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Upcoming Seminar: Exempt Status – More Than Just a Salary

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

Summary of Program

With the ever increasing number of claims filed with the Department of Labor and California Labor Commissioner for unpaid overtime, and the increasing number of wage and hour class action lawsuits, the importance of correctly classifying employees as exempt or non-exempt is clear.  This seminar is designed to help employers and HR professionals gain a more thorough understanding of the various exemptions available under California law and learn how to conduct an exemption analysis in order to reduce potential liability.

Program Highlights

  • A discussion of the exemptions available.
  • Checklists for determining if your employees are exempt.
  • How to conduct a self-audit to ensure that employees are properly classified.
  • What to do if your employees have been misclassified.
  • What are the courts saying – highlights of decisions regarding exemption issues in California.

Date:               Thursday, February 28, 2019

Time:              9:00 a.m.–9:30 a.m. – Registration & Breakfast / 9:30 a.m.–11:30 a.m. – Seminar

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

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

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

There is no charge for this seminar.

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. 

Co-Worker Non-Solicitation Provisions in Jeopardy?

Posted in Employment Contracts and Agreements, Labor Law, Trade Secrets and Competition

For years, California courts have recognized the right of employers to use non-solicitation provisions in employment agreements to prevent employees from “soliciting” their coworkers to join them at a new employer.  For instance, in 1985, a California appellate court in Loral Corp v. Moyes, 174 Cal.App.3d 268 (1985), held that a non-solicitation of fellow employees provision in an employment agreement was lawful because the co-workers were free to seek employment with a competitor, they just couldn’t be contacted first by the departing employee.

The enforcement of non-solicitation of co-worker provisions remained relativity consistent until November 2018 when a court in AMN Healthcare, Inc. v. Aya HealthCare Services, Inc., 28 Cal.App.5th 923, enjoined an employer from enforcing a co-worker non-solicitation provision against former employees. The Court held that the co-worker non-solicitation provision violated section 16600 of the California Business and Professions Code, which provides that agreements that restrain a person’s trade or profession are unenforceable.  The AMN Healthcare Court relied heavily on the California Supreme Court’s ruling in Edwards v. Arthur Andersen LLP, 44 Cal.4th 937 (2008), which broadly struck down non-compete agreements preventing employees from competing with their former employer.

It remained an open question following the AMN Healthcare decision whether other courts would follow its holding concerning the unenforceability of an employee non-solicitation provision.  For instance, would other courts limit its holding and decline to follow it because:

(1) The former employees who were being sought to be restrained by AMN were recruiters such that any prohibition on solicitation would necessarily restrain them in their profession as recruiters; and

(2) The former co-workers they were targeting for recruitment were temporary nurses who served short assignments so that enforcing the non-solicitation provision could limit those employees’ ability to obtain new work after their temporary assignments ended.

Now, two months later, another court appears to be following the lead of the AMN Healthcare court and is allowing a claim to go forward attacking a co-worker non-solicitation provision.  In Barker v. Insight Global, LLC (Jan. 11, 2019 N.D. Cal.), Judge Beth Labson Freeman recently reversed herself and granted the plaintiff-employee’s motion for reconsideration to allow him to state a claim as a class representative against his former employer for the use of co-worker non-solicitation provisions in its employment agreements.  Judge Freeman held that the recent AMN Healthcare decision (her initial order dismissing the claim came three months prior to the AMN Healthcare decision) was likely consistent with the current state of California law regarding these non-solicitation provisions, especially in light of the Edwards v. Arthur Andersen decision. She denied the defendant-employer’s motion to dismiss the former employee’s claim and ruled that plaintiff should be allowed to present a claim that the use of an employee non-solicitation provision in his employment agreement violated section 16600 and was therefore an unfair business practice.

The Barker case is still in the early stages but employers should be concerned that a court has decided to follow the holding of the AMN Healthcare decision. In light of these recent developments, employers should carefully review any non-solicitation provisions in their employment agreements with their attorneys to determine whether they are at risk at facing claims similar to those asserted in the AMN Healthcare and Barker cases.

Upcoming Seminar: Independent Contractors v. Employees – Do Independent Contractors Still Exist?

