Wednesday, July 17, 2013

My Last Blog ... Here ... So Go There

Over the past few months we have developed a new website at Fishman, Larsen, Goldring & Zeitler.  I hope you like it.  We recently added our blogs as part of our website development.  So from now on, I will blog from there.  Just click here and you will be transported to my new blog page. 

When you arrive at the new web page, click the button next to "Alert me when new articles are available" and complete the sign-in information. 

I hope you enjoy the new format.  You are welcome to sign up for our other blogs too. 

To encourage you to sign up for the alerts, I have posted a blog about a situation at Kaweah Delta hospital.  I will send a Starbucks card to you if you are the first to sign up and answer the question:  What are the two theories to impose liability on the employer because of the bad acts of employees?  The answer is in the blog. 

Monday, July 8, 2013

Amy's Baking Company Would Be In Big Trouble In California!

I read an interesting article about Amy's Baking Company in Scottsdale, Arizona.  Perhaps they can bake a mean cake, but they can't manage people. 

The company compels employees to sign an agreement with these, and other, provisions: 
  • Employees pay the costs of any damage to company equipment or products due to employee negligence;
  • Employee gives up his/her right to tips, which belong to the restaurant, in lieu of receiving a wage of $8 to $12 per hour;
  • Employers are penalized $250 per day if they miss a shift on a weekend or holiday; and
  • Employee's can't work for a competitor within 50 miles for a period of one year. 
My advice for employees -- STAY AWAY

With that said, let's have a little fun.  I will send a Starbucks or Jamba Juice card to the first person who emails me the correct answer to this question:  Identify the Wage Order Provision, the Labor Code provision, and the Business & Professions Code Provision that would be violated if Amy's Baking Company was in California.  

Friday, July 5, 2013

Black Swan -- A Dirty Little Secret in Hollywood

Another seedy side of Hollywood is making an appearance in the mainstream media.  Interns who worked on the film, Black Swan, have sued Fox Searchlight claiming they were employees entitled to wages under state and federal law.  Other "interns" and lawyers are jumping on the bandwagon in an attempt to recover wages and fees, respectively. 

The interns claim that they did not meet the test as interns under the Fair Labor Standards Act.  I wrote about this in the blog a few months ago.  Here's the link to that blog.

The interns claimed that they really did not receive training in an educational setting as is required to have a valid internship.  Instead, these interns performed "grunt" work that would have been performed by employees if the interns were not present. 

Fox Searchlight has countered with an intriguing defense.  It claims that it was not the employer of the plaintiffs.  As it turns out, when Hollywood makes a film it creates a separate company.  In the case of Black Swan, a company called Lake of Tiers Inc. was created to hire the interns and other workers.  Once the movie is produced, these companies, like Lake of Tiers Inc., cease operations.  Importantly, these companies lack any assets from which a judgment could be obtained.  Fox Searchlight claimed that this "production" company, not Fox, was the plaintiffs' employer. 

The court recently issued a ruling rejecting the argument made by Fox.  It found that Fox had unbridled discretion to fire interns, and supervised them closely.  Under the law, the actions by Fox made it an employer subject to liability under the FLSA. 

So how has this practice escaped scrutiny for so long?  Probably because interns did not want to make waves and become blackballed in the industry.  Fortunately, this lawsuit will put the spotlight on Fox Searchlight and other Hollywood companies.  People should be paid an honest day's wage for an honest day's work.  With the unbelievable compensation paid to many in the industry, there is no reason not to pay interns for performing services rendered. 

Friday, June 28, 2013

E-Verify and the Senate's Immigration Reform Bill

The Senate passed an immigration reform bill earlier this week.  Among its many pages is a provision requiring, at least some employers to use E-Verify before hiring workers.  E-Verify is, in my opinion, a much better system than having employers review approved documentation, per the I-9 form, to verify eligibility to work.  Although the ACLU and other groups claim it is not sufficiently accurate, I have found E-Verify to be very accurate.  It is a much better indicator of who is eligible to work in the USA. 

Several years ago a few California cities passed laws requiring private employers to use E-Verify.  Our state legislature then passed a law prohibiting cities from enforcing these laws.  The justification for the state law was, at least on the surface, that E-Verify is not accurate and could harm persons who are eligible to work.  I highly doubt that was the real reason for the law. 

One of the best deterrents to illegal immigration is preventing employers from hiring these immigrants.  If they can't find jobs, they won't have the incentive to come to the USA without proper authorization.  If any politician is serious about stopping illegal immigration, (s)he must advocate in favor of use of the E-Verify system. 

It will be interesting to see if immigration reform does happen.  If it does, I will be very interested in whether the E-Verify requirement will be firmly rooted in the law.  It should be.  It is the best method to determine eligibility to work in the USA.  It also takes the burden off the employer's back to determine whether the appropriate I-9 paperwork is legitimate or a forgery. 

Thursday, June 27, 2013

Mixed Motive Is Not The Standard for Retaliation Cases Under Title VII

The Supreme Court ruled Tuesday on the standard used to evaluate whether an employer retaliates in violation of Title VII.  A plaintiff must show that "but for" the retaliation, (s)he would not have suffered adverse action. 

Title VII is a complex statute.  Under a specific provision of Title VII, all that a plaintiff needs to prove is that discrimination was a motivating factor in an employer's decision.  (42 U.S.C. Section 200e-2(m).)  Even if the employer had a valid, non-discriminatory reason for its actions, the employer is liable for unlawful discrimination. 

The retaliation provision of Title VII is separate from the discrimination provision.  It requires the plaintiff to show that the employer retaliated "because" (s)he opposed an unlawful practice or participated in a proceeding.  (42 U.S.C. section 2003e-3(a).)  In Univ. of Texas Southwestern Medical Center v. Nassar, 2013 DAR 8160, the Supreme Court said this provision means what it says.  It is not sufficient for an employee to claim that his/her opposition or participation was one of multiple reasons.  Retaliation must be the only decision. 

Of course, this decision greatly distressed the left-leaning justices of the court.  Even though the claims are based on two separate provisions in Title VII, with different language, they thought the lower, mixed-motive standard should prevail.  Oh well, this will give liberals another opportunity to introduce legislation to make suing an employer easier to do. 

I am not sure what impact the federal case will have in California.  You might remember that the California Supreme Court issue a ruling on mixed-motive retaliation cases under the Fair Employment and Housing Act (FEHA).  (Read my blog from February 11, 2013.)  The state court allowed mixed-motive cases to proceed.  However, the plaintiff is precluded from recovering damages.  Nevertheless, the plaintiff's lawyer can still recover his/her fees. 

Isn't that justice! 

Monday, June 24, 2013

Who Is A Supervisor Under Title VII? Vance v. Ball State Univ.

The United States Supreme Court today ruled on who is a supervisor for purposes of federal civil rights laws.  The Court had previously held that an employer is strictly liable for the harassing acts of its supervisors.  However, an employer is liable for the acts of the complainant's co-workers only if the employer was negligent (knew or should have known of the harassing acts).  

In Vance v. Ball State University, Case No. 11-556, the plaintiff complained that a fellow worker glared at her, smiled at her (oh, how evil!), and banged pots and pans around her in the kitchen where they worked.  while the parties disputed the co-worker's duties, they agreed she did not have the power to hire or fire Vance or others.  Vance, and the EEOC, nevertheless contended that the co-worker's level of control made her a supervisor giving rise to the employer's strict liability.  

A sharply divided Supreme Court held that a worker is not a supervisor unless he or she is empow­ered by the employer to take tangible employment actions against the victim. The Court expressly rejected the EEOC's "murky" and "open-ended" test that creates ambiguity, and thus litigation.  It provided a clearer test that better defines when an employer can be held liable.  

This is exactly what the law needs -- clarity.  Otherwise, employers are held hostage in these cases where the employee's threat of attorneys' fees often compel an employer to capitulate.  In the name of political correctness, cases become means of extortion.  Think of it if Vance prevailed against her employer because a worker smiled at her.  Justice prevailed in this case.  

Friday, June 14, 2013

Security Guards, Night Auditors and Swing or Night Shift Workers

Many industries employ workers to perform duties during the night, when much of the world is sleeping.  Take for example mini-marts, gas stations, some fast food restaurants, hotels and security guard companies.  During the night hours business is usually slow and often the company employs only one worker to cover the facility. 

