(Adopted by Congress on July 4, 1776)

The Unanimous Declaration
of the Thirteen United States of America

When, in the course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. –Such has been the patient sufferance of these colonies; and such is now the necessity which constrains them to alter their former systems of government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world.

He has refused his assent to laws, the most wholesome and necessary for the public good.

He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other laws for the accommodation of large districts of people, unless those people would relinquish the right of representation in the legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved representative houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise; the state remaining in the meantime exposed to all the dangers of invasion from without, and convulsions within.

He has endeavored to prevent the population of these states; for that purpose obstructing the laws for naturalization of foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new appropriations of lands.

He has obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers.

He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance.

He has kept among us, in times of peace, standing armies without the consent of our legislature.

He has affected to render the military independent of and superior to civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation:

For quartering large bodies of armed troops among us:

For protecting them, by mock trial, from punishment for any murders which they should commit on the inhabitants of these states:

For cutting off our trade with all parts of the world:

For imposing taxes on us without our consent:

For depriving us in many cases, of the benefits of trial by jury:

For transporting us beyond seas to be tried for pretended offenses:

For abolishing the free system of English laws in a neighboring province, establishing therein an arbitrary government, and enlarging its boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule in these colonies.

For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments.

For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated government here, by declaring us out of his protection and waging war against us.

He has plundered our seas, ravaged our coasts, burned our towns, and destroyed the lives of our people.

He is at this time transporting large armies of foreign mercenaries to complete the works of death, desolation and tyranny, already begun with circumstances of cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the head of a civilized nation.

He has constrained our fellow citizens taken captive on the high seas to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their hands.

He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian savages, whose known rule of warfare, is undistinguished destruction of all ages, sexes and conditions.

In every stage of these oppressions we have petitioned for redress in the most humble terms: our repeated petitions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.

Nor have we been wanting in attention to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our separation, and hold them, as we hold the rest of mankind, enemies in war, in peace friends.

We, therefore, the representatives of the United States of America, in General Congress, assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by the authority of the good people of these colonies, solemnly publish and declare, that these united colonies are, and of right ought to be free and independent states; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain, is and ought to be totally dissolved; and that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do. And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

New Hampshire: Josiah Bartlett, William Whipple, Matthew Thornton

Massachusetts: John Hancock, Samual Adams, John Adams, Robert Treat Paine, Elbridge Gerry

Rhode Island: Stephen Hopkins, William Ellery

Connecticut: Roger Sherman, Samuel Huntington, William Williams, Oliver Wolcott

New York: William Floyd, Philip Livingston, Francis Lewis, Lewis Morris

New Jersey: Richard Stockton, John Witherspoon, Francis Hopkinson, John Hart, Abraham Clark

Pennsylvania: Robert Morris, Benjamin Rush, Benjamin Franklin, John Morton, George Clymer, James Smith, George Taylor, James Wilson, George Ross

Delaware: Caesar Rodney, George Read, Thomas McKean

Maryland: Samuel Chase, William Paca, Thomas Stone, Charles Carroll of Carrollton

Virginia: George Wythe, Richard Henry Lee, Thomas Jefferson, Benjamin Harrison, Thomas Nelson, Jr., Francis Lightfoot Lee, Carter Braxton

North Carolina: William Hooper, Joseph Hewes, John Penn

South Carolina: Edward Rutledge, Thomas Heyward, Jr., Thomas Lynch, Jr., Arthur Middleton

Georgia: Button Gwinnett, Lyman Hall, George Walton

Source: The Pennsylvania Packet, July 8, 1776

In a recent decision by the First Appellate District in California, a court of appeals concluded that the City of Oakland could require an employee to repay training costs the employer incurred in training the employee. When Ken Hassey was hired by the Oakland Police Department, he signed a “conditional offer” that required Hassey to repay $8,000.00 in training costs if he failed to work for the Police Department for 5 years. Additionally, the Memorandum of Understanding negotiated by Hassey’s union allowed the City of Oakland to withhold any training costs from Hassey’s final paycheck. Partway through his initial training Hassey was encouraged to resign from the police department. Hassey signed a Training Cost Repayment Plan agreeing to repay the training costs. Despite the fact that the Training Cost Repayment Plan did not authorize the City to deduct the training costs from Hassey’s final paycheck, the City of Oakland withheld a portion of Hassey’s final paycheck and applied it to the debt.

