tag:blogger.com,1999:blog-72551337266719753942024-02-19T02:37:41.376-08:00California HR -- by Doug LarsenDevelopments in California HR and Employment Law; Best California HR PracticesDoug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.comBlogger126125tag:blogger.com,1999:blog-7255133726671975394.post-53848515476106677152013-07-17T16:43:00.001-07:002013-07-17T16:43:06.078-07:00My Last Blog ... Here ... So Go ThereOver 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 <a href="http://www.flgz.net/blogs/california-hr" target="_blank">here</a> and you will be transported to my new blog page. <br />
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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. <br />
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I hope you enjoy the new format. You are welcome to sign up for our other blogs too. <br />
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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. Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-69897431603170721662013-07-08T10:46:00.003-07:002013-07-08T10:46:47.632-07:00Amy's Baking Company Would Be In Big Trouble In California!I read an interesting <a href="http://www.foxnews.com/leisure/2013/07/01/amys-baking-company-makes-employees-sign-appalling-contract/?intcmp=obnetwork" target="_blank">article</a> about Amy's Baking Company in Scottsdale, Arizona. Perhaps they can bake a mean cake, but they can't manage people. <br />
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The company compels employees to sign an agreement with these, and other, provisions: <br />
<ul>
<li>Employees pay the costs of any damage to company equipment or products due to employee negligence; </li>
<li>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; </li>
<li>Employers are penalized $250 per day if they miss a shift on a weekend or holiday; and </li>
<li>Employee's can't work for a competitor within 50 miles for a period of one year. </li>
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My advice for employees -- STAY AWAY <br />
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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. <br />
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Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-18414310852009424962013-07-05T10:01:00.000-07:002013-07-05T10:01:22.272-07:00Black Swan -- A Dirty Little Secret in HollywoodAnother 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. <br />
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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. <a href="http://californiahr.blogspot.com/2013/04/when-is-intern-really-intern.html" target="_blank">http://californiahr.blogspot.com/2013/04/when-is-intern-really-intern.html</a><br />
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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. <br />
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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. <br />
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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. <br />
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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. <br />
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Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-280926880461771262013-06-28T10:51:00.000-07:002013-06-28T10:51:04.933-07:00E-Verify and the Senate's Immigration Reform BillThe 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. <br />
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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. <br />
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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. <br />
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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. Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-87213084086006657002013-06-27T12:47:00.001-07:002013-06-27T12:47:02.138-07:00Mixed Motive Is Not The Standard for Retaliation Cases Under Title VIIThe 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. <br />
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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. <br />
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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 <em>Univ. of Texas Southwestern Medical Center v. Nassar</em>, 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. <br />
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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. <br />
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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. <br />
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Isn't that justice! Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-74585162075127543802013-06-24T21:04:00.003-07:002013-06-24T21:04:45.732-07:00Who Is A Supervisor Under Title VII? Vance v. Ball State Univ.<br />
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<span style="background-color: rgba(255, 255, 255, 0);"><span style="text-align: left;">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). </span></span></div>
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<span style="background-color: rgba(255, 255, 255, 0);"><span style="text-align: left;">In </span></span><i style="text-align: left;">Vance v. Ball State University, </i><span style="text-align: left;">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. </span></div>
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A sharply divided Supreme Court held that a worker is not a supervisor unless <span style="font-family: CenturySchoolbook; font-size: 11pt;">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. </span></div>
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<span style="font-family: CenturySchoolbook; font-size: 11pt;">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. </span></div>
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<span style="-webkit-composition-fill-color: rgba(175, 192, 227, 0.230469); -webkit-composition-frame-color: rgba(77, 128, 180, 0.230469); -webkit-tap-highlight-color: rgba(26, 26, 26, 0.296875); -webkit-text-size-adjust: auto; background-color: white; color: #191919; font-family: Georgia, 'Times New Roman', serif; font-size: 13px; line-height: 20px; text-align: left;"></span>Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-75373249271668321682013-06-14T19:26:00.002-07:002013-06-14T19:26:52.291-07:00Security Guards, Night Auditors and Swing or Night Shift WorkersMany 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. <br />
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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. <br />
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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. <br />
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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. <br />
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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. <br />