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

Summary of Program

The risks involved in misclassifying a worker as an independent contractor rather than an employee have always been serious. A number of federal and state agencies regulate the proper classification of workers and have the authority to impose significant monetary and non-monetary sanctions against employers who get the classification wrong. In 2018, the California Supreme Court issued a decision that made independent contractor status even harder to establish under some circumstances – so now the risk of misclassification is amplified!

Program Highlights

This seminar will cover the legal landscape of independent contractor status. Topics will include:

  • The Impact of the California Supreme Court case Dynamex Operations West, Inc. v. Sup. Ct.;
  • A summary of the various tests applied by federal and state agencies to determine independent contractor status;
  • A summary of the enforcement authority of various federal and state agencies and the sanctions they may impose;
  • The due diligence employers must engage in before classifying a worker as an independent contractor; and
  • California’s law imposing monetary and non-monetary sanctions against employers (and other individuals) who willfully misclassify workers as independent contractors.

If you or your company is currently using independent contractors, this is a seminar you should not miss.

Date:         Thursday, February 7, 2019

Time:        9:00 a.m. – 9:30 a.m. – Registration & Breakfast / 9:30 a.m. – 11:30 a.m. – Seminar

Location:  Weintraub Tobin, 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 ticket with you to the 11th floor for validation.

There is no charge for this seminar.

Approved for two (2) hours MCLE.  This program will be submitted to the HR Certification Institute for review.  

 

Neutral Solutions 2019: A New Year that Brings New Training Obligations

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

While it has always been good practice for employers of all sizes to train both their supervisory employees and non-supervisory employees on the prevention of harassment, California law now mandates such training by 1/1/20 (and every 2 years thereafter) for any employer with 5 or more employees.  The attorneys in Weintraub Tobin’s Labor & Employment Department have years of experience conducting energetic, compliant, and effective harassment prevention training for employers of all sizes and in all industries.  The Training Division of the Labor & Employment Department is headed up by Shareholder Beth West.  Feel free to reach out to her or Department assistant Ramona Carrillo if you are interested in scheduling training – we are available to discuss a training program that meets the specific needs of your workplace.

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.

New Year, New Minimum Wage

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

Effective January 1, 2019, California’s minimum wage rate increased to $12.00 per hour (from $11.00) for employers with 26 or more employees and $11.00 per hour (from $10.50) for employers with 25 or fewer employees. The minimum wage will continue to increase yearly until it reaches $15.00 per hour on January 1, 2022 for employers with 26 or more employees and January 1, 2023 for employers with 25 or fewer employees.

In California, many cities are increasing their minimum wages faster than the state. Click here for a chart of increases set to take place in 2019.

Brendan Begley Presenting at Employment Litigation 2019: Facing Workplace Realities in Divisive Times

Posted in Harassment, Labor Law, New Legislation and Regulations, Retaliation and Wrongful Termination, Wage & Hour

Brendan Begley spearheads the firm’s Appeals and Writs group and is a member of the firm’s labor and employment, litigation, and trust, probate and elder abuse litigation groups. He is an Appellate Law Specialist certified by the State Bar of California Board of Legal Specialization.

Brendan will be speaking at The Rutter Group and the California Judges Association’s Employment Litigation 2019: Facing Workplace Realities in Divisive Times on Saturday, February 23, 2019 at Hilton Los Angeles/Universal City.  Highlights include: Sexual Harassment and Retaliation, Wage and Hour, PAGA, New California Rules of Professional Conduct (eff. 11/1/18), A Conversation with Calif. Supreme Court Justices Ming W. Chin and Leondra R. Kruger.  For more information on this seminar, please visit: https://www.theruttergroup.com/index.cfm?p=36&lp=216.

Employer’s Rounding Policy Upheld and Employees Lose Their Class Action & PAGA Lawsuit

Posted in Labor Law, Wage & Hour

 On December 10, 2018, the Fourth Appellate Court decision in Kennedy Donohue v.  AMN Services, LLC  (“AMN”) was certified for publication and it brings good news for California employers who use a neutral rounding timekeeping system. The case involved a class action and PAGA action brought by Ms. Donohue on behalf of nurse recruiters who worked for AMN.  Ms. Donohue claimed that AMN had violated various California wage and hour laws and brought claims for: 1) failure to provide meal and rest periods in violation of Labor Code sections 226.7 and 1197.1; 2)  failure to pay overtime and minimum wage in violation of Labor Code sections 510 and 1197.1; 3) improper wage statements in violation of Labor Code section 226; 4) unreimbursed business expenses in violation of Labor Code section 2802; 5) waiting time penalties in violation of Labor Code sections 201-203; 6) unfair business practices in violation of Business and Professions Code section 17200; and 7) civil penalties authorized by the Labor Code Private Attorneys General Act of 2004  (PAGA), under Labor Code section 2698 et seq.