When Hassey failed to make the required payments, the City of Oakland sued Hassey for the remaining balance. Hassey filed a cross-complaint alleging, among other things, that the repayment obligation was unlawful, that the City unlawfully withheld Hassey’s final paycheck and that the repayment obligation was an unenforceable covenant not to compete.

Analyzing the case under federal and California law, the appellate court concluded that the reimbursement agreement was valid. Relying on a Wisconsin case with similar facts, the court concluded that, “Oakland was permitted to seek reimbursement from police officers who gained the benefit of its training program at the Oakland Police Academy but did not stay with the police department long enough for Oakland to benefit from that training.”

The court also held, however, that the City of Oakland could not withhold Hassey’s final wages. California courts have long held that “an employer is not entitled to a setoff of debts owing it by an employee against any wages due that employee.” In particular, employers need to ensure that employees always receive at least minimum wage and any required overtime payments.

Finally, the court held that the repayment obligation was not an unlawful covenant not to compete. Although California has a strong public policy against covenants not to compete, nothing in the repayment obligation limited Hassey’s right to seek employment elsewhere. Although not specifically stated, the fact that Hassey had to repay the training costs regardless of whether he accepted another job that utilized Hassey’s training likely made it easier for the court to decide that Business and Professions Code Section 16600 was not implicated in the case.

Employers should be careful before deciding they can require employees to repay training costs and they should never take money from an employee’s paycheck without specific written authorization from the employee for that specific deduction. Even if the employee authorizes the deduction, the employer should ensure the employee receives at least minimum wages.

If you would like more information regarding this case or what wage deductions are allowed, feel free to contact our office through our website at www.griegolaw.com.

You can download an audio version of this article here: California Employment Lawyer Netcast for July 1, 2008.

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

Feel free to suggest topics for the blog. We are happy to consider questions or comments pertaining to general points of Labor and Employment Law. If you desire legal advice, please contact one of our attorneys directly though the Contact Us page of our website.

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.

Several months ago the California Department of Fair Employment and Housing (DFEH) updated its website to allow employees to make an online appointment to lodge a complaint of employment discrimination or harassment. Now the DFEH allows employees to obtain immediate right-to-sue notices online. The website (www.dfeh.ca.gov) instructs that “Persons represented by counsel, who wish to proceed directly to court on employment discrimination, harassment, and retaliation complaints, can now request a right-to-sue letter online.”

Employees filing a claim of discrimination with the DFEH can choose to forgo an investigation and ask for an immediate right-to-sue. The right-to-sue is the employee’s “ticket” to sue the employer in court. By choosing the immediate right-to-sue route, the DFEH will not investigate the claim, and the employee can immediately sue the employer in court. If during the initial interview the DFEH determines a case has no merit, it will allow employee to request an immediate right-to-sue. The DFEH website repeatedly warns the employee that obtaining an immediate right-to-sue should only be done after consulting with an attorney.

The new “online” route to obtaining an immediate right-to-sue notice can streamline cases where an attorney wants to file a lawsuit. It may also lead to an increased number of discrimination or harassment lawsuits because the employee can obtain the right-to-sue from the comfort of their own home.

It will be interesting to find out if the number of discrimination and/or harassment lawsuits increase as a result of the new online procedure.

You can download an audio version of this article here: California Employment Lawyer Netcast for June 27, 2008.

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

Feel free to suggest topics for the blog. We are happy to consider questions or comments pertaining to general points of Labor and Employment Law. If you desire legal advice, please contact one of our attorneys directly though the Contact Us page of our website.

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 June 2008, the First District Court of Appeals held that employees are entitled to the protection of a living wage ordinance (LWO) even if they work outside the boundaries of the city.  In Amral v. Cintas Corporation No. 2, the court found that in accepting a contract with the City of Hayward to provide laundry services Cintas certified that it would comply with the City’s LWO setting a minimum compensation level for all covered employees.