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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. <br />
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Many lawyers are discussing the case of <em>Faulkinbury v. Boyd & Associates, Inc.</em> (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. <br />
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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. <br />
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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. <br />
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<em>Faulkinbury</em> 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. <br />
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Stay tuned. <br />
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<em></em>Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-42617286481223295382013-06-05T18:04:00.000-07:002013-06-05T18:04:11.476-07:00Can 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. <br />
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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. <br />
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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 <em>Villafuerte v. Inter-Con Security Systems, Inc.</em> (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. <br />
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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. <br />
Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-20146189939244922812013-06-02T21:00:00.000-07:002013-06-02T21:00:12.520-07:00Men Who CookFor 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. <br />
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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. <br />
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Buy tickets at the <a href="http://www.fresnoartmuseum.org/" target="_blank">Fresno Art Museum website</a>. Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-3026740284390749722013-05-21T19:24:00.002-07:002013-05-21T19:24:23.459-07:00Will California Mandate Paid Family LeaveSeveral 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.<br />
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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. <br />
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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 <a href="http://www.sfgate.com/news/article/Bill-ensures-paid-family-leave-for-Calif-workers-4529271.php#page-1" target="_blank">here</a>. Another burden. Another obligation. Another basis for a lawsuit. It's only fair ... Right?Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-18519338298180166522013-05-21T12:54:00.000-07:002013-05-21T12:54:36.853-07:00Does 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, <span style="font-family: .HelveticaNeueUI;"><span style="-webkit-composition-fill-color: rgba(175, 192, 227, 0.230469); -webkit-composition-frame-color: rgba(77, 128, 180, 0.230469); -webkit-tap-highlight-color: rgba(26, 26, 26, 0.292969); font-size: 15px; line-height: 19px; white-space: nowrap;">which</span></span> in California, is a very left-leaning group. <br />
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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? <br />
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This recent article in the<a href="http://bostonherald.com/news_opinion/opinion/op_ed/2013/05/minimum_wage_hikes_hurt_teens" target="_blank"> Boston Herald</a> 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. <br />
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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: <br />
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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. <br />
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. <br />
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. <br />
4) Learn how to work with others. Get along. Don't complain, whine or whimper. <br />
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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. <br />
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<br />Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-78595544637718962082013-05-14T07:43:00.002-07:002013-05-14T07:44:13.554-07:00The Family Flex Act of 2013 (H.R. 1406) -- Impact in CAI 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. <br />
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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. <br />
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Second, if it did pass, what would be the effect in California? Nothing. Nada. Zilch. Rien. Zero. <br />
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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. <br />
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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. <br />
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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. <br />
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Once again you can thank our politicians. Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-54369280948966098522013-05-10T08:55:00.001-07:002013-05-10T08:55:21.073-07:00Can 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. <br />
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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. <br />
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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. <br />
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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. <br />
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Read about the case <a href="http://www.abajournal.com/news/article/can_remote_texter_be_liable_if_driver_is_distracted_by_message_appeals_cour/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email" target="_blank">here</a>. Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-70757662819952357592013-05-09T12:14:00.000-07:002013-05-09T12:14:02.192-07:00The NLRB Took It In The Shorts ... AgainThe 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. <span lang="EN" style="color: #333333; mso-ansi-language: EN;">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.<span style="mso-spacerun: yes;"> </span>The notice was on 11 x 17
poster board with large bold letters <b style="mso-bidi-font-weight: normal;">Employee
Rights</b>.<span style="mso-spacerun: yes;"> </span>The notice instructed
employees of their right to form or join a union, engage in concerted activity
and strike.<span style="mso-spacerun: yes;"> </span>The notice also instructed
workers what actions the Board deemed <b style="mso-bidi-font-weight: normal;">illegal</b>
for employers to do.<span style="mso-spacerun: yes;"> </span>(Yes, in bold
language.)<span style="mso-spacerun: yes;"> </span>Obviously, employers were not anxious to post
this type of notice.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span><br />
