Employment Law Bulletin | March 2019

California Law Requires Revision of Employee Documents with Confidentiality Provisions Signed On or After 1/1/2019

As we reported at our 2019 Employment Law Update, several laws arising out of the #MeToo movement took effect on January 1, 2019, and they have a direct and immediate impact on most California employers.  If you have employees sign any of the following agreements and they were drafted before January 1, 2019 (whether by SMT or any other source), they may now be void and unenforceable under California law.

  • Confidentiality and Non-Disclosure Agreements
  • Confidentiality and Invention Assignment Agreements
  • Employment Agreements with confidentiality clauses
  • Employee Handbooks with confidentiality policies
  • Severance Agreements with confidentiality requirements
  • Settlement Agreements with confidentiality requirements

 

Agreements signed by employees before January 1, 2019, are enforceable and need not be revised.

Please contact an SMT employment attorney to update your documents today.  If you’re not sure if your documents need to be updated, please contact us and we’ll be glad to assist

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish.  Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims.  Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | February 2019

Terminating Employees – A Ten Factor Test

A client recently asked, “How can I know when it’s safe to terminate an employee?” What a great question!

In the union context, there is a well-known Seven Factor Test (developed by Labor Arbitrator Carroll Daugherty in 1962) for determining whether there is just cause for termination. In the non-union context, and even though California is an “at-will employment” state, the exceptions tend to swallow the rule. Given that reality, the list below is a combination of the Seven Factor Test along with three additional important factors we recommend you consider before terminating an employee.

THE TEN FACTOR TEST (Just Cause: Seven + Three = Ten Factors)

  1. Notice: Did the Employer give the Employee forewarning or foreknowledge of the possible or probable consequences of the Employee’s conduct?
  2. Reasonable Rule or Order: Was the Employer’s rule or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the Employer’s business, and (b) the performance that the Employer might properly expect of employees?
  3. Investigation: Did the Employer, before administering the discipline to the Employee, make an effort to discover whether the Employee did in fact violate or disobey a rule or order of management?
  4. Fair Investigation: Was the Employer’s investigation conducted fairly and objectively?
  5. Proof: In the investigation, did the “judge” obtain substantial evidence or proof that the Employee was “guilty as charged?”
  6. Equal Treatment: Has the Employer applied its rules, orders and penalties even handedly and without discrimination to all employees.
  7. Penalty: Was the degree of discipline administered by the Employer in this particular case reasonably related to (a) the seriousness of the Employee’s proven offense and (b) the Employee’s record of service with the Employer?
  8. Protected Status: Are there protected status issues that impact the timing?
  9. Documentation: Does the Employer’s documentation clearly prove Factors 1 – 8?
  10. Are there any other issues to address prior to termination? For instance, does the Employee have confidential information, Employer property, keys, credit cards, passwords, etc., in his/her possession that should be retrieved, changed or disabled? Are there unresolved wage issues or other complaints? Does the Employee pose any likely safety or violence concerns? Is there anything else the Employer has not anticipated that should be considered?

This may look like it will take too much time, effort and diligence to deliver in every single situation but, to paraphrase my Mom, if you don’t have time to do it right, you don’t have time to do it over (or to defend a lawsuit about something you could have done right the first time). We are here to help you with this sometimes challenging process, so please feel free to call.

Jan Gabrielson Tansil

 

Piece Rate Pay Update

Back in 2015, the Legislature adopted a two-part statute (Labor Code section 226.2) that included sweeping new rules about how to pay workers on a piece-rate basis. The first version of Section 226.2 is in effect from 1/1/2016 through 12/31/2020; it will be repealed and replaced by the second version of Section 226.2 as of 1/1/2021.

Section 226.2 added a requirement that rest break time be paid in addition to the piece rate pay earned based on production and that all piece rate earnings be properly reported as such on pay stubs. The statute was explicitly stated to be a codification of the current case law, making the “new” statute retroactive. The first version of Section 226.2 included a “Safe Harbor” opportunity for piece rate employers to calculate and pay piece rate back pay following strict rules and meeting strict deadlines.

Many of our clients seized that opportunity to clean up their piece rate practices consistent with the Section 226.2 Safe Harbor, thereby avoiding significant statutory penalties and interest. Congratulations to all who did so.

Some employers (very large agricultural, trucking and construction employers) chose not to do so, and instead challenged the constitutionality and enforceability of Section 226.2 by filing a lawsuit. A California Appellate Court recently issued a decision denying all of the challenges raised in the case Nisei Farmers League v. California Labor and Workplace Development Agency. This decision of the Fifth District Court of Appeal will likely be appealed to the California Supreme Court for a final decision. In the meanwhile, liability for interest and penalties continues to accrue as to those employers who chose to file a lawsuit rather than participate in the Safe Harbor option.