Hayward’s LWO defined covered employees as those employed on a service contract with the city.  The court found it reasonable to construe that this required the payment of a living wage to all employees who performed work for the city under a service contract.   Further, the LWO did not limit the employer’s obligation to pay a living wage only for the time spent performing tasks related to the contract with the city.  Because work under the contract was distributed among all Cintas employees, the court found that they all might have worked on the city’s laundry.  Since Cintas could not prove otherwise, the court found that all Cintas employees were covered by the LWO.  Finally, the court found that because the LWO was intended to benefit employees who work on city contracts, they were third party beneficiaries who could sue their employer for breach of contract in failing to pay a living wage.

What this means for you?

If your business currently contracts with a city, county or other municipality with a living wage ordinance (LWO) in place, immediately review any contracts or agreements and the applicable LWO to determine whether all covered employees are properly compensated. Employers may be able to avoid paying the LWO to employees that do not work on the City’s project, but the employer will have to prove that the employee did not perform any work related to the project.

Contact Phillip J. Griego & Associates with any questions or to schedule a consultation.

Original article by Karen Crowe, a Summer Intern at Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider questions or comments pertaining to general points of Labor and Employment Law. If you desire legal advice, please contact one of our attorneys directly though the Contact Us page of our website.

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 California Department of Fair Employment and Housing has produced a series of youth outreach videos entitled “Equal Rights 101” under a grant from the U.S. Equal Employment Opportunity Commission.  The content includes pregnancy discrimination, pre-employment inquiry, reasonable accommodation and sexual harassment in the workplace. Although the videos are geared toward youth in employment, the videos are an interesting training tool for both employers and employees.

The eight minute video can be seen at http://youtube.com/califdfeh, where you can watch, share, e-mail, post comments and rate the videos.  In addition to YouTube, the videos will also be posted on a special link to DFEH’s Web under construction www.dfeh.ca.gov/equalrights101, California wiki, and other similar sites.  Accompanying the videos will be the attached designs for wallet-sized cards and posters in the same contemporary design.  In September, the DFEH will distribute the videos in the form of DVDs, along with posters and cards, to every California high school, State libraries and other venues.

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

Feel free to suggest topics for the blog. We are happy to consider questions or comments pertaining to general points of Labor and Employment Law. If you desire legal advice, please contact one of our attorneys directly though the Contact Us page of our website.

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.

Like many employers, Advanced-Tech Security Services has a policy of paying “premium pay” (1.5 times the regular hourly rate of pay) when its security guards have to work on particular holidays.  While premium holiday pay is not required, it is an added benefit to employees and an attempt to compensate the employee for having to work the holiday.  When Ester Roman worked 12 hours on Labor Day, she was paid 1.5 times her regular hourly rate for all 12 hours.  Ms. Roman believed she should have received time and one-half for the first 8 hours (based on the holiday pay plan), and 1.5 times the holiday pay rate for hours worked in excess of 8 hours that day.  The Second Appellate District disagreed.

The employer was able to show that Ms. Roman receive 1.5 times her regular hourly rate for all overtime hours worked that week and the court held that the “regular rate of pay” does not include premium holiday pay.  This case is interesting because determining an employee’s regular rate of pay can oftentimes be very confusing.  For example, bonuses and commission are supposed to be included in the employee’s regular rate of pay.  Unfortunately, Labor Code Section 510 (which requires overtime compensation “at the rate of no less than one and one-half times the regular rate of pay for an employee”) does not define “regular rate of pay.”

Finding no direction in California law, the Appellate Court loked at the FLSA which provides that  the

“regular rate” of pay includes all “remuneration for employment,” subject to several exceptions, including “extra compensation provided by a premium rate paid for work by the employee on Saturdays, Sundays, holidays, or regular days of rest, or on the sixth or seventh day of the workweek, where such premium rate is not less than one and one-half times the rate established in good faith for like work performed in nonovertime hours on other days.” (29 U.S.C. §§ 207(e)(1), 207(e)(6))

Employers should keep in mind that the exceptions noted above only apply when the employee receives at least 1.5 times the employee’s regular hourly rate for the premium pay situations.

