Federal law has long prohibited discrimination based on a person’s sex. In recent years, several courts have held that discrimination based on failure to conform to a gender stereotype is a form of prohibited sex-based discrimination. But courts across the country have been more divided about whether those same laws preclude discrimination based on one’s sexual orientation. According to a federal court in Georgia, the answer is no. In a decision handed down on March 10, 2017, the Eleventh Circuit Court of Appeals upheld the dismissal of a former Georgia hospital worker’s claim that she was fired because of her sexual orientation. In Evans v. Georgia Regional Hospital, the court held that Title VII does not cover such claims.

To read the case, please visit the HRUSA Blog at http://blog.hrusa.com/blog/sexual-orientation-discrimination-not-recognized-under-title-vii/.

The Labor & Employment attorneys 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

Meagan D. Bainbridge 916.558.6038 or mbainbridge@weintraub.com

They say that everything is bigger in Texas.  That now may be true for the risk that an employer’s change to its overtime policies will result in a claim filed by an employee alleging retaliation in violation of the Fair Labor Standards Act (“FLSA”).  That increased risk stems from a ruling by the Texas Court of Appeals for the Fourteenth District in January 2017.  In that case, Tooker v. Alief Independent School District, the appellate court ruled that a change in the employer’s stated overtime policy constituted a materially adverse employment action.

To read the full article, visit the HRUSA Blog at: http://blog.hrusa.com/blog/changing-overtime-policy-may-constitute-retaliation/

Date: April 20, 2017

Time: 9:30 a.m. – 11:30 p.m.

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 recent decisions regarding wage and hour issues in California.

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

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 ticket with you to the 11th floor for validation.
There is no cost for this seminar

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

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.

*This seminar will be limited to 75 in-person attendees

To register, please visit the event page at: http://www.weintraub.com/events/exempt-employees-properly-classified-not-just-based-salary

For several years, California law has required that whenever an employer hires an employee and “the contemplated method of payment of the employee involves commissions … the contract shall be in writing and shall set forth the method by which the commission shall be computed and paid.

Let me rant a bit.   I will say it again.  Any written commission agreement must simply and clearly express the terms of the commission.  It is a long established rule in California that ambiguities in employer drafted documents will be construed against the employer and in favor of the employee. Chuck-Post-07_web

Because commission plans can serve as an effective means of incentivizing employees to succeed, employers have become expert at creating specific incentives for the specific behaviors.  For example, Joe works for XYZ Company.  He is great at selling XYZ’s low profit margin products but the company wants to create an incentive for Joe to upsell XYZ’s more profitable products.  So, it drills down and creates a commission plan that increases Joe’s earnings if: (1) the company is paid for the order within 10 days of delivery; and (2) provides increasingly higher commissions on a sliding scale based on the size of the employer’s profit.  Also included are means for refunds and deductions based upon return of goods or client utilization of post-sale services from XYZ.  The employer also makes clear that no commission is earned until payment is received and that the commissions are only due and payable when funds are received while the employee is still employed by the company.

A first draft of the commission plan reflecting all these details can look like a physics equation or something written in Sanskrit.  The fact that you or your employee understands the commission arrangement at the time it is written is less important than it probably should be.  A commission plan is a contract and the terms of that contract will be construed and understood by a later court by the same rules as any other contract.  If any word or phrase can be interpreted in two legitimate way, the interpretation more favorable to the employee will almost certainly be used.  This can be an expensive lesson to learn.

Takeaways? 

  • Ensure all commission plans are in writing, signed by the worker.
  • Use clarifying examples to demonstrate how particular abstract terms within a commission plan will actually be applied.
  • Expressly state when the commission is “earned” and when earned commissions shall be paid. Clearly state when commissions top accruing or being earned (upon termination of employment, for example).
  • Have the commission arrangement reviewed by strangers to your business. If you find yourself defending the instrument in court, neither the judge nor jury is likely to be experienced with the way your business operates.