The plaintiffs in the Nisei case made a decision to fight the law rather than comply with a law that seemed unfair and too cumbersome and expensive to them. We can all understand the frustration that sometimes accompanies a new law, regulation or interpretation of existing law that seems unreasonable, expensive and burdensome. Frankly, we have nearly continual examples of that in California employment law. And, it may be that the Nisei case will be appealed and the California Supreme Court will side with the large farmers, truckers and construction companies in the Nisei case. In the meanwhile, we are glad and grateful that many of our clients chose to use the Safe Harbor back in late 2015 and no longer have this expensive, unresolved issue looming over their businesses.

If your workplace pays any employees on a piece rate basis, it’s a good idea to check to be sure you are in compliance with the piece rate rest break and pay stub requirements, and monitor that on an ongoing basis. As always, stay turned for future developments in this complex law.

Jan Gabrielson Tansil

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish.  Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims.  Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | January 2019

Employment Law Update Action Items

 

In this month’s Employment Law Bulletin we bring you our 2019 Employment Law Update Action Items checklist. Employers can use this handy checklist to help ensure their organization is in compliance with new laws that took effect in January 2019.   It also includes action items regarding some of the issues we most frequently counseled our clients about during 2018. (See the checklist starting with “Ban the Box.”) Please reach out to an SMT employment attorney if you have questions. We are here to help.

 

REQUIRED LABOR LAW POSTINGS

  • Update CA Labor Law Poster

 

MINIMUM WAGE IN CALIFORNIA

  • Review hourly pay rates and increase as needed
  • Review pay for EEs where minimum wage is used as a threshold and increase as needed:
    • Wage Order 16 EEs who provide their own hand tools/equipment
    • EEs paid minimum wage for travel, waiting time, etc.
    • Commissioned sales people (to maintain overtime-exempt status)
    • EEs in the construction industry exempt from paid sick leave law based on CBA that provides for pay at least 30% > minimum wage
    • EEs exempt from state overtime law based on CBA that provides for regular hourly pay at least 30% > minimum wage
  • Review exempt EE salaries and increase as needed
  • Since the new minimum wage laws are triggered by ER size, pay attention to fluctuation in EE counts throughout the year and adjust the minimum wage accordingly
  • Make sure you have the current minimum wage posting

 

OVERTIME FOR AGRICULTURAL WORKERS

  • ERs with > 25 EEs:  implement new 9.5/day; 55/week overtime standard now and plan for future changes
  • ERs with 1-25 EEs, first change is not effective until 1/1/2022, but now is a good time to review future overtime exposure and develop plans to address (limiting overtime exposure by hiring more EEs vs. keeping the same number of EEs who work more hours and are owed overtime)
  • Since the new overtime law is triggered by ER size, pay attention to fluctuation in EE counts to be sure to apply the correct overtime rule

 

PAY FOR ALL HOURS WORKED

  • Audit work practices to identify tasks/time that are not being captured by non-exempt EEs
  • Develop solutions to ensure all hours worked are paid

 

FINAL PAY

  • Audit work practices to identify potential final pay issues
  • Train supervisors to advise HR immediately of resignations and “no-show, no-call” “deemed resignations”
  • Discuss common errors with payroll personnel and provide training
  • Address and resolve final pay inquiries from former EEs quickly

 

IRS MILEAGE RATE FOR 2019

  • Pay the IRS mileage rate
  • If not paying IRS rate, ensure your mileage rate truly covers the cost incurred by the EE

 

EE PAYROLL RECORD REQUESTS

  • Respond promptly to EE requests (w/in 21 days)
  • Provide copies when requested (can charge EE reasonable copy fee)
  • Train HR personnel

 

EEs WORKING IN OTHER STATES

  • Identify each state where EEs work
  • Identify the number of EEs in each state
  • Identify the number of exempt vs. non-exempt EEs
  • Learn the employment laws of those states (contact SMT for assistance)
  • Make informed decisions – don’t “just follow CA law”
  • Revise Employee Handbooks and policies accordingly

 

EMPLOYEE v. INDEPENDENT CONTRACTOR CLASSIFICATION ISSUES

  • Assess all current independent contractor relationships and reclassify EEs as necessary
  • Assess any joint ER relationships and their independent contractor issues

 

ALVARADO v. DART – REGULAR RATE OF PAY (RRoP)

  • Check all forms of compensation given to non-exempt EEs for potential inclusion in RRoP
  • Train inside payroll staff about RRoP
  • Confirm how RRoP handled by outside payroll providers
  • Assess potential for retroactive liability
  • Alert upper management about the issues

 

SEXUAL HARASSMENT TRAINING

  • Implement training protocol to ensure compliance with timing requirements

 

LACTATION BREAKS

  • Update Employee Handbooks and policies
  • Ensure that EEs have a room or location other than the restroom to use for lactation breaks

 

EQUAL PAY

  • Prepare (or have a process in place for preparing) pay scales for applicants who request them
  • Update employment application

 

BAN THE BOX

  • Check job applications to ensure compliance
  • Train employees engaged in hiring and interviewing candidates
  • Call an attorney for direction before taking action based on criminal history information

 

MARIJUANA IN THE WORKPLACE

  • Ensure that drug and fitness for work policies accurately reflect what your company intends to enforce

 

REST/MEAL BREAK ISSUES

  • Review rest and meal break policies and ensure they (1) inform EEs of their rights to meal/rest breaks, including all legal requirements; and (2) establish a procedure to report violations
  • Publish the rest and meal break policies in a separate agreement signed and acknowledged by all nonexempt EEs
  • Train supervisors – make enforcement their responsibility and document failures to enforce as a performance issue
  • Train all EEs and keep records of training
  • Discipline EEs who violate your policy as you would any other performance issue –  DOCUMENT!
  • Monitor time records to ensure meal breaks are (1) taken; (2) on-time; and (3) long enough
  • Remind EEs of the policy at least annually – more frequently if needed!