Employers are free to offer premium pay to employees that have to work weekends or holidays without worrying that they will have to pay increased overtime.  Those interested in reading the case can find it at http://www.courtinfo.ca.gov/opinions/documents/B205186.PDF.

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

Feel free to suggest topics for the blog. We are happy to consider questions or comments pertaining to general points of Labor and Employment Law. If you desire legal advice, please contact one of our attorneys directly though the Contact Us page of our website.

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.

On May 28th, the California Assembly approved AB 2716 which will require all California employers to provide paid sick leave to every worker. The bill passed on a partisan basis by a vote of 43-25. No Republicans supported the bill. This bill will now be sent to the Senate.

• Businesses of 10 employees or more would have to provide up to nine days of sick leave per year.
• Smaller providers would have to provide up to five days per year.
• Full-time and part-time workers would earn sick days at the rate of one hour per 30 hours worked.
• The benefit could be used after 90 days of employment.
• Employers can cap the annual sick leave
• The sick leave can be used for diagnosis, care or treatment of health conditions of the employee or the employee’s family member, or for leave related to domestic violence or sexual assault.
• Employers would be prohibited from discriminating or retaliating against any employee who requests paid sick days and would have to comply with specified posting requirements.
• Employees who do not receive the required sick days could bring an action for enforcement including attorneys’ fees.

The text of the bill can be reviewed at www.leginfo.ca.gov.

People interested in this bill should contact their senators.

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

Feel free to suggest topics for the blog. We are happy to consider questions or comments pertaining to general points of Labor and Employment Law. If you desire legal advice, please contact one of our attorneys directly though the Contact Us page of our website.

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.

I apologize to everyone who has been waiting for new posts to our blog.  We recently received a lot of requests to conduct our Employment Law Health Checklists for new and existing clients.  When we came up with the idea of conducting no-cost evaluations for companies so that they can identify areas that need to be adjusted we had no idea the demand would be so high.  The response has been remarkable and I am proud to say that we have been able to help a lot of businesses stay on the right track.  We have also had an unusually high number of requests for Handbook reviews and revisions.  I’m not sure if the requests stem from the new military leave laws and other recent developments in employment law, or if companies are finally understanding they need to review and possibly revise their handbooks every one to two years.  We’re just happy that companies are finally understanding the importance of pro-active policy reviews.

I promise to return to more regular postings so we can keep everyone up to date on recent changes and development in California Employment Law.

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

Feel free to suggest topics for the blog. We are happy to consider questions or comments pertaining to general points of Labor and Employment Law. If you desire legal advice, please contact one of our attorneys directly though the Contact Us page of our website.

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 2007, the United States Supreme Court ruled that a female employee who was paid less than her male counterparts failed to timely file her discrimination suit because the disparate pay was instigated years before she actually found out about the pay differential.  The court, in Ledbetter v. Goodyear, rejected the plaintiff’s argument that the statute of limitations begins to run each time the employer issues a new paycheck with the disparate pay.  Instead, the court decided that the discrimination occurred when the employer initially decided to pay the female employee less
than the male employees, even though the female employee had no idea she was being paid less.

The House immediately passed a bill to change the law, but the Senate version languished significantly longer.  The Senate bill was defeated yesterday in a 56-42 vote (the bill required 60 votes to pass).  According to the Wall Street Journal, “The outcome wasn’t a surprise, as Democrats acknowledged ahead of time that it was unlikely they would overcome Republican opposition.”  As a result, the Ledbetter case continues to be the law.  As it currently stands, employees who believe they are the victim of discrimination must file an administrative claim with the EEOC within 180 days (300 days in California) of the initial discriminatory decision, not within 180 days of the effect of the discriminatory act.

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

Feel free to suggest topics for the blog. We are happy to consider questions or comments pertaining to general points of Labor and Employment Law. If you desire legal advice, please contact one of our attorneys directly though the Contact Us page of our website.

