The Labor & Employment Law Blog

Focusing on legal trends in data security, cloud computing, data privacy, and anything E

Window Closes Today! Employer Should Provide Notice Before this Opportunity is Gone!

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

WINDOW CLOSES TODAY!

Employers who wish to take advantage of the safe harbor provision of California’s new piece rate legislation, must provide notice to the Director of Industrial Relations by July 28, 2016.  The deadline for employers to provide notice was temporarily suspended while a Fresno Superior Court considered a petition by Nisei Farmers League requesting a preliminary injunction to prevent the implementation of the safe harbor provisions of Labor Code section 226.2 created by AB 1513.  The temporary restraining order was issued in the case of Nisei Farmers League v. California Labor and Workforce Development Agency, et al., (Case No. 16 CECG 02107).  The original deadline for employers to provide notice to the Director of Industrial Relations was July 1, 2016.

On July 18, 2016, the court heard arguments from the parties on whether a preliminary injunction should be ordered pending formal trial on the question of whether a permanent injunction will be issued.  On July 25, 2016, the court denied the Nisei Farmers League’s motion for preliminary injunction.  Per the court’s Order to show cause, the deadline for employers to provide notice of their election to take advantage of the safe harbor provisions of Labor Code section 226.2(b)(3) is July 28, 2016.

The Director of Industrial Relations will accept notice through 11:59 p.m. on July 28, 2016, but will not accept noticed received after that date.  Employers should provide notice by the end of today by mailing notice to the Director of Industrial Relations, Attn: Piece-Rate Section, 226.2 Election Notice, 1515 Clay Street, 17th Floor, Oakland, CA 94612 or by filling out the online form available on the Department of Industrial Relations website.

Oh Sh–! The Government is Knocking at Your Door

Posted in Discrimination, Employee Privacy Rights, Employment Contracts and Agreements, FMLA and Other Leaves of Absence, Harassment, Labor Law, New Legislation and Regulations, Retaliation and Wrongful Termination, Wage & Hour

Summary of Program

There is no universal way to prepare for a governmental audit, investigation or inspection. The employment laws governing your workplace have different compliance requirements and governmental agencies have different agendas and degrees of power. This seminar will include tips on whether, and how to, conduct a self audit; understanding the do’s and don’ts of compliance; and best practices.L&E2015

Program Highlights

  • Labor Commissioner Claims and Audits – Conduct Regular Self Audits to Avoid and/or Be Prepared for Claims and Agency Audits
  • EEOC/DFEH Investigations-Responding to Claims
  • EDD Audits  – Misclassification Issues
  • USCIS/ICE Investigations-Complying with I-9 Requirements
  • CalOSHA- Steps to Take to Be Prepared for an Audit
  • Tips re: Government Audits and Physical Site Inspections
  • Policy Compliance Audit
  • HR Legal Compliance Audit

Date:   August 18, 2016

Time:   9:30 a.m. – 11:30 a.m. (Registration and breakfast begins at 9:00 a.m.)

Location:  400 Capitol Mall, 11th Floor, Sacramento, CA

Parking validation provided.  Please park in the Wells Fargo parking garage, entrances on 4th and 5th Street (bring your parking ticket with you for validation).

To register for this seminar, please RSVP to Ramona Carrillo at rcarrillo@weintraub.com.

Fee Limits Ruled Unlawful in Florida Workers’ Comp Cases

Posted in Disability Discrimination, Discrimination, Employment Contracts and Agreements, FMLA and Other Leaves of Absence, Labor Law, New Legislation and Regulations, Wage & Hour

In a long-awaited decision, the Florida Supreme Court ruled in Marvin Castellanos v. Next Door Company, et al. that the limitations on attorneys’ fees awarded under Florida’s workers’ Compensation statute violates the due process clause of both the Florida and United States Constitutions. As a result of this holding, attorneys are no longer limited to fees based exclusively on a percentage of the benefits actually secured.  They may now be awarded an hourly fee for time and effort reasonably expended on litigating workers’ compensation benefits.

To read the full blog, please visit:  http://blog.hrusa.com/blog/fee-limits-ruled-unlawful-in-florida-workers-comp-cases/ 

Our Neutral Solutions Team Specializes In Trainings, Mediation, and Workplace Investigations

Posted in Employee Privacy Rights, Employment Contracts and Agreements, FMLA and Other Leaves of Absence, Labor Law, Wage & Hour

 

Neutral Zone for L&E Final_Page_1

The Neutral Solutions Team at Weintraub Tobin can help you avoid expensive and protracted litigation. We specialize in:

  • Training supervisors on various workplace issues, including preventing harassment, discrimination, and retaliation; workplace health and safety; and managing leave laws.
  • Conducting independent investigations into complaints of misconduct in the workplace.
  • Mediating employment disputes both pre and post litigation

For more information please contact:

Lizbeth “Beth” West 916.558.6082 or lwest@weintraub.com

Vida L. Thomas 916.558.6058 or vthomas@weintraub.com

Meagan D. Bainbridge 916.558.6038 or mbainbridge@weintraub.com

33 Weintraub Tobin Attorneys Named Among 2016 Super Lawyers and Rising Stars

Posted in Uncategorized

Super Lawyers has released its Northern California, Southern California, and San Diego lists of outstanding attorneys for 2016, on which 33 Weintraub Tobin attorneys have been included. Three Weintraub Tobin attorneys received special honors in their respective regions. To learn more, click here: http://bit.ly/29Wsut4

Star award against curtain background

Employee Requests For Payroll Records: Haste Makes, er, a Hash of Things

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

Conventional wisdom notwithstanding, employers are people or, if they are not, they are staffed by people.   People often take short cuts.  HR workers are no different from anybody else.  They are prone to take the shortest distance between two points.  It may be for that reason that I am increasingly seeing employers make a common error in responding to employee requests for “payroll records”.  Labor Code section 226, among other things, requires an employer who receives a written or oral request (from a current or former employee) to inspect or copy records to comply with the request “as soon as practicable,”  but no later than 21 calendar days of the request.

Let me back up a second; Labor Code section 226 requires employers to produce to employees at the time of payment of wages, a statement that contains nine specific categories of information, including the “legal” name of the employer (more on that in another blog); a description of deductions and all time worked, wages earned and paid, and all hourly rates of pay.  Failure to comply with this section can cause an employer no end of grief. Chuck-Post-07_web

The same section requires employers to retain a copy of wage statements and a record of deductions for at least three years. In my experience not a lot of employers retain hard copies of wage statements. As an alternative to hard copy or “.pdf” storage, section 226 permits employers to produce a computer generated record that accurately shows all of the required information. Fairly read, this section requires employers to produce duplicates of wage statements provided to employees.  Even if that is not what is intended by this section, it is fair to say that many employees and their attorneys expect employers who receive a request for payroll records under Labor Code section 226 to produce a duplicate wage statement that contains all nine categories of information required by this section.

Yet, when responding to such a demand, many employers produce “payroll inquiries,” payroll summary documents or screen shots of electronic payroll system data, rather than produce a duplicate wage statement or summary that contains all of the information required by section 226.  This can be a costly and time consuming mistake.  Employers have been known to spend tens of thousands of dollars trying fix that mistake.  When an employer produces a “payroll inquiry” or other summary of wages (rather than the wage statement required by section 226), the attorney for the worker will examine the record produced in response to that demand for sufficiency under section 226.  If it fails that examination because of missing information (employer identity, hourly rates, etc.), the employer then has to explain why, when asked for “payroll records” it produced something other than the wage statement required by section 226.

I know, this is unfair.  But here is the take away as I see it: When asked by an employee (or an attorney for an employee) to produce wage statements issued to the worker pursuant to Labor Code section 226 or “payroll records required to be maintained pursuant to Labor Code section 226,” either provide duplicates of the wage statements provided to the employee or a computer generated record that contains all of the information required by Labor Code section 226.

As I say above, failure to do this, can be an expensive mistake to fix.

OSHA Penalties For Health & Safety Violations Are Going Way Up Starting August 1, 2016

Posted in Labor Law, New Legislation and Regulations

In November 2015, Congress enacted legislation requiring federal agencies to adjust their civil penalties to account for inflation. The Department of Labor (DOL) adjusted penalties for its agencies, including the Occupational Safety and Health Administration (OSHA).

OSHA’s maximum penalties, which were last adjusted in 1990, will increase by 78%. Going forward, the agency will continue to adjust its penalties for inflation each year based on the Consumer Price Index.

The new penalties will take effect after August 1, 2016.  Any citations issued by OSHA after that date will be subject to the new penalties if the related violations occurred after November 2, 2015.  Below is a table of the current and new penalty amounts depending on the type of violation.

Type of Violation  Current Maximum Penalty   New Maximum Penalty
Serious
Other-Than-Serious
Posting Requirements
$7,000 per violation $12,471 per violation
Failure to Abate $7,000 per day beyond the abatement date $12,471 per day beyond the abatement date
Willful or Repeated $70,000 per violation $124,709 per violation

While these are federal penalties that will be imposed by OSHA, states that operate their own OSHA plans are required to also adopt maximum penalty levels that are at least as effective as Federal OSHA’s.  This means that in California, employers found to be in violation of CalOSHA’s health and safety standards are also at risk of increased penalties.

Takeaway:  Employers should take this opportunity to review the effectiveness of their Injury and Illness Prevention Plan (IIPP), including, but not limited to, evaluating whether they are meeting certain safety training and safety equipment standards. IIPPs should be living, breathing documents that are regularly reviewed and updated as circumstances change in the workplace that could impact employee health and safety.  Failure to do so can result in significant penalties from CalOSHA.  If you find yourself being investigated by CalOSHA, contact the attorneys in Weintraub Tobin’s Labor and Employment Department.  They have years of experience representing employers during CalOSHA investigations and in appealing CalOSHA citations.

 

The EEOC Special Task Force Issues Its Report on the Study of Harassment in the Workplace and Finds that “We Have Come Far But Still Have Far To Go”

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

The EEOC Special Task Force (“Task Force”) has spent the last 18 months examining the myriad and complex issues associated with harassment in the workplace. Thirty years after the U.S. Supreme Court held in the landmark case of Meritor Savings Bank v. Vinson that workplace harassment was an actionable form of discrimination prohibited by Title VII of the Civil Rights Act of 1964, the Task Force concludes that “we have come a far way since that day, but sadly and too often still have far to go.”

The Task Force was comprised of 16 members from around the country, including representatives of academia from various social science disciplines; legal practitioners on both the plaintiff and defense side; employers and employee advocacy groups; and organized labor. The Task Force reflected a broad diversity of experience, expertise, and opinion. From April 2015 through June 2016, the Task Force held a series of meetings – some were open to the public, some were closed working sessions, and others were a combination of both. In the course of a year, the Task Force received testimony from more than 30 witnesses, and received numerous public comments.  The Task Force focused on learning everything about workplace harassment – from sociologists, industrial-organizational psychologists, investigators, trainers, lawyers, employers, advocates, and anyone else who had some useful information.

Below is a summary of the Task Force’s key findings.

  • Workplace Harassment Remains a Persistent Problem. Almost fully one third of the approximately 90,000 charges received by EEOC in fiscal year 2015 included an allegation of workplace harassment on the basis of sex (including sexual orientation, gender identity, and pregnancy), race, disability, age, ethnicity/national origin, color, and religion.
  • Workplace Harassment Too Often Goes Unreported. Common workplace-based responses by those who experience sex-based harassment are to avoid the harasser, deny or downplay the gravity of the situation, or attempt to ignore, forget, or endure the behavior. The Task Force found that roughly three out of four individuals who experienced harassment never even talked to a supervisor, manager, or union representative about the harassing conduct.Beth-West-15_web

Continue Reading

OFCCP Issues New Rule Regarding Sex Discrimination For Federal Contractors

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

On June 14, 2016, the Office of Federal Contract Compliance Programs (OFCCP) announced publication of a Final Rule in the Federal Register that sets forth the requirements that covered contractors must meet under the provisions of Executive Order 11246 prohibiting sex discrimination in employment. This Final Rule updates sex discrimination guidelines from 1970 with new regulations that align with current law and address the realities of today’s workplaces. The Final Rule deals with a variety of sex–based barriers to equal employment and fair pay, including compensation discrimination, sexual harassment, hostile work environments, failure to provide workplace accommodations for pregnant workers, and gender identity and family caregiving discrimination.

The Final Rule addresses the following subjects:

  • Brings the sex discrimination guidelines up to date. The Final Rule aligns OFCCP’s regulations with current law and addresses the realities of today’s workplaces. It, therefore, provides more accurate and relevant guidance to contractors than the outdated guidelines.
  • Provides protections related to pregnancy, childbirth, and related medical conditions. The Final Rule protects employees against discriminatory treatment because of pregnancy, childbirth, or related medical conditions, including loss of jobs, wages, or health care coverage. The Final Rule requires that contractors provide workplace accommodations, such as extra bathroom breaks and light-duty assignments, to an employee who needs such accommodations because of pregnancy, childbirth, or related medical conditions, in certain circumstances where those contractors provide comparable accommodations to other workers, such as those with disabilities or occupational injuries.Beth-West-15_web

Continue Reading

Upcoming Seminar – Don’t Be Clueless: The Essentials of Workplace Investigations

Posted in Disability Discrimination, Discrimination, Employee Privacy Rights, Employment Contracts and Agreements, FMLA and Other Leaves of Absence, Harassment, Labor Law, New Legislation and Regulations, Wage & Hour

Summary of Program

Join the attorneys from Weintraub Tobin’s Workplace Investigations Unit as they discuss the fundamentals of an effective workplace investigation.

Program HighlightsL&E2015

  • The duty to investigate
  • Determining who will do the investigation
  • Recognizing your own biases
  • Tips for conducting the investigation
    • Preparation
    • Conducting and documenting witness interviews
    • Analyzing the evidence and making credibility determinations
  • Writing the investigation report

Date:   June 16, 2016

Time:   9:30 a.m. – 11:30 a.m. (Registration and breakfast begins at 9:00 a.m.)

Location:  400 Capitol Mall, 11th Floor, Sacramento, CA

Parking validation provided.  Please park in the Wells Fargo parking garage, entrances on 4th and 5th Street.

To register for this seminar, please RSVP to Ramona Carrillo at rcarrillo@weintraub.com.