The overnight nature of the work poses a challenge to California employers.  The state generally requires employers to provide unpaid meal periods to its employees.  The employee must be relieved of all duties and (s)he is entitled to leave the premises.  In the event an employee is not provided a meal period, the employer is liable for a "premium" calculated at one hour of the employee's hourly rate of pay. 

An exemption from the premium is available if due to the nature of the work the employee cannot be relieved of all duty.  Then, if the parties sign a written agreement to this effect, an on-duty meal period is permissible and no premium is imposed. 

The issue with the night worker is always whether the nature of the work prevents the employee from taking a meal period.  Most of the time, the business does not employ a second person.  That is not cost-effective.  With security guards, the job site might be a long distance from another employee making "breaking" the employee for a meal impossible.  Nor is it feasible for most businesses to hire a person to work 30 or 60 minutes while the night worker is taking a meal period. 

However, plaintiffs' lawyers will argue that it is not the nature of the work that makes it impossible for the worker to take a meal period, it is the employer's unwillingness to hire two persons to staff the facility. 

A second, related question is whether an employee working alone at a facility is permitted to take a rest period.  This is not the same issue as the meal period issue.  There are several interesting distinctions.  For example, an employer can compel an employee to stay on the premises during the rest period.  Second, a rest period is 10 minutes in duration.  During a night shift an employee can often go 10 minutes without customers or responsibilities.  Third, there is no concept of an on-duty rest period like there is for meal periods. 

Many lawyers are discussing the case of Faulkinbury v. Boyd & Associates, Inc. (2013) 216 Cal.App.4th 220, but focusing on the issue of class action certification.  The Court held that in this case security guards could move forward with a class action on multiple issues, including whether or not they were unlawfully prevented to take a meal period by the company's policy of requiring all security guards to sign an on-duty meal period waiver. 

The Court said that it was not ruling on the legality of requiring the guards to sign an on-duty meal period.  It's ruling was limited to the issue of the class action. 

Employers should keep this case on their radar.  It could be the first appellate court to rule on the issue of the validity of an on-duty meal period.  If an on-duty meal period is not valid in this case, you can expect to see a rush of litigation in every industry that employs night workers. 

Faulkinbury is a big case, not as much for the issue of class action status, but for the issue whether an on-duty meal period is appropriate in those situations where the night employee works alone and cannot be relieved by a co-worker. 

Stay tuned. 

Wednesday, June 5, 2013

Can I Mail An Employee's Final Check To His Home?

This is a question I often hear.  An employee quits and instructs you just to mail the final check.  The employer does so, and may even send it by registered or certified mail.  The letter may not be received for a few days, or the letter sits at the post office waiting for the person to sign for it.  And suddenly the employer finds itself at the Labor Commissioner office facing a claim for waiting period penalties. 

Labor Code section 208 requires an employee, even a quitting employee, to return to the workplace for final payment.  However, Labor Code section 202(a) permits an employee to receive payment by mail if (s)he requests it and designates a mailing address. 

Still several issues can arise.  First, how does the employer confirm that payment was requested by mail?  Usually, the employer does not ask the departing employee to put it in writing.  The DLSE takes the position that the employer must prove the employee asked for the check by mail.  In addition, according to Villafuerte v. Inter-Con Security Systems, Inc. (2002) 98 Cal.App.4th Supp. 45, the employer must also prove that the employee received the check.  Thus, the Deputy Labor Commissioner ruled against one of my clients when it was shown that the check sat at the post office for multiple days waiting for the employee to come and sign for it. 

So what is an employer to do?  If the employee quits without giving notice, tell the employee his/her check will be available on a certain day and time (within 72 hours).  If (s)he says, "Just mail it to me," tell him/her you can't without written instructions.  Then mail it and hope (s)he receives it.  Better yet, send a courier to the address.  Otherwise, make the employee return for the check. 

Sunday, June 2, 2013

Men Who Cook

For the past four years I have cooked at the Men Who Cook event at the Fresno Art Museum.  We have taken 1st or 2nd each year.  We hope to do as well this year again.  We are cooking Boeuf Bourgogne, with a special twist.

The event is this Saturday, June 8th at 6 pm.  It is a great event.  For $20 you can sample the food of all 50 chefs.  Then you vote for the best dish.

Buy tickets at the Fresno Art Museum website.

Tuesday, May 21, 2013

Will California Mandate Paid Family Leave

Several years ago the state enacted paid family leave.  It wasn't really a leave.  It was a means by which an employee could get paid while on an unpaid leave of absence for family reasons.  It did not mandate that employers provide time off.  But if an employer did provide time off, the employee could apply to EDD, much like unemployment, for replacement wages for 6 weeks.

I recall the push for the paid family leave.  We were told that only employees paid into the leave.  We were also told that an employer was under no obligation to give the time off.  Only employers of 50 or more workers were obligated to give employees time off under the FMLA or CFRA.  Smaller employers would not be burdened with a leave obligation.

Now, several years later our legislators are demanding that all employers provide time off, with a guaranteed reinstatement right.  You can read about SB 761 here.  Another burden. Another obligation.  Another basis for a lawsuit.  It's only fair ... Right?

Does Raising Minimum Wage Improve Conditions?

Over the past few weeks I have watched political advertisements for Leticia Perez as she vies for a spot in the California House of Representatives.  The ads are sponsored by the Democratic Party, which in California, is a very left-leaning group.

The ads show two women, one portrays a student, the other a single mom.  They both suggest that they need an increase in the minimum wage to make ends meet.  But does increasing the minimum wage have the intended impact of putting more money in the hands of workers?

This recent article in the Boston Herald shows how students are adversely affected by minimum wage increases.  If the article is accurate, the suggestion by the Perez campaign that minimum wage increases will help starving students is off the mark.  While some students may find work, and earn more money, more are priced out of the job market.

So what is the key to increased wages for workers?  In my observations, the following are a few factors affect a worker's ability to earn more money:

1) Good daily habits of arriving to work on time and leaving personal affairs to after hours.  I am amazed at how many people don't or can't make it to work regularly or who can't make it on time regularly.
2) Actually working during the day and taking initiative.  Don't wait for the boss to tell you what to do.  Figure out what needs doing and do it.  Greater productivity results in greater profit which translates to higher wages.
3) Improving job skills.  This can be done on the job or through education.  A person with more job skills can be given more responsibility.  More responsibility means more money.  When you can more, the company can prosper financially.  Again, that results in higher wages.
4) Learn how to work with others.  Get along.  Don't complain, whine or whimper.

As an employer, I want to keep the best employees.  I will will pay them good wages to staying with me.  It's not minimum wage increases that result in real wage increases, it is a person's personal habits, job habits and interpersonal skills.  Sounds like personal responsibility to me, not mandatory pay increases.

Tuesday, May 14, 2013

The Family Flex Act of 2013 (H.R. 1406) -- Impact in CA

I have had several clients ask about the impact of the Family Flex Act of 2013 if it passes Congress and is signed by the President.  The Act permits an employee to bank up to 160 of overtime hours to be used as compensatory time off (CTO).  It's a concept that the Fair Labor Standards Act already recognizes for public employees.  The Act allows an employee of a private employer to take time off (1.5 hours for each hour of CTO) instead of taking overtime pay. 

First, the bill must be enacted.  I can't see that happening.  President Obama opposes it.  Unions oppose it.  A Democratically-held Senate is not likely to pass it. 

Second, if it did pass, what would be the effect in California?  Nothing.  Nada.  Zilch.  Rien.  Zero. 

In the land of left wingers, our nanny state won't allow employees the option of taking CTO.  California assumes that employees can't think and act for themselves to choose CTO or overtime pay.  California assumes that employers are out to get the little guy (employees) instead of providing them with a meaningful choice. 

The argument against the Act and CTO is that the employer will require employees to take CTO instead of pay, when the employee is relying desperately on the income.  However, the Act does not allow for CTO unless the employee agrees to it before working the overtime. 

I have employed workers who wanted more time off in lieu of pay.  It's not out of the realm of reasonableness as unions would have us think.  And if an employee does not want CTO, then the employee can say no to that option. 

Once again you can thank our politicians. 

Friday, May 10, 2013

Can You Or Your Company Be Liable If Your Text Causes A Crash?

It was bound to happen.  A lawsuit against the texter for distracting a driver who crashed into a motorcycle. 

A young couple who had started to date exchanged over 60 text messages while the male was driving.  Distracted by a text (I wonder what the paramour wrote), he crashed into a motorcycle severely injuring two persons. 