 

THIRD PARTY PAYROLL ASSISTANCE

  • Educate yourself – what does your contract say about the responsibilities of the Company/HR vs. the third party?
  • Be sure to submit all vacation/PTO/sick leave policy changes to the third party and then require proof changes have been made on their end
  • Request that the third party send you their record of how they are accruing vacation/PTO/sick leave for your company and compare it to your written policies – do they match?
  • Audit pay stubs and payroll records to ensure:
    • vacation/PTO/sick leave are properly accrued and reported
    • all forms of compensation are included in the regular rate of pay for nonexempt EEs
    • your in-house payroll person is providing the correct information to the payroll company
  • Audit pay stubs for exempt and nonexempt EEs to ensure they contain all information required by Labor Code §226

 

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish.  Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims.  Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | December 2018

New Sexual Harassment Prevention Training Requirements in 2019

 

The new year brings several new employment laws arising out of the MeToo movement, including new requirements for sexual harassment prevention training.  The changes are outlined below:

  • Employers with 5 or more employees must provide training in the prevention of sexual harassment. (Previous law required training only if an employer had 50 or more employees.)
  • Sexual harassment prevention training must be provided to all employees – 2 hours of training for supervisors and 1 hour of training for non-supervisors. (Previous law only required training of supervisors.)
  • The training must be completed by 1/1/2020, and is required every two years thereafter.
  • The training must occur within 6 months of the start of employment (for new hires), or the assumption of a supervisory position (for promoted employees).

 

The new law requires the California Department of Fair Employment and Housing (DFEH) to develop and make available on its website the one-hour and two-hour anti-sexual harassment training courses for supervisory and non-supervisory employees.  Training webinars are available at https://www.dfeh.ca.gov/resources and cost $55 per employee.  Employers may also purchase or develop their own training programs, as long as they comply with the requirements of the law.  SMT employment attorneys can also provide onsite training customized to the needs of your business.

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish.  Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims.  Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | November 2018

Minimum Wage Jumps $1/hour for Employers of 26 or More Employees and $.50/hour for Smaller Employers

In January 2017, California began a six year phase-in process to raise the minimum wage for all employees from $10/hour to $15/hour.  Initially, the annual increases were fifty cents per hour.  However, effective January 1, 2019, the jump for employers of 26 or more employees will be $1 per hour (from $11 to $12).  For employers of 1-25 employees, the 2019 increase will still be fifty cents per hour (from $10.50 to $11).  These smaller employers won’t face the $1/hour jump from $11 to $12 until January 1, 2020.

Once the employer reaches the initial $1/hour jump, the minimum wage increases by $1/hour each year thereafter until it reaches $15/hour in 2022 for employers with 26 or more employees, and 2023 for employers of 1-25 employees.  See https://www.dir.ca.gov/dlse/SB3_FAQ.htm for a minimum wage increase chart.

In addition to increasing the hourly pay of employees working at the minimum wage, employers must also consider the ripple effect the new increase has on other employees since many California employment laws are pegged to the minimum wage.  In other words, when the minimum wage increases, the employer must (1) review all exempt employee salaries to ensure they still meet the salary test (no less than 2x minimum wage x 40 hours per week); (2) ensure that employees paid at minimum wage for travel or training time receive an increase; and (3) ensure that employees in the construction industry who provide their own hand tools are still paid at least 2x minimum wage per hour.

If you have questions about how these minimum wage changes will affect your business, please reach out to an SMT employment attorney.

Lisa Ann Hilario

Phase-In of New Overtime Rules for Agricultural Workers
Begins January 1, 2019 For Some Employers

In 2016, Governor Brown signed the “Phase-In Overtime for Agricultural Workers Act of 2016” changing the overtime requirements for hourly agricultural employees.  The law also implemented double time requirements for the same employees.

Starting January 1, 2019 and continuing over the next several years, the current 10-hour daily and 60-hour weekly overtime standards for hourly agricultural employees will drop each year until eventually, the 8-hour daily/40-hour weekly overtime standards applicable to most other hourly employees in California applies to agricultural employees.  In addition, starting in 2022, agricultural employees will become eligible for double time pay if they work more than 12 hours in a workday.

The overtime and double time phase-in schedules are determined by the number of employees the business employs – agricultural and non-agricultural alike.

