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
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. 
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.
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 (“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.
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:
Continue Reading OFCCP Issues New Rule Regarding Sex Discrimination For Federal Contractors