The trial court dismissed the claim against the texter.  However, the motorcyclists appealed.  And now a New Jersey appellate court is struggling to answer the question of liability for the texter. 

The case raises significant issues.  From a workplace perspective I wonder if the company can be held liable if its employee knows that another person is driving, and the employee, as part of his/her job, sends a text message distracting the driver. 

Read about the case here

Thursday, May 9, 2013

The NLRB Took It In The Shorts ... Again

The National Labor Relations Board (Board) has not been lucky in court.  Just two days ago the DC Circuit Court of Appeal held that the Board's posting rule was unlawful.  Issued in August 2011, the Board's posting rule required private-sector employers to post a notice informing employees of their rights under the National Labor Relations Act.  The notice was on 11 x 17 poster board with large bold letters Employee Rights.  The notice instructed employees of their right to form or join a union, engage in concerted activity and strike.  The notice also instructed workers what actions the Board deemed illegal for employers to do.  (Yes, in bold language.)  Obviously, employers were not anxious to post this type of notice. 

The Board intended to enforce the posting rule by:  (1) Deeming the failure to post an unfair labor practice; (2) considering the failure to post evidence of anti-union animus; and (3) tolling the statute of limitations on an ULP charge by six months. 

The United States District Court for the District of Columbia struck down some parts of the enforcement provisions, but concluded that the Board had the authority to enact the rule.  (In another case, a district court in South Carolina vacated the rule in its entirety last year.) 

The Court of Appeal focused on employers’ free speech rights.  It held that employers have the right to speak about an issue or not to speak about an issue at all.  Enforcing the rule would violate free speech rights.  Accordingly, the enforcement provisions of the rule were struck down.  Since the rule’s enforcement procedures were struck down, and there was no way to enforce the rule, the court concluded that the rule was invalid as well.  In a concurring opinion, one of the justices concluded that the Board lacked statutory authority to even enact the rule. 

The courts have not been kind to the Board lately.  I reported in an earlier blog about the Noel Canning case.  That was the court decision that concluded President Obama’s recess appointments to the Board were unconstitutional.  Click here if you want to read the government’s Petition for Certiorari. 
For some reason, I just don't feel sorry for the NLRB. 

Tuesday, May 7, 2013

What is All the Fuss About the Want Ad

The news has reported on a want ad for a line could at FARMBloomington.  The news is reporting that the want ad is over the line, "horrible"  and "way out of line."  It imposes too many demands on line cooks who are underpaid and overworked.  Read the story here

I don't buy it.  While a few of the 44 entries do merit some scrutiny, most of the entries appear to be valid requirements of any job.  For example, it asks employees to show up early and work hard through the shift.  It asks employees not to complain and to do things the right way without cutting corners. 

I know many employers who would be thrilled if employees arrived at work on time ... regularly, did not take so much sick time, worked smartly throughout the day, and maintained a positive attitude.  Rather, they often get stuck with complainers, whiners and blamers. 

I had an interesting conversation with my 10 year old boy as we were working last Saturday.  I told him I was sorry that our work was taking so long, and that it was hot, and that we were not getting to the fun part of Saturday soon enough.  He responded, "Don't worry dad.  Don't you say that work is supposed to be hard?  That's what makes work work." 

Wow!  Now if we could only teach our employees that work is difficult, and fulfilling as well. 

Monday, May 6, 2013

When the Obligation to Engage in the Interactive Process Arises

California recently amended its regulations pertaining to employment discrimination.  The regulations are worth reading.  Just click here.  One of the points that employers must realize is when the obligation to engage in the interactive process arises. 

Section 7294(b) provides three situations when the obligation arises. 
  1. When the employee or applicant requests an accommodation.
  2. When the employer becomes aware of the need for an accommodation.  This awareness can come through observation or from a third party. 
  3. When the the employee with a disability has exhausted leave under the California Workers’ Compensation Act (yeah right, is there an expiration date for work comp leaves???), CFRA or the FMLA, or another federal, state, employer-provided leave provision and yet the employee or his/her health care provider indicates that further leave is necessary before the employee can perform the essential functions of the job. 
This third situation requires employers to determine whether an additional leave would allow the employee who has exhausted his/her leave entitlement to perform the job.  This is a very frustrating obligation imposed by the law.  CFRA and FMLA both provide for 12 weeks of leave.  A PDL leave of absence is up to four months (or 17.3 weeks -- I know, what is .3 of a week?).  How much additional time must be provided?  I think the answer is -- a reasonable amount that does not cause an undue hardship.  (Not much help is it?) 

What the regulations also make clear is that an indefinite leave of absence is not reasonable.  (Section 7293.9(c).)  Indefinite leave can be when the health care provider says, "I have no clue when (s)he can return to the workplace."  More frequently, it is when the employee continues to provide you with notes indicating the employee can return in 30 days.  Before the 30 days expire, you receive another note.  This often continues. 

If this happens, consider telling the employee and his/her health care provider that the successive notes constitute an indefinite leave of absence, and that a more accurate prognosis is required.  That usually gets some action from the employee to return quickly or for the health care provider to acknowledge that a return is not imminent. 

Friday, April 26, 2013

The EEOC Hates These Apples!

There is a great scene in a very old movie, The Jerk, where a crazed killer is shooting at Steve Martin's character.  Steve is working at a gas station, standing next to some oil cans.  The shots miss Steve and hit the oil cans.  When advised of the shooter, Steve yells out, "He hates these cans."  He runs to another location for safety but the shots keep coming.  He then realizes he is near more cans.  It's a funny scene.  If you want a few yucks, click here and watch it.  Sorry, there are a few vulgarities, but rather mild by today's standards. 

I'm thinking the EEOC hates apples.  It filed two lawsuits against Evans Fruit in the Yakima, Washington area.  In the first lawsuit, the EEOC claimed that 14 female workers were subjected to a sexually hostile work environment.  The jury rejected the claim and found in favor of Evans Fruit. 

The second case alleged that Evans Fruit retaliated against employees for participating in its discrimination investigation.  That's what the EEOC does you know.  It asks other employees if they are aware of any unlawful practices.  I really hate that.  I think that this practice actually encourages people to exaggerate or even fabricate stories.  Of course, the EEOC then tries to use the evidence to expand its investigations and lawsuits.  These types of investigations and meetings create litigation and contention where it did not exist and need not exist. 

The EEOC held a meeting for workers at the local library.  Evans Fruit sent two employees to see what the EEOC was doing.  The employees sat and listened.  They did not participate.  They did not yell.  They did not threaten.  They merely observed the actions of a taxpayer funded entity as it held a meeting at a taxpayer funded, and public, library. 

Turns out the EEOC did not like people listening.  So it filed a complaint against Evans Fruit alleging retaliation.  This case didn't go far.  The court dismissed the action, concluding that without evidence of threats, there is nothing to connect any actions by Evans Fruit with the library meeting. 

I hope the EEOC focuses its efforts on apples.  I'm afraid, however, that the EEOC doesn't like oranges, peaches or other fruit and vegetables grown in California either.  Or perhaps it is more accurate to say they don't like those "unsophisticated" farmers and other agricultural employers. 

And just for a few more yucks, I will send a Jamba Juice card to the first person who emails me the full name of Steve Martin's character in The Jerk.  The Orange Dream Machine will take your mind off apples and the EEOC. 

Monday, April 22, 2013

FEHA Disability Regulations -- Invitation to Our Legal Beagle Bagel Breakfast Training Course

The DFEH disability regulations were modified effective December 30, 2012.  These are the first changes since 1996.  Disability complaints now comprise 57 percent of the complaints filed with the Department of Fair Employment and Housing. 

Our office will hold a training course on the regulations April 30th.  If you are interested in attending, just click here

(FYI, we hold training courses for employers every month.  We refer to them as Legal Beagle Bagel Breakfasts.  Yes, we do serve bagels.) 

Friday, April 19, 2013

The Impact of the Private Attorneys General Act on Employment Claims

In 2004 California enacted the Private Attorneys General Act (PAGA).  (Cal. Labor Code sections 2698 - 2699.5.)  The law allows persons to sue on behalf of the Labor and Workforce Development Agency (Agency) for violations of the Labor Code.  The person suing is entitled to seek the penalties the Agency could seek if it had filed the action.  If the person prevails (s)he keeps 25 percent of the penalties while the Agency takes 75 percent.  Attorneys' fees are also available under PAGA. 