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 IRS appears to be taking stronger steps toward ensuring employees are not misclassified as independent contractors.  The IRS “considers this a major issue of non-compliance.”  The IRS encourages workers that believe they have been misclassified to file a Form SS-8 with the IRS to challenge the determination and to get the IRS to reclassify the worker.

The IRS also allows workers to file a Form 8919 while the reclassification is being reviewed.  The form allows workers to pay only the portion of the FICA and Medicare that are attributable to employee, instead of the entire FICA and Medicare tax applicable to true independent contractors.

The IRS looks at three areas to determine a workers’ status:

• Behavioral control (whether the business has a right to direct and control how the worker performs the task for which they are hired)
• Financial control (whether a worker has the ability to affect financial decisions)
• Type of relationship (what does the contract between the worker and the business say; does the worker get benefits; permanency of the relationship)

The IRS correctly directs employers and employees with questions regarding appropriate classification to seek advice from a knowledgeable professional.

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

Feel free to suggest topics for the blog. We are happy to consider questions or comments pertaining to general points of Labor and Employment Law. If you desire legal advice, please contact one of our attorneys directly though the Contact Us page of our website.

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.

I commonly recommend employers have job descriptions for each position. One reason for ensuring accurate job descriptions exist is to make it easier to determine what, if any, reasonable accommodations can be made for employees with disabilities. An employee does not qualify as “disabled” within the meaning of the Americans with Disabilities Act (ADA) or the Fair Employment and Housing Act (FEHA) unless the employee can perform the essential functions of the job with or without a reasonable accommodation.

But what exactly are the “essential functions of the job?” The EEOC provides the following guidance:

How Are Essential Functions Determined?

Essential functions are the basic job duties that an employee must be able to perform, with or without reasonable accommodation. You should carefully examine each job to determine which functions or tasks are essential to performance. (This is particularly important before taking an employment action such as recruiting, advertising, hiring, promoting or firing).

Factors to consider in determining if a function is essential include:

• whether the reason the position exists is to perform that function,
• the number of other employees available to perform the function or among whom the performance of the function can be distributed, and
• the degree of expertise or skill required to perform the function.

Your judgment as to which functions are essential, and a written job description prepared before advertising or interviewing for a job will be considered by EEOC as evidence of essential functions. Other kinds of evidence that EEOC will consider include:

• the actual work experience of present or past employees in the job,
• the time spent performing a function,
• the consequences of not requiring that an employee perform a function, and
• the terms of a collective bargaining agreement.

From The ADA: Your Reponsibilities as an Employer, Addendum available at http://www.eeoc.gov/facts/ada17.html

I typically recommend employers review the job descriptions, including the essential functions of the job, with the employee periodically to ensure the job description accurately reflects the work the employee is performing.

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

Feel free to suggest topics for the blog. We are happy to consider questions or comments pertaining to general points of Labor and Employment Law. If you desire legal advice, please contact one of our attorneys directly though the Contact Us page of our website.

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.

A couple of times each year the Department of Labor issues opinion letters interpreting statutes and regulations under their jurisdiction.   On February 14, 2008, the DOL provided two new opinions regarding interpretations under the Fair Labor Standards Act.  Employers in California are required to comply with the FLSA and California law and courts often use DOL interpretations even when deciding cases under California law.

In FLSA2008-1NA, the DOL was asked whether the minimum salary of $455 per week under the FLSA could be prorated to reflect the part-time status of an employee.  The DOL rejected the idea that the minimum weekly salary could be reduced.  Courts interpreting similar provisions under California law would likely agree with the DOL’s conclusion. California employer should be aware, however, that employees qualifying for California’s Administrative, Professional or Executive exemptions must receive a weekly salary of at least $640 (two times California’s current minimum wage).

In FLSA2008-2NA, an employer asked if it was using an acceptable method of tracking hours worked when employees performed mandatory on-line training while at home.  The employer’s time records showed the type of training taken, the completion date, start and end times and contained a place for the employee’s and manager’s signature.  The DOL pointed out that “No particular method of keeping required records is prescribed, provided that the relevant information [i.e., hours worked each day] is maintained and preserved.

