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.

Over the past several years, many municipalities have taken labor and employment matters into their own hands, passing local laws requiring a higher minimum wage or paid sick leave beyond that required by the state or federal government.  Florida and Pennsylvania are pushing back on these local laws.

On February 12, 2015, Philadelphia instituted an ordinance requiring employers with 10 or more employees to provide 40 hours of paid sick leave in a calendar year.  Less than a year after its implementation, on December 30, 2016, two senators of the Pennsylvania state legislature issued a memorandum announcing their intent to propose a bill that would override municipal laws of this kind.  The senators cited concerns of uniformity and the burden on local businesses as their motivation.  On January 25, 2017, SB 128 was introduced in the Pennsylvania legislature.

Read what this bill would preclude municipalities from at http://blog.hrusa.com/blog/push-back-on-local-minimum-wage-and-paid-sick-leave/.

In May 2016, North Carolina governor Pat McCrory signed into law a bill (HB2) that required transgender people to use restrooms corresponding to their biological sex.  On May 13, 2016, the Obama administration’s Justice Department and the Department of Education responded by sending letters to U.S. public school districts directing them to allow students to use the restrooms (and locker rooms) that matched their gender identity, even if it is different than their gender assigned at birth, and provided additional, detailed guidance on various issues including locker/bathrooms, overnight accommodations, correct gender pronouns, disclosures, and correction of records. (See https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf)

The letter advised school districts that it interpreted Title IX regulations to require that, when a school is notified that a “student will assert a gender identity that differs from previous records or representations, the school will begin treating the student consistent with the student’s gender identity” instead of their birth-gender.  Title IX is the federal law that prohibits sex discrimination in education and education-related activities.  Tying this guidance to Title IX was important because State and local rules cannot limit or override the requirements of Federal laws (34 C.F.R. § 106.6(b)) and a violation of Title IX implicates lawsuits and a threat of loss of federal aid.  (34 C.F.R §§ 106.4 and 106.31(a).)

To read the full article, visit the HRUSA blog at: http://blog.hrusa.com/blog/trump-withdraws-transgender-bathroom-guidance/