There was a rash of lawsuits when the law was first enacted.  Employers found it was less expensive to settle these lawsuits as opposed to fighting them, even if the merits of the lawsuits were questionable.  The lawsuits were so prevalent that PAGA was amended to require a potential plaintiff to notify his/her employer of the alleged wrongful act or behavior.  If the employer "cured" within a month, then the plaintiff is unable to move forward with a lawsuit. 

PAGA appears to be in fashion again.  Over the past few years courts have made class action wage and hour cases more difficult for plaintiffs to win.  (Frankly, that's a good thing.  It seems those cases are designed more for the pocketbook of the lawyer than for the recovery of the wronged employee.)  With the difficulty presented in class action lawsuits, plaintiffs' lawyers have returned to PAGA. 

Take, for example, the employee who has not been properly paid his/her overtime compensation.  The employee can sue on his/her own and on behalf of other aggrieved employees.  In addition to the unpaid wages, the employee can seek penalties under PAGA.  The default penalties under PAGA are $100 for the first offense, $200 for subsequent offenses.  In this case, penalties rack up with each pay period.  Multiply the number of aggrieved employees by the number of payroll periods (26 pay periods in my example) and you can arrive at a very healthy penalty.  If you had 25 aggrieved employees the penalty would be ($100 x 25 employees) + ($200 x 25 pay periods x 25 employees) = $127,500.  Ouch. 

Employers should audit and monitor pay practices.  They should determine whether employees who are exempt are performing exempt-level work.  These preventative practices take effort, time and some money.  However, it can save an employer hundreds of thousands of dollars in damages, penalties and attorneys' fees in the event of an employee's successful lawsuit.  I tell clients, "You can pay me now or pay me later and it is always more later."  That really is true.  Spend a few dollars on compliance to avoid big bucks on litigation.  Of course, if you don't, I'm still ok with that.  You will pay me more to defend your case. 

Wednesday, April 17, 2013

Occupational Assumption of the Risk

Can an employee assume the risks associated with the job and thus lose the ability to sue a third-party for an injury?  That's what a California Court of Appeal concluded in Gregory v. Cott.  And now the California Supreme Court has decided to review the decision. 

Ms. Gregory worked as a caregiver for a home care agency.  Mr. Cott contracted with the agency to provide a caregiver for his wife who suffered from Alzheimer's.  Mr. Cott told the agency that his wife would bite, kick, hit and scratch. 

Ms. Cott tried to grab a knife from Ms. Gregory as she was washing it.  Ms. Cott cut Ms. Gregory who suffered serious injury.  Ms. Gregory sued the Cotts for the injuries inflicted upon her.

Assumption of the risk is a concept in recreational cases.  The question is whether the person engaging in a recreation, such as skiing, assumes the risks associated with skiing, such as injuries when falling.  The assumption of the risk doctrine has been applied some work settings.  The "fireman's rule" was adopted that prevents a firefighter from suing the public when injured in the line of duty. 

The occupational assumption of the risk doctrine was applied to a worker who cared for an Alzheimer's patient confined to a facility in Herle v. Estate of Marshall (1996) 45 Cal.App.4th 1761.  In Gregory v. Cott, the court concluded that the same occupational assumption of the risk doctrine should apply regardless of the patients' location.  Sounds logical.  Why should a defendant be subject to liability for hiring someone to prevent the very harm that occurred. 

Now the Supreme Court is in the fray.  This will be a critical issue for the home care industry.  It is a vital issue for those who invite caregivers into their homes and who could lose their assets or estates in defending these types of lawsuits. 

Friday, April 12, 2013

When is an Intern Really an Intern?

The weather is warming up.  Spring break has concluded.  Students are getting closer to summer break and looking for jobs and even internships.  Students prefer jobs to internships because they can earn some money.  But they will take the experience.  Employers like the term internship because they think that compliance with wage laws is not necessary.  Is it true? 

Under wage law, any person who is "suffered or permitted" to work is employed and must be paid.  Under California law, if a worker is subject to the control of the principal, the worker is employed and entitled to wage protections. 

So then when is an intern an intern as opposed to an employee who is entitled to minimum wage, overtime and the many other benefits provided by law? 

The Department of Labor identifies six critical factors.  Read about them here.  In essence, it is a service to the intern and provides no benefit to the business. 

The California Division of Labor Standards Enforcement has taken the position that the internship must be a part of a course provided by an accredited institution.  Read about it here

Bottom line -- Most of you don't engage interns.  You hire employees.  Call them what you want but realize they are employees.  They are entitled to minimum wage, overtime, meal periods, rest periods and all of those other crazy California benefits.  They might even be entitled to participate in your health care or retirement plans. 

It's also much easier to pay $8 per hour than to pay legal fees in the event of a claim. 

Monday, April 8, 2013

Do You Pay a Piece Rate or for Flagged Hours? Employer Beware!

On April 2, 2013 the California Court of Appeal published its decision in Gonzalez v. Downtown LA Motors, LP, 2013WL 1316514.  The decision will have a wide-reaching and substantial financial effect on automobile repair facilities that pay employees on a flagged hour basis.  This decision will have an equal impact on any employer who pays its employees on a piece-rate basis.  We are apprising you of the court’s decision so that you can take steps to modify pay practices, if necessary.  We encourage you to seek legal advice as you make the change. 

Downtown LA Motors paid its employees like many in the automobile repair business, on a piece-rate system, using the flagged hour basis.  Technicians were paid a flat rate for each flagged hour (s)he accrued.  Technicians accrued flagged hours only when working on a repair. 

Downtown LA Motors also kept track of the time a technician spent in the workplace, whether or not working on a repair.  At the end of a pay period, the company calculated how much a technician would earn if paid an amount equal to total hours on the clock multiplied by the minimum wage.  If the technician’s compensation fell below this minimum wage floor, the company supplemented the pay to meet minimum wage. 

Technicians filed a class-action lawsuit contending that the company failed to pay technicians a minimum wage during the time they were waiting for customers or performing non-repair work.  They claimed that the company should have paid the flagged hour rate for time spent performing repairs, and then paid additional compensation at minimum wage for all other non-repair hours.  Those employees who no longer worked for the company also sought waiting period penalties under Labor Code section 203. 

The outcome of the case hinged on the meaning of section 4(B) of the wage order.  This provision reads:  Every employer shall pay to each employee, on the established payday for the period involved, not less than the applicable minimum wage for all hours worked in the payroll period, whether the remuneration is measured by time, piece, commission, or otherwise. 

The Division of Labor Standards Enforcement (DLSE) contends that per this provision, the obligation imposed an employer “to pay minimum wages attaches to each and every separate hour.”  (Armenta v. Osmose, Inc. (2005) 135 Cal.App.4th 314; DLSE Op. Ltr. 2002.01.29.)  In contrast, the federal government interprets the obligation to pay minimum wage to extend to the total number of hours worked, and not to each hour separately. 

To illustrate its point, the court provided an example.  If a technician works four flagged hours at $20 per hour and then leaves, (s)e earned $80 during the 4-hour period.  However, if a second technician works four flagged hours at $20 per hour but is required to remain in the workplace and perform non-repair work or wait until his/her 8-hour shift ends, (s)he earns the effective rate of $10 per hour

Under the Gonzalez case, the second technician is entitled to four hours at minimum wage in addition to the $80.  If his/her employment terminated before you paid the additional $8 per hour for non-repair work, you would be required to pay a penalty for late payment of wages. 

If your business pays employees a piece rate but not an additional wage for other work, you should seek legal counsel to determine how to correct the company’s pay practices.  This pay practice could result in substantial liability to the company. 


Friday, April 5, 2013

Cheer Up! It Could Be Worse -- You Could Be Working For Me

It's Friday.  So here is something on the lighter side of things. 

Forbes is reporting that an associate attorney is the most unhappy job in America.  That's probably why Travis and Amanda look so glum most of the time.  So the next time you see them, pat them on the back and let them know, "This too shall pass." 

What are the other unhappiest jobs in America?  Customer service representative, clerk, registered nurse and teacher.  Doesn't that make you feel good?  The very people whose job it is to interact with you are the unhappiest.  Perhaps that's it.  The problem isn't the job, it's you.  They have to deal with the public.  So why then are associate attorneys so unhappy.  Their primary responsibility is not to deal with the public.  ... Oh yeah, it just hit me.  They have to take orders from my partners. 

