Comments for California Employment Law

Comment on Do I Have To Pay My Exempt Employees If They Are Sick? by Rob

Rob — Wed, 24 Apr 2013 16:26:13 +0000

Employers should always be wary about deducting money from an employee’s paycheck, particularly the employee’s last paycheck. Employers may not deduct money from an employee’s paycheck unless required to do so by law (e.g., taxes, court ordered garnishments, etc.) or if authorized in writing by the employee (e.g. health care benefits, retirement contributions, loan repayment plans, etc.). Even if the employee authorizes the deduction in writing, the employee must still receive at least minimum wage for all hours worked. The minimum wage can vary depending on location (e.g., San Francisco, San Jose, etc.). If the employee is otherwise exempt from the overtime laws, deducting money from the employee’s paycheck could destroy the exempt status, and the employer could end up facing a significant overtime claim.

Comment on Makeup Time versus Comp Time by Rob

Rob — Wed, 24 Apr 2013 16:15:35 +0000

Labor Code Section 513 does not require an employer to approve makeup work time.

Comment on Makeup Time versus Comp Time by Iris

Iris — Mon, 08 Apr 2013 23:10:08 +0000

when requesting make up time can my employer deny it and make me use my accrued PTO?

Comment on Do I Have To Pay My Exempt Employees If They Are Sick? by Erica

Erica — Wed, 13 Mar 2013 18:18:56 +0000

If an exempt employee is terminated but is negative in their vacation balance upon termination,could the vacation time owed be deducted from their “final check”??

Comment on Employer Can Terminate an Employee for Lying During Investigation by employer-can-terminate-an-employee-for-lying-during-investigation - LA Labor, Business, and Technology Blog for Small Businesses | LA Labor, Business, and Technology Blog for Small Businesses

Mon, 11 Feb 2013 10:18:37 +0000

[...] http://blog.griegolaw.com/2013/01/25/employer-can-terminate-an-employee-for-lying-during-investigati… [...]

Comment on Makeup Time versus Comp Time by Rob

Rob — Wed, 06 Feb 2013 22:11:27 +0000

There have not been any significant changes in the comp time rules (as of Feb. 2013).

Comment on Makeup Time versus Comp Time by Laural Gamp

Laural Gamp — Mon, 04 Feb 2013 22:49:14 +0000

Thank you for such a clear explanation of an area that confuses so many employers/employees. This blog entry was written in 2008. Has anything changed in the meantime? (asked in Feb 2013)

Comment on Domestic Workers Rights Bill (AB 889) Sitting on Governor’s Desk by Kathy Janz

Kathy Janz — Thu, 27 Sep 2012 21:18:33 +0000

It is so ironic that Ammiano in AB889 specifically excluded the domestic referral agencies operating under civil code 1812.5095- they such as From the Heart Home Care and many others can still avoid all regs, wage and hour issues by simply looking identical to the full service agencies but by having a “trust account” that allows them to schedule the aides, bill the client for the aide and pay the aide as an IC and issue an annual 1099 but technically transfer the “employer responsibility to the client (in small print)”. While AB889 talks about everyone paying into workers compensatio- these agencies and their workers neither pay into or benefit from workers compensation coverage. This is a purely political bill- grandstanding at its best. In New York State, where a similiar bill was passed, full service agencies were excluded- that state had the wisdom to go after the problems not create a problem.

Comment on Arbitrator Not Allowed To Determine Validity of Arbitration Agreement by An Interesting Way to Resolve a Case: mediation/binding baseball arbitration « California Employment Law

Thu, 31 May 2012 16:49:31 +0000

[...] previously discussed some of my concerns regarding binding arbitration agreements. Arbitration has its place, and it can be a very useful tool in resolving cases. As much of my [...]

Comment on Prevailing Employer in Meal/Rest Break Suit Entitled to Attorneys’ Fees by Brinker is Published! « California Employment Law

Brinker is Published! « California Employment Law — Thu, 12 Apr 2012 17:32:10 +0000

[...] responsible for the employer’s attorneys’ fees in a failed meal break claim. (See my earlier post re: Kirby) Phillip J. Griego & Associates 95 South Market Street, Suite 520 San Jose, CA 95113 Tel. [...]

Comment on Do I Have To Pay My Exempt Employees If They Are Sick? by Rob

Rob — Wed, 28 Mar 2012 17:43:26 +0000

John,

That’s an interesting question. I’m assuming that the hypothetical employee is entitled to sick leave, but just hasn’t accrued enough sick leave to cover the missed work. The employer runs the risk of violating rules 7 and 8 above if the employer fails to pay the employee the full salary. Of course, if the employee didn’t work any overtime that week there are ways the employer could minimize the risk. Remember, the only drawback to deducting from an exempt employee’s salary is that the employee will no longer be exempt. If the employee never works overtime then it is a non-issue.

The employer could also argue that since the employee did not have any accrued sick leave, the employee took the time off for “personal reasons,” and therefore the employer could deduct the missed work from the salary under rule 4 above.

To be safe, the employer may want to consider paying the full salary, but having the employee go into the negative on the sick leave accrual.

Comment on Do I Have To Pay My Exempt Employees If They Are Sick? by John

John — Fri, 23 Mar 2012 23:21:54 +0000

During the orientation period, employees don’t have sick time available, thus if an exempt employee gets sick for a day, do you have to pay them for that day? what is the law code for that?

Comment on Look Out Brinker and Brinkley, Here Comes Sharon by Rob

Rob — Wed, 25 Jan 2012 17:30:42 +0000

In my experience there are always two sides to the story. In this particular instance, the issue was limited to the employee’s entitlement to unemployment insurance, which usually is a much narrower issue than what would be involved in a typical wrongful termination suit. I suspect you are correct that there was more going on than is revealed by the news article. I don’t know what the statutes of limitation are in her venue, but at this point I would not expect further litigation. Then again, who knows?

Comment on Look Out Brinker and Brinkley, Here Comes Sharon by Joe Coute

Joe Coute — Wed, 25 Jan 2012 17:21:00 +0000

I’d be willing to bet there were other reasons behind her dismissal. Most reasonable employers, even those perched on the employment at will doctrine, would take steps to warn an employee against behavior that could lead to their termination. A ten year employee with an otherwise “clean record” would surely be more valuable to an employer than to warrant dismissal for her exhibiting her dedication to the company by this single event….don’t you think!? I’d be surprised if she doesn’t pursue legal alternatives beyond UI.

Comment on Independent Contractor versus Employee Crackdown by Rob

Rob — Tue, 20 Dec 2011 16:35:26 +0000

I wouldn’t say it is impossible. It all depends on the circumstances. There have actually been several court decisions regarding messenger and/or delivery package companies that have come to opposite conclusions. The more control asserted by the primary company the more likely it is the workers should be classified as employees. For example, if the primary company requires the delivery people to wear specific uniforms, use specific equipment, adhere to specific schedules and drive company trucks, then the workers are likely employees. If, on the other hand, the primary company leaves it up to the delivery people to determine routes, equipment, clothing, etc., and the delivery people work for several different companies, then there is a chance the workers could be considered independent contractors. There’s nothing wrong with FedEx, for example, contracting with DHL to delivery packages in certain areas. The independent contractor/employee analysis has a lot of gray areas and is made even more complex by the fact that different agencies use different tests which could yield different results. Add on top of that a new California law that allows the Labor Commissioner to impose up to $25,000.00 in additional penalties for willfully misclassifying employees as independent contractors and you can see why this is an area of significant concern.