State law requires the Labor Commissioner to conduct its hearings within 120 days after filing.  The Daily Journal’s analysis shows that 11 of the 16 regional offices did not meet that obligation in 2011.  Different offices report different average waiting periods, with Oakland showing the worst results: over 400 days to get to a hearing.  Santa Rosa, on the other hand, gets its cases to hearing within 85 days.  San Francisco heard its cases within 301 days on average.  San Jose averaged approximately 275 days to get to a hearing.

The study did not discuss how long it takes for a decision to get mailed after the hearing.  By law, the decision is supposed to be written within 15 days after the hearing.  In my experience, however, it often takes several months to receive the actual decision.  This sometimes means a case can take between one to two years to resolve if filed with the Labor Commissioner.  Cases take even longer if they are then appealed to superior court for a trial de novo.

Budget cutbacks and state-mandated furloughs as well as an increase in claims filed are main causes of the long delays.  In some cases, the state assigns hearing officers from other jurisdictions to help carry some of the load, and I’ve seen an improvement in the speed with which cases proceed in the last few months, but there are still significant delays.  In many instances, a case can move more quickly through court than through the Labor Commissioner.

The Daily Journal article also discusses perceived inconsistent rulings reported by several practitioners.

When deciding whether to proceed with a Labor Commissioner claim, claimants should consider the length of time it will take to receive a decision.  Employers should realize that they may need to maintain records for a longer period than required by law so they can ensure they have appropriate evidence and witnesses by the time a hearing comes around.

If you are contemplating filing a claim with the Labor Commissioner, or if you’ve recently been notified that a claim has been filed, I highly recommend speaking with competent counsel familiar with the Labor Commissioner and wage and hour issues.

The home care industry including Private Care Associates “engaged a private Research Company, Navigant Economics, to conduct an independent study on the effects of these proposed changes.”  The report can be viewed at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2017109#

According to the research company, “the deadweight losses from the proposal would far exceed the PRIA’s estimate, and that the costs of the proposal would likely exceed the benefits.”

The proposed repeal Companion Care Exemption and the Live-in Exemption to the FLSA would likely create substantial disruptions in the market for home health care, increasing the costs of companion care and reducing its availability. The Department of Labor’s PRIA understates the costs of the rule in important ways, including minimizing or ignoring a variety of compliance costs, underestimating the elasticity of demand for labor, and assuming incorrectly that demand for companion care is completely inelastic. As a result, its finding that the costs of the proposed rule would be de minimis is both unsupported and incorrect. We conclude that the costs of the rule would be substantial, including reduced availability of companion care services, lower quality of care, and increased fiscal pressure on both state governments and the Federal government, and that net costs would almost certainly exceed the net benefits.

As mentioned by Hoffman Miller Advertising:

While the comment period for the proposed rule already closed on March 21, the home care industry continues to encourage individuals to express their concerns to their elected representatives in Congress and to the DOL’s Secretary of Labor, Hilda Solis.

U.S. Department of Labor

200 Constitution Ave., NW

Washington, DC 20210

(202) 693-6000

Email talktosolis@dol.gov

This year I spoke about changes in employment law, and how those changes are impacting the home care industry.  My audience was enthusiastic, attentive and interactive, which made my job a lot easier.  For those attendees that had to stand (darn that Fire Marshal), I am glad you made it.  I was truly humbled by the responsiveness.  My goal was to add some clarity to an oftentimes confusing area of the law, and provide information that the trustees, conservators, residential care facilities and in-home care industry can use to comply with the law.  I feel confident that the attendees walked away with a better sense of the changing landscapes facing California employers.

I want to thank PFAC for inviting me back this year, and for giving me the opportunity to interact with so many wonderful fiduciaries.  If you were not able to attend my session (either because we ran out of room or because you were attending one of the other wonderful presentations), please do not hesitate to give me a call or send me an email and I’m happy to provide you with a copy of my material (be sure to mention that you are a PFAC member).  If you attended the session and have any follow-up questions, please feel free to contact me at your convenience (again, mention that you are a PFAC member).

Employers were not required to provide the required notice to existing employees (unless one of the listed items changes), but all new hires must receive and execute the form.  The new form has slight changes affecting temporary staffing agencies.  Employers are not required to provide the new form to employees who already filled out the old form.

