Join the attorneys from Weintraub Tobin’s Workplace Investigations Unit (Vida Thomas and Lizbeth West) for this one-day, in-depth training on conducting effective workplace investigations. Whether you are new to investigations or want to expand your investigatory skills, this training is for you. Topics include:L&E2015

  • The legal duty to investigate
  • Selecting the right investigator
  • Recognizing your own biases
  • Conducting effective witness interviews
  • Writing the investigation report

Date:  March 3, 2016

Time/Program:

8:30 am – 9:00 am  – Registration & Breakfast
9:00 am – 12:00 pm  – Program
12:00 pm – 1:00 pm – Lunch on your own
1:00 pm – 3:00 pm – Program   

Location:  Weintraub Tobin, 400 Capitol Mall, 11th Floor, Sacramento, California.  Parking validation provided.  (Please park in the Wells Fargo parking garage, entrances on 4th and 5th Street.)

Cost:  $500 per person*

*Early bird registration is $450 per person if payment is received by February 24, 2016.  

Approved for five (5) hours MCLE.  This program will be submitted to the HR Certification Institute for review.

Registration:  Please RSVP by Tuesday, March 1, 2016.  To register or for more information, please contact Ramona Carrillo at rcarrillo@weintraub.com or (916) 558-6046.

In an effort to clarify the circumstances that may create a joint-employment relationship, the U.S. Department of Labor issued an Administrator’s Interpretation this week.  This Administrator’s Interpretation, which can be found at this link, analyzes joint employment under the Fair Labor Standards Act (“FLSA”) and the Migrant and Seasonal Agricultural Worker Protection Act. Brenden-Begley-05_web

Joint employment may occur under various circumstances; for example, where separate entities share employees, or where one entity uses a third-party management company, staffing agency or labor provider.  The National Labor Relations Board ruled last year that a franchisor may also be considered a joint employer of a franchisee’s employees in some circumstances.  According to the Administrator’s Interpretation, “the possibility that a worker is jointly employed by two or more employers has become more common in recent years.”

The question of whether one entity is the joint employer can be critical in cases where an employee files an administrative claim or a lawsuit alleging some type of unlawful employment practice; for instance, unpaid overtime in violation of the FLSA.  If joint employment is found in such a case, the employee may be able to obtain recovery from either or both of the joint employers; e.g., the entity that directed the work, or the staffing agency that dispatched the employee, or both.

The Administrator’s Interpretation advises that “the possibility of joint employment should be regularly considered” to ensure compliance with the FLSA.  It “particularly” recommends taking such possibilities into consideration “where (1) the employee works for two employers who are associated or related in some way with respect to the employee; or (2) the employee’s employer is an intermediary or otherwise provides labor to another employer.”

Therefore, individuals or entities who are concerned that they may be considered a joint employer should review the Administrator’s Interpretation and consult legal counsel to discuss options to reduce their exposure to liability.

Effective January 1, 2016, Melissa Whitehead 018_webCalifornia has increased its minimum wage from $9 per hour to $10 per hour. This is the second increase to the state minimum wage in the past year and a half. Remember, the obligation to pay minimum wage cannot be waived by any agreement, including collective bargaining agreements.

Employers must examine all pay practices that may be affected by the minimum wage increase – and there are almost certainly more practices that may be impacted than you may think! For example, in addition to increasing the pay of any employees being paid a minimum wage rate, employers should review the following pay practices, which may be affected by the minimum wage increase:

  • Overtime rates of pay: Employees who work for minimum wage and perform work that qualifies for overtime wages must now be paid $15 per hour for time and one-half (previously $13.50 per hour) or $20 per hour for double-time (previously $18 per hour).
  • Exempt/Nonexempt classifications: In California, exempt employees generally must (among other things) earn no less than twice the state minimum wage for a full time employee. This now means that employees must earn a salary of $41,600 per year (or $800 per week) to qualify as exempt employees (in addition to an examination of requirements).
  • Meal and lodging credits: Most of California’s Wage Orders allow employers to credit meals and lodging furnished by the employer toward the employer’s minimum wage obligation. The new credit amounts for meals and lodging are listed on the official Minimum Wage Order (MW-2014).
  • Commission issues: A commissioned employee can receive a sum of money that is intended as an advance, draw or guarantee against the employee’s expected commission earnings. In California, employers must pay these sums at least twice per month. If an employee receives a draw against commissions to be earned at a future date, the “draw” must be equal to at least the minimum wage and overtime due to the employee for each pay period (unless the employee is exempt).
  • Notice requirements: Mandatory minimum wage postings, itemized wage statements, and wage notices will all be affected.
  • Piece-Rate Employees: Piece-rate workers must receive at least minimum wage for each hour worked. Separate legislation effective January 1, 2016, requires payment of rest and recovery periods or other nonproductive time at a specified hourly rate. [NOTE: Employers with piece-rate employees are advised to consult with an experienced labor and employment attorney to review their piece-rate policies in light of recently enacted legislation, which imposes significant restrictions and obligations on piece-rate compensation policies.]
  • Tools/Equipment: Employees whose wages are at least two times the minimum wage can be required to provide and maintain hand tools and equipment customarily required by the trade or craft in which they work.
  • Subminimum wage: The subminimum wage for “learners” increased effective January 1, 2016, from $7.65 per hour to $8.50 per hour (85% of the state minimum wage).

This list is not intended to be all-inclusive, but is intended to alert employers the broad impact of the change in California’s minimum wage. This article does not address proposed changes to the federal minimum wage (expected to be decided in Spring 2016) or minimum wage raises in specific cities/counties. Because of the complexity of these issues, it is recommended that employers consult with experienced labor and employment counsel to ensure that all pay policies and practices are in compliance with the applicable minimum wage laws.

The year-end holidays tend to be a time when employers and employees are either winding down for the year or making one last big push to close the year strongly.  California employers should make time this week, though, to ensure they are ready for the new laws which will take effect in California this Friday – New Year’s Day – that will directly and immediately impact the workplace.Shauna Correia.standing

As a reminder, there are some notable employment-related laws which take effect January 1, 2016.  Click here to view a copy of those laws.  The list includes minimum wage hikes, other wage and hour amendments, expanded time off and sick leave, and expanded enforcement of state and local wage and hour laws conferred upon the Labor Commissioner.  For information on additional new laws and legislation, please see our previous blog titled: California Governor Signs a Bevy of Employment Laws, Vetoes a Few Others.

Companies should ensure that their pay practices, handbooks, job descriptions and records retention practices are compliant with the new laws and ensure that internal or third party payroll processors, supervisors, and human resources personnel are up to date, particularly regarding the new equal pay and leave laws and whistleblower, discrimination, and retaliation protections.  (The following is not an exhaustive list of the hundreds of new laws that take effect in 2016 and is only a summary of the laws listed.  Please consult your employment attorneys at Weintraub Tobin to answer questions and provide the details and nuances as applied to your company.)

The Ninth Circuit recently held that during an EEOC investigation, employers can be forced to produce “pedigree information” (i.e., name, telephone number, address, and Social Security number) of their employees or employment applicants. The decision broadens the scope of information that the EEOC can obtain during its investigations and gives the EEOC further grounds to investigate beyond what is arguably “necessary” to make a determination on an EEOC charge. Continue Reading Ninth Circuit Allows EEOC To Obtain Private Employee Information During Investigations