For employers of more than 25 employees, the first change begins on January 1, 2019 when the overtime standard drops from 10 hours to 9.5 hours per day and from 60 hours to 55 hours per week.  The phase-in schedule ends on January 1, 2022 when the agricultural overtime standard reaches the 8 hours/day and 40 hours/week standard.

Employers of 1-25 employees have a longer period before they face changes. The drop from 10/60 hours to 9.5/55 hours does not occur until January 1, 2022.  The phase-in schedule for these employers will be completed on January 1, 2015.

The double time phase-in schedule for employers of more than 25 employees does not start until January 1, 2022; for employers of 1-25 employees, double pay begins January 1, 2025.

  Overtime Trigger
(hours)
 1-25 Employees  > 25 Employees
 10/day; 60/week  Through 12/31/2021  Through 12/31/2018
  9.5/day; 55/week  1/1/2022  1/1/2019
  9/day; 50/week  1/1/2023  1/1/2020
  8.5/day; 45/week  1/1/2024  1/1/2021
  8/day; 40/week  1/1/2025  1/1/2022
  Double time Trigger
(hours)
 1-25 Employees  > 25 Employees
  No double time requirement  Through 12/31/2024  Through 12/31/2021
  12/day 1/1/2025  1/1/2022

We understand this new law will pose challenges for agricultural employers, especially in light of the difficulties already posed by the tight labor market and rising production costs.  Please contact an SMT employment law attorney to explore options to minimize overtime and double time within the confines of California law.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish.  Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims.  Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | October 2018

5 Scary Employment Issues Currently Haunting Employers

Over the last year, we have reported on a number of employment law issues that we anticipated would affect our clients in a substantial way.  As it turns out, our predictions came true and our clients have been faced with attempting to navigate the frustrating labyrinth of legislative rules and court decisions that impact their daily business decisions.  We have no doubt that these employment law issues are keeping employers awake at night, which made us think that the Halloween season would be a perfect time to touch on the “scariest” issues and let you know we are here to help alleviate your nightmares.

1. Negative information discovered from criminal background checks and/or Megan’s Law website. Employers are continuing to struggle with what to do after receiving a post-offer criminal background check that contains information regarding a criminal conviction that is unseemly in nature, but otherwise has nothing to do with the job duties of the position.Other common situations involve another employee’s discovery of criminal history information or information obtained from the Megan’s Law website.The arduous analysis and notice process required by the California Labor Code combined with the serious exposure to a discrimination claim by the applicant turned away based on a conviction has placed employers in a bind that begs the question, “Do you really want to know an employee’s criminal history if you cannot legally do anything about it?”  For more information about this issue, see our November 2017 Employment Law Bulletin.  

2. Increased difficulty in classifying a worker as an independent contractor. As many employers are finding out, the test the Supreme Court outlined earlier this year in the Dynamex decision has made it nearly impossible to legitimately classify a worker as an independent contractor if the worker does not meet all of the following requirements is 1) under the direction and control of the hiring entity with respect to the performance of the work, 2) performs work that is within the usual course of the hiring entity’s business, and 3) is not customarily engaged in an independent and established trade, occupation, or business that is of the same nature as the work performed.  This conundrum has presented employers with the difficult problem of figuring out how to continue operating a business efficiently and profitably while at the same time staying within the confines of the law.  For more information about this issue, see our June 2018 Employment Law Bulletin.    

3. Rejection of the De Minimis Doctrine in California.  The California Supreme Court rejected the federal “De Minimus Doctrine,” ruling that employees track and pay for minimal amounts of time employees spend performing work off the clock either before or after an employee’s shift.  The court made clear that no time spent performing work is too minor or trivial to be counted, which opened the door for a plethora of wage and hour claims where employees perform miniscule tasks before clocking in or after clocking out.  Employers should be taking a hard look at their timekeeping practices and ensuring that their employers are paid for each minute worked to avoid the liability of a wage a claim.    

4. Protecting employee records and employer premises from an unlawful search.   Beginning this year, employers are now under a new obligation to ensure that immigration enforcement agents are prevented from entering the non-public areas of an employer’s facilities without a valid judicial search warrant and also places the burden on the employer to protect employee documents from inspection without giving notice to the employees of the request.  The notice process is no easy task and involves specific steps and time-sensitive deadlines in order to avoid fines and liability.  The fallout of this legislation is that employers must educate themselves and create policies and procedures for how to deal with law enforcement in the workplace, which is no easy task.  For more information about this issue, see our December 2017 Employment Law Bulletin.     

5. Final pay accuracy and waiting time penalties.  Employers continue to encounter difficulty in complying with California’s final pay rules.  Timing of the payment, the calculation of accrued and unused vacation, and clerical accuracy are all important factors to consider before cutting the final paycheck. As we saw in the Nishiki case, the California Court of Appeals made clear that even small clerical errors in an employee’s final paycheck can lead to thousands of dollars in waiting time penalties.  Taking the time to get it right is not only extremely important, it is necessary to prevent an award of damages that might seriously impair your business.  For more information about this issue, see our September 2017 Employment Law Bulletin.