On a more serious note, it is important to recognize that an unhappy worker is more likely to sue the company.  Consider, for example, the lawsuit between Alexandra Marchuk and her former law firm, Faruqi & Faruqi.  Marchuk claimed that a partner at the firm, Juan Monteverde, sexually harassed her.  The allegations are serious.  I won't reprint them here.  If interested, you can read it for yourself on the Internet.  The law firm took the unusual step of filing a counterclaim against Marchuk.  It claims that Marchuk has defamed the firm, misappropriated confidential information, and is engaging in malicious prosecution.  The firm claims she was infatuated with Monteverde.  The firm wants $15 million in damages. 

We will see what happens with Marchuk, Monteverde and the law firm.  It would be very unusual for me to recommend any employer filing a counterclaim against an employee who claimed sexual harassment.  It exposes the business to yet another claim -- retaliation.  And the fact that the law firm has attacked with venom may convince a jury that punitive damages are warranted against the law firm. 

Obviously, Marchuk was an unhappy associate.  And I doubt there are many happy employees, associates or partners at Faruqi & Faruqi. 

FYI, my partners (at least most of them) are pretty good people to work for!

Thursday, April 4, 2013

$4.5 Million For Bad Timing

Last week a San Diego jury awarded an employee-plaintiff $4.5 million.  (Steffens v. Regus Group PLC. ). During an evaluation, Denise Steffens complained that she could not give her staff breaks because the company did not provide adequate coverage.   After Steffens left the room a senior manager instructed a supervisor to get rid of her.

Surprisingly, the company took the case to trial.  It relied on the theory that a jury should reject Steffens' claim if it concluded that the company had a basis for firing Steffens irrespective of her complaint.  By the way, the company's reason for termination was that Steffens did not have a positive attitude.  (Perhaps that was due to the inadequate staffing?).

This case illustrates what I believe is one of the primary reasons employers get sued -- timing.  When adverse action comes soon after an incident such as a a complaint, pregnancy, injury or leave of absence, an employer is buying a lawsuit.  A jury is not likely to believe an employer when it says the employee was no good but waits until after an incident to fire her.  The only logical explanation, concludes many juries, is that the employer wanted to get rid of the employee because of the incident.    

So how long must an employer wait to fire an employee after an incident?  That is a good question.  But if an employer is smart, it won't be forced to answer that question.  A smart employer will fire the problem employer before an incident occurs.  Problem employees never get better. If you have a problem employee, let him/her go today.  Don't wait until tomorrow.

Wednesday, April 3, 2013

Kaweah Delta Hospital, English-Only Rules and Third Parties

I was amused to read the story in the Visalia Times-Delta last week on the policy at Kaweah Delta Hospital District to encourage employees to speak English during meal or rest periods as well as during work.  Interestingly, the District is not compelling employees to speak English, just encouraging English speaking.  The rationale for this practice is to promote positive employee relations.  Actually, it seems smart to me.  Every time I have been asked to opine on English-only rules (as they are called) it has been for this reason.  Others feel -- some rightly so and some out of more fear than reason -- that when others are speaking in a foreign language around them, it is so they cannot understand.  It's really no different than whispering so that another person can't hear what you are saying about him/her.   

The newspaper interviews "experts" to opine on whether the District's policy is legally sound.  A couple of HR professionals suggest that the District is close to or has crossed the line of discrimination.  An an official for the Equal Employment Opportunity Commission (EEOC) also suggests that the policy is unlawful. 

From my perspective, the hospital's rule does not violate the law.  In fact, I'm not even sure the law, as articulated in an EEOC regulation, is really "the law".  By the way, the law is found in 29 C.F.R. Section 1606.7.  But when has that stopped an an all-knowing, wiser governmental agency?  (Note the sarcasm.) 

First, the hospital did not impose an English-only rule.  What it said, as I read it, is this:  Be considerate of others.  If you are speaking a foreign language around them they might think you are gossiping or criticizing them.  But I suspect that if employees could not speak English without difficulty, no one would fault them for speaking their native tongue. 

Second, the English-only regulation has been criticized by the courts.  The rule attempts to impose a burden on employers to justify their policy without an employee bearing the burden of proving discrimination.  Moreover, courts have indicated that imposing even an English-only rule is justifiable to reduce tension within an office, to improve interpersonal relationships and to prevent those who can't speak the foreign language from being alienated. 

What do I learn from all of this?  (1) Newspapers try to stir up controversy to create a story; (2) even so-called experts don't necessarily apply the law correctly; (3) government agencies will say what will justify their existence; and (4) get good legal counsel to help when implementing workplace changes.  From my understanding of the hospital's policy, it's valid.  Looks like the hospital did its homework. 

Thursday, March 28, 2013

Accurate Paychecks Could Have Saved $6 Million

The California Labor Commissioner cited Pacific Health Corporation (PHC), a hospital chain, $524,300 for late payment of wages.  As it turned out, PHC didn't have enough money to pay the checks it issued.  Now that's a hefty fee for late payment of wages.  But that was minimal compared to the citation for the failure to comply with Labor Code section 226.  

The Labor Commissioner cited PHC $6,537,000 for issuing incomplete wage statements in violation of Labor Code section 226. 

So what does the law require?  Paycheck stubs should include gross wages, total hours worked, the number of piece-rate units earned, deductions, net wages, dates covered by the paycheck, the name and partial social of the employee, the name and address of the legal employer, and all applicable hourly rates. 

I have not heard of too many cases where the Labor Commissioner steps in and issues a citation to an employer on a violation of section 226.  However, employees can sue for a violation of Labor Code section 226.  An employee who is injured as a result of a knowing and intentional failure to comply with the law is entitled to recover actual damages, or a violation of $100 per employee per pay period up to $4,000 plus legal fees. 

The law requires that the employee suffer an actual injury as the result of an incomplete wage statement.  (Villacres v. ABM Industries (9th Cir. 2010) 348 Fed.Appx. 626.)  However, injury could consist of nothing more than an employee's difficulty in calculating overtime hours or other wages owed to him/her.  (Yadira v. Fernandez (9th Cir.) 2011 WL 2434043.) 

It is the best policy, and least expensive practice, to review section 226 and make sure your company's wage statements include all of the information requested.  You may not be cited for $6 million.  But you could lose a few dollars and expend a substantial amount in attorneys' fees. 

ObamaCare -- A Few Bites At The Law

ObamaCare ... passed by the Democratically-controlled Legislature overnight with no one reading it.  (Remember the Nancy Pelosi quote, "We'll have to read it to see what's in it"?)  Now over 20,000 of regulations attempting to clarify what the 2,000 page legislation means.  (It's getting better isn't it?) 

Regardless of political persuasions, business has the unenviable task of complying with the law.  And it reminds me of the question "How do you eat an elephant?"  The answer, of course, is "One bite at a time."  I think that understanding and complying with ObamaCare will happen one bite at a time. 

At FLGZ we plan on holding some training courses for businesses on complying with ObamaCare.  If you are not yet, but wish to be on our e-mail list and receive notices about this and other training courses, please contact our office and ask to be placed on the "Legal Beagle Bagel Breakfast list. 

In the meantime, I thought you might enjoy reading a 3-page article put together by Roth Staffing.  Tim Conboy is a friend of mine who works for a division of Roth.  He allowed me to post a link to this article.  It won't answer all of your questions.  But you will understand at least a few bits of the enormous elephant law we call ObamaCare. 

Wednesday, March 20, 2013

Brandi Cochran Overbid On Her Showcase!

A few weeks ago I told you about the Price is Right model who went out on "maternity leave" for 10 months and was not rehired when she was ready to return to work.  The jury awarded her $8.5 million.  Well, the judge has overturned the jury's decision.  He decided that he gave the jurors the wrong instructions.  He should have instructed jurors that they had to decide whether the pregnancy was a substantial factor in the company's decision not to return Ms. Cochran to the show. 

This case is still confusing.  Assuming Ms. Cochran was entitled to a leave pursuant to the Pregnancy Disability Leave Law and the California Family Rights Act, she would not be entitled to take more than seven months of protected leave.  After that point, Ms. Cochran did not have a legal right to reinstatement.  Perhaps she is claiming that she was disabled and needed more time off under the Americans with Disabilities Act (ADA) but I have not seen that suggested in anything I have read about the case. 