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<span lang="EN" style="color: #333333; mso-ansi-language: EN;">The Board intended
to enforce the posting rule by:<span style="mso-spacerun: yes;"> </span>(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.<span style="mso-spacerun: yes;">
</span><o:p></o:p></span><br />
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<span lang="EN" style="color: #333333; mso-ansi-language: EN;">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.<span style="mso-spacerun: yes;"> </span>(In another case, a district court
in South Carolina vacated the rule in its entirety last year.)<span style="mso-spacerun: yes;"> </span><o:p></o:p></span><br />
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<span id="more"><span lang="EN" style="color: #333333; mso-ansi-language: EN;">The
Court of Appeal focused on employers’ free speech rights.<span style="mso-spacerun: yes;"> </span>It held that employers have the right to
speak about an issue or not to speak about an issue at all.<span style="mso-spacerun: yes;"> </span>Enforcing the rule would violate free speech
rights.<span style="mso-spacerun: yes;"> </span>Accordingly, the enforcement
provisions of the rule were struck down.<span style="mso-spacerun: yes;">
</span>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.<span style="mso-spacerun: yes;"> </span>In a concurring opinion, one of
the justices concluded that the Board lacked statutory authority to even enact
the rule.<span style="mso-spacerun: yes;"> </span></span><o:p></o:p></span><br />
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; line-height: 115%;">The courts have not been kind to the Board
lately.<span style="mso-spacerun: yes;"> </span>I reported in an earlier blog
about the Noel Canning case.<span style="mso-spacerun: yes;"> </span>That was
the court decision that concluded President Obama’s recess appointments to the
Board were unconstitutional.<span style="mso-spacerun: yes;"> </span>Click <a href="http://www.nlrb.gov/sites/default/files/documents/5142/nlrb_v_noel_canning_pet.pdf" target="_blank">here</a> if
you want to read the government’s Petition for Certiorari.<span style="mso-spacerun: yes;"> </span></span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: "Times New Roman","serif"; font-size: 12pt; line-height: 115%;"><span style="mso-spacerun: yes;">For some reason, I just don't feel sorry for the NLRB. </span><o:p></o:p></span></div>
<br />
<br />
Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-24710219187318184382013-05-07T15:58:00.002-07:002013-05-07T15:58:36.403-07:00What is All the Fuss About the Want AdThe 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 <a href="http://shine.yahoo.com/work-money/restaurant-s-insanely-demanding-want-ad-leaves-chefs-steaming-182519923.html" target="_blank">here</a>. <br />
<br />
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. <br />
<br />
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. <br />
<br />
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." <br />
<br />
Wow! Now if we could only teach our employees that work is difficult, and fulfilling as well. Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-79288205834266610722013-05-06T17:28:00.001-07:002013-05-06T17:28:50.603-07:00When the Obligation to Engage in the Interactive Process ArisesCalifornia recently amended its regulations pertaining to employment discrimination. The regulations are worth reading. Just click <a href="http://www.dfeh.ca.gov/res/docs/FEHC%20Disability%20Regs/FEHC%20FINAL_DISABILITy_REGS_12-18-12%20_2_.pdf" target="_blank">here</a>. One of the points that employers must realize is when the obligation to engage in the interactive process arises. <br />
<br />
Section 7294(b) provides three situations when the obligation arises. <br />
<ol>
<li>When the employee or applicant requests an accommodation. </li>
<li>When the employer becomes aware of the need for an accommodation. This awareness can come through observation or from a third party. </li>
<li>When the <span style="font-family: Times New Roman;">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. </span></li>
</ol>
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?) <br />
<br />
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. <br />
<br />
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. <br />
Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-55068404308525538792013-04-26T11:08:00.000-07:002013-04-26T11:08:25.822-07:00The 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 <a href="http://www.youtube.com/watch?v=Tcwz8-EfFYE" target="_blank">here</a> and watch it. Sorry, there are a few vulgarities, but rather mild by today's standards. <br />
<br />
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. <br />
<br />
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. <br />
<br />
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. <br />
<br />
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. <br />
<br />
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. <br />
<br />
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. <br />
<br />
<br />
Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-44371934062830870372013-04-22T11:19:00.000-07:002013-04-22T11:19:31.279-07:00FEHA Disability Regulations -- Invitation to Our Legal Beagle Bagel Breakfast Training CourseThe 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. <br />
<br />
Our office will hold a training course on the regulations April 30th. If you are interested in attending, just click <a href="http://flgz.net/sites/default/files/LBBB1.pdf" target="_blank">here</a>. <br />
<br />
(FYI, we hold training courses for employers every month. We refer to them as Legal Beagle Bagel Breakfasts. Yes, we do serve bagels.) Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-45603753816296032892013-04-19T10:49:00.002-07:002013-04-19T10:49:46.411-07:00The Impact of the Private Attorneys General Act on Employment ClaimsIn 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. <br />
<br />
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. <br />
<br />
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. <br />
<br />
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. <br />
<br />
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. Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-48898605037222553672013-04-17T11:26:00.001-07:002013-04-17T11:26:17.311-07:00Occupational Assumption of the RiskCan 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 <em>Gregory v. Cott</em>. And now the California Supreme Court has decided to review the decision. <br />
<br />
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. <br />
<br />
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. <br />
<br />
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. <br />
<br />
The occupational assumption of the risk doctrine was applied to a worker who cared for an Alzheimer's patient confined to a facility in <em>Herle v. Estate of Marshall</em> (1996) 45 Cal.App.4th 1761. In <em>Gregory v. Cott</em>, 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. <br />