The opinion letter  serves as a good reminder that employers are required to compensate non-exempt employees for time spent in mandatory training, even if the training occurs at home.  Accurate records of hours worked by non-exempt employees must be maintained and preserved.

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

Feel free to suggest topics for the blog. We are happy to consider questions or comments pertaining to general points of Labor and Employment Law. If you desire legal advice, please contact one of our attorneys directly though the Contact Us page of our website.

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.

Last month we let you know that the President signed amending the Family Medical Leave Act regarding injured members of the armed forces (see Bush Expands Family Medical Leave Act).

This month the U.S. Department of Labor issued an insert for the current FMLA poster. The insert provides important information regarding the new law that became effective on January 28, 2008. As a reminder, the new law permits a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”

Until the final regulations are approved, employers are required to act in good faith in providing the new leave. The new poster can be downloaded here ( New FMLA Insert) or from the DOL’s website.

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

Jim posted the following:

I work for a large non-profit in Southern California. At our Management Team Meeting a couple of days ago, the Executive Director informed us (exempt staff) that effective immediately, if we take off early for a medical appointment, we must charge those hours against our sick leave hours. We were also informed that if we come in to work for a partial day (for example working less than a full day to get work done before heading off for vacation), we must charge whatever hours we don’t work, against our Personal Time Off.

As exempt staff, part of our job is to attend evening and weekend events (in addition to hours in the office). Is this legal? Does this mean that we are no longer exempt, but hourly?

It should first be noted that if any of the time is taken off under the Family Medical Leave Act (FMLA) or the California Family Rights Act (CFRA), the employer can deduct the hours from your pay without risking losing the exemption.  This is true because FMLA and CFRA specifically provide that the time off is “unpaid.”

If an otherwise  exempt salaried employee absents himself or herself for a full day or more on personal business, such absence may be deducted on a pro rata basis from the salary owed.  A deduction under these circumstances does not affect the salaried exempt worker’s exempt status.

The state Labor Commissioner has taken the position that “If an exempt employee performs any work during the work day, no deduction may be made from the salary of the employee as a result of what would otherwise be a ‘partial day absence.’”

However, in 2005 a California Appellate Court decided Conley v. PG&E (2005) 131 Cal.App.4th 260.  One of the issues decided was whether an employer can deduct for partial day absences of four hours or more from an employee’s vacation pay bank, when the employee is salaried exempt. Under PG&E’s vacation pay policy, employees could take vacation in increments of 4 hours. The court held that under the facts of PG&E’s vacation pay policy, where the company only deducted for absences of 4 hours per day or more, there was nothing in California law which prohibits this practice.  This enforcement policy is consistent with that of the U.S. Department of Labor.  (See, Wage and Hour Division, U.S. Department of Labor, Opinion Letter dated July 21, 1997).

Based on Conley, the Labor Commissioner adopted the policy that “If a sick leave plan provides for a vested right to wages, as is the case with vacation and PTO plans, the holding in Conley is applicable and deductions from accrued sick leave may be made only for absences of at least 4 hours in duration. If a sick leave plan does not establish a vested right to wages, deductions from sick leave for increments of less than 4 hours continue to be permissible to the extent that such leave credits exist at the time of the partial day absence.”

Assuming the employer provides paid PTO, the employer can require exempt employees to charge time off against their accrued PTO.  Once that PTO is exhausted, the employer can reduce the employee’s salary for partial day absences in 4-hour increments without risking losing the exemption provided the employer’s PTO policy allows employees to take PTO in 4-hour increments.  If the time off is less than 4-hours, or if the employer’s policy only allows PTO to be taken in full day increments, the employer cannot reduce the employee’s salary.  The employer may be able to deduct the time from future PTO that has not yet accrued, thereby causing the employee to go into a negative PTO balance.  The employer may have a difficult time recouping the negative PTO.

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

One reader asked what the rules are regarding makeup time.

