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. 

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.

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.

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. 

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. 

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.