What appears happened is that Ms. Cochran decided, after 10 months, that it was time to return to work.  The company had replaced Ms. Cochran by that point.  I'm not sure there was an open spot on the show at that point.  So it is difficult to see how a jury could give an award in Ms. Cochran's favor. 

Ms. Cochran's attorney is vowing to fight on.  He claims the next jury will give him four times what the original jury awarded.  Go figure. 

Tuesday, March 19, 2013

It's Always The One You Don't Suspect

The United States Attorney in Fresno announced that an employee of Westamerica bank pled guilty to embezzling $250,000.  Mary Perez could face 30 years in prison, which at her age -- 50 -- could be a lifetime.  She must also repay the amount to Westamerica and pay a criminal fine.  How she will pay the debt is a mystery since she spent the majority of the money on gambling. 

It's a sad and pathetic ending to a woman's career that spanned nearly three decades.  In that time, I am confident that Ms. Perez did much good, served customers well most of the time, and made other good decisions.  Otherwise, she wouldn't have been in the position where she could take the money almost unnoticed. 

You see, it is always the one you don't suspect who embezzles.  It is always the person in a position of trust.  It is always the person on whom you could depend for important matters. 

Years ago I represented a client who hired his friend from high school.  (They were well into their 50s.)  The client trusted his friend, and allowed him access to company accounts.  Over a period of years, the trusted friend embezzled over $700,000 from the company. 

Something unexpected happened and the embezzlement came to light.  It was easy to do.  The client's signature was easily duplicated.  The trusted friend took steps to hide the stolen money.  He had access, trust, and a need for money. 

Unlike Ms. Perez, the friend invested in retirement for he and his wife.  I recovered the stolen money, or at least most of it.  However, most embezzlers don't save but rather spend the money.  I have had several cases where embezzlers took their ill-gotten gains to local casinos. 

What have I learned from embezzlement cases? 
1.  Put checks and balances in place.  Have your CFO or outside accountant / auditor put together processes that don't permit trust to be the only defense against embezzlement.  This way you can avoid theft and pinpoint it when it happens.  This also allows employees to work without suspicion of wrongdoing.  
2.  You must work fast when embezzlement is discovered.  The legal process is complicated.  You must file a complaint and seek ex parte orders from the court freezing assets, if they exist.  You must locate assets, and quickly perform the forensics work necessary to prove embezzlement. 
3.  Expect that what was taken is about 7 times what you originally discovered. 
4.  Expect that you probably won't see most of the money. 
5.  Realize that it was your trust, without overseeing, that allowed the event to happen. 

There are rarely great results in embezzlement cases.  Money is lost.  Trust vanishes.  Accusations of fault are made.  Friendships are broken.  A life is punctuated by a criminal record.  And families are left hurting. 

This Case Has It All When It Comes To California Wage Law -- Guerrero v. Superior Court

Here is a case that shows the complexities of California wage and hour law.  (Guerrero v. Superior Court, 2013 WL 493303 (Cal. Ct. of Appeal).)  Whether or not you employ personal attendants or domestic service workers, the analysis the court makes is exactly what California employers must make when considering how to pay employees. 

Adelina Guerrero worked as an in-home support services (IHSS) worker providing assistance to low income persons in Sonoma County.  She claimed that during a three month period she worked 501 regular hours and 87 overtime hours.  Ms. Guerrero sued the County, IHSS, the patient and the patient's family member all as joint employers.  The County and IHSS moved to dismiss the complaint on these grounds:  (1) They were not Ms. Guerrero's employer under the Fair Labor Standards Act (FLSA); (2) even if they were employers under the FLSA, Ms. Guerrero was exempt as a domestic service worker; (3) they were not Ms. Guerrero's employer under California law; and (4) even if they were employers under California law, Ms. Guerrero was exempt as a personal assistant.  The trial court agreed with all four of the defendants' arguments. 

However, the Court of Appeal reversed the trial court decision on every point.  It held that the County and IHSS were employers under the FLSA and under California law.  It also held that the exemptions for domestic service workers or personal attendants could not be established without substantial factual analysis.  Finally, California's Wage Order #15 did not provided an exemption to public entities from paying overtime. 

Under the FLSA an employer is any person acting in the interest of an employer.  As this is not really a helpful definition, courts look at four factors to determine the economic reality of the work relationship.  Does the principal (employer):  (1) Have the power to hire and fire; (2) supervise the work schedule or condition of employment; (3) determine the rate and method of payment; and (4) maintain employment records.  In this case, the court determined that IHSS and the County both had sufficient authority in these four areas to be deemed joint employers under the FLSA. 

As an employee, Ms. Guerrero was entitled to overtime compensation unless otherwise exempt.  Defendants claimed that Ms. Guerrero was employed in domestic service employment to provide companionship services for individuals who (due to age or infirmity) are unable to care for themselves."  However, this exemption does not apply if the employee spends more than 20 percent of his/her time performing general household work.  Of course, true to form, the Department of Labor has enacted several regulations interpreting what is household work.  Thus, determining the viability of an exemption is not an simple task.  The court could not resolve the issue, and thus permitted Ms. Guerrero to proceed on the theory this theory. 

Under California law, a person is an employer if it exercises control over the wages, hours or working conditions of another.  This is not a difficult allegation to make.  Thus, IHSS and the County could both be employers even though each entity assumed certain obligations with respect to Ms. Guerrero. 

The personal attendant exemption applies if "no significant amount of work" other than supervising, feeding or dressing the person is performed.  Like the domestic services worker exemption, this cannot be determined without substantial factual inquiry.   

The court also examined defendants' argument that as public entities the obligations to pay overtime found in the wage order do not apply to them.  The court looked at Wage Order #15 which applies to persons employed in household occupations.  Unlike 14 of the 17 wage orders, Wage Order #15 does not include an exemption for public entities.  This, the court determined, was evidence of the regulators' intent to include public entities within the coverage of wage order #15.  (I once had a deputy labor commissioner tell me this was evidence of an oversight, not intent to include public entities.)  Thus, Ms. Guerrero was permitted to move forward on the theory that defendants violated California law by not paying overtime as well. 

Now that you have read this blog, you might be asking how this could apply to you.  This is how:  When you engage the services of another, you must ask whether you are the employer.  You must also determine whether the worker is eligible for overtime compensation or whether the worker is exempt from overtime or any other provision under the wage order.  You must know which wage order applies to your business or to your workers.  That is not necessarily an easy determination.  It is conceivable that two or three wage orders apply to workers employed in your enterprise.  (Perhaps that is the subject of another blog.) 

In this case Ms. Guerrero was probably paid $8 per hour.  Thus, overtime liability was limited to $696.00.  However, if her employment with IHSS and the County terminated, she could be entitled to waiting period penalties not to exceed 30 days of wages (approximately $1,600).  Big deal right? 

Well, don't forget about attorneys' fees.  How much do you think Ms. Guerrero's attorney spent defending the lawsuit, including the appeal?  Now we are talking thousands.  In fact, it is not unusual for a plaintiffs' lawyer to easily spend $200,000 pursuing a case. 

It is much more cost-effective to get it right in the first place, avoid the claim, the headache and the attorneys' fees! 

Wednesday, March 13, 2013

Now We Have A New I-9 Form, When Is An Employer Liable For Hiring An Illegal Worker?

When it comes to hiring and managing the workforce, nothing is easy.  Last week the government released the new I-9 form.  As employers read the instructions and start using the form, they will undoubtedly ask again whether they can be held liable for hiring persons not authorized to work in the United States. 

With the enactment of the Immigration Reform and Control Act in 1986, it became illegal for employers to hire a person not authorized to work in the United States. An I-9 form was created to document the eligibility of every worker.  

Criminal penalties of $100 to $1,100 per day can be imposed on an employer that does not accurately complete an I-9 Form on behalf of each employee within the first three days of employment.  The person who signs an I-9 form containing false statements may be guilty of perjury.  But this is not all. 

Knowingly using a person not authorized to work in the U.S. may be subject to a fine of $10,000, and a jail sentence.  You should note that the statute uses the phrase knowingly use as opposed to knowingly hire.  Walmart discovered this when the government sued the company claiming that the company knew its contractors were using persons not eligible to work in the U.S.  An employer who relishes hiring ineligible workers can be found guilty of harboring and imprisoned.  This is knowingly employing 10 or more individuals not authorized to work in a 12-month period.  