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish.  Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims.  Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | September 2018

Want to appeal a decision by the Labor Commissioner? Think again.

 

Last month, California law firm Danko Meredith, PC (Danko) learned the hard way that appealing an award to a former employee by the Labor Commissioner can be very risky and extraordinarily costly. In a decision called Nishiki v. Danko Meredith APC, the First District Court of Appeal reminded employers of their obligations under California law when an employee resigns without notice. Specifically, the Labor Code requires employers to pay all wages within 72 hours of the resignation. If an employer fails to do so, the employee’s wages continue as a penalty for up to 30 days until the wages are paid (a.k.a. waiting time penalties). In Nishiki, the Court addressed the timeliness of the final paycheck and the associated waiting time penalties under this rule as well as whether an employee can recover attorney’s fees on appeal.

The Facts

Taryn Nishiki (Nishiki) was employed as an office manager and paralegal by Danko. On the evening of Friday, November 14, Nishiki resigned from her position by sending out an email to the firm’s partners after the firm has closed for business. The following Tuesday, Danko mailed Nishiki her final paycheck. Unfortunately, the check contained a clerical error in that it had the correct amount of wages listed in numbers, but the wrong amount reflected in written format. The written amount reflected an underpayment of $80. Nishiki was unable to cash the check as a result of the error and informed Danko of the situation on November 26. Instead of immediately fixing the problem, Danko told Nishiki that they could not confirm her inability to cash the check. When Nishiki again reiterated that she was not able to cash the check and had no way to confirm her inability to do so, Danko gave her the option of returning the original check for a replacement or keeping the original and getting a second check for $80. Nishiki mailed the original check back and received a replacement check on December 5.

The Labor Commissioner’s Decision

Nishiki subsequently filed a complaint with the Labor Commissioner demanding $7,500 in unpaid wages and penalties, which included claims for unpaid vacation, missed rest breaks, and waiting time penalties. The Labor Commissioner ultimately denied Nishiki’s claims for unpaid vacation and rest breaks but awarded $4,250 in waiting time penalties for the 17 days Nishiki had to wait to get the corrected final paycheck. Danko appealed the decision. In hindsight, this strategy was ill considered considering that Section 98.2 of the Labor Code allows for an award of attorney’s fees against the party who appeals a decision by the Labor Commissioner if that party is unsuccessful in the appeal. Under that section, an employee must only recover an amount greater than zero to be deemed the successful party on appeal, making the employer’s threshold for success low and the riskiness of the employer’s appeal high.

The Appeal

In considering Nishiki’s claims, the Court of Appeal reduced the waiting time penalties to $2,250 (only 9 days instead of 17), but it granted Nishiki’s request for attorney’s fees under Labor Code section 98.2(c) in the amount of $86,160 plus costs! As for the reduction in waiting time penalties, the court found that the clerical error did not amount to a willful withholding of final pay. However, the firm was in violation of the law when it did not immediately fix the problematic check after receiving notice of the problem from Nishiki, so waiting time penalties were ordered from the date of notice until the corrected check was mailed.

The Take Aways

So what are the take aways from Nishiki? First, any clerical errors related to the method of payment should be fixed immediately upon notice of the error in order to avoid waiting time penalties. Second and just as important, employers should think very carefully before appealing a Labor Commissioner award, the end result could easily end up costing tens of thousands more than the original award!

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish.  Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims.  Contact an SMT attorney today to get started. 

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | June 2018

California Supreme Court Limits Ability to Classify Workers as Independent Contractors in Claims Brought Under the Wage Orders

 

On April 30, 2018, the California Supreme Court in Dynamex Operations West, Inc. v. Superior Court, dramatically changed the landscape for companies that hire independent contractors by expanding the definition of “employ” and creating a presumption that all workers are employees in claims brought under the California Wage Orders.  The Supreme Court held that in such cases, a worker is an employee if the relationship with the hiring party falls under one of the following:  the hiring party (1) exercises control over wages, hours, or working conditions, (2) causes the worker to suffer or permits the worker to work; or (3) engages the employee, creating a common law employment relationship.  In order to limit the broad application of the second definition (to suffer or permit to work), the court adopted the “ABC” test, which requires the hiring party to prove all of the following in order to overcome the presumption that the worker is an employee and prove an independent contractor relationship:

(A) the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;

AND

(B) the worker performs work that is outside the usual course of the hiring entity’s business;

AND

(C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring party.

If the hiring party cannot establish all three of these prerequisites, the worker is an employee covered by the following Wage Order’s protections:

  • minimum wage
  • maximum hours of work (overtime, double time, 7th consecutive days)
  • rest breaks
  • meal breaks
  • timekeeping/record keeping
  • itemized wage statements (pay stubs)
  • child labor laws
  • uniforms and equipment

In addition to complying with the Wage Orders that offer the protections (and prescribe the penalties) listed above, employers must pay Social Security, payroll, unemployment and state taxes in addition to providing worker’s compensation insurance and paid sick leave.  While it might be tempting to avoid these obligations by classifying a worker as an independent contractor, misclassification of a worker who is by the Dynamex standard an “employee” can result in serious exposure to significant wage claims, penalties and damages.

