from which they buy more than $600 in goods or services in a tax year. The stealth change radically alters the nature of 1099s and means businesses will have to issue millions of new tax documents each year. Right now, the IRS Form 1099 is used to document income for individual workers other than wages and salaries. Freelancers receive them each year from their clients, and businesses issue them to the independent contractors they hire. But under the new rules, if a freelance designer buys a new iMac from the Apple Store, they’ll have to send Apple a 1099. A laundromat that buys soap each week from a local distributor will have to send the supplier a 1099 at the end of the year tallying up their purchases. The bill makes two key changes to how 1099s are used. First, it expands their scope by using them to track payments not only for services but also for tangible goods. Plus, it requires that 1099s be issued not just to individuals, but also to corporations. Taken together, the two seemingly small changes will require millions of additional forms to be sent out.”

The complete article is available at:

http://money.cnn.com/2010/05/05/smallbusiness/1099_health_care_tax_change/index.htm.

One wonders about the mindset of people who come up with legislation and rules like this. They’ve obviously never owned or managed a small business–or, seemingly, encountered a small business they liked. They constantly impose more and more costly requirements for doing business, which we know costs jobs in the private sector, while requiring ever more and more bureaucrats to be hired at taxpayer expense to make sure we obey and do what we’re supposed to.

This report by CNNMoney.com also raises the question in my naturally-suspicious lawyerlike mind as to what other unpleasant surprises lurk in in the darkened catacombs of this “health care bill.” What does filing of Form 1099 have to do with health care?

You may recall that in 2007 the U.S. Supreme Court decided Ledbetter v. Goodyear Tire & Rubber Co, Inc. 550 U.,S. 618.  In Ledbetter the Supreme Court held that an employer’s decision with respect to setting pay is a discrete act of discrimination, and that the relevant period of limitations begins to run when the act first occurs.  After several attempts at modifying the law through legislation, in 2009 President Obama signed the “Lilly Ledbetter Fair Pay Act of 2009″ which added the following provisions to Title VII:

(3)(A) . . .[A]n unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

(B) In addition to any relief authorized by . . .42 U.S.C. 1981a, liability may accrue and an aggrieved person may obtain relief as provided in subsection (g)(1), including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.

The Ledbetter Act deems each paycheck issued pursuant to a discriminatory compensation decision or pay structure an independent, actionable act. It applies retroactively “to all claims of discrimination in compensation under Title VII . . . that are pending on or after [May 28, 2007].”

In a case that did not deal with “discrimination in compensation” the Supreme Court carved out an exception to the strict filing deadlines by deciding when the statute of limitations begins to run on a disparate impact claim.  In Lewis v. City of Chicago, Illinois, the court held that

What that requires depends on the claim asserted. For disparate-treatment claims — and others for which discriminatory intent is required — that means the plaintiff must demonstrate deliberate discrimination within the limitations period. See Ledbetter, supra, at 624–629; Lorance, supra, at 904–905; Ricks, supra, at 256–258; Evans, supra, at 557–560; see also Chardon v. Fernandez, 454 U. S. 6, 8 (1981) (per curiam). But for claims that do not require discriminatory intent, no such demonstration is needed. Cf. Ledbetter, supra, at 640; Lorance, supra, at 904, 908–909. Our opinions, it is true, described the harms of which the unsuccessful plaintiffs in those cases complained as “present effect[s]” of past discrimination. Ledbetter, supra, at 628;see also Lorance, supra, at 907; Chardon, supra, at 8; Ricks, supra, at 258; Evans, supra, at 558. But the reason they could not be the present effects of present discrimination was that the charged discrimination required proof of discriminatory intent, which had not even been alleged. That reasoning has no application when, as here, the charge is disparate impact, which does not require discriminatory intent. [emphasis added]

The court was not swayed by the City’s argument that the Court’s holding “will result in a host of practical problems for employers and employees alike.”  Under the Court’s ruling employers may face new disparate-impact suits for practices they have used regularly for years, thereby depriving the employer of evidence essential to their case.  According to the Court:

Truth to tell, however, both readings of the statute produce puzzling results. Under the City’s reading, if an employer adopts an unlawful practice and no timely charge is brought, it can continue using the practice indefinitely, with impunity, despite ongoing disparate impact. Equitable tolling or estoppel may allow some affected employees or applicants to sue, but many others will be left out in the cold. Moreover, the City’s reading may induce plaintiffs aware of the danger of delay to file charges upon the announcement of a hiring practice, before they have any basis for believing it will produce a disparate impact.

The court ultimately concluded that it was not their “task to assess the consequences of each approach and adopt the one that produces the least mischief. [Their] charge is to give effect to the law Congress enacted. By enacting §2000e–2(k)(1)(A)(i), Congress allowed claims to be brought against an employer who uses a practice that causes disparate impact, whatever the employer’s motives and whether or not he has employed the same practice in the past. If that effect was unintended, it is a problem for Congress, not one that federal courts can fix.”

Lewis v. City of Chicago, Illinois will likely be seen as a victory for employees, as many plaintiffs’ counsel will creatively plead their time-barred disparate treatment case as a disparate impact case.  This may cause significant problems for employers who adopted facially neutral policies that have lasting effects on employees because evidence regarding the basis for the initial decision may no longer be available.

Original article by Robert E. Nuddleman of Phillip J. Griego & Associates

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