Employers may receive a no-match letter from the Social Security Administration.  A no-match letter means that the name and the social security number of the worker do not match. 

Receipt of a no-match letter does not mean the person is not eligible to work in the U.S.  Theoretically, an error could have been made somewhere in the process that caused the problem.  Or, perhaps someone else stole the employee’s social security number to obtain employment elsewhere and is actively using it.  In my experience, the most common reason for the no-match letter is because the employee provided false documentation during the hiring process. 

An employer should take careful action once a no-match letter is received.  Failing to take action could result in the government claiming that the employer knowingly used a person not eligible to work in the U.S.  We have suggested to clients that they give the employee an opportunity to correct any error that may have caused the issuance of the no-match letter. 

It is not uncommon, however, for an employee to admit that the social security number provided initially was not his/her number.  Sometimes the employee admits (s)he is not eligible to work in the U.S.  Sometimes they give the client a new number.  If this happens, the employer must complete a new I-9 form with the new information.  If it appears valid, then the employer may not have knowingly used an ineligible worker.  However, an employer in this situation might also consider use of the E-Verify system.  This allows the employer to quickly determine whether the employee’s name matches his/her social security number.  Sierra HR Partners can perform an E-Verify search for you. 

Saturday, March 9, 2013

It's Here -- The New I-9 Form

The U.S. Citizenship and Immigration Services announced on March 7th that the new and improved I-9 Form is available for employer use.  Technically, you can use the old form until May 7th.  But since it's out, why not use the new form?  The format is different and appears to be easier to understand and use.  Hopefully, there will be fewer errors by employers, particularly where to sign. 

A link to the new form is here:

Keep I-9s together, in a binder.  It will make life easier if you are subject to an audit.  The forms must be kept for three years or for one year after the date of termination, whichever is longer.  Have a document retention policy that calls for destruction of old forms after the mandatory retention period.  Then follow through with the document destruction. 

Happy hiring!

Wednesday, March 6, 2013

Bonuses and the Regular Rate of Pay -- Employers Beware

I have had several clients ask questions related to bonuses and commissions during the past few weeks.  The goal for each employer was to provide a meaningful incentive program to employees, and allow them to benefit from their diligent service.  However, in every situation but one, the client had not taken into account the effect of a bonus on calculating an employee's regular rate of pay ("RRP").  Since the RRP is used to calculate overtime, it is critical to understand the effect of a bonus on the RRP.  If the RRP is incorrectly calculated, then overtime is incorrectly calculated.  Failing to pay an employee correctly can subject an employer to substantial liability in unpaid wages, liquidated damages, penalties and attorneys' fees. 

The RRP is used to calculate overtime.  Thus, when considering bonuses or commissions, if the employee is exempt from overtime compensation, the RRP is irrelevant.  However, for an employee who is not exempt from overtime compensation, calculating the RRP is essential. 

For an employee who earns an hourly wage, the RRP is the same as the hourly wage.  An employee who receives a weekly salary, the RRP is determined by dividing the salary by 40 hours per week.  If the employee receives a salary for a month, multiple the salary by 12 months and then divide by 52 weeks for a weekly salary.  Divide that by 40 hours to get the RRP. 

A bonus or commission complicates the calculation of the RRP.  The RRP includes all form of remuneration for employment paid to an employee.  Now that's not a very helpful rule, but federal and state agencies have articulated a list of payments that must be included as remuneration, and which can be excluded.  For example, a Christmas bonus that is not dependent on hours worked, efficiency or production, is not considered remuneration. 

Likewise, a bonus is not remuneration if: (1) The decision to pay, and the amount, is within the sole discretion of the company; (2) is given near the end of a work period; and (3) is not subject to a prior agreement or understanding causing the employee to expect such a payment regularly.  However, if the bonus does not meet these criteria, then the payment is part of remuneration. 

Companies often want to tie a bonus to some form of production.  It is thought that if the company explains how an employee earns a bonus, the employee will modify his/her behavior to achieve the company's goals.  In contrast, merely giving employees a bonus at the end of the year may not provide the incentive and understanding for an employee to modify behavior. 

If your employee is exempt, then go ahead and create an incentive-based bonus.  However, if the employee is not exempt, then an incentive-based bonus (or commission), which is given pursuant to some type of formula, and not per the sole discretion of the company, is remuneration which must be included in the employee's calculation for the RRP. 

Consider the employee who earns $10 per hour, and worked 50 hours during the workweek.  This employee earns ($10 x 40 hours) + ($15 x 10 hours) = $550.  However, let's add more facts to this hypothetical.  Assume that the employee earned another $100 for the week under an incentive-based bonus plan.  How is the RRP calculated, and what must the employee be paid for the week? 

The California Labor Commissioner instructs employers to first determine the overtime based on the hourly rate of pay.  In this hypothetical, the calculation is:
$15 x 10 hours = $150. 

Then the Labor Commissioner instructs employers to compute overtime due on the bonus.  An employer does this by finding the regular bonus rate by dividing the bonus by the total hours worked throughout the period in which the bonus was earned.  The employee is then entitled to an additional half of the regular bonus rate for each hour worked.  
The calculation is: 
$100 ÷ 50 hours = $2.00 ÷ 2 = $1.00 x 10 hours = $10.00. 

According to the Labor Commissioner, the employer in this hypothetical would pay: 
$10 x 40 hours = $400
$15 x 10 hours = $150
Bonus                  $100
OT on bonus         $10
Total                   $660

As you see from this example, the bonus (or commission) causes the employee's RRP to increase so that (s)he earns another $10 in overtime compensation.  Failure to properly calculate overtime and pay that extra amount owed may subject an employer to unwarranted penalties, liquidated damages and attorneys' fees.  An employer should consider the effect of any additional compensation on an employee's RRP.  This might include a production bonus, piece rate, shift differential, or pay for on-call services. 

Friday, February 22, 2013

Guns in the Workplace -- A Violation of the General Duty Clause

As a young boy growing up in Salt Lake City, Utah, it was not uncommon to see many trucks in town fitted with a gun rack and sporting a rifle or two.  As I recall, I'm not even sure we always locked our cars.  Hunting is common in Utah and thus seeing guns displayed, even in the city, was not disconcerting. 

The landscape has dramatically changed since the early 60s.  Because of the many horrific criminal activities that have recently occurred, many in our society would be fearful to see a weapon in a vehicle or on a person in a place other than the gun range or hunting grounds. 

Gun control will be part of our country's political debate during the months to come.  Regardless of the outcome, HR professionals will be attempting to fashion solutions in their states to prevent the carrying and use of guns in the workplace. 

In most states an employer can prohibit employees from bringing weapons into the workplace.  Some states, however, prohibit an employer from prohibiting an employee from bringing a gun into the workplace provided it remains in a locked car. 

Gun control advocates challenged these "parking lot" rules.  However, in Ramsey Winch, Inc. v. Henry, 555 F.3d 1199 (10th Cir. 2009), the court upheld the parking lot rule.  Gun control advocates challenged the law claiming that the federal OSHA Act's general duty clause preempted state law parking lot rule.  The court concluded that the general duty clause does not preempt a state law permitting the carrying of guns into the workplace in a locked car. 

No such parking lot rule exists in California.  Thus, employers are free to prohibit employees from transporting guns into the workplace, even if those guns are stored in locked vehicles.  Does the general duty clause of Cal/OSHA or of the federal OSHA Act also compel employers to mandate such rules?  Could the state or feds issue rules pursuant to OSHA preventing the transportation of guns into a workplace? 

Perhaps these types of questions will be part of the gun control debate. 

Thursday, February 21, 2013

A Twist on Workplace Romance -- Thompson v. North American Stainless

A week has passed since Valentine's Day.  Have you learned about any workplace romances?  Do they concern you?  They should.  They worry me.  What about those romances that are still hidden from public view?  I hope they worry you too.  Love and the workplace is a dangerous mix.  Let me tell you about a consequence you may not have considered -- a lawsuit for retaliation by a person who did not make the initial claim of discrimination. 

Miriam Regalado filed a sexual discrimination complaint against her employer, North American Stainless ("NAS").  Three weeks later NAS fired her fiance, Eric Thompson. 

Looking for consolation Eric ran to Miriam crying uncontrollably.  She hugged and kissed him, assuring Eric that he did nothing wrong and that the company was at fault.  Over the next few days Eric and Miriam plotted their revenge.  (OK, I just made up this part, but it could have happened!) 