The new form can be downloaded here.

California Supreme Court Rules on
Employer Meal and Rest Break Obligations
 
Court Decides Employers Must Relieve
Employees of All Duty During Meal Periods
But Need Not Ensure They Perform No Work

San Francisco—Resolving uncertainty over the scope of an employer’s obligations to afford hourly employees meal and rest periods, the California Supreme Court concluded today that an employer’s obligation is to relieve its employees of all duty during meal periods, leaving the employees thereafter at liberty to use the period for whatever purpose they desire, but that an employer need not ensure no work is done.

On the related question concerning when meal periods must be provided, the court concluded a first meal break generally must fall no later than five hours into an employee’s shift, but an employer need not schedule meal breaks at five hour intervals throughout the shift.

These questions arose in Brinker Restaurant Corporation v. Superior Court, S166350, one of a number of meal and rest break class actions pending in the state.  After the Brinker trial court certified classes of employees alleging the Brinker Restaurant Corporation had failed to provide meal and rest periods in the number and at the times required by state law, the Court of Appeal reversed and ordered each subclass vacated.  The California Supreme Court accepted review and agreed to resolve lingering uncertainty over the nature of rest and meal period obligations and the suitability of such claims for class treatment.

In a unanimous opinion authored by Associate Justice Kathryn M. Werdegar, the court explained that neither state statutes nor the orders of the Industrial Welfare Commission (IWC) compel an employer to ensure employees cease all work during meal periods.  Instead, under state law an employer must provide its employees an uninterrupted 30-minute duty-free period during which the employee is at liberty to come and go as he or she pleases.  Absent a statutorily permissible waiver, a meal break must be afforded after no more than five hours of work, and a second meal period provided after no more than 10 hours of work.

On the question of rest periods, the court explained that under the IWC’s orders, employees are entitled to 10 minutes of rest for shifts from three and one-half to six hours in length, and to another 10 minutes rest for shifts from six hours to 10 hours in length.  Rest periods need not be timed to fall specifically before or after any meal period.

As to the suitability of rest and meal period claims for class treatment, the court reversed in part, remanded in part, and affirmed in part the Court of Appeal’s rejection of class treatment.  With respect to rest period claims, the court concluded plaintiffs had identified a theory of recovery suitable for class treatment.  With respect to meal period claims, the Supreme Court remanded to the trial court for reconsideration of class certification in light of its clarification of the substantive law governing meal period claims.  Finally, with respect to a third subclass—for claims that Brinker required off-the-clock work—the court affirmed vacation of class certification.

The principal opinion by Justice Werdegar was signed by Chief Justice Tani G. Cantil-Sakauye and Associate Justices Joyce L. Kennard, Marvin R. Baxter, Ming W. Chin, Carol A. Corrigan, and Goodwin Liu.

Justice Werdegar also issued a separate concurring opinion, joined by Justice Liu, addressing meal period class certification issues confronting the trial court on remand.  The concurring opinion discussed considerations relevant to the suitability of the plaintiffs’ meal period claims for certification.

The court’s opinion in Brinker Restaurant Corporation v. Superior Court, S166350, is available on the California Courts Web site in two formats:  Word (http://www.courtinfo.ca.gov/opinions/documents/S166350.DOC ) and Acrobat (http://www.courtinfo.ca.gov/opinions/documents/S166350.PDF.  Hard copies of the opinion are available in the Supreme Court’s Clerk’s Office, 350 McAllister Street, San Francisco.  Legal briefs filed in the case are online at http://www.courts.ca.gov/15713.htm.

I am sure the blogosphere will be full of commentary and analysis.  I know of at least 5 different organizations (including an upcoming presentation by the Labor & Employment Law Section of the Santa Clara County Bar Association) scheduled for ensuing weeks regarding Brinker and the impact it will have on employers and wage and hour litigation.  I, for one, am even more interested in finding out what the court does with Kirby v. Immoos Fire Protection where a lower court held the employee could be responsible for the employer’s attorneys’ fees in a failed meal break claim.  (See my earlier post re: Kirby)

The afternoon workshops will take place from 1-5pm at Club Fox, 2209 Broadway Street, Redwood City, CA (see more information below). The afternoon workshops will be followed by an evening program and dinner from 5-9pm at which we will hear a discussion by a panel of speakers on education and justice issues,  including hearing from Cesar Chavez’s grandaughter.

Please plan to join us at this exciting workshop event. We look forward to seeing you there!!

WORKSHOP INFORMATION:

Thursday, March  29, 2012
(Attorneys & Non-Attorneys Welcome )

DAY  PROGRAM  – 12:00 PM  REGISTRATION

1:00 PM TO 2:00 PM
TOPIC:  WIN YOUR TRIAL (GEN MCLE 1.0)
Speakers:  Todd Emmanuel, Pres. San Mateo Trial Lawyers; Robert Nuddleman, Phillip Griego & Assoc.; Monica Castillo, Sarrail Castillo & Hall

3:00 PM TO 4:00 PM
TOPIC:   WINNING FOR YOUR DIVERSE CLIENTS ( BIAS MCLE 1.0)
Speakers:  Honorable Garret Wong, San Francisco Superior Court;             Rachel Grainger, Attorney at Law;  Nancy Lara, Attorney at Law

EVENING  PROGRAM – 4:00 PM  REGISTRATION

5:00 PM TO 9:00 PM
TOPIC:  EDUCATING OUR YOUTH IN A CHALLENGING
ENVIRONMENT
Speakers:  Mayor Alicia Aguirre, Redwood City,
Dolores Gallegos,  Spokesperson, Voters Injured at Work
Barbara Ybarra,  Cesar Chavez ‘s Granddaughter with
Home movies and wonderful biographical comments
DINNER
6:00 PM

COST:
Day Only: $40
Evening only: $50
Package: $75

LOCATION:
Club Fox
2209 Broadway Street
Redwood City, CA 94063
(650) 369-4119

RSVP:
(kennethmesq@msn.com)
408-375-8135
Checks payable to :
La Raza Centro Legal, Inc.
474 Valencia St. # 295
San Francisco CA. 94103
Put SMCLRL March 29 in memo of check

Let me start off by reminding you that there are two different possible sales-related exemptions under California’s overtime laws: inside sales persons and outside salespersons.  Outside salespersons are exempt under most, if not all, wage orders.  Inside salespersons are only exempt if the employment is governed by Wage Order 4 (professional, technical, clerical mechanical and similar occupations) or Wage Order 7 (mercantile industry).  If some other wage order applies then the inside salesperson exemption is not available.  There are several different distinctions between the inside salesperson and the outside salesperson exemptions that I hope to address in a subsequent article.  For now, I want to focus on a couple of key points discussed in the Muldrow case.

Surrex Solutions Corporation locates and provides qualified candidates for employment to other companies.  Sometimes the candidates are hired directly by the customer and other times Surrex “rents” the candidate to the customer for a specified billing rate.  Surrex employees review open positions, research and locate qualified candidates, negotiate terms of employment/hiring with candidates and customers, and obtain orders from customers for the candidates.  The Surrex employees are paid a percentage of any placement/hiring fees when the customer hires the candidate directly, and a percentage of the adjusted gross profit for candidates retained on a consultant basis.  Tyrone Muldrow, on behalf of himself and other similarly situated employees, filed a class action against Surrex claiming he was entitled to overtime.  The trial court and the appellate court rejected the claim and determined Muldrow was exempt from California’s overtime laws under the inside salesperson exemption.

The court emphasized several earlier cases distilling the necessary criteria for the inside salesperson exemption:  “First, the employees must be involved principally in selling a product or service, not making the product or rendering the services.  Second, the amount of their compensation must be a percentage of the price of the product or service.” (quoting Ramirez v. Yosemite Water Co (1990) 20 Cal.4th 785)

In addressing the first issue (i.e, was the employee involved principally in selling a product or service), the court reduced Muldrow’s job to its essence: Surrex employees would offer a candidate’s services to a client in exchange for a payment of money from the client to Surrex.  Although there was some discussion regarding duties leading up to the consummation of the sale, all of those duties were part of the selling process and therefore the employees were “involved principally in selling a product or service.”