If you have workers you currently classify as independent contractors, we recommend that you review your arrangement under the ABC test to make sure your relationship is properly classified.  Please do not hesitate to contact us for assistance with this evaluation.

 

Final Pay Penalties:  Up to 30 Days of Wages Awarded, Even for Negligent Mistakes

 

In Diaz v. Grill Concepts Services, Inc., a California Court of Appeal recently held that an employer’s negligent mistake in making final pay is not a defense to final pay penalties.  The court further ruled that a judge does not have discretion to lower the penalty based on the employer’s “innocent” mistake or lack of awareness of its final pay obligations.   Given these harsh rules, employers must be well versed in the final pay rules and the potential penalties imposed for violating them.  Here’s a refresher:

  • California employees are entitled to receive their final pay for all hours worked and accrued vacation/PTO balances when their employment ends.
  • If the employee is terminated, laid off, or quits with at least 72 hours’ notice, final pay (including accrued vacation/PTO) must be delivered on the employee’s last day of employment.
  • If the employee quits with less than 72 hours’ notice, final pay is due within 72 hours of the notice.
  • Labor Code section 203 provides that when timely final pay is not made, the employee’s wages shall continue as a penalty, up to a maximum of 30 days (the equivalent of six weeks of pay).  These penalties are commonly referred to as “waiting time” penalties and they are recoverable by an employee who files a lawsuit in court or a claim with the California Labor Commissioner.
  • Waiting time penalties are equal to one day of wages for every day the employee waits for payment, up to a maximum of 30 days.  For the employee earning just $11/hour, the waiting time penalties can be as high as $2,640 ($11/hour x 8 hours x 30 days) – regardless of the amount of final wages owed.

 

Even employers who know the final pay rules often innocently make mistakes.  Here are a few we often see that result in final pay penalties:

  • Terminating an employee mid-pay period without the ability to prepare the payroll check in-house;
  • Mailing address errors – transposed numbers, sending checks to employee’s previous address;
  • A “no show” employee is deemed to have resigned, but the check isn’t sent within 72 hours of that determination;
  • An employee’s final wages are sent via overnight delivery with a signature required – if the employee isn’t home to receive the mail, final pay is delayed (we recommend that you use Federal Express without signature – the delivery will be on time and FedEx tracking records will prove delivery);
  • An employee’s final wages are sent via certified mail with return receipt requested – again, if the employee isn’t home to sign for the mail, final pay is delayed; and
  • Failure of supervisors to timely communicate a voluntary quit to HR or payroll

 

The Diaz case reflects the important public policy in favor of timely payment of wages to employees.  If you have questions about your obligations, please contact an employment attorney at SMT.

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish.  Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims.  Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | May 2018

Exempt Employee Salaries and Use of Time Off – When Are Deductions Permitted?

 

We’ve all heard the adage that exempt employees* are entitled to receive their full salary if they perform any work during the workweek, but what does that really mean?  Improper deductions from exempt employee salaries can lead to expensive wage and hour claims.  If unlawful deductions from salary were made and the employee no longer works for the organization, add up to 30 days of waiting time penalties into the liability mix.  Here are the rules for deducting exempt employee salaries and time off banks for partial workweek and partial workday absences.

*Exempt employees are those employees who are not eligible for overtime because they are paid a fixed salary equal to at least two times minimum wage times 2080 hrs. ($45,760 for 2018) and meet the requirements of an exemption from the Industrial Welfare Commission Order applicable to the employer.

Beginning or Ending Employment in the Middle of a Workweek

Let’s start with the easiest.  If an employee is hired or terminated in the middle of the workweek, the employer is only required to pay the exempt employee for the days actually worked.  If the employer’s workweek is Sunday to Saturday and the employee starts work on a Wednesday of what would ordinarily be a Monday through Friday work schedule, the employee is owed 3/5 of the weekly salary for the first week of work.  The prorated salary must be paid in full day increments, even if the employee only worked half of Wednesday and all day on Thursday and Friday.

Taking Time Off for Personal Reasons During the Workweek

When exempt employees take time off for part of a workweek, the employer can deduct that time away from the employee’s vacation/PTO bank in increments, however the employer’s policy must state what those increments are.  If the employee’s vacation/PTO balance is zero (or if the employer does not offer vacation/PTO at all), the employer can only deduct full workday absences from the salary; salary deductions for partial day absences are not allowed.  Warning – If your exempt employees have the ability to work outside the workplace (think email, phone calls, remote computing) make sure the employee has not performed any work remotely before deducting a full day absence from the salary.

Taking Sick Leave During the Workweek

The rules applicable to time off for personal reasons also apply when an exempt employee takes paid sick leave with one exception:  if the employer’s sick leave policy provides that employees will be paid their sick leave balance if they don’t use their sick leave (e.g. a “well pay” feature), then the sick leave bank can only be deducted if the time away is four or more hours.