Eric sued NAS for retaliation under Title VII.  He claimed he was fired because of Miriam's complaint.  The U.S. Supreme Court concluded that if true, the facts alleged constitute a viable claim of retaliation under Title VII. 

The retaliation provision under Title VII prohibits an employer from “discriminat[ing] against any of his employees” for engaging in protected conduct, without specifying the employer acts that are prohibited.  According to the Court, those employer acts include anything that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination."  The Court determined that a reasonable person would have been dissuaded to file a discrimination complaint if she knew her fiance would be fired. 

You're saying, "Yeah, I understand that.  Miriam could file a complaint for retaliation if she was fired."  But the court went beyong that and indicated that Eric could also file a complaint. 

The Court had to determine whether Eric was a "person aggrieved" by the actions of NAS.  Of course he was fired and therefore suffered adverse action.  However, he did not file the complaint of discrimination. 

But Title VII allows a person "claiming to be aggrieved" to file a civil lawsuit.  The Court held that if a person is within the "zone of interests" sought to be protected by Title VII, then that person is aggrieved and can bring a lawsuit. 

In this case, Title VII is intended to protect employees from discriminatory acts of employers.  As an employee of NAS, Eric was within the zone of interests and therefore eligible to file a lawsuit alleging retaliation even though he did not file the initial complaint of discrimination. 

California law also protects persons based on their association.  The law in this area -- associational discrimination and the zone of interests -- is complex.  It is not well-defiined.  It is another potential trap for the unwary. 

Don't you hate workplace love! 

Friday, February 15, 2013

Behavior Based Interviewing & The Receptionist Who Didn't Want to Answer the Phone

At a prior job I participated in the interviewing process.  As a newer member of the interviewing committee, I took my cues from the savvy, seasoned veterans.  I soon learned that age or experience in interviewing is not necessarily an advantage.  If an interviewer does not do the job correctly, it does not matter how many times he interviewed applicants.  The information gleaned from a poor interview is inadequate. 

For example, one veteran interviewer would describe why it was important to arrive on time.  He would then ask, "Are you punctual?"  The applicant always responded with an enthusiastic "Yes, of course." 

I have since learned about behavior based interviewing.  I love it.  Using this technique, you ask an open question that elicits dialogue and a description of behavior.  For example, an interviewer might ask the following questions: 
*     Give me an example of how you dealt with an upset customer. 
*     How do you handle conflict with co-workers?
*     What would your current supervisor say is your greatest strength? 
*     What would be your most important function in the position? 
*     What was your most challenging work situation and how did you handle it?

You get the idea.  Each of these questions causes the applicant to respond with more than a yes or no.  It requires the applicant to give examples and describe real situations.  You will quickly see who is prepared for an interview, who has meaningful experience, and who could handle the job the best. 

Yesterday I asked an applicant for our receptionist position what work activity she would like the least if she was the successful candidate.  "Answering telephones," she responded, "because it would be very hard."  Really, an applicant for the receptionist position doesn't want to use the telephone?  Nope, she preferred working on computers.  And did she really say that she would not like hard work?  That is the message I received. 

We learned a lot from the applicant with that very simple question.  We learned that we are still looking for a receptionist -- someone who will eagerly greet our clients on the telephone or in the office, and be engaged with them. 

Give us time to recruit and train.  Then come see us.  Let us know if we hired the best person for the job. 

Wednesday, February 13, 2013

Substance Abuse -- From Snow Plows to Bus Drivers

Yesterday I reported on a lawsuit filed by a former snow plow driver who was legally intoxicated while on the job.  Today, I am reporting on the case of a school bus driver who tested positive for marijuana.  You won't believe the result. 

The Shenendehowa School District in upstate New York fired Cynthia DiDomenicantonio after she tested positive for marijuana in a random drug test.  The driver demanded arbitration pursuant to the collective bargaining agreement (CBA). 

The school district argued that it had a zero-tolerance policy with respect to positive drug tests.  But no written document was produced.  Thus, the arbitrator concluded that suspension or other action less drastic than dismissal was permitted.  The arbitrator concluded that per the CBA the punishment should have been a six-month dismissal followed by reinstatement. 

Ironically, the CBA indicated that the punishment for a positive drug test could include fines, suspension or dismissal.  However, even the court, on appeal, concluded that the arbitrator's award did not violate public policy and therefore could not be modified. 

My question to you is this -- Do you want Cynthia DeDomenicantonio driving your children to and from school?  Should an employer, charged with the care of our children, be limited to a short suspension?  What about a company that hires safety-sensitive employees?  Should they be subject to discipline short of termination for failing a drug test? 

Tuesday, February 12, 2013

Did the City Wrongfully Terminate Its Drunken Snow Plow Driver?

Jonathan Blazek is upset with the City of Lakewood, Ohio.  The peaceful suburb west of Cleveland fired Mr. Blazek after it found him legally drunk during his shift plowing snow.  His blood alcohol level registered .132, double the legal limit and six times above the level permitted by the City for its safety-sensitive employees. 

Mr. Blazek contends that the City fired him for his alcoholism in violation of the Americans with Disabilities Act.  The City contends it fired Mr. Blazek because he was drunk on the job, an action that is not protected by the ADA. 

Mr. Blazek wants back pay and reinstatement. After all, who would want to hire a person who got caught driving a snowplow drunk.  He was making $59,000 annually.  And of course, he is seeking attorneys' fees for the schmuck who took his case.

Have you seen a snowplow?  The guy could have done some real damage or injury!  He is lucky he still has a driver's license. 

I'm just glad it doesn't snow in Fresno. 

Monday, February 11, 2013

Harris v. Santa Monica -- The Case That Keeps On Giving

Many of you who attend my employment law trainings will remember the case of Harris v. City of Santa Monica.  It has been in the court system for many years now. 

Ms. Harris was a bus driver who was involved in multiple accidents.  On the morning of the day the City decided to fire her, Ms. Harris announced she was pregnant.  She contended she was fired because she was pregnant.  The City claimed it was due to her less than stellar driving. 

The case raised the issue of "mixed motive."  The City claimed that if it would have fired Ms. Harris for a non-discriminatory reason, then the case should be dismissed.  Ms. Harris claimed that if the City had a discriminatory motive, it was liable for discrimination regardless of any other reason giving rise to the decision to terminate the employment relationship. 

The Supreme Court has now addressed the issue of mixed motive.  It concluded if an employer can prove that due to a non-discriminatory reason it would have made the decision to terminte, then the court cannot award damages, backpay or order reinstatement.  However, if the employer's motive was, in part, discriminatory, then the plaintiff can obtain declaratory or injunctive relief to stop the discriminatory practices.  The plaintiff may also be eligible for attorneys' fees. 

Did you catch that?  It is in the last sentence.  Attorneys' fees.  The employee may not obtain a dime in damages, but the attorney will get paid!  What a wonderful system we have.  Lawsuits brought for the primary -- or sole -- purpose of attorneys' fees. 

Friday, February 8, 2013

Why Litigate? Perhaps to Persuade Other Workers Suing Isn't the Answer

I encourage employers to avoid litigation.  Much of my practice is devoted to training employers on lawful employment practices.  It creates a better workplace.  And it cuts down on litigation.  When disputes arise, an employer should consider settlement.  It can help heal the workplace and reduce costs. 

But litigation can serve a useful purpose.  For example, sometimes you should litigate because you want to dissuade other employees from suing. 

I have a client who faced a serious legal challenge when a couple of former employees filed a lawsuit.  Of course everyone in the office was aware of the lawsuit.  There was plenty of gossip in the office, and speculation as to the outcome of the litigation. 

My client felt compelled to vigorously defend the lawsuit.  The client knew it was in the right and could prevail.  However, the client also knew that proceeding to trial was risky and could result in an adverse judgment.  At that point, the client would have spent a lot of money and had its nose rubbed in it! 

But the client knew that if it did not defend the case, other employees would follow.  In fact, one employee was overheard saying something to the effect that if she didn't get her way on something, she would also file a lawsuit against the company. 

I often see former employees hire the same lawyer as a former co-worker who was successful in litigation or in settling a dispute.  So it is a valid point for an employer to consider:  What will happen with the rest of the staff if I settle this case?  Will others file a similar lawsuit? 

By the way, my client won.  Big.  The client won on everything.  Other employees don't gossip about filing a similar lawsuit anymore.