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“Slaying the PAGA Dragon” – Wage and Hour Compliance for Non-Exempt Employees

Posted in Wage & Hour

Date:  March 16, 2017

Time:  8:30 a.m. – 12:00 p.m.

Summary of Program

Unfortunately, both single-plaintiff and class-action wage and hour lawsuits continue to plague California employers. Often employers are sued because of technical violations that occur simply because the employer is unaware of its legal obligations.  The various federal and state wage and hour laws that govern the workplace can be difficult to understand. This seminar will discuss the nuts and bolts of wage and hour compliance for non-exempt employees in California.

Program Highlights:

  • “Actual hours worked” and problems with “off the clock” work.
  • What is and is not included in the “regular rate” of pay?
  • Are you “providing” a meal period to your employees?
    • If your answer is “No” because you have an “on duty” meal period agreement with your employees – Is it valid?
    • If your answer is “No” because the Brinker case says you don’t have to – You’re in for some surprises.
  • “Flex-time,” “make-up time,” and “alternative work” schedules.
  • PAGA Claims
  • What are the courts saying – highlights of recent decisions regarding non-exempt wage and hour issues in California.

Seminar

8:30 am – 9:00 am  – Registration & Breakfast
9:00 am – 12:00 pm  – Seminar

Webinar: This seminar is also available via webinar. Please indicate in your RSVP if you will be attending via webinar.

Location

Weintraub Tobin Office

400 Capitol Mall, 11th Floor | Sacramento, CA 95814

Parking Validation provided. Please park in the Wells Fargo parking garage, entrances on 4th and 5th Street. Please bring your parking ticket with you to the 11th floor.

Approved for three (3) hours MCLE.   This program will be submitted to the HR Certification Institute for review. Certificates will be provided upon verification of attendance for the entirety of the webcast.

There is no cost for this seminar. 
*This seminar will be limited to 75 in-person attendees.

-Register here-

New York Governor Continues To Strengthen Equal Pay Protections

Posted in Disability Discrimination, Discrimination, Labor Law, New Legislation and Regulations

By Vida L. Thomas

On January 9, 2017, New York Governor Andrew Cuomo announced his new “New York Promise” agenda, a sweeping package of reforms that the Governor promises will “advance principles of social justice, affirm New York’s progressive values, and a set a national standard for protections against all forms of discrimination.” As part of that agenda, the Governor signed two executive orders aimed at eliminating the state’s wage gap affecting women and racial and ethnic minorities. The executive orders preclude state employers from asking job applicants about prior salary information, and mandate that state contractors collect and report certain pay data.

Executive Order No. 161 prohibits “state entities” from asking job applicants about their prior compensation before a conditional offer of employment is made.[1]  If a state entity is already in possession of an applicant’s prior compensation, the entity cannot rely on that information when determining the new employee’s salary, unless required by law or a collective bargaining agreement.  “Compensation” means salary, wages, benefits, and any other forms of payment.  If an applicant volunteers his or her prior compensation information, then no violation of the Executive Order has occurred.  However, where an applicant refuses to provide this information, that refusal cannot be considered in making the decision about whether to hire that individual.

Read the rest of this article at HRUSA: http://blog.hrusa.com/blog/new-york-governor-continues-to-strengthen-equal-pay-protections/

Washington Raises Minimum Wage And Provides Paid Sick Leave

Posted in Employment Contracts and Agreements, New Legislation and Regulations, Wage & Hour

In November 2016, Washington voters approved Initiative Measure No. 1433 (“IM 1433”) which provides for an incremental increase to the state minimum wage as of January 1, 2017 and also provides for paid sick leave benefits beginning January 1, 2018.  The stated intent behind IM 1443 is expressed in the initiative as follows:

BE IT ENACTED BY THE PEOPLE OF THE STATE OF WASHINGTON: …

It is the intent of the people to establish fair labor standards and protect the rights of workers by increasing the hourly minimum wage to $11.00 (2017), $11.50 (2018), $12.00 (2019) and $13.50 (2020), and requiring employers to provide employees with paid sick leave to care for the health of themselves and their families.

Read the rest of this article at http://blog.hrusa.com/blog/washington-raises-minimum-wage-and-provides-paid-sick-leave/.