As to the second issue, the employees conceded that they were paid a percentage of the price of the product for the direct hires, but claimed that since the amounts paid on the non-direct hire cases was not based on the gross price of the product or service, it was not a commission.  The court had no trouble rejecting this argument.  Nothing indicates the percentage must be based on the gross price versus an adjusted gross or net price.  The court similarly rejected the employees’ argument that the commission plan should be rejected because it was “too complex.”

An interesting issue that was not addressed by the court (and possibly not raised by either side) was the fact that the commissions are calculated by taking the gross profit then deducting ordinary costs of doing business in order to calculate the commission.  There has been discussion for some time regarding the extent to which an employer can use the ordinary costs of doing business in the calculation of bonuses, commissions and profit-sharing agreements.  The California Supreme Court has flip-flopped on the issue at least once.  The latest rule is that, at least with respect to managerial profit sharing plans, an employer can calculate a profit sharing plan using profitability which necessarily includes the ordinary costs of doing business.  Under Muldrow, it would appear an employer can also calculate a commission based on the ordinary costs of doing business (e.g., overhead, employee costs, benefit costs, etc.)

Commission plans can be simple or they can be complicated.  Even simple commission agreements need to carefully consider a number of factors.  Now that California law will require all commission agreements to be in writing and provided to the employee, it is extremely important for you to review and understand your commission arrangement.  If your plan is not in writing, now is the time to start working on it with a knowledgeable professional.  And don’t forget to consider any possible overtime ramifications!

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.

A recent Chicago Tribune article reports a victory for Sharon Smiley after she was fired for working during her lunch hour.  In Illinois, like California, employees are entitled to a lunch break in the middle of the day.  After 10 years of employment, Sharon Smiley decided to work through a lunch break to finish some work. Her manager became upset because Sharon was apparently in violation of company policies so he sent her to HR.  HR had a short discussion with her and then fired her for misconduct (violating company policies) and insubordination (refusing to follow the employer’s instructions).  Sharon was devastated.

To add insult to injury, the company opposed her unemployment insurance claim.  She went to several different attorneys, all of which told her she had no chance of winning.  Undaunted, and really with no other choice, Sharon represented herself.  She appealed the initial unemployment insurance benefits denial, and the superior court judge overturned the decision.  Last week an appellate court upheld the lower court’s decision allowing Sharon to obtain unemployment insurance benefits.

To my knowledge there are no plans to file a wrongful discharge claim.

The article is particularly interesting here in California as the Supreme Court decides whether employers must force employees to take lunch breaks or merely ensure employees have a realistic opportunity to take the required breaks.  I guess I’ll have to add a few more caveats to my advice.

You can read the original Chicago Tribune article 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.

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 Bell cases are  three  decisions that the Supreme Court issued regarding whether claims adjusters working for Farmers Insurance Exchange were exempt from California’s overtime requirements.  The cases were important because the court used the production/administration dichotomy to find the adjusters did not meet the administrative exemption test.

The production/administration dichotomy distinguishes between administrative employees primarily engaged in “administering the business affairs of the enterprise” and production employees primarily engaged in “producing the commodity or commodities, whether goods or services,” that were the focus of the enterprise.  Despite the fact that Bell specifically held that the production/administration dichotomy is not useful in every case, a lot of attorneys try to rely on the distinction as a simple way of determining whether an employee is exempt.

In Harris, claims adjusters employed by Liberty Mutual Insurance Company and Golden Eagle Insurance Corporation filed a class action seeking unpaid overtime.  The employer alleged the employees were exempt under the administrative exemption, and the plaintiffs filed a motion for summary judgment seeking a determination that “as a matter of law,” the claims adjusters could not be exempt.  The appellate court used the production/administration dichotomy and held the employees could not be exempt from California’s overtime laws.  The California Supreme Court disagreed and put a huge damper on further attempts to use the production/administration dichotomy as the sole basis for defeating a claimed exemption.

Harris pointed out that Bell was decided based on pre-2000 regulations which did not clearly define the administrative exemption.  In 2000, the IWC amended the wage orders providing more details as to what activities qualify as exempt duties and specifically incorporated specific federal regulations.  Bell did not have the advantage of those regulations and therefore relied on the production/administration dichotomy absence clear direction from the legislature or the IWC.  Now that we have specific regulatory guidance, the production/administration dichotomy is even less useful.

Perhaps the biggest death toll for Bell is the Supreme Court’s focus on the fact that Bell is really only applicable to pre-2000 cases.  While there may be a few pre-2000 cases still winding their way through the court system, I suspect there aren’t many of them left.

It is also important to note that the Supreme Court did not say the claims adjusters were or were not exempt from overtime.  The court merely pointed out that the appellate court used the wrong test in determining whether the employees are entitled to overtime.  Correctly classifying employees is not easy, and you should seek the assistance of competent professionals before making a costly mistake.

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.

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.

You can visit the DFEH’s website for more information. The press release should be available online in the next couple of days.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
South Bay: 408-293-6341
East Bay: 925-364-4655
Original article by Robert E. Nuddleman of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship.

I originally posted this article in 2008, but I think it is a good reminder:

Jessica Hawthorne, an employment attorney formerly with the California Chamber of Commerce, has some good suggestions regarding holiday parties and preventing sexual harassment lawsuits.

As holiday decorations start to go up around the office and everyone is full of seasonal cheer, many businesses may find that work parties, along with a more relaxed environment, can lead to sexual harassment claims.

Much too often especially if the event is off-site and the alcohol flows freely the office holiday party becomes a breeding ground for this sort of behavior. It seems that some employees can get the impression that professional behavior isn’t necessary at the festivities.

But that’s not the case. If its a work-sponsored event, workplace etiquette applies. And unfortunately for employers, liability can be the unexpected Christmas delivery if things aren’t handled properly.

Every year, claims and lawsuits over sexual harassment problems cost companies millions of dollars. In 2007, for example, the Equal Employment Opportunity Commission received nearly 25,000 sex-discrimination complaints and fined businesses more than $135 million for violating these workplace protections, the highest level since 2002.

But businesses can protect employees against legal turmoil by taking simple steps to prevent harassment from occurring at the office holiday party or anywhere else:

Advise employees of all relevant policies, such as harassment, dress code and appropriate workplace behavior.
Make sure all supervisors have received sexual harassment training.
Make sure everyone knows how to report unwanted or unwelcome behavior.
Remind all employees that the company’s sexual harassment policies will be in full force and effect during the event.

Despite training and preparation, sexual harassment claims could arise, so employers should also be aware of how to mitigate the situation. Its important to act swiftly if there are any complaints to determine what happened and how best to deal with the claim. That way, you will have done your harassment prevention due diligence if any legal situation arises later.

The best way to accomplish this and follow California law is to conduct proactive employee training and awareness against all forms of harassment.

All organizations, and that includes businesses, government agencies and non-profits, with 50 or more employees are required to train all supervisory personnel in sexual harassment prevention. Employers must prove that all of these employees take an interactive, two-hour harassment prevention course within six months of hire and every two years thereafter.

So keep in mind that while sexual harassment prevention is relevant all year round, now is a good time to give your office a refresher course. Your business should enjoy this festive time of year by keeping employees aware and preventing sexual harassment before it starts.

Jessica Hawthorne was formerly employment attorney the California Chamber of Commerce.

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.

We reluctantly return in this case to the question of default judgments with a cautionary tale – well, three actually. The first is a tale for plaintiff‘s attorneys, who may assume a defendant‘s default is an unalloyed gift: an opportunity to obtain a big judgment with no significant effort. It is not. Instead, when a defendant fails to timely respond to the complaint, the first thing plaintiff‘s counsel should do (after offering an extension of time to respond) is review the complaint with care, to ascertain whether it supports the specific judgment the client seeks. If not, a motion to amend is in order. In this case, counsel for plaintiff Gil Kim failed to do that. Instead, he simply asked the court to enter defendants‘ defaults on the complaint as initially alleged. Unfortunately for Kim, the factual allegations of that complaint do not support any judgment in his favor.