Partial Workweek Business Closures

If the employer closes the business for a partial workweek making work unavailable to the exempt employee, the employee must be paid the full weeks’ salary unless the closure was due to an Act of God or reasons beyond the employer’s control (for example, utility failures, fire).  However, if the business is closed for an entire workweek and the employee does not perform any work during the workweek, no salary is owed for that workweek.  But, heed the warning above if the employee has the ability to work remotely without your knowing it.

Another interesting tidbit, employers cannot require exempt employees to use their vacation/PTO when the employer closes the business for a partial workweek.

Partial Workweek Disciplinary Suspensions

If disciplining an exempt employee involves a suspension, make it a full workweek and prohibit the employee from working remotely.  If the employee works a partial workweek she/he will be entitled to the full workweek’s salary – meaning the employee got some free paid time off as her/his discipline!

Conclusion

Exempt employee salary rules can be complicated, but strict compliance is critical to avoid exposure to wage and hour claims.  The key to compliance is having well trained payroll and human resources staff to ensure they manage employee time off banks and salary payments properly.  Contact one of SMT’s employment law attorneys if you have questions about compliance or would like to schedule a training.

 

Immigration Authorities – Are You Prepared if They Appear at Your Place of  Business?

 

As we reported in our December 2017 Employment Law Bulletin, new regulations took effect in January imposing specific obligations on California employers when immigration authorities show up at the workplace with an arrest warrant, search warrant or request to inspect the employer’s I-9 forms demonstrating employees’ authorization to work in the United States.

Among the new employer obligations is the requirement to post a detailed notice to employees within 72 hours of the receipt of a Notice of Inspection from an immigration agency.  The Labor Commissioner has recently published a template for the Notice to assist with the very short timeframe for posting, which can be found here: https://www.dir.ca.gov/DLSE/LC_90.2_EE_Notice.pdf. There are additional obligations once the results of the inspection are disclosed to the employer, which if not followed can result in stiff penalties.  See our December 2017 Employment Law Bulletin for more details.

Several of our clients have contacted us for assistance in preparing response plans, procedures and training for employees on how to respond when immigration agencies show up at the workplace.  If you’re interested in having a plan drafted for your workplace or need help weeding through the new notice requirements, please contact an SMT attorney.  We’ll be glad to help.

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish.  Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims.  Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | February 2018

2018 EMPLOYMENT LAW UPDATE ACTION ITEMS

In this month’s Employment Law Bulletin we bring you our 2018 Employment Law Update Action Items checklist. Employers can use this handy checklist to help ensure their organization is in compliance with new laws that took effect in January 2018.   It also includes action items regarding some of the issues we most frequently counseled our clients about during 2017.  (See the checklist starting with “Wage Statements.”)  Please reach out to an SMT employment attorney if you have questions.  We are here to help.

 

REQUIRED LABOR LAW POSTINGS:

  • Update CA Labor Law Poster

 

NEW PROHIBITION AGAINST SALARY INQUIRIES IN HIRING PROCESS:

  • Review employment applications, interview and pre-screening practices to remove any inquiries about salary history
  • Train interviewers not to request salary history information
  • Document any voluntary salary history disclosures
  • Train decision makers not to consider salary history in making hiring decisions (if applicant voluntarily disclosed salary history)
  • Prepare pay scales for each job opening and provide to applicant if requested
  • Amend contracts with third-party vendors, such as recruiters, to require them to comply with the new law

 

CALIFORNIA EQUAL PAY ACT:

  • Perform audits to ensure that there is a bona fide reason for disparity in pay amongst EEs doing the same or substantially similar work
  • Create a list of all bona fide factors that apply to your business and the position in question
  • Establish a protocol for documenting that only bona fide factors were considered when setting pay
  • Keep records of wages and wage rates, job classifications and other terms and conditions of employment

 

BAN THE BOX LEGISLATION:

  • Review employment applications and all pre-offer documents to eliminate requests for criminal history information
  • Train interviewers not to request criminal history information
  • If a criminal background check will be done, revise sample offer letters to provide job offers are conditioned on successful completion of a criminal background check
  • Don’t have applicants sign criminal background check authorization forms until after the conditional job offer has been made – check to make sure your background check company is in compliance
  • If you want to withdraw a job offer based on background check results, consult legal counsel first

 

NOTICE OF RIGHTS OF DOMESTIC VIOLENCE VICTIMS:

  • Give written Notice of Domestic Violence Victim Rights to all new EEs (add to new hire checklist if you have one)
  • Give written Notice of Domestic Violence Victim Rights to current EEs (upon request)

 

NEW PROTECTIONS FOR UNDOCUMENTED WORKERS:

  • Clearly identify public and nonpublic areas
  • Train EEs who are likely to greet immigration officials when they come onto the property to notify a point person
  • Train the “point person” how to deal with immigration officials and not to permit them to go into nonpublic areas
  • Train the “point person” regarding the Notice of Inspection procedures and issue to EE
  • Check the DLSE website at www.dlse.ca.gov on 7/1/2018 for their template posting and post