The parties brought cross motions for summary judgment and summary adjudication and, following oral argument, the trial court granted AMN’s motion for summary judgment and denied Ms. Donohue’s motion for summary adjudication. Ms. Donohue timely appealed and the Fourth Appellate Court sustained the trial court’s decision in favor or AMN.

To read the full article, please click here.

Save the Date – Weintraub Tobin’s Employment Law Update 2019

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, Reductions in Force, Retaliation and Wrongful Termination, Trade Secrets and Competition, Wage & Hour

Tuesday, January 8, 2019 – Sacramento, CA

Wednesday, January 23, 2019 – San Francisco, CA

Additional information and details for each session will be available December 3, 2018.

To reserve your space at one of these sessions, please email Ramona Carrillo at rcarrillo@weintraub.com.

Now Available! Weintraub Tobin’s 2019 Labor and Employment Seminar and Training Schedule

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, Reductions in Force, Retaliation and Wrongful Termination, Trade Secrets and Competition, Wage & Hour

Weintraub Tobin’s 2019 Labor and Employment Seminar and Training schedule is now available.  Click here for a copy of the schedule. 

If you have any questions on any of our seminars or would like to inquire on private, custom-tailored training, please contact:

Ramona Carrillo

(916) 558-6046

rcarrillo@weintraub.com

 

Mandatory AB 1825 Sexual Harassment Prevention Training and Supervisor Best Practices and Legal Compliance Training

Posted in Discrimination, Employee Privacy Rights, Harassment, Labor Law, New Legislation and Regulations, Uncategorized

Mandatory AB 1825 Sexual Harassment Prevention Training

The regulations regarding California’s Mandatory Sexual Harassment Prevention Training for supervisors require that certain employers provide training to their supervisors every two years.

The Labor and Employment Group at Weintraub Tobin Chediak Coleman Grodin is offering a two hour in-person training session that will comply with all the requirements outlined in the regulations including things like:

  • An overview of sexual harassment laws
  • Examples of conduct that constitute sexual harassment
  • Strategies to prevent harassment in the workplace
  • Lawful supervisory responses to complaints of harassment in the workplace
  • Training on prevention of “abusive conduct” in the workplace
  • Training on policies that prohibit harassment based on gender identity, gender expression, and sexual orientation (Senate Bill 396)
  • Practical and inter-active hypotheticals and examples to help illustrate what bullying, sexual harassment, discrimination, and retaliation can look like.

If you are an employer with 50 or more employees, and have supervisors who have not yet been trained, this training is a must. We look forward to hearing from you and helping you comply with your continuing sexual harassment training obligations.

*Approved for two (2) hours MCLE (Elimination of Bias).

Supervisor Best Practices and Legal Compliance Training

Most employers know that it is crucial to have well trained supervisors to help ensure that rank and file employees perform their jobs effectively and efficiently.  However, many employers don’t realize how important it is that supervisors be trained to understand the many employment laws that govern the workplace.  Untrained supervisors can take actions (or fail to take actions) that result in significant legal consequences for an employer.

This one-hour training will cover topics like:

  • Legal do’s and don’ts when hiring and firing
  • Tips for effective communication between supervisors and employees, including how to give constructive performance feedback
  • The importance of consistent, objective, and timely discipline
  • Important wage and hour laws
  • Workplace safety rules
  • Accommodating disabilities and understanding the many leaves of absence laws
  • The in’s and out’s of employee privacy rights

Date 

Wednesday, December 12, 2018

Training Program 

AB 1825 Training: 10:00 am – 12:00 pm

Supervisor Best Practices: 1:00 pm – 2:00 pm

Location

Weintraub Tobin Office

400 Capitol Mall, 11th Floor

Sacramento, CA

Cost

AB 1825 Training: $95/person

Supervisor Best Practices and Legal Compliance Training: $60/person

For questions or to register for this training, please contact Ramona Carrillo (rcarrillo@weintraub.com).