And even when the allegations of a complaint do support the judgment plaintiff seeks, he is not automatically entitled to entry of that judgment by the court, simply because defendant defaulted. Instead, it is incumbent upon plaintiff to prove-up his damages, with actual evidence. It is wholly insufficient to simply declare, as Kim did here, that defendants‘ breach of one or more promissory notes ―caused [him] tremendous financial loss, and that a judgment of ―$5 million against each defendant, for a total of $30 million . . . would be a reasonable sum. That evidence may establish the amount Kim feels entitled to recover, but it fails utterly to demonstrate what he is legally entitled to recover. Kim‘s failure to offer any significant evidence to support his damage claims precludes any monetary judgment in his favor.

We consequently reverse the default judgment entered in Kim‘s favor, and remand the case to the trial court with directions to enter judgment in defendants‘ favor.

The second cautionary tale is for trial courts. And it‘s not the first time we have told this tale. As we previously explained in Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 868, ―[i]t is imperative in a default case that the trial court take the time to analyze the complaint at issue and ensure that the judgment sought is not in excess of or inconsistent with it. It is not in plaintiffs‘ interest to be conservative in their demands, and without any opposing party to point out the excesses, it is the duty of the court to act as gatekeeper, ensuring that only the appropriate claims get through. That role requires the court to analyze the complaint for itself — with guidance from counsel if necessary — ascertaining what relief is sought as against each defaulting party, and to what extent the relief sought in one cause of action is inconsistent with or duplicative of the relief sought in another. The court must then compare the properly pled damages for each defaulting party with the evidence offered in the prove-up. Unfortunately, the trial court in this case seems not to have done that, and instead simply gave Kim what he asked for – which in this case was $30 million. Even more unfortunately, this trial court is certainly not alone in doing so, even since Heidary was published. (See, e.g., Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161 [$8 million in compensatory damages awarded on a complaint alleging $50,000 in damages].) We need to shore this up. The court‘s role in the process of entering a default judgment is a serious, substantive, and often complicated one, and it must be treated as such.

And third, this case is a cautionary tale for appellate counsel. Those who practice before this court are expected to comport themselves honestly, ethically, professionally and with courtesy toward opposing counsel. The fact a respondent has no obligation to file a brief at all, in no way excuses his counsel‘s misconduct if he chooses to do so. The conduct of Timothy J. Donahue, Kim‘s counsel herein, which included seeking an extension of time to file his brief under false pretenses, and then filing a brief which was not just boilerplate, but a virtual copy of a brief for another case – including a boilerplate accusation of misconduct against appellants‘ counsel and a boilerplate request for sanctions based on a purportedly ―frivolous appeal – will not be countenanced. Donahue‘s response to this court‘s notice, informing him that we were contemplating the imposition of sanctions on our own motion, was both truculent and dismissive, going so far as to assert that we must have issued the notice in error. We did not. Nor did we appreciate him responding to our order that he appear to address possible sanctions against him by sending in his stead an attorney who had not been informed sanctions were being considered, and knew nothing about our order. Donahue‘s conduct on appeal was inappropriate in nearly every respect, and we hereby sanction him in the amount of $10,000.

When I became an attorney a good friend of mine expressed concern because his experiences with his attorney were less than positive.  From my friend’s perspective he paid a significant amount of money and the attorney merely used boilerplate forms and “plugged in the names.”  I cannot comment on that attorneys’ practices, but my friend’s perspective played a significant role in how I approach cases.

Deciding how to proceed in a case begins with the initial meeting with the client.  I draw on my past experience and knowledge to educate my clients regarding different approaches and likely outcomes.  I then work with my client to execute a plan of action intended to meet my client’s goals.  While I certainly use past experience and work product to further my client’s interests, it is not enough to simply change the names and submit a document to the courts without ensuring the documents are accurate, appropriate to the situation and drafted to meet the intended outcome.  Unfortunately not all lawyers are alike.

I heard a joke recently that 99% percent of the attorneys out there ruin the public image of the remaining 1% of us hard-working folk.  I’ve been lucky enough to surround myself with colleagues and co-workers that I respect and who consistently hold themselves to a higher standard.  I never want to have an opinion written about my work product that even implies I gave less than 100% of my attention.  Taking the time to do things correctly may not be the cheapest way to approach a situation, but it’s the only way I feel comfortable doing 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 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.