<br />
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. <br />
<br />
Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-30522301554756539312013-04-12T13:45:00.001-07:002013-04-12T13:45:43.490-07:00When 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? <br />
<br />
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. <br />
<br />
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? <br />
<br />
The Department of Labor identifies six critical factors. Read about them <a href="http://www.dol.gov/whd/regs/compliance/whdfs71.htm" target="_blank">here</a>. In essence, it is a service to the intern and provides no benefit to the business. <br />
<br />
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 <a href="http://www.dir.ca.gov/dlse/opinions/1996-12-30.pdf" target="_blank">here</a>. <br />
<br />
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. <br />
<br />
It's also much easier to pay $8 per hour than to pay legal fees in the event of a claim. Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-61018893087903908882013-04-08T14:08:00.000-07:002013-04-08T14:30:29.167-07:00Do You Pay a Piece Rate or for Flagged Hours? Employer Beware! <span style="font-family: "Cambria","serif";">On
April 2, 2013 the California Court of Appeal published its decision in <a href="http://www.courts.ca.gov/opinions/documents/B235292.PDF" target="_blank">Gonzalez v. Downtown LA Motors, LP, 2013WL 1316514</a>.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>We are apprising you of the court’s decision so
that you can take steps to modify pay practices, if necessary.<span style="mso-spacerun: yes;"> </span>We encourage you to seek legal advice as you
make the change.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span><br />
<br />
<span style="font-family: "Cambria","serif";">Downtown
LA Motors paid its employees like many in the automobile repair business, on a
piece-rate system, using the flagged hour basis.<span style="mso-spacerun: yes;"> </span>Technicians were paid a flat rate for each
flagged hour (s)he accrued.<span style="mso-spacerun: yes;"> </span>Technicians
accrued flagged hours only when working on a repair.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span><br />
<span style="font-family: "Cambria","serif";"></span><br />
<span style="font-family: "Cambria","serif";">Downtown
LA Motors also kept track of the time a technician spent in the workplace,
whether or not working on a repair.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>If the technician’s
compensation fell below this minimum wage floor, the company supplemented the
pay to meet minimum wage.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span><br />
<span style="font-family: "Cambria","serif";"></span><br />
<span style="font-family: "Cambria","serif";">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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>Those employees who no
longer worked for the company also sought waiting period penalties under Labor
Code section 203.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span><br />
<span style="font-family: "Cambria","serif";"></span><br />
<span style="font-family: "Cambria","serif";">The
outcome of the case hinged on the meaning of section 4(B) of the wage
order.<span style="mso-spacerun: yes;"> </span>This provision reads:<span style="mso-spacerun: yes;"> </span></span><span style="font-family: "Cambria","serif";"><em>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.<span style="mso-spacerun: yes;"> </span><o:p></o:p></em></span><br />
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt;">
<span style="font-family: "Cambria","serif";">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 <u>every separate
hour</u>.”<span style="mso-spacerun: yes;"> </span>(<i style="mso-bidi-font-style: normal;">Armenta v. Osmose, Inc.</i> (2005) 135 Cal.App.4<sup><span style="font-size: x-small;">th</span></sup> 314; DLSE
Op. Ltr. 2002.01.29.)<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt;">
<span style="font-family: "Cambria","serif";">To illustrate its point, the
court provided an example.<span style="mso-spacerun: yes;"> </span>If a
technician works four flagged hours at $20 per hour and then leaves, (s)e
earned $80 during the 4-hour period.<span style="mso-spacerun: yes;">
</span>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<o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt;">
<span style="font-family: "Cambria","serif";">Under
the <i style="mso-bidi-font-style: normal;">Gonzalez</i> case, the second
technician is entitled to four hours at minimum wage in addition to the
$80.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<br />
<span style="font-family: "Cambria","serif";">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.<span style="mso-spacerun: yes;"> This pay practice could result in substantial liability to the company. </span></span><br />
<span style="font-family: "Cambria","serif";"><span style="mso-spacerun: yes;"></span><o:p></o:p></span><br />
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt;">
<span style="font-family: "Cambria","serif";"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-63379782442886888032013-04-05T08:47:00.001-07:002013-04-11T08:47:42.820-07:00Cheer Up! It Could Be Worse -- You Could Be Working For MeIt's Friday. So here is something on the lighter side of things. <br />
<br />
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." <br />
<br />
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. <br />
<br />
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. <br />
<br />
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. <br />
<br />
Obviously, Marchuk was an unhappy associate. And I doubt there are many happy employees, associates or partners at Faruqi & Faruqi. <br />
<br />
FYI, my partners (at least most of them) are pretty good people to work for!Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-17326995622801812492013-04-04T12:29:00.000-07:002013-04-04T12:29:27.625-07:00$4.5 Million For Bad TimingLast 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. <br />
<br />
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?).<br />
<br />
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. <br />
<br />
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. <br />
<br />
<br />
<br />
<br />Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0tag:blogger.com,1999:blog-7255133726671975394.post-90088884881033989882013-04-03T12:29:00.001-07:002013-04-03T12:29:49.783-07:00Kaweah Delta Hospital, English-Only Rules and Third PartiesI 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. <br />
<br />
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. <br />
<br />
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.) <br />
<br />
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. <br />
<br />
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. <br />
<br />
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. <br />
<br />Doug Larsenhttp://www.blogger.com/profile/09655056961011206954noreply@blogger.com0