“From Hiring to Firing” – The Life Span of the Employment Relationship

Posted in Employee Privacy Rights, Employment Contracts and Agreements, Labor Law, New Legislation and Regulations, Reductions in Force, Retaliation and Wrongful Termination

Date:  February 23, 2017

Time:  9:30 a.m. – 11:30 a.m.

Summary of Program

The Labor and Employment Group at Weintraub Tobin is pleased to offer this informative seminar that will discuss applicable laws and best practices to help business owners, human resource professionals, and managers avoid liability when they hire, discipline, and terminate employees.

Program Highlights:

  • Lawful and effective job postings and interview questions
  • Effective policies, training, and documentation to reduce liability
  • Best practices for an effective and meaningful discipline process
  • The pros-and-cons/ins-and-outs of “Progressive Discipline”
  • The very real risk of retaliation liability
  • Voluntary quits versus “constructive” terminations
  • Wrongful termination claims in at-will employment

Seminar

9:00 am – 9:30 am  – Registration & Breakfast
9:30 am – 11:30am  – Seminar

Webinar: This seminar is also available via webinar. Please indicate in your RSVP if you will be attending via webinar.

Location

Weintraub Tobin Office

400 Capitol Mall, 11th Floor | Sacramento, CA 95814

Parking Validation provided. Please park in the Wells Fargo parking garage, entrances on 4th and 5th Street. Please bring your parking ticket with you to the 11th floor.

Approved for two (2) hours MCLE.   This program will be submitted to the HR Certification Institute for review. Certificates will be provided upon verification of attendance for the entirety of the webcast.

There is no cost for this seminar. 
*This seminar will be limited to 75 in-person attendees.

Please RSVP by Monday, February 20th to Ramona Carrillo at rcarrillo@weintraub.com.

Increases To New York Minimum Wage And Salary Thresholds

Posted in Employment Contracts and Agreements, Labor Law, New Legislation and Regulations, Wage & Hour

While the Department of Labor may have stayed any national increases to the minimum exemption salary thresholds for the time being, New York employers have not been granted the same reprieve. Effective December 31, 2016, the New York Department of Labor announced incremental increases to its minimum wage laws. With the increased minimum wages, increases were also made to the corresponding salary thresholds applicable to the executive and administrative exemptions to New York’s overtime laws. In New York, the exemption for professional employees has no salary threshold.

Read the rest of the article at http://blog.hrusa.com/blog/increases-to-new-york-minimum-wage-and-salary-thresholds/.

Don’t Throw Out Your Class-Action Waivers Just Yet

Posted in Employment Contracts and Agreements, Labor Law, New Legislation and Regulations, Wage & Hour

The United States Supreme Court decided last week to resolve a split in the lower courts as to whether the National Labor Relations Act (“Act”) preempts class-action waiver clauses in arbitration agreements between employers and their employees.  This is an important development, as the use of such waivers in arbitration agreements (if permissible) can drastically reduce an employer’s exposure to costly class actions alleging overtime violations, missed meal-and-rest periods, and other types of claims.   Brenden-Begley-05_web

A number of courts (including the appellate courts that hear appeals from federal courts in California and Illinois) agreed with the National Labor Relations Board (“Board”) that the Act invalidates those waivers.  Meanwhile, three other federal appellate courts rejected the Board’s position.  Stepping into the fray, the high court last week decided to review two decisions that agreed with the Board and one that disagreed with the Board; namely, Epic Systems Corp. v. Lewis (No. 16-285), Ernst & Young v. Morris (No. 16-300), and NLRB v. Murphy Oil USA, Inc. (No. 16-307).

The Supreme Court currently has just eight justices after the death last year of Justice Scalia, who authored a significant pro-arbitration opinion in 2011.  Without a replacement for Justice Scalia being confirmed by the U.S. Senate, the high court may split 4-4 on the resolution of these three cases, which have been consolidated.  Such a result most likely would create confusion rather than clarity as to the state of the law.  Accordingly, the issue may not be resolved without a ninth justice on the Supreme Court’s bench.

The takeaway here for employers is that it may be too soon to discard those class-action waivers.

Emotional Distress Damages Allowed Under FLSA

Posted in Employee Privacy Rights, Employment Contracts and Agreements, Retaliation and Wrongful Termination

Count the Fifth Circuit among the latest to allow emotional distress damages to employees who successfully sue for retaliation under the Fair Labor Standards Act.  In a December 19, 2016 opinion, the Fifth Circuit held that the district court should have allowed the jury to receive an instruction on emotional distress damages when it was considering an employee’s FLSA retaliation claim.  In the same opinion, however, the Fifth Circuit did clarify that only employees can bring claims under the FLSA.

The Case

Plaintiffs Santiago Pineda and Maria Pena are a married couple who lived together in an apartment owned by the defendant, JTCH Apartments.  Pena leased the apartment from JTCH.  Pineda performed maintenance work around the complex.  As part of Pineda’s compensation, JTCH discounted Pena’s rent.  After Pineda brought a claim seeking unpaid overtime under the FLSA, JTCH served Pena with a notice to vacate for nonpayment of rent in the exact amount that it had discounted for Pineda’s maintenance work.  Upon receiving the notice, Pineda amended his lawsuit to assert a retaliation claim.  Pena joined the lawsuit to assert her own FLSA retaliation claim.

During trial, the district court awarded JTCH judgment as a matter of law against Pena on the ground that she was not JTCH’s employee and only employees could file suit under the FLSA.  The jury found in Pineda’s favor on his claims, but the district court refused his request that the jury receive an instruction on emotional distress damages for his FLSA claim.  Both Pineda and Pena appealed.

To read the full article, please visit the HRUSA webpage at  http://blog.hrusa.com/blog/emotional-distress-damages-allowed-under-flsa/

 

New Year, New Laws

Posted in Discrimination, Employee Privacy Rights, Employment Contracts and Agreements, Labor Law, New Legislation and Regulations, Wage & Hour

Happy New Year!   The new year frequently marks new changes in the law, and this year is no exception.  There are several important changes that went into effect on January 1st.  Here are some of the major changes that went into effect on January 1, 2017:

  • Minimum Wage Change: On January 1st, for employers with 26 or more employees, the California minimum wage will increase to $10.50/hour.   The minimum wage remains at $10.00 for employers with 25 or fewer employees.  Employers with 26 or more employees should use the $10.50 rate to determine the “salary basis” for exempt employees.Shauna Correia.standing
  • Arbitration Agreements: Beginning January 1st, California employees cannot be required to enter into agreements (including employment and arbitration agreements) requiring them to apply another state’s laws to their disputes, or agree to litigate in any venue outside of California, unless the employee had advice of counsel.
  • Immigration Verification: Existing law prohibits an employer for engaging in certain actions related to immigration, like refusing to honor immigration documents that appear to be genuine.  Under the new law, it is unlawful for an employer to refuse to honor documents based on the status or term of the person’s work authorization.  Additionally, it is unlawful to reinvestigate or re-verify an incumbent employee’s authorization to work.  For more information on this law, contact one of our attorneys to make sure you are in compliance.
  • Wage Discrimination: Existing law generally prohibits employers from paying an employee lower wages than those paid to employee of the opposite sex for the same job and requires the same skill, effort, and responsibility.  A pay difference can, however, be based on several factors including seniority, merit, quantity/quality of production, or a bona fide factor other than sex (like education, training, or experience).  This new law provides that, effective January 1, an employee’s prior salary alone cannot justify a difference in compensation as a bona fide factor.    Additionally, these requirements were expanded to include differences in race as well as sex.
  • Asking about Juvenile Proceedings on Job Application: The  new law prohibits an employer from asking an applicant for employment to disclose, or from utilizing as a factor in determining any condition of employment, information related to an arrest, detention, adjudication, or court disposition that occurred while the person was subject to juvenile court.  Some exceptions apply for certain employers, like health facilities.

If you have any questions about whether your particular business practices are compliant with these laws, or need assistance updating your employment and arbitration agreements, please contact one of our labor and employment attorneys.

Neutral Solutions: We Help You Connect The Pieces

Posted in Employee Privacy Rights, Employment Contracts and Agreements, Labor Law, New Legislation and Regulations

The Neutral Solutions Team at Weintraub Tobin specializes in training supervisors on various workplace issues, including preventing harassment, discrimination, and retaliation; workplace health and safety; and managing leave laws.  For more information, please visit our Trainings page here.

Puzzle 1- training

Things You Hope You Will Never Need to Know: Liability Arising from Serious Workplace Injury

Posted in Labor Law, New Legislation and Regulations, Wage & Hour

Liability arising from serious workplace injury can be divided into four general categories: (1) worker’s compensation; (2) administrative agency (OSHA); (3) criminal liability; and (4) other civil liabilities.

  1. Worker’s Compensation

    Worker’s compensation is, for the most part, a strict liability system -any bona fide workplace injury, regardless of cause – is covered.Chuck-Post-07_web

The worker’s compensation system provides medical treatment, wage replacement and, in some cases, vocational rehabilitation.  Civil claims against an employer as a result of a workplace injury are, with only a few narrow exceptions, prohibited. Those civil claims (negligence, etc.) are barred by the worker’s compensation exclusivity preemption rule, which makes the worker’s compensation system the exclusive forum for all claims resulting from worker injury – including serious injury and death.

In certain cases, an employee may seek an enhancement of these benefits by claiming that the injury resulted from the employer’s serious and willful violation of worker safety (“S&W claim”). If successful, the injured worker’s benefits will be enhanced up to 150 percent of the underlying worker’s compensation award. For example, three million in medical and wage replacement could result in up to $1.5 million in S&W liability. There is also a corollary provision allowing for some reduction in worker’s compensation benefits in cases where the injured worker engaged in serious and willful misconduct causing the injury.

Your worker’s compensation carrier will process and administer the claim and, if necessary, defend the company (and appoint counsel) in the event that its claim decisions are appealed or if there are other claim proceedings before the Worker’s Compensation Appeals Board (“WCAB”).

Worker’s Compensation Insurance Carriers are barred by law from defending employers in S&W claims or indemnifying them for any S&W award. This is like the rule that punitive damages and fines are not insurable.

If an S&W claim is brought against your company, the company will be required to defend itself (by retaining counsel) and cover any penalty from its own resources and revenues.

  1. Administrative Agency Liability (Cal-OSHA).

Cal-OSHA is responsible for worker safety regulation and enforcement.  Cal-OSHA is required to investigate all employer reports of workplace injury or death.

Cal-OSHA has specific regulations and permitting requirements for industries and hazardous activities. For an overview, see: https://www.dir.ca.gov.

Noncompliance with OSHA regulations can result in civil and criminal penalties. An explanation of the citation levels and civil and criminal penalties can be found on page ten of the following OSHA pamphlet: http://www.dir.ca.gov/dosh/dosh_publications/osha_userguide.pdf.

In sum, violations of OSHA regulations can result in issuance of a citation. These citations range from” regulatory” violation (least serious) through “general”, “serious”, “accident related serious, “willful” and “repeat” violations.  The last types of citation are the most serious.   If a citation is issued there is an opportunity to discuss the citation with the investigator and OSHA staff. Following citation issuance, the citation (and associated fines/penalties) may be appealed to a hearing before an administrative law judge within OSHA. In turn, those decisions may further appealed and reviewed on the record by the Cal-OSHA appeals board.

  1. Criminal Liability

A willful violation that results in death or permanent or prolonged impairment of the body of an employee may result in criminal liability. (This liability is also discussed on page ten of the OSHA pamphlet linked above.)  Both fines and imprisonment are possible.

There are also separate criminal liabilities for making false statements in the course of a workplace accident investigation.

  1. Civil Claims.

As stated above, almost all civil claims against an employer (for workplace injury) are preempted by the worker’s compensation remedy. This includes actions for negligence/wrongful death by a worker’s family against the employer.  Workers may sue non employer third parties for injuries. These non-employer parties can include manufactures of products that caused (or may have caused) the injury or (non workplace) operators of vehicles that cause injury.

The attorneys in Weintraub Tobin’s Employment Law Group assist employers in all areas of employment law.  Contact any one of us if we can be of assistance.