It should first be noted that there are two different Labor Code provisions employers and employees need to know. Labor Code §204.3 regarding Comp time allows an employee to work more hours in one workweek and take the time off (at time and one-half) at a later date. This is different from the makeup time provisions of Labor Code §513, which allows an employee to work extra time in one day and make it up with time off (in an equal amount of time) during the same workweek.

Comp Time
Labor Code §204.3 allows an employee to compensating time off under certain circumstances in lieu of overtime compensation. First, the comp time must be at one and one-half times the employee’s regular rate. In other words, if the employee should be paid one hour of overtime, the employee must receive one and one-half hours of comp time.

Second, there must be a written agreement between the employer and the employee, or in a collective bargaining agreement, allowing comp time before the employee accrues the comp time. The employee cannot accrue more than 240 hours of comp time.

Finally, the employee must request the use of comp time in writing. Upon discharge from employment, any unused comp time shall be paid at the employee’s current rate of pay, or the average of the employee’s regular rate over the last three years, whichever is greater.

Employees can require the employer pay the comp time in cash for any accrued comp time over the preceding two pay periods. Industries under IWC Orders Nos. 1, 3, 8, 10, 13, and 14 cannot use comp time (industries handling products after harvest or preparing agricultural products for market on the farm, industries in the canning, freezing, and preserving industries, industries affecting public housekeeping and amusement and recreation industries, and the manufacturing industry.)

The Labor Commissioner has issued the following Caveat regarding comp time:

The provisions of Section 204.3 are patterned on provisions found in 29 U.S.C. §207(o). It should be noted that these compensatory time provisions are only applicable under the federal law to state and local government employees; the compensating time provisions under federal law are not applicable to employees of private employers. Any employer utilizing the provisions of Section 204.3 should be advised of this caveat as use of the compensating time provisions of the state law may result in violation of the federal law.

In other words, while a private employer can adopt a comp time plan under California law, if the employee works more than 40 hours in the workweek, the employer may owe the employee overtime pay under the Fair Labor Standards Act.

Makeup Time
Labor Code §513 states:

If an employer approves a written request of an employee to make up work time that is or would be lost as a result of a personal obligation of the employee, the hours of that makeup work time, if performed in the same workweek in which the work time was lost, may not be counted towards computing the total number of hours worked in a day for purposes of the overtime requirements specified in Section 510 or 511, except for hours in excess of 11 hours of work in one day or 40 hours in one workweek. An employee shall provide a signed written request for each occasion that the employee makes a request to make up work time pursuant to this section. An employer is prohibited from encouraging or otherwise soliciting an employee to request the employer’s approval to take personal time off and make up the work hours within the same week pursuant to this section.

This Labor Code section is incorporated into each of the IWC Orders except 14:

If an employer approves a written request of an employee to make-up work time that is or would be lost as a result of a personal obligation of the employee, the hours of that make-up work time, if performed in the same workweek in which the work time was lost, may not be counted toward computing the total number of hours worked in a day for purposes of the overtime requirements, except for hours in excess of eleven (11) hours of work in one (1) day or forty (40) hours of work in one (1) workweek. If an employee knows in advance that he or she will be requesting make-up time for a personal obligation that will recur at a fixed time over a succession of weeks, the employee may request to make-up work time for up to four (4) weeks in advance; provided, however, that the make-up work must be performed in the same week that the work time was lost. An employee shall provide a signed written request for each occasion that the employee makes a request to make up a work time pursuant to this section. While an employer may inform an employee of this make-up time option, the employer is prohibited from encouraging or otherwise soliciting an employee to request the employer’s approval to take personal time off and make-up the work hours within the same workweek pursuant to this section.

The Makeup Time exception requires:

1. Written request by the employee to make up time which would be lost by the employee due to a personal obligation
2. Makeup hours worked in one day may not exceed eleven (11) nor, of course, may the number of makeup hours worked in one workweek exceed forty (40).
3. Request may be made for makeup time for a recurring personal obligation which is “fixed in time over a succession of weeks” provided a written request is made every four (4) weeks.
4. Employers are prohibited from soliciting or encouraging employees to make a request for makeup hours, but informing employees of this right is permitted.

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