 

I-9 FORMS:

  • Make sure you are using the July 2017 I-9 form
  • Become familiar with I-9 Instructions; train appropriate staff
  • Take care not to use eligibility information or processes for the wrong reason

 

CALIFORNIA NEW PARENT LEAVE (ERs of 20 or more EEs):

  • Add a new parent leave policy to your employee handbook
  • If you offered your own form of parent leave, revise your policy to make sure it complies with the law
  • Train HR and supervisors regarding new parent leave requirements and how to provide notice to eligible EEs
  • Make sure payroll department understands how to integrate payment of sick/vacation/PTO with PFLI benefits

 

NEW HARASSMENT PREVENTION REQUIREMENTS:

  • Distribute new DFEH Sexual Harassment pamphlet to all EEs
  • Review and revise sexual harassment policy to comply with the new requirements
  • Post “Transgender Rights in the Workplace” posting

 

NEW HARASSMENT PREVENTION TRAINING REQUIREMENTS (ERs of 50 or more EEs):

  • Ensure new EEs hired, and existing EEs promoted, into supervisory positions receive training within 6 months and every 2 years thereafter
  • Track attendance and maintain proof of training
  • Ensure trainings cover the new requirements

 

MINIMUM WAGE IN CALIFORNIA:

  • Review hourly pay rates and increase as needed
  • Review pay for EEs where minimum wage is used as a threshold and increase as needed:
    • Exempt EE salaries
    • Wage Order 16 EEs who provide their own hand tools/equipment
    • EEs paid minimum wage for travel, waiting time, etc.
    • Commissioned sales people (to maintain overtime-exempt status)
    • EEs in the construction industry exempt from paid sick leave law based on CBA that provides for pay at least 30% > minimum wage
    • EEs exempt from state overtime law based on CBA that provides for regular hourly pay at least 30% > minimum wage
  • Review exempt EE salaries and increase as needed
  • Since the new minimum wage laws are triggered by ER size, pay attention to fluctuation in EE counts throughout the year and adjust the minimum wage accordingly
  • Make sure you have the current minimum wage posting (the 2016 posting is still good)

 

OVERTIME FOR AGRICULTURAL WORKERS:

  • Changes are not effective until 1/1/2019 at the earliest (depending on ER size), but now is a good time to review what overtime exposure will be and to develop plans to address (limiting overtime exposure by hiring more EEs vs. keeping the same number of EEs who work more hours and are owed overtime)
  • Since the new overtime law is triggered by ER size, pay attention to fluctuation in EE counts to be sure to apply the correct overtime rule

 

IRS MILEAGE RATE FOR 2018:

  • Pay the IRS mileage rate
  • If not paying IRS rate, ensure your mileage rate truly covers the cost incurred by the EE

 

MARIJUANA IN THE WORKPLACE:

  • Decide what policy best fits your organization
  • Train supervisors and management to recognize signs of intoxication
  • Review and revise
    • Pre-employment procedures
    • Fitness For Duty Policies
    • “Off Duty” Definition
    • Rehabilitation leave

 

WAGE STATEMENTS (PAY STUBS):

  • Review pay stubs for exempt and nonexempt EEs to ensure they contain all required

 

THIRD PARTY PAYROLL ASSISTANCE:

  • Review pay stubs for exempt and nonexempt EEs to ensure they contain all required Information (see above)
  • If you have nonexempt EEs who earn an hourly wage plus commissions, incentives, bonuses or other compensation, consider an audit with legal counsel to ensure you are including these in calculated the OT rate of pay
  • Audit time and payroll records to ensure the person reporting hours to the payroll company is providing the correct information

 

ELECTRONIC TIMEKEEPING:

  • Review timekeeping procedures and implement policies and procedures instructing EEs what they should do if their time is not properly recorded
  • Do not allow managers/supervisors/payroll to revise EE time entries without EE’s written consent
  • Keep written evidence of all EE-approved time record changes in the EE’s payroll file

 

BYOD:

  • Check and update policies and practices for reimbursement of cell phone/device expenses
  • Check and update policies and practices for after-hours work by non-exempts
  • Train supervisors about after-hours expectations and requirements
  • Check confidentiality policies and agreements regarding ownership and use of ER information
  • Train supervisors/managers/owners not to text with EEs about anything that could
    • create liability
    • result in disciplinary action for any EE
    • embarrass them in front of a jury

 

TRAVEL TIME ISSUES

  • Clearly spell out when travel time is commute vs. working hours
  • Check and update policies and practices for reimbursement of travel expenses
  • Think through and document any policies, practices and documentation when using a special travel rate of pay

 

CAREGIVER EE ISSUES

  • Be sure to have a written agreement and job description
  • Address overnight and live-in issues
  • Clearly address any on-call time
  • Don’t become a landlord unintentionally
  • Keep time records and true payroll records
  • Pay wages like an ER

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish.  Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims.  Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown