tag:blogger.com,1999:blog-77454673518707316832024-02-22T08:07:34.604-08:00GPH Employment Law BlogGutierrez, Preciado & House, LLP | Lawyers for California EmployersAnonymoushttp://www.blogger.com/profile/11319155121527064415noreply@blogger.comBlogger170125tag:blogger.com,1999:blog-7745467351870731683.post-83007288637987629032018-10-22T15:42:00.001-07:002018-10-22T15:42:54.504-07:00ABC Standard for Determining Employment Relationship Does Not Apply to Labor Code Claims<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgfA7T8250dRUtYl5b1z_4_U09q8CwBFWjtpW7H6CKzm5vTeIHbEJr0lByHZ1A4Qf2pbqj8A1InPyrRuEmQY018b42y25aFMznpzVjY86S_mp_HXffhwVh7gD3uPhSW-GLeCqSuq7rG3OJP/s1600/ABC.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="427" data-original-width="640" height="133" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgfA7T8250dRUtYl5b1z_4_U09q8CwBFWjtpW7H6CKzm5vTeIHbEJr0lByHZ1A4Qf2pbqj8A1InPyrRuEmQY018b42y25aFMznpzVjY86S_mp_HXffhwVh7gD3uPhSW-GLeCqSuq7rG3OJP/s200/ABC.jpg" width="200" /></a>The San Diego division of the Fourth District Court of Appeal has ruled that the ABC test for employment established by the Supreme Court's <a href="https://scholar.google.com/scholar_case?case=12156401043773771981&q=dynamex+operations+west+inc+v.+superior+court&hl=en&as_sdt=4,5" target="_blank">Dynamex</a> decision is limited to claims under California's wage orders. In <a href="http://www.courts.ca.gov/opinions/documents/D072521.PDF" target="_blank">Garcia v. Border Transportation Group, LLC</a>, Case No. D072521 (10/22/2018), the Court ruled that a plaintiff's claims for (1) failure to pay overtime under <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=LAB&sectionNum=510." target="_blank">Labor Code section 510</a>, (2) waiting time penalties under <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=LAB&sectionNum=203." target="_blank">Labor Code section 203</a>, (3) <a href="http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=BPC&division=7.&title=&part=2.&chapter=5.&article=" target="_blank">Unfair Competition Law</a> claims based on those violations, and (4) wrongful termination in violation of public policy were governed by the factors established in the <a href="https://scholar.google.com/scholar_case?case=11040952055087564436&q=borello+v+industrial+comm&hl=en&as_sdt=4,5" target="_blank">Borello</a> decision.<br />
<br />Garcia was a driver for a cab company that owned 30 of the 45 permits issued by the <a href="http://www.calexico.ca.gov/" target="_blank">City of Calexico</a> for taxicab service. To drive a taxicab, a person had to obtain a City driver's permit, which could only be used while employed by an identified cab company. To work for a different cab company, the driver would have to obtain an updated permit. He sued the cab company for a number of wage and hour violations, some under <a href="https://govt.westlaw.com/calregs/Document/IEBA52F60D47F11DE8879F88E8B0DAAAE?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)" target="_blank">California Wage Order No. 9</a>, some under the Labor Code, some under the Unfair Competition Law, and one for wrongful termination in violation of public policy. The trial court granted summary judgment for the cab company, based on the <i>Borello</i> standard, in a decision handed down before the Supreme Court issued its <i>Dynamex</i> decision on 4/30/2018.<br />
<br />In <i>Borello</i>, the Supreme Court had explained that the principal test for determining whether an employment relationship existed was whether the recipient of the worker's services "has the right to control the manner and means of accomplishing the result desired." It also identified the following "secondary indicia" of an employment relationship: "(a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee."<br />
<br />In <i>Dynamex</i>, the Supreme Court ruled that a more expansive definition was more appropriate for wage claims brought under one of the wage orders. It adopted the "ABC test," used in many other jurisdictions to decide whether an employment relationship existed. That test presumes that a worker is an employee, unless the person who engaged the worker's services establishes <i>all</i> of the following: "(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity's business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity."<br />
<br />The Court of Appeal ruled that the ABC test should not be applied outside the wage order context. That is where the language on which the Supreme Court relied in adopting the test appears. Further, the wage orders warrant a broader definition, because they were intended to regulate very basic working conditions that should be extended to the widest class of workers. Application of the ABC test to the facts before the Court compelled reversal of summary adjudication of the wage orders claims. Although <i>Borello</i> applied to the other claims, the Court of Appeal did not decide whether there was a triable issue under that standard, because Garcia's brief did not adequately raise the issue.<div class="blogger-post-footer">Content from Gutierrez, Preciado & House, LLP
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http://www.gphlawyers.com</div>Anonymoushttp://www.blogger.com/profile/11319155121527064415noreply@blogger.com0tag:blogger.com,1999:blog-7745467351870731683.post-42136814899286593462018-09-30T14:41:00.000-07:002018-10-22T15:43:58.460-07:00Tip Rules Under the FLSA<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjjjt8MPU9mqzxBy6Vr1g6PgP3PkObXnP_zsv4atIFmYKvuEO3vdsKhuMpoTtFHNwQlerRK1nXA1El6k7ZJzISDjGahmW1CEakGpzF9S6qLhp5ESeaGAB6RYYtd-FJnWsyHlOc5Wmj-sINp/s1600/tip.JPG" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="259" data-original-width="320" height="161" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjjjt8MPU9mqzxBy6Vr1g6PgP3PkObXnP_zsv4atIFmYKvuEO3vdsKhuMpoTtFHNwQlerRK1nXA1El6k7ZJzISDjGahmW1CEakGpzF9S6qLhp5ESeaGAB6RYYtd-FJnWsyHlOc5Wmj-sINp/s200/tip.JPG" width="200" /></a></div>
The Fair Labor Standards Act permits an employer to take a credit against its minimum wage obligation for tips that its employees receive. Recent statutory, regulatory and case law developments make it advisable to review the rules. (Caution: State rules may impose stricter limits than the FLSA does. See <a href="https://gphlawyers.blogspot.com/2016/03/tipping-and-wage-and-hour-rules.html" target="_blank">Tipping and the Wage and Hour Rules</a>, which contains a discussion of California law.)<br />
<br />
Section 3(m) of the FLSA (<a href="http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section203&num=0&edition=prelim" target="_blank">29 U.S.C. section 203</a>) permits an employer to take a tip credit toward its minimum wage obligation for tipped employees equal to the difference between $2.13 and the federal minimum wage (currently $7.25). That provision raises the following questions:<br />
<div>
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<b>Who is a "tipped employee?"</b> A tipped employee means any employee engaged in an occupation in which he or she customarily and regularly receives more than $30 a month in tips.</div>
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<b><br />Do tips belong to the employer or the employee?</b> Although the employer may take a credit, the tips belong by law to the employee. An employer may not keep tips received by its employees for any purposes, including allowing managers or supervisors to keep any portion of an employee's tips.</div>
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<b>May an employer require tipped employees to participate in a tip pool?</b> Yes, if the employer does not take a tip credit, and pays its tipped employees a cash wage that equals or exceeds the minimum wage. Those who take a tip credit may not require tip pooling.</div>
<div>
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<b>Who may the employer require to be included in a tip pool?</b> Those employers who pay the full federal minimum wage without a tip credit may require tipped employees to share their tips with employees who are not customarily and regularly tipped, such as cooks and dishwashers. (This is a change from the prior rule under a DOL regulation that prohibited those who did not take a tip credit from requiring tips to be shared with untipped employees. <a href="https://www.dol.gov/whd/FieldBulletins/fab2018_3.htm" target="_blank">The change resulted from Congressional action earlier this year</a>.) However, as mentioned above, managers and supervisors may not participate in tip pools.</div>
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<b>What about employees who perform some duties for which they regularly receive tips, and some for which they do not?</b> The DOL's <a href="https://www.ecfr.gov/cgi-bin/text-idx?SID=3049b3e89c01aa039dfdc8c4f3cca77e&mc=true&node=se29.3.531_156&rgn=div8" target="_blank">dual jobs regulation</a>, and an interpretive guidance in <a href="https://www.dol.gov/whd/FOH/FOH_Ch30.pdf" target="_blank">Chapter 30 of the Wage and Hour Division's Field Operations Handbook</a> (section 30d00(f)) require employers to pay their tipped employees a cash wage equal to at least the federal minimum wage for duties that they do not regularly receive tips for. The employer may apply a tip credit to time the tipped employee spends on incidental duties that are related to the tipped occupation, up to 20 percent of the total hours worked in the tipped occupation during the workweek. Related duties for a server could include such tasks as filling salt and pepper shakers while the restaurant is open, cleaning and setting tables, making coffee, and occasionally washing dishes. Cleaning bathrooms and washing windows do not constitute related duties.</div>
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<br />
The Ninth Circuit recently explored the applicable rules in <a href="https://scholar.google.com/scholar_case?case=7859490847645687981&q=15-15791&hl=en&as_sdt=2003" target="_blank">March v. J. Alexander's LLC</a>, Case No. 15-15791 (9th Cir. 9/18/2018).</div>
<div class="blogger-post-footer">Content from Gutierrez, Preciado & House, LLP
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http://www.gphlawyers.com</div>Anonymoushttp://www.blogger.com/profile/11319155121527064415noreply@blogger.com0tag:blogger.com,1999:blog-7745467351870731683.post-91434184548603012532018-08-30T16:08:00.002-07:002018-10-03T09:28:00.370-07:00Former Women's Team Goalkeeper Sues US Soccer for Equal Pay Act Violation<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgL3H-glGI57tnBCKu3x7I1bET_az4YaEHGmEqUMM8SOzgkAbX59K2RtRQL_ViUFX6L0jrkfy73VmndjAaYXiJRZxO0eY8ZPUVZE2YR6ZHXPcsUlgG0SqISoIMpM3RKQo9jGushBYEwhDpo/s1600/512px-Hope_Solo_USA_Training.jpg" imageanchor="1" style="clear: right; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" data-original-height="801" data-original-width="512" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgL3H-glGI57tnBCKu3x7I1bET_az4YaEHGmEqUMM8SOzgkAbX59K2RtRQL_ViUFX6L0jrkfy73VmndjAaYXiJRZxO0eY8ZPUVZE2YR6ZHXPcsUlgG0SqISoIMpM3RKQo9jGushBYEwhDpo/s200/512px-Hope_Solo_USA_Training.jpg" width="127" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">By Ampatent [CC BY-SA 3.0<br />
(https://creativecommons.org/licenses/by-sa/3.0)],<br />
from Wikimedia Commons</td></tr>
</tbody></table>
<a href="http://hopesolo.com/" target="_blank">Hope Solo</a>, who was a goalkeeper for the <a href="https://www.ussoccer.com/womens-national-team#tab-1" target="_blank">US Women's National Team</a> from 2000 to 2016, has sued the <a href="https://www.ussoccer.com/" target="_blank">United States Soccer Federation</a>, the official governing body for the sport of soccer in the United States. Her <a href="https://1drv.ms/b/s!Au-AHDJDlXA9gecgxQKW5RkjX8dt9Q" target="_blank">complaint</a>, filed on August 24, 2018, in the <a href="https://www.cand.uscourts.gov/home" target="_blank">United States District Court for the Northern District of California</a>, charges that U.S. Soccer violated the <a href="https://www.eeoc.gov/laws/statutes/epa.cfm" target="_blank">Equal Pay Act</a>, and <a href="https://www.eeoc.gov/laws/statutes/titlevii.cfm" target="_blank">Title VI</a>I by paying the members of the women's team less than it pays the members of the men's team. According to the complaint, the members of the women's team perform substantially equal or similar work, when viewed as a composite of skill, effort, and responsibility, and perform under similar working conditions, as the members of the men's team.<br />
<br />
Courts applying the Equal Pay Act in the past have recognized that differences in exposure and prestige between men's and women's teams justify pay disparities in coaching jobs. In the most well-known case, the Ninth Circuit affirmed summary judgment for the University of Southern California in a case brought by its women's basketball coach, who was paid substantially less than the men's basketball coach. The court explained that the substantial difference in pay was justified in part by the difference in media attention and revenue generated by the two teams. <a href="https://scholar.google.com/scholar_case?case=14176798525193655911&q=Stanley+v.+University+of+Southern+California,+178+F.3d+1069&hl=en&as_sdt=2003" target="_blank">Stanley v. University of Southern California</a>, 178 F.3d 1069 (9th Cir. 1999). Although some female coaches have succeeded on Equal Pay Act claims (see <a href="https://scholar.google.com/scholar_case?case=12366038022849389521&q=Perdue+v.+City+of+New+York,+13+F.Supp.2d+326&hl=en&as_sdt=2003" target="_blank">Perdue v. City University of New York</a>, 13 F.Supp.2d 326 (E.D.N.Y. 1998)), most have not. The EEOC published an <a href="https://www.eeoc.gov/policy/docs/coaches.html" target="_blank">enforcement guidance</a> on the subject in 1997, which advised that pay disparities between male and female coaches were of concern.<br />
<br />
Solo has a stronger case for equal pay than the women's coaches who lost their cases, because the Women's National Team has performed much better than the Men's National Team, and, at least according to her complaint, has generated substantially more revenue for U.S. Soccer.<br />
<br />
Last year, U.S. Soccer <a href="https://www.npr.org/sections/thetwo-way/2017/04/06/522843140/in-important-step-u-s-womens-soccer-team-reaches-new-labor-deal" target="_blank">entered into a new collective bargaining agreement</a> with the players on the Women's National Team. A complaint alleging discriminatory pay practices that several of the players, including Solo, <a href="https://www.nytimes.com/2016/04/01/sports/soccer/uswnt-us-women-carli-lloyd-alex-morgan-hope-solo-complain.html" target="_blank">filed with the EEOC in 2016</a>, remains outstanding. Both the agreement and the EEOC complaint may affect the individual lawsuit that Solo has filed.<br />
<br />
The case has been assigned to <a href="https://www.cand.uscourts.gov/dmr" target="_blank">United States Magistrate Judge Donna M. Ryu</a>. Under the rules of the Northern District, the case will be assigned to an Article III United States District Judge, if the parties do not consent to Judge Ryu's continuing to handle the case.<br />
<br />
The Northern District of California seems like an odd venue for the lawsuit. The complaint asserts that Solo is a resident of North Carolina, and that U.S. Soccer is chartered under New York law, with a principal place of business in Chicago. Although the complaint alleges that U.S. Soccer does "substantial business" in the Northern District, it does not explain what that business consists of. However, the federal venue statute (<a href="https://www.law.cornell.edu/uscode/text/28/1391" target="_blank">28 U.S.C. section 1391</a>), provides that venue is proper where the defendant resides, or where substantial part of the events or omissions giving rise to the claim occurred. An entity like U.S. Soccer "resides," for purposes of the statute, in any district where it is subject to personal jurisdiction.<div class="blogger-post-footer">Content from Gutierrez, Preciado & House, LLP
Lawyers for California Employers
http://www.gphlawyers.com</div>Anonymoushttp://www.blogger.com/profile/11319155121527064415noreply@blogger.com0tag:blogger.com,1999:blog-7745467351870731683.post-72816214842376938062018-08-02T18:56:00.001-07:002018-08-02T18:58:28.714-07:00How an $80 Mistake Became an $88,410 Mistake<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgwZ6HRhQaiHsxLPYtED0UlABfJhCwL1ohoq86amADRtk8SEvl2_DJ-zXs2zLsd6-M6XDFj3RZAQEUBgPuJd6AN9CDiunNnykMz90G-_ZSppopXfPu5JQj4K3UDw6TMgxCVAnsrnVr69TjW/s1600/1st+Dist+Court+of+Appeal.jpg" imageanchor="1" style="clear: right; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" data-original-height="1152" data-original-width="1536" height="150" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgwZ6HRhQaiHsxLPYtED0UlABfJhCwL1ohoq86amADRtk8SEvl2_DJ-zXs2zLsd6-M6XDFj3RZAQEUBgPuJd6AN9CDiunNnykMz90G-_ZSppopXfPu5JQj4K3UDw6TMgxCVAnsrnVr69TjW/s200/1st+Dist+Court+of+Appeal.jpg" width="200" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">First District Court of Appeal</td></tr>
</tbody></table>
California's Labor Code is full of technical requirements that can trip up even those employers who are trying to comply with their obligations. And, because of the monetary penalties and attorney's fees that can be assessed for violations of those technical requirements, the consequences may be out of proportion to the seriousness of the wrongdoing. A recent decision from the Court of Appeal for the <a href="http://www.courts.ca.gov/1dca.htm">First Appellate District</a> illustrates the problem.<br />
<br />
<a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=LAB&sectionNum=202.">Labor Code section 202</a> requires an employer to pay all wages due within 72 hours after the employee gives notice of his or her intention to quit. (If the employer discharges the employee, the wages are immediately, under <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=LAB&sectionNum=201.">section 201</a>.) If the employer does not pay the final wages within the deadline imposed by the Labor Code, it is subject to waiting time penalties under <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=LAB&sectionNum=203." target="_blank">section 203</a>, which provides: "If an employer willfully fails to pay ... any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days."<br />
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In <a href="http://www.courts.ca.gov/opinions/documents/A147733.PDF" target="_blank">Nichiki v. Danko Meredith, APC</a>, Case No. A147733 (August 1, 2018), the employer mailed a handwritten check to its departing employee for her final wages, on November 18 (which was within 72 hours of reading an email from the employee announcing her resignation). In the dollar amount box, the amount was given as "2,880.31," the correct amount. But, the amount was spelled out as "Two thousand eight hundred and 31/100." Because of the discrepancy, the employee was unable to deposit the check. She emailed the employer about the problem on November 26. The employer issued a new check for the correct amount on December 5, 9 days later. After a hearing the Labor Commissioner ruled that the employee should recover waiting time penalties for 17 days, from November 18 to December 5, at a daily rate of $250 per day -- a total of $4,250. The employer appealed the ruling to Superior Court, which upheld the waiting time penalty of $4,250, and awarded $86,160 in attorney's fees under <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=LAB&sectionNum=98.2." target="_blank">Labor Code section 98.2</a>(c).<br />
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The Court of Appeal reduced the waiting time penalties to $2,250, for the nine days from November 26 to December 5. By statute, the words written on a check prevail over numbers, which made the original check $80 short. (See <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=COM&sectionNum=3114." target="_blank">Cal. U. Com. Code, section 3114</a>.) Although that mistake was inadvertent, the delay in paying the correct amount became willful once the employer received notice of the mistake on November 26.<br />
<br />
The attorney's fees award under <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=LAB&sectionNum=98.2." target="_blank">section 98.2</a> was appropriate. That section provides, that the reviewing court must award reasonable attorney's fees to the opponent of an unsuccessful appellant, whether that is the employer or the employee. However, an employee is deemed to be successful if the court awards an amount greater than zero. Because the result, even after the appeal, was an amount greater than zero, the employee is also entitled to the costs and attorney's fees incurred for the proceedings in the Court of Appeal.<br />
<br />
The lesson for employers is that you should cut your losses. Once you determine that there has been a violation of the Labor Code, make the employee whole for the violation immediately.<div class="blogger-post-footer">Content from Gutierrez, Preciado & House, LLP
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhuHdtLefPtDo9ID1k3B8CycUgwr_fJq9twFUIJUc3ZfQwrIGc4kLrK8-HzyeKbTvT_R0s7hJQVcA0l-Q3m-Iss1K-redysbeYEgdZQ2PY9xuJVb4kgGHCMoBAIYBY6C3BTiMHWKoSv2qJ4/s1600/clock-30314_960_720.png" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="720" data-original-width="720" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhuHdtLefPtDo9ID1k3B8CycUgwr_fJq9twFUIJUc3ZfQwrIGc4kLrK8-HzyeKbTvT_R0s7hJQVcA0l-Q3m-Iss1K-redysbeYEgdZQ2PY9xuJVb4kgGHCMoBAIYBY6C3BTiMHWKoSv2qJ4/s200/clock-30314_960_720.png" width="200" /></a></div>
In <a href="https://scholar.google.com/scholar_case?case=12717361005673389012&q=Anderson+v.+Mt.+Clemens+Pottery+Co.,+328+U.S.+680&hl=en&as_sdt=2006">Anderson v. Mt. Clemens Pottery Co.</a>, 328 U.S. 680 (1946), the U.S. Supreme Court ruled that insubstantial and insignificant amounts of time spent on preliminary work activities could be ignored in calculating whether an employee had worked more than 40 hours in a workweek. The U.S. Department of Labor adopted a regulation codifying this "de minimis" doctrine, which may be found at <a href="https://www.ecfr.gov/cgi-bin/text-idx?SID=b26b3817bf25081094956800a76e3a40&mc=true&node=se29.3.785_147&rgn=div8">29 C.F.R. § 785.47</a>. It provides that "insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded." When applying that rule, federal courts consider "(1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work." Using that analysis, most federal courts have found "daily periods of approximately 10 minutes de minimis even though otherwise compensable." <a href="https://scholar.google.com/scholar_case?case=3137417205819983834&q=lindow+v+united+states&hl=en&as_sdt=2003">Lindow v. United States</a>, 738 F.2d 1057 (9th Cir. 1984).<br />
<br />On an appeal from a federal district court's grant of summary judgment on a state law unpaid wages claim based on the de minimis doctrine, the <a href="https://scholar.google.com/scholar_case?case=9485053019942260433&q=troester+v+starbucks+corporation&hl=en&as_sdt=2003">Ninth Circuit asked the California Supreme Court</a> to determine whether the doctrine should be applied to wage claims under California law. (<a href="http://www.courts.ca.gov/cms/rules/index.cfm?title=eight&linkid=rule8_548">Rule 8.548</a> of the California Rules of Court authorizes the Supreme Court to respond to such inquiries.) According to the Ninth Circuit, the evidence in the case established that a Starbucks shift supervisor was required to perform various closing tasks after clocking out. Those tasks consumed 4 to 10 minutes each workday.<br />
<br />
In <a href="http://www.courts.ca.gov/opinions/documents/S234969.PDF">Troester v. Starbucks Corporation</a>, Case No. S234969 (July 26, 2018), the California Supreme Court ruled that California law does not permit application of the de minimis doctrine in the circumstances described by the Ninth Circuit. First, the Court determined that the applicable wage order and the California Labor Code contemplated that employees would be paid for all work performed, and did not incorporate a de minimis exception. In doing so, the Supreme Court expressly rejected the contrary position asserted in opinion letters issued by the California Labor Commissioner's Division of Labor Standards Enforcement.<br />
<br />
The Court went on to consider whether it should adopt a de minimis rule for wage claims, based on the legal maxim de minimis non curat lex (the law cares not for trifles), which is codified in <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=3533.">California Civil Code section 3533</a>. Although it did not rule out the application of that principle to some wage claims, it declined to apply it to the facts described by the Ninth Circuit.<br />
<br />
<blockquote class="tr_bq">
An employer that requires its employees to work minutes off the clock on a regular
basis or as a regular feature of the job may not evade the obligation to compensate
the employee for that time by invoking the de minimis doctrine. As the facts here
demonstrate, a few extra minutes of work each day can add up. According to the
Ninth Circuit, Troester is seeking payment for 12 hours and 50 minutes of
compensable work over a 17-month period, which amounts to $102.67 at a wage
of $8 per hour. That is enough to pay a utility bill, buy a week of groceries, or
cover a month of bus fares. What Starbucks calls “de minimis” is not de minimis
at all to many ordinary people who work for hourly wages.</blockquote>
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<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhM8UWttJb8td72WxBAUXuvITlIBRMlps9UnOW2yw-DW_V0ptJ96Xz5R5vzXjhPFIxz1gK4V02FR43ItAiVkTkQ-kBhqlOPbBA5BLc58KwWtsBMLb8jVOS-k-GVYWiQ-E1padA2N3NBdvyk/s1600/Sacramento+Federal+Courthouse.jpg" imageanchor="1" style="clear: right; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" data-original-height="176" data-original-width="216" height="162" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhM8UWttJb8td72WxBAUXuvITlIBRMlps9UnOW2yw-DW_V0ptJ96Xz5R5vzXjhPFIxz1gK4V02FR43ItAiVkTkQ-kBhqlOPbBA5BLc58KwWtsBMLb8jVOS-k-GVYWiQ-E1padA2N3NBdvyk/s200/Sacramento+Federal+Courthouse.jpg" width="200" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Sacramento Federal Courthouse</td></tr>
</tbody></table>
<a href="https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB450">AB 450</a> was part of the <a href="https://www.npr.org/sections/thetwo-way/2017/10/05/555920658/california-governor-signs-sanctuary-state-bill">"Sanctuary State"</a> measures signed into law by Governor Brown on October 5, 2017. (The other measures were <a href="https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB54">SB 54</a>, restricting the sharing of information by law enforcement agencies, and <a href="https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB103">AB 103</a>, dealing with oversight of detention facilities). AB 450 imposed four restrictions on employers. Unless otherwise provided by federal law, employers:<br />
<br />
<ol>
<li>Were prohibited from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a place of labor unless the agent provides a judicial warrant.</li>
<li>Were prohibited from providing voluntary consent to an immigration enforcement agent to access, review, or obtain the employer’s employee records without a subpoena or court order, subject to a specified exception.</li>
<li>Were required to provide a current employee notice of an inspection of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving the federal notice of inspection.</li>
<li>Were prohibited from reverifying the employment eligibility of a current employee at a time or in a manner not required by specified federal law.</li>
</ol>
<br />
In March 2018, the U.S. Justice Department <a href="https://www.nytimes.com/2018/03/06/us/politics/justice-department-california-sanctuary-cities.html">filed a lawsuit</a> against the new laws in the federal district court in Sacramento. California moved to dismiss the lawsuit, and the Justice Department asked for a preliminary injunction against enforcement of the laws. Earlier this month, <a href="http://www.caed.uscourts.gov/caednew/index.cfm/judges/all-judges/5037/united-states-district-judge-john-a-mendez-jam/">Judge John Mendez</a> (1) granted a preliminary injunction barring enforcement of Items 1, 2 and 4 of AB 450, (2) denied the preliminary injunction motion as to Item 3, and (3) dismissed the portions of the lawsuit related to SB 54 and AB 103.<br />
<br />
The district court has created a page on its website with links to the critical documents in the lawsuit, including these recent decisions. Access the page <a href="http://www.caed.uscourts.gov/caednew/index.cfm/clerks-office/cases-of-interest/218-cv-0490-jam-kjn-usa-v-state-of-california-et-al-immigration/">here</a>.<div class="blogger-post-footer">Content from Gutierrez, Preciado & House, LLP
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http://www.gphlawyers.com</div>Anonymoushttp://www.blogger.com/profile/11319155121527064415noreply@blogger.com0tag:blogger.com,1999:blog-7745467351870731683.post-73701923355885468822018-05-01T15:02:00.000-07:002018-05-01T15:02:14.914-07:00The ABC's of Employment<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjaLQDa7LXsDnjN0XWpiOpmmD3-a3LV5xWgmeGZ1y47HBYXTLsLY8I-UNtBHzYjHFw7VwpJxFoEfqdjvI8yuhP50G4vyDv2eMfLlEqAUVt8tfx0eQtvYC95F_lfWT3ctiN6s1TFR-cfnyIS/s1600/ABC.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="427" data-original-width="640" height="133" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjaLQDa7LXsDnjN0XWpiOpmmD3-a3LV5xWgmeGZ1y47HBYXTLsLY8I-UNtBHzYjHFw7VwpJxFoEfqdjvI8yuhP50G4vyDv2eMfLlEqAUVt8tfx0eQtvYC95F_lfWT3ctiN6s1TFR-cfnyIS/s200/ABC.jpg" width="200" /></a>The California Supreme Court has handed down an important decision that explains how to distinguish between an employee and an independent contractor, for purposes of enforcing California's wage orders. In <a href="http://www.courts.ca.gov/opinions/documents/S222732.PDF">Dynamex Operations West, Inc. v. Superior Court</a>, Case No. S222732 (Apr. 30, 2018), the Court adopted the "ABC" test. That test assumes an individual who does work for another person is an employee of that person, unless the person proves (A) that the worker is free from the other person's control and direction in connection with the performance of the work, <i>and</i> (B) that the worker is performing work that is outside the usual course of the other person's business <i>and</i> (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.<br />
<br />The California wage orders adopted by the Industrial Welfare Commission are quasi-legislative regulations that have the force of law. Among other things, they establish the overtime rules, and define the exemptions from those overtime rules. All but one of the 17 contains the following definitions: "employ" means "to engage, suffer, or permit to work;" "employee" means "any person employed by an employer;" and "employer" means "any person as defined in Section 18 of the Labor Code, who directly or indirectly, or through an agent or any
other person, employs or exercises control over the wages, hours, or working conditions of any person." All the wage orders may be accessed from <a href="http://www.dir.ca.gov/iwc/wageorderindustries.htm">this page</a> on the website of the Department of Industrial Relations.<br />
<br />The <i>Dynamex</i> opinion discusses three earlier Supreme Court opinions that dealt with the distinction between employees and independent contractors.<br />
<br />
<ol>
<li><a href="https://scholar.google.com/scholar_case?case=11040952055087564436&q=S.G.+Borello+%26+Sons,+Inc.+v.+Department+of+Industrial+Relations&hl=en&as_sdt=4,5">S.G. Borello & Sons, Inc. v. Department of Industrial Relations</a> (1989) 48 Cal.3d 241. The narrow ruling in this case was that farmworkers hired by a grower to harvest cucumbers under a "sharefarmer" agreement were employees for purposes of the Workers' Compensation Act. Many decisions since <i>Borello</i> have cited that case as applying the common law test for employee. The decision identified a number of factors to be considered in making that determination. Those have come to be known as the "<i>Borello</i> factors," and have routinely been applied in a number of contexts, including wage and hour litigation, to determine whether or not an individual is an employee. For a recent example, see <a href="https://scholar.google.com/scholar_case?case=1185895159067848655&q=Linton+v.+DeSoto+Cab+Co.,+Inc.&hl=en&as_sdt=4,5">Linton v. DeSoto Cab Co., Inc.</a> (2017) 15 Cal.App.5th 1208. The <i>Dynamex</i> decision says that <i>Borello</i> should be understood as adopting a "statutory purpose standard," rather than a universally applicable multi-factor test.</li>
<li><a href="https://scholar.google.com/scholar_case?case=10726492506162838892&q=Martinez+v.+Combs&hl=en&as_sdt=4,5">Martinez v. Combs</a> (2010) 49 Cal.4th 35. Seasonal agricultural workers sued a strawberry grower and produce merchants who bought strawberries from the grower for failure to pay minimum wage and overtime. The Supreme Court stated that the wage orders contain three alternative definitions of employment: (1) to exercise control over the wages, hours or working conditions, (2) to suffer or permit to work, or (3) to engage, thereby creating a common law employment relationship. The produce merchants could not be considered employers under any of the definitions.</li>
<li><a href="https://scholar.google.com/scholar_case?case=5988430300764602016&q=Ayala+v.+Antelope+Valley+Newspapers,+Inc.&hl=en&as_sdt=4,5">Ayala v. Antelope Valley Newspapers, Inc.</a> (2014) 59 Cal.4th 522. Newspaper carriers claimed that a newspaper company had misclassified them as independent contractors. Because both sides had agree that the <i>Borello</i> test was the applicable standard, the Supreme Court did not consider the scope of the definition of employment in the wage orders.</li>
</ol>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjskiL8eQ6NV9WEoNkvpIblqLcKgFbQ8WIrBX_erFoWSoZK4xsvnQrT01psQ3E9joacXGrPOvV9i0j9nJ3-kIHLZ7yEImRv2Ynuxa4C3aDfoIlMb4kvJ1LL_lhs5yTdAPKBwYLo3LXatJWO/s1600/exit-98584_960_720.png" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="720" data-original-width="720" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjskiL8eQ6NV9WEoNkvpIblqLcKgFbQ8WIrBX_erFoWSoZK4xsvnQrT01psQ3E9joacXGrPOvV9i0j9nJ3-kIHLZ7yEImRv2Ynuxa4C3aDfoIlMb4kvJ1LL_lhs5yTdAPKBwYLo3LXatJWO/s200/exit-98584_960_720.png" width="200" /></a></div>
Because employers invest money in hiring, training and developing their employees, they would like their employees to remain in their employ. You know how it goes. You spend time and money on recruiting the best candidates. Then, you teach the ones you hire how to do their jobs. Just as the best one of the bunch gets to the point where she is ready to contribute to the enterprise, she up and leaves to join the competition. What does the law allow employers to do to retain employees?<br />
<br />The best way to retain employees is to offer competitive pay and benefits, an enjoyable working environment, and a job that matches the employees skills. So as long as you do not discriminate on the basis of a prohibited characteristic, the law allows you to offer whatever incentives you like to encourage employees to stay. This <a href="http://guides.wsj.com/small-business/hiring-and-managing-employees/how-to-retain-employees/">how-to guide</a> from <a href="https://www.wsj.com/">The Wall Street Journal</a> has some ideas about how to hang on to your employees.<br />
<br />Disincentives are another story. For example, California law is quite clear that you may not require an employee to sign a non-compete clause that bars her from quitting to join the competition. <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=BPC&sectionNum=16600.">Business and Professions Code section 16600</a> provides that, with few exceptions, "every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void."<br />
<br />Although you might be tempted to charge departing employees for the investment you made, there are restrictions on that, too. <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=LAB&sectionNum=2802.">Labor Code section 2802</a> requires employers to absorb all the regular costs of doing business, including recruiting and training employees to do their jobs. If the employer pays for voluntary training or education that is not required for the job, the employer may charge that back to the employees. For discussions of the distinction, see <a href="https://scholar.google.com/scholar_case?case=18073222760219214872&q=USS-Posco+Industries+v.+Case+(2016)+244+Cal.App.4th+197&hl=en&as_sdt=4,5">USS-Posco Industries v. Case</a> (2016) 244 Cal.App.4th 197 and <a href="https://scholar.google.com/scholar_case?case=10980318632288574575&q=In+re+Acknowledgment+Cases+(2015)+239+Cal.App.4th+1498&hl=en&as_sdt=4,5">In re Acknowledgment Cases</a> (2015) 239 Cal.App.4th 1498. To implement such a program, you will need a written agreement that the employee signs before receiving the training.<br />
<br />
There is also room within the law for tying some aspects of compensation to a commitment to sticking with the employer. In <a href="https://scholar.google.com/scholar_case?case=389313352907706603&q=Schachter+v.+Citigroup,+Inc.+(2009)+47+Cal.4th+610&hl=en&as_sdt=4,5">Schachter v. Citigroup, Inc.</a> (2009) 47 Cal.4th 610, the Supreme Court upheld an incentive plan that allowed employees to receive part of their compensation in the form of discounted restricted stock, which had a two-year vesting period. If an employee voluntarily terminated employment or was terminated for cause before the end of the two-year period, the restricted stock would be forfeited. That same concept can be applied to payment of relocation expenses, and signing bonuses. The idea is that the employee has not earned the payment, until she has worked the specified amount of time for the employer. Keep in mind that the <i>Schachter</i> case involved only a two-year delay in receiving the compensation. Imposing a requirement that the employee remain employed for an extended length of time might render the plan unlawful.<div class="blogger-post-footer">Content from Gutierrez, Preciado & House, LLP
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjd2_71AUTVuf2hkPELxF5-7UbWN0zCyHmZKTwABWj_3eeSnAJkVTjACALjLzFH3suATRmKIB8O5uhCzQBJmo_Cvwv7KFZAirvhHEQJoOLRJ3jeVgo24ZkBnQyCgcWXulkYARiNvP5aPfuS/s1600/Meal+Period.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="183" data-original-width="275" height="133" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjd2_71AUTVuf2hkPELxF5-7UbWN0zCyHmZKTwABWj_3eeSnAJkVTjACALjLzFH3suATRmKIB8O5uhCzQBJmo_Cvwv7KFZAirvhHEQJoOLRJ3jeVgo24ZkBnQyCgcWXulkYARiNvP5aPfuS/s200/Meal+Period.jpg" width="200" /></a></div>
A recent decision from the California Court of Appeal explains how a staffing agency may satisfy its obligation to its employees to provide meal periods in accordance with the California wage orders. See <a href="https://scholar.google.com/scholar_case?case=10988260182248360498&q=Serrano+v.+Aerotek,+Inc.&hl=en&as_sdt=4,5">Serrano v. Aerotek, Inc.</a>, Case No. A149187 (1st Dist. Ct. App. 3/9/2018).<br />
<br />Aerotek was a staffing agency that placed temporary employees with its clients. Its contract with the client stated that the client was responsible for the work environment, and the the client would comply with applicable federal, state and local laws. The client set the work schedules for the temporary employees, and managed their breaks. Aerotek had a handbook for temporary employees assigned to clients, which contained a meal period policy that complied with California law -- that is, that employees were to be provided with an uninterrupted 30-minute off-duty meal break by the end of the fifth hour of work.<br />
<br />One of the temporary employees filed a class action complaint against Aerotek and the client, alleging that the client did not actually provide meal periods in accordance with the law. Aerotek had a manager at the client's workplace, who declared that no Aerotek employee had ever complained to him that he or she had been from taking a meal period, even though Aerotek's policy required them to notify Aerotek if they believed they were being prevented from taking meal breaks. In written discovery, the temporary employee conceded that she was unaware of any actions by Aerotek that prevented her from taking her meal periods.<br />
<br />Employers are not required to police meal breaks. They need only provide a reasonable opportunity for employees to take their breaks, and refrain from impeding or discouraging them from doing so. See <a href="https://scholar.google.com/scholar_case?case=10842765792974217876&q=Brinker+Restaurant+Corp.+v.+Superior+Court+(2012)+53+Cal.4th+1004&hl=en&as_sdt=4,5">Brinker Restaurant Corp. v. Superior Court</a> (2012) 53 Cal.4th 1004. Aerotek fulfilled that obligation by establishing a policy that followed California law, and by not interfering with the taking of meal breaks. Even if Aerotek was aware that its temporary employees were not actually taking meal periods by the end of their fifth hour of work, it would not violate the meal period requirement. It did not have to make sure that the employees actually took their meal periods. The Court of Appeal affirmed the trial court's grant of summary judgment to Aerotek.<div class="blogger-post-footer">Content from Gutierrez, Preciado & House, LLP
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"primary beneficiary" test followed by the Second, Sixth, Ninth and Eleventh Circuit Courts of Appeals. It previously used a six-factor text that refused to allow unpaid internships under the Fair Labor Standards Act if the employer derived any immediate advantage from the relationship. The new seven-factor test adopts a flexible approach, with no single factor being determinative. The seven factors are:<br />
<ol>
<li>The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.</li>
<li>The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.</li>
<li>The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.</li>
<li>The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.</li>
<li>The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.</li>
<li>The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.</li>
<li>The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.</li>
</ol>
The Department relied on the following Court of Appeal decisions in formulating its test:<br />
<div>
<br /></div>
<a href="https://scholar.google.com/scholar_case?case=10106618337164658635&q=solis+v+laurelbrook+sanitarium+and+school+inc&hl=en&as_sdt=2003">Solis v. Laurelbrook Sanitarium and School, Inc.</a>, 642 F.3d 518 (6th Cir. 2011).<br />
<div>
<a href="https://scholar.google.com/scholar_case?case=7667076658506405193&q=schuman+v.+collier+Anesthesia&hl=en&as_sdt=2003">Schumann v. Collier Anesthesia, PA</a>, 803 F. 3d 1199 (11th Cir. 2015).</div>
<a href="https://scholar.google.com/scholar_case?case=8101135012881799928&q=glatt+v+fox+searchlight+pictures+inc&hl=en&as_sdt=2003">Glatt v. Fox Searchlight Pictures, Inc.</a>, 811 F. 3d 528 (2nd Cir. 2015).<br />
<div>
<a href="https://scholar.google.com/scholar_case?case=13552127477717590834&q=benjamin+v.+B%26H+education&hl=en&as_sdt=2003">Benjamin v. B & H Education, Inc.</a>, Case No. 15-17147 (9th Cir. Dec. 19, 2017).</div>
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http://www.gphlawyers.com</div>Anonymoushttp://www.blogger.com/profile/11319155121527064415noreply@blogger.com0tag:blogger.com,1999:blog-7745467351870731683.post-18456667459068072292017-12-31T09:14:00.000-08:002017-12-31T19:34:42.339-08:00Wellness Programs May Have to Adjust<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjAAN6OUthtRMtKpKrfvCPxMp9iAFBCZ8I2Pilp4s2eFqXVhgCyhbPhNu4OPS1P19ui6feTi-tGeROdLr-6gHVGGQ1hblNwS45TvXTiExiyqKeHITBNJJae5Z4JItwjUocQ0V1tJQ5AtBoN/s1600/Time+To+Quit++Smoking.JPG" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="1132" data-original-width="1600" height="141" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjAAN6OUthtRMtKpKrfvCPxMp9iAFBCZ8I2Pilp4s2eFqXVhgCyhbPhNu4OPS1P19ui6feTi-tGeROdLr-6gHVGGQ1hblNwS45TvXTiExiyqKeHITBNJJae5Z4JItwjUocQ0V1tJQ5AtBoN/s200/Time+To+Quit++Smoking.JPG" width="200" /></a></div>
A federal district court decision may bring changes to employer wellness programs. Current federal regulations allow employers to offer an incentive of up to 30 percent off the employee portion of group health program premiums to employees who participate in a wellness program. See the <a href="https://www.eeoc.gov/laws/regulations/qanda-ada-wellness-final-rule.cfm">EEOC rule</a> and the <a href="https://www.federalregister.gov/documents/2013/06/03/2013-12916/incentives-for-nondiscriminatory-wellness-programs-in-group-health-plans">joint rule promulgated by the IRS, the Employee Benefits Security Administration, and the Centers for Medicare & Medicaid Services</a>.<br />
<br />Critics have charged that those rules are ineffective and unfair to employees with health problems. See, for example:<br />
<br />
<ul>
<li>David S. Hilzenrath, "<a href="http://www.washingtonpost.com/wp-dyn/content/article/2010/01/15/AR2010011503319_pf.html">Misleading claims about Safeway wellness incentives shape health-care bill</a>"</li>
<li>Michael Hiltzik, "<a href="http://www.latimes.com/business/hiltzik/la-fi-hiltzik-wellness-20171227-story.html">A federal judge takes aim at 'voluntary' company wellness programs that invade your privacy</a>"</li>
<li>L.V. Anderson, "<a href="http://www.slate.com/articles/health_and_science/the_ladder/2016/09/workplace_wellness_programs_are_a_sham.html">Workplace Wellness Programs Are a Sham</a>"</li>
</ul>
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The <a href="https://www.aarp.org/">AARP</a> challenged the EEOC rule for failure to provide a reasoned explanation in support of its adoption. <a href="https://en.wikipedia.org/wiki/John_D._Bates">Judge John D. Bates</a> of the <a href="http://www.dcd.uscourts.gov/">United States District Court for the District of Columbia</a> sustained the challenge in a <a href="https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2016cv2113-47">decision</a> on August 22, 2017, but initially declined to vacate the rule. In his <a href="https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2016cv2113-55">latest ruling</a> on December 20, 2017, Judge Bates ordered the rule vacated, but gave the EEOC until January 1, 2019, to develop a new regulation that satisfies his concerns.<div class="blogger-post-footer">Content from Gutierrez, Preciado & House, LLP
Lawyers for California Employers
http://www.gphlawyers.com</div>Anonymoushttp://www.blogger.com/profile/11319155121527064415noreply@blogger.com0tag:blogger.com,1999:blog-7745467351870731683.post-60413606813198252582017-12-30T16:40:00.000-08:002017-12-30T16:40:57.169-08:00Joint Employment Revisited<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhHSZq201e3nJaZeYRuS6Yv0Jf5UgtAvzRBA9-zx3nzApZlwKSOg-MERVEaHWpJK6Ym3Ovhy4rV8zoItM4_fGmBiJ03bwMVbjmTmukAUFW7sP2WHESOvAhgxCvDuQ2AW7WZeP47SsTv9gmJ/s1600/Shuttering_carpenter_J1.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="1143" data-original-width="1600" height="142" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhHSZq201e3nJaZeYRuS6Yv0Jf5UgtAvzRBA9-zx3nzApZlwKSOg-MERVEaHWpJK6Ym3Ovhy4rV8zoItM4_fGmBiJ03bwMVbjmTmukAUFW7sP2WHESOvAhgxCvDuQ2AW7WZeP47SsTv9gmJ/s200/Shuttering_carpenter_J1.jpg" width="200" /></a></div>
A new California statute that imposes liability on general contractors for unpaid wages of their sub-contractors employees prompts us to revisit the principles of joint employment. For previous posts on the topic, click <a href="http://gphlawyers.blogspot.com/search/label/joint%20employer">here</a>.<br />
<br />The new statute, <a href="https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB1701">AB 1701</a>, provides that, for contracts entered into after January 1, 2018, a "direct" contractor (as defined in <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=8018.">Civil Code section 8018</a>) is liable for for wages owed to a wage claimant that is incurred by a subcontractor, acting under the direct contractor, for the wage claimant’s performance of labor included in the subject of the direct contractor's contract with the property owner.<br />
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Usually, joint employment issues are determined by application of general principles governing the establishment of an employment relationship. This requires analysis of the various factor used by courts and administrative agencies to determine who is an employer. In any given situation it is possible that more than one person will be an employer of a particular worker. For an explanation of the standard that the Department of Labor uses to determine joint employment under the Fair Labor Standards Act see the Wage and Hour Division's <a href="https://www.dol.gov/whd/regs/compliance/whdfs35.htm">Fact Sheet 35</a>. For an application of joint employment principles in a Title VII case, see <a href="https://scholar.google.com/scholar_case?case=4124980431021139060&q=(Peppers+v.+Cobb+Cnty.+(11th+Cir.+2016)+835+F.3d+1289.)&hl=en&as_sdt=2003">Peppers v. Cobb County</a> (11th Cir. 2016) 835 F.3d 1289. For the allocation of responsibility for providing FMLA benefits, see <a href="https://www.ecfr.gov/cgi-bin/text-idx?SID=ff9d33e47e4030ef865f9d7e225c6cab&mc=true&node=se29.3.825_1106&rgn=div8">29 CFR section 825.106</a>. For an application of joint employment principles to a California wage and hour claim, see <a href="https://scholar.google.com/scholar_case?case=1452708939598112017&q=(Guerrero+v.+Superior+Court+(2013)+213+Cal.App.4th+912&hl=en&as_sdt=4,5">Guerrero v. Superior Court</a> (2013) 213 Cal.App.4th 912. For a discussion of the dual employer principle under California worker's compensation law, see <a href="https://scholar.google.com/scholar_case?case=311854067990165180&q=(In-Home+Supportive+Services.+v.+Workers%27+Comp.+Appeals+Bd.+(1984)+152+Cal.App.3d+720+%5B199+Cal.Rptr.+697%5D.)&hl=en&as_sdt=4,5">In-Home Supportive Servs. v. Workers' Comp. Appeals Bd.</a> (1984) 152 Cal.App.3d 720.<div class="blogger-post-footer">Content from Gutierrez, Preciado & House, LLP
Lawyers for California Employers
http://www.gphlawyers.com</div>Anonymoushttp://www.blogger.com/profile/11319155121527064415noreply@blogger.com1tag:blogger.com,1999:blog-7745467351870731683.post-90489328067401383632017-12-19T20:09:00.002-08:002017-12-20T16:07:49.187-08:00California Ban the Box Law<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhxMnfvUhXWcGlDtbgaS6IN2jLROdxa-5TVHhQUnwMMJecTzHFJC3GN6Bj2P83liODmsUrD3ZIhic1quqpmvMxMIMUAkVX0Lct0aiQHj38-Kpnx1qgOspYA7Dn7u_MxfJRyXwVTlEt1kL3-/s1600/Ban+the+Box.png" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="1105" data-original-width="1104" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhxMnfvUhXWcGlDtbgaS6IN2jLROdxa-5TVHhQUnwMMJecTzHFJC3GN6Bj2P83liODmsUrD3ZIhic1quqpmvMxMIMUAkVX0Lct0aiQHj38-Kpnx1qgOspYA7Dn7u_MxfJRyXwVTlEt1kL3-/s200/Ban+the+Box.png" width="199" /></a>The nationwide campaign to "ban the box" has borne fruit in California. <a href="http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB1008&search_keywords=Ban+the+box">AB 1008</a>, which will become effective January 1, 2018, makes it an unlawful employment practice for an employer with 5 or more employees to include on an employment application any question that seeks the disclosure of an applicant’s conviction history, to inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer, and, when conducting a conviction history background check, to consider, distribute, or disseminate information related to specified prior arrests, diversions, and convictions. The new statute adds Government Code section 12952 to the Fair Employment and Housing Act.<br />
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An employer who intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history to make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job. If an employer a preliminary decision to deny employment based on that individualized assessment, it must provide the applicant with written notification of the decision, and allow him or her 5 business days to respond to that notification before the employer may make a final decision. If the applicant notifies the employer in writing that he or she disputes the accuracy of the conviction history and is obtaining evidence to support that assertion, the employer must grant the applicant an additional 5 business days to respond to the notice. The employer must consider information submitted by the applicant before making a final decision.<br />
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The <a href="http://bantheboxcampaign.org/">ban the box campaign</a> is aimed at encouraging employers to consider hiring those who have criminal convictions, and not to disqualify applicants automatically because of any criminal conviction.<br />
<br />
Anti-discrimination laws banning employment practices that have a disparate impact on those with protected characteristics should already have made employers cautious about imposing blanket disqualification based on any conviction. Because studies have shown that such practices may result in a disproportionate number of minority applicants being disqualified, both the EEOC and the California Department of Fair Employment and Housing have made clear that employers risk liability for employment discrimination if they do not use a nuanced approach when considering the effect of convicitions on employment eligibility. See this <a href="https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm">enforcement guidance</a> from the EEOC, and this <a href="https://govt.westlaw.com/calregs/Document/I77DB4E2D300E436192DA195BAF40369C?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)">recent regulation</a> from the DFEH.<br />
<br />
Restrictions on the ability to use criminal convictions for hiring decisions can put employers on the horns of a dilemma.<br />
<ul>
<li>On one horn, employers may face liability for negligent hiring if they do not conduct a thorough background investigation. For example, the North Dakota Supreme Court affirmed a verdict against a vacuum cleaner manufacturer who employed door-to-door salesmen to sell its products. One of the salesman had been convicted of two assault charges and two weapons charges, and had a criminal sexual conduct charge pending when he was hired. The company had not conducted a background check. <a href="http://www.ndcourts.gov/court/opinions/910230.htm">McLean v. The Kirby Company</a>.</li>
<li>On the other horn, if the use of criminal background checks disproportionately disqualifies minority applicants, the employer may be liable for employment discrimination. For example, Pepsi Beverages had to pay $3.13 million to settle EEOC charges that criminal background check policy discriminated against African American applicants. <a href="https://www.eeoc.gov/eeoc/newsroom/release/1-11-12a.cfm">EEOC press release</a>.</li>
</ul>
</div>
<div>
Contact us if you have questions about what the new statute means for you.</div>
<div class="blogger-post-footer">Content from Gutierrez, Preciado & House, LLP
Lawyers for California Employers
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhPUcKxbUSnhpR3LGOU79wpcB4CTiDEf6m5BEIZMxRfp8equZjzLR-8g2KaYQoybyoXhZDGNZhrj_3ND7UfGs4BHs4e0DNxWshXThFMOv9hG8xFKxBp7PBFbr1wQSN68jBDhVpTgixmM1PI/s1600/cell+phone+blogger-336371_1920.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="1067" data-original-width="1600" height="133" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhPUcKxbUSnhpR3LGOU79wpcB4CTiDEf6m5BEIZMxRfp8equZjzLR-8g2KaYQoybyoXhZDGNZhrj_3ND7UfGs4BHs4e0DNxWshXThFMOv9hG8xFKxBp7PBFbr1wQSN68jBDhVpTgixmM1PI/s200/cell+phone+blogger-336371_1920.jpg" width="200" /></a></div>
Is an employee who is sitting around waiting to be called into work, "working"? A recent decision by a Los Angeles Superior Court judge prompts us to examine the applicable principles.<br /><br />In a scenario that has been common in retail and food service establishments, an employer tells its employees that fluctuating demands make it necessary for some employees to be placed on call to await a summons to work, if they are needed. The employees are not paid unless they are actually called in to work. Although resistance from employees and state enforcement authorities has led some employers to back away from the practice, it is still fairly common and is the subject of several pending lawsuits. For example, see <a href="https://www.forbes.com/sites/marciaturner/2016/12/31/is-on-call-scheduling-in-retail-coming-to-an-end/#5d231733c0aa">this article</a> from the December 31, 2016 Forbes Magazine issue, which reports the announcement that several national retailers have abandoned the practice.<br /><br />Under the federal Fair Labor Standards Act, employers must include all "hours worked" in their calculations to determine whether an employee is entitled to overtime. The Department of Labor's <a href="https://www.ecfr.gov/cgi-bin/text-idx?SID=ec5caad024a7672ef54d85b15ca168fd&mc=true&node=pt29.3.785&rgn=div5">regulations on hours worked</a> explain that "all hours are hours worked which the employee is required to give his employer." Those regulations describe the application of that definition to on call time as follows: "An employee who is required to remain on call on the employer's premises or so close thereto that he cannot use the time effectively for his own purposes is working while 'on call.' An employee who is not required to remain on the employer's premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call."<br /><br />A <a href="https://www.dol.gov/whd/opinion/FLSANA/2008/2008_12_18_14NA_FLSA.htm">2008 opinion letter</a> from the Wage and Hour Division provides additional guidance on the subject. In that letter, the Division opined that an employee would not be working while on call if the employer's policy provided only that the on-call employee must be reachable at all times, abstain from alcohol or other substances, and report to work within one hour of notification, and if call-backs are rare.<br /><br />The <a href="https://www.dir.ca.gov/t8/11050.html">wage orders</a> that regulate wage and hour condition in California define "hours worked" as "the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so, and in the case of an employee who is required to reside on the employment premises, that time spent carrying out assigned duties shall be counted as hours worked." In its <a href="https://www.dir.ca.gov/dlse/DLSEManual/dlse_enfcmanual.pdf">Enforcement Manual</a>, the California Division of Labor Standards Enforcement has explained that the application of that definition to on call situations depends upon consideration of the following factors:<br /><br />"(1) whether there was an on-premises living requirement; (2) whether there were excessive geographical restrictions on employee’s movements; (3) whether the frequency of calls was unduly restrictive; (4) whether a fixed time limit for response was unduly restrictive; (5) whether the on-call employee could easily trade on-call responsibilities; (6) whether use of a pager could ease restrictions; and (7) whether the employee had actually engaged in personal activities during call-in time."<br /><br />The wage orders contain another provision that requires payment of wages when an employee is called to work, but not actually put to work, as follows: "Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than the minimum wage."<br /><br />In the <a href="https://1drv.ms/b/s!Au-AHDJDlXA9gaQIRXA_eYemKOKHMQ">decision</a> mentioned at the beginning of this post, Judge Elihu Berle denied an employer's motion to dismiss a claim by a potential class of employees of a Japanese-inspired fast food chain claimed that they were do reporting time pay under the California wage orders. That employer's policy required an employee who was scheduled to be on call to call a manager two hours before the his or her anticipated start time. If the manager directed the employee to go into work, he or she had to do so immediately. Failure to call in or to go into work if summoned subjected an employee to discipline. On the basis of those facts, Judge Berle concluded that it was possible for an employee to "report" to work by calling in.<div class="blogger-post-footer">Content from Gutierrez, Preciado & House, LLP
Lawyers for California Employers
http://www.gphlawyers.com</div>Anonymoushttp://www.blogger.com/profile/11319155121527064415noreply@blogger.com0tag:blogger.com,1999:blog-7745467351870731683.post-10832040497310944282017-12-04T21:26:00.002-08:002017-12-20T15:51:30.527-08:00New NLRB General Counsel Signals Enforcement ChangesThe United States Senate confirmed <a href="https://www.nlrb.gov/who-we-are/general-counsel/Peter-Robb">Peter Robb</a> as the new General Counsel to the <a href="https://www.nlrb.gov/">National Labor Relations Board</a> on November 8, 2017. On December 1, 2017, Mr. Robb issued a memorandum to the NLRB regional offices that required those contemplating enforcement actions to seek advice before proceeding. The categories for which advice must be sought are (1) cases over the last eight years that overruled precedent and involved one or more dissents on the Board, (2) cases involving issues that the Board has not decided, and (3) other cases that region officials believe will be of importance to the General Counsel. The requirement that enforcement authorities seek advice in such cases suggests that the General Counsel may be contemplating a change in enforcement policy on those issues.<br />
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The memorandum identified several examples of the kinds of issues that would require seeking advice, among them the following:<br />
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<b>Inappropriate Social Media Postings.</b> In <a href="http://apps.nlrb.gov/link/document.aspx/09031d4581b92710">Pier Sixty, LLC</a>, 362 N.RB No. 59 (Mar. 31, 2015), the Board ruled that a catering service company unlawfully discharged an employee for posting a vulgarity-filled comment to Facebook about a member of management, knowing that his coworkers who were Facebook friends would be able to read the comment. The posting, although its language was "distasteful," constituted concerted activity protected under section 8 of the National Labor Relations Act.<br />
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<b>Employee Handbook Conduct Provisions.</b> In <a href="http://apps.nlrb.gov/link/document.aspx/09031d4581a096b4">Casino San Pablo</a>, 361 NLRB No. 148 (Dec. 16, 2014), the Board ruled that a handbook rule barring "disrespectful conduct" was too broad, and could be interpreted by employees in a manner that would discourage them from exercising their rights under section 7 of the National Labor Relations Act to engage in collective activity.<br />
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<b>Joint Employer Status.</b> In <a href="http://apps.nlrb.gov/link/document.aspx/09031d4581d99106">Browning-Ferris Industries of California, Inc.</a>, 362 NRLB No. 186 (Aug. 27, 2015), the Board revised its standard for determining whether an employer had joint employer status. It ruled that it would find two or more entities to be joint employers if they are both employers within the meaning of the common law, and if they share or codetermine matters governing the essential terms and conditions of employment. In that case BFI relied on workers supplied by an independent company to sort streams of material into categories at BFI's recycling plant. Because BFI had control over who the independent company could hire, barred the company from paying its workers more than BFI paid its employees for comparable work, and provided some day-to-day supervision of the independent company's workers, it was deemed a joint employer. In a notable application of this standard, several NLRB regions have brought complaints against McDonald's, alleging that it is a joint employer with its independent franchisees. <a href="https://www.nlrb.gov/news-outreach/news-story/nlrb-office-general-counsel-issues-consolidated-complaints-against">Read the NLRB press release on the complaints against McDonald's.</a><br />
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<i style="font-weight: bold;">Update:</i> On December 14, 2017, the Board overturned the <i>Browning-Ferris</i> standard in <a href="https://apps.nlrb.gov/link/document.aspx/09031d4582640568">Hy-Brand Industrial Contractors, Ltd and Brandt Construction, Co.</a>, 365 NLRB No. 156. Two new appointees to the Board joined one of the <i>Browning-Ferris</i> dissenters to announce a "return" to the joint liability principles applied before <i>Browning-Ferris</i>, which the decision described as "requir[ing] direct control over one or more essential terms and conditions of employment to constitute an entity the joint employer of another entity’s employees."<br />
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Other examples are provided in the full text of the memorandum, which is available <a href="http://apps.nlrb.gov/link/document.aspx/09031d458262a31c">here</a> on the NLRB website.<div class="blogger-post-footer">Content from Gutierrez, Preciado & House, LLP
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http://www.gphlawyers.com</div>Anonymoushttp://www.blogger.com/profile/11319155121527064415noreply@blogger.com0tag:blogger.com,1999:blog-7745467351870731683.post-8887258233697377952016-03-28T14:39:00.000-07:002016-04-07T05:21:30.848-07:00California Supreme Court Rejects Unconscionability Attack on Arbitration Agreement<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgkX_ApH3D75nv8tKjs8ZQN5JyHW3_fYNU8J3C3qXHfKYX6eW_LRo900nipnz27TCZu1yWCWWuuao255d5aJ2DcmLuvU5SHD7o_Uoqu5W73tVcOiDpkK66XCWhbVytkG4dPKezTl6_sv3_t/s1600/Arbitration.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="133" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgkX_ApH3D75nv8tKjs8ZQN5JyHW3_fYNU8J3C3qXHfKYX6eW_LRo900nipnz27TCZu1yWCWWuuao255d5aJ2DcmLuvU5SHD7o_Uoqu5W73tVcOiDpkK66XCWhbVytkG4dPKezTl6_sv3_t/s200/Arbitration.jpg" width="200" /></a></div>
In the latest of a series of decisions dealing with the enforceability of arbitration agreements, the California Supreme Court has rejected an attempt to invalidate an agreement based on its provision for applications to a court for preliminary injunctive relief while the arbitration is pending. The provision simply reiterated a right that is conferred by statute in the absence of such a provision.<br />
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Beginning with <a href="https://scholar.google.com/scholar_case?case=16049594513709134145&q=Armendariz&hl=en&as_sdt=4,5">Armendariz v. Foundation Health Psychcare</a>, 6 P. 3d 669 (Cal. 2000), the California Supreme Court has carefully policed the use of arbitration agreements imposed as a condition of employment. It has directed California courts to refuse enforcement of such agreements if they are procedurally and substantively unconscionable. Procedural unconscionability focuses on oppression or surprise due to unequal bargaining power, substantive unconscionability on
overly harsh or one-sided results. Since virtually all arbitration agreements in the employment context are procedurally unconscionable, the analysis usually focuses on substantive unconscionability. The <a href="https://scholar.google.com/scholar_case?case=16049594513709134145&q=Armendariz&hl=en&as_sdt=4,5">Armendariz</a> case held that arbitration agreements forced on employees as a condition of employment are not enforceable unless they assure neutrality of the arbitrator, the provision of adequate discovery, require a written decision that will permit a limited form of judicial review, limit costs to what an employee would face in a judicial forum, and make available all remedies that the employee could pursue in court. Since then the Court has:<br />
<ul>
<li>Invalidated a provision that allowed appeals to a second arbitrator of awards that exceeded $50,000. <a href="https://scholar.google.com/scholar_case?case=2639475852598846595&q=Little+v.+Auto+Stiegler,+Inc.&hl=en&as_sdt=4,5">Little v. Auto Stiegler, Inc.</a>, 63 P.3d 979 (2003).</li>
<li>Set aside an arbitrator's award that deprived an employee of a hearing on the merits of his unwaivable statutory employment claim based on a clear error of law. <a href="https://scholar.google.com/scholar_case?case=1044532109927149903&q=Pearson+Dental+Supplies,+Inc.+v.+Superior+Court&hl=en&as_sdt=4,5">Pearson Dental Supplies, Inc. v. Superior Court</a>, 229 P.3d 83 (2010).</li>
<li>Invalidated an arbitration agreement that would have barred an employee from seeking relief in an administrative hearing before the Labor Commissioner. <a href="https://scholar.google.com/scholar_case?case=7372812778675498328&q=Sonic-Calabasas+A,+Inc.+v.+Moreno&hl=en&as_sdt=4,5">Sonic-Calabasas A, Inc. v. Moreno</a>, 51 Cal. 4th 659, 121 Cal. Rptr. 3d 58, 247 P.3d 130 (2011). The Court later reversed itself after the <a href="https://scholar.google.com/scholar_case?case=16992677072058262695&q=Sonic-Calabasas+A,+Inc.+v.+Moreno&hl=en&as_sdt=2003">U.S. Supreme Court</a> directed it to reconsider. <a href="https://scholar.google.com/scholar_case?case=11473338779248846313&q=Sonic-Calabasas+A,+Inc.+v.+Moreno&hl=en&as_sdt=4,5">Sonic-Calabasas A, Inc. v. Moreno</a>, 311 P.3d 184 (2013).</li>
<li>Refused to enforce an arbitration agreement to the extent it would have required employees to submit PAGA claims to arbitration. <a href="https://scholar.google.com/scholar_case?case=14141444872231262199&q=Iskanian+v.+CLS+Transp.+L.A.,+LLC&hl=en&as_sdt=4,5">Iskanian v. CLS Transp. L.A., LLC</a>, 59 Cal. 4th 348, 173 Cal. Rptr. 3d 289, 327 P.3d 129 (2014).</li>
</ul>
Its latest decision is <a href="http://www.courts.ca.gov/opinions/documents/S208345.PDF">Baltazar v. Forever 21, Inc.</a>, Case No. S208345 (Mar. 28, 2016). There, the employee had signed a take it or leave it arbitration agreement, which contained three provisions that she claimed were substantively unconscionable:<br />
<br />
<ol>
<li>It allowed the parties to seek a temporary restraining order or preliminary injunctive relief in the superior court, which the employee argued the employer was more likely to take advantage of. That was not unconscionable, because it did no more than recite the
procedural protections already available under <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=[1281.8.]">Code of Civil Procedure section 1281.8</a>(b).</li>
<li>It listed only employee claims as examples of the types of claims
that were subject to arbitration. That was not unconscionable, because the agreement otherwise made clear that <i>all</i> employment claims were subject to arbitration.</li>
<li>It required that all necessary steps be taken to protect the employer's trade secrets and
proprietary and confidential information from public disclosure. That was not unconscionable, because there was a legitimate commercial need for such protection, and the agreement did not preclude the employee from seeking similar protection for her own confidential information.</li>
</ol>
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Lawyers for California Employers
http://www.gphlawyers.com</div>Anonymoushttp://www.blogger.com/profile/11319155121527064415noreply@blogger.com0tag:blogger.com,1999:blog-7745467351870731683.post-10413688420889086102016-03-09T21:11:00.000-08:002018-03-26T07:33:23.570-07:00Tipping and the Wage and Hour Rules<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
<tr><td style="text-align: center;"><a href="https://commons.wikimedia.org/wiki/File%3AJar_for_tips_at_a_restaurant_in_New_Jersey.JPG" style="clear: right; margin-bottom: 1em; margin-left: auto; margin-right: auto;" title="By Tomwsulcer (Own work) [CC0], via Wikimedia Commons"><img alt="Jar for tips at a restaurant in New Jersey" height="200" src="https://upload.wikimedia.org/wikipedia/commons/thumb/9/95/Jar_for_tips_at_a_restaurant_in_New_Jersey.JPG/256px-Jar_for_tips_at_a_restaurant_in_New_Jersey.JPG" width="139" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Tip Jar</td></tr>
</tbody></table>
Both federal law and California law impose rules on employers about how to treat tips that their employees receive. It is important for employers in California to understand both sets of rules.<br />
<br />
<b>Federal Fair Labor Standards Act</b><br />
<br />
The FLSA addresses tips in <a href="http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section203&num=0&edition=prelim">29 U.S.C. section 203</a>(m), which provides that an employer may add "an additional amount on account of the tips received" to the cash wage, in determining whether it has satisfied the minimum wage law with respect to a tipped employee (defined as an employee who customarily and regularly receives more than $30 a month in tips). The cash wage must be at least $2.13 per hour. The additional amount may not exceed the value of the tips actually received by an employee. The employer must inform all its tipped employees if it will be taking a credit against minimum wage for tips. The employer must include the amount of any tip credit that it takes toward the minimum wage in the total compensation for the week from which the regular hourly rate is derived for computing overtime. <a href="http://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=cded910269cdf4d1f1d836c827eaa310&mc=true&n=pt29.3.531&r=PART&ty=HTML#se29.3.531_160">29 CFR section 531.60</a>.<br />
<br />
All tips belong to the employees who received them, but the statute is not intended "to prohibit the pooling of tips among employees who customarily and regularly receive tips." The FLSA does not impose a maximum contribution amount or percentage on valid mandatory tip pools, but the employer, however, must notify tipped employees of any required tip pool contribution amount, and may only take a tip credit for the amount of tips each tipped employee ultimately receives. Further information on regulation of tips under the FLSA is available in the Department of Labor's <a href="http://www.dol.gov/whd/regs/compliance/whdfs15.htm">Fact Sheet #15</a>.<br />
<br />
In a recent decision, the Ninth Circuit ruled that even employers who did not take tip credits against the minimum wage were subject to the requirement in the Department of Labor's regulations that mandatory tip pools must be composed only of employees who customarily and regularly receive tips. See <a href="https://scholar.google.com/scholar_case?case=9837847120708563974&q=oregon+restaurant+and+lodging+association+v.+perez&hl=en&as_sdt=2003">Oregon Restaurant and Lodging Ass'n v. Perez</a>, Case No. 13-35765 (9th Cir. Feb. 23, 2016).<br />
<br />
<b>UPDATE</b>: The omnibus budget reconciliation act signed by President Trump on March 23, 2018, altered the federal rule to allow employers to require tip sharing with cooks, dishwashers and other "back-of-the house" workers who do not customarily and regularly receive tips. The rule still prohibits owners, supervisors and managers from taking a cut of the tips.<br />
<br />
<b>California Law</b><br />
<b><br /></b>
The wage and hour laws in California do not permit employers to take a credit against the minimum wage for tips received by their employees. The Labor Code declares all "gratuities" to be the sole property of the employees who received them. <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=LAB&sectionNum=351.">Cal. Lab. Code section 351</a>. When a gratuity is given to an employee by means of writing an amount on a credit card slip, that amount must be paid to the employee no later than the next regular pay day with no deduction for processing fees.<br />
<br />
Because the employer has no interest in gratuities under California law, tips are <i>not</i> included in the calculation of the regular rate of pay used to determine overtime pay.<br />
<br />
The courts have interpreted section 351 to allow mandatory tip pools, so long as the pool is limited to those in the chain of service and does not include owners, managers or supervisors. <a href="http://etheridge%20v.%20reins%20internat.%20california%2C%20inc.%2C%20172%20cal.%20app.%204th%20908/">Etheridge v. Reins Internat. California, Inc.</a>, 172 Cal. App. 4th 908 (2009); <a href="https://scholar.google.com/scholar_case?case=10464117496213159250&q=Jameson+v.+Five+Feet+Restaurant,+Inc.,+107+Cal.+App.+4th+138&hl=en&as_sdt=4,5">Jameson v. Five Feet Restaurant, Inc.</a>, 107 Cal. App. 4th 138 (2003). <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=LAB&sectionNum=350.">Cal. Lab. Code section 350</a>.<br />
<br />
<br />
The California Labor Commissioner has an <a href="http://www.dir.ca.gov/dlse/FAQ_tipsandgratuities.htm">FAQ page on tips and gratuities</a> at its website.<div class="blogger-post-footer">Content from Gutierrez, Preciado & House, LLP
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http://www.gphlawyers.com</div>Anonymoushttp://www.blogger.com/profile/11319155121527064415noreply@blogger.com1tag:blogger.com,1999:blog-7745467351870731683.post-59985687292661934882016-01-24T11:32:00.000-08:002016-01-24T11:32:14.192-08:00DOL Gives Continued Attention To Joint Employment<div class="separator" style="clear: both; text-align: center;">
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In recent years, the U.S. Department of Labor has paid particular attention to misclassification of employees as independent contractors. It has <a href="http://www.dol.gov/whd/workers/misclassification/">worked with other federal and state agencies</a> to help misclassified employees get the wages, benefits, and protections to which they are entitled. On January 20, 2016, the Administrator of the Department's Wage and Hour Division issued Interpretation No. 2016-1, entitled <a href="http://www.dol.gov/whd/flsa/Joint_Employment_AI.htm">Joint employment under the Fair Labor Standards Act and Migrant and Seasonal Agricultural Worker Protection Act</a>. The interpretation emphasizes that joint employment should be defined expansively. It discusses two different types of joint employment:<br />
<br />
<ul>
<li>Horizontal joint employment occurs when two or more employers each separately employ an employee and are sufficiently associated with or related to each other with respect to the employee. DOL regulations address this type of joint employment at <a href="http://www.ecfr.gov/cgi-bin/text-idx?SID=8a1deab88a572ce347dbaca135e90fe8&mc=true&node=pt29.3.791&rgn=div5#se29.3.791_12">29 CFR section 791.2</a>.</li>
<li>Vertical joint employment occurs when an employee of one employer (which the Administrator calls an “intermediary employer”) is also, with regard to the work performed for the intermediary employer, economically dependent on another employer.</li>
</ul>
<br />
To determine whether horizontal joint employment exists, the following questions should be asked: (1) who owns the potential joint employers (i.e., does one employer own part or all of the other or do they have any common owners), (2) do the potential joint employers have any overlapping officers, directors, executives, or managers, (3) do the potential joint employers share control over operations (e.g., hiring, firing, payroll, advertising, overhead costs), (4) are the potential joint employers’ operations inter-mingled (for example, is there one administrative operation for both employers, or does the same person schedule and pay the employees regardless of which employer they work for), (5) does one potential joint employer supervise the work of the other, (6) do the potential joint employers share supervisory authority for the employee, (7) do the potential joint employers treat the employees as a pool of employees available to both of them, (8) do the potential joint employers share clients or customers, and (9) are there any agreements between the potential joint employers.<br />
<br />The interpretation provides the following example of horizontal joint employment: An employee is employed at two locations of the same restaurant brand. The two locations are operated by separate legal entities (Employers A and B). The same individual is the majority owner of both Employer A and Employer B. The managers at each restaurant share the employee between the locations and jointly coordinate the scheduling of the employee’s hours. The two employers use the same payroll processor to pay the employee, and they share supervisory authority over the employee.<br />
<br />To determine whether vertical joint employment exists, the following factors should be considered: (1) Directing, Controlling, or Supervising the Work Performed, (2) Controlling Employment Conditions, (3) Permanency and Duration of Relationship, (4) Repetitive and Rote Nature of Work, (5) Integral to Business, (6) Work Performed on Premises, and (7) Performing Administrative Functions Commonly Performed by Employers.<br />
<br />The interpretation provides the following example of vertical joint employment: A laborer is employed by ABC Drywall Company, which is an independent subcontractor on a construction project. ABC Drywall was engaged by the General Contractor to provide drywall labor for the project. ABC Drywall hired and pays the laborer. The General Contractor provides all of the training for the project. The General Contractor also provides the necessary equipment and materials, provides workers’ compensation insurance, and is responsible for the health and safety of the laborer (and all of the workers on the project). The General Contractor reserves the right to remove the laborer from the project, controls the laborer’s schedule, and provides assignments on site, and both ABC Drywall and the General Contractor supervise the laborer. The laborer has been continuously working on the General Contractor’s construction projects, whether through ABC Drywall or another intermediary.<br />
<br />You can find a summary of the DOL's views on joint employment in <a href="http://www.dol.gov/whd/regs/compliance/whdfs35.pdf">Fact Sheet 35</a>.<div class="blogger-post-footer">Content from Gutierrez, Preciado & House, LLP
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http://www.gphlawyers.com</div>Anonymoushttp://www.blogger.com/profile/11319155121527064415noreply@blogger.com0tag:blogger.com,1999:blog-7745467351870731683.post-12263642724684516522016-01-09T20:42:00.000-08:002016-01-09T20:43:41.878-08:00California's New Equal Pay Act<div class="separator" style="clear: both; text-align: center;">
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Although there has been a <a href="https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=201520160SB358">California equal pay act</a> since 1949, and a <a href="http://www.eeoc.gov/laws/statutes/epa.cfm">federal one</a> since 1963, and although both <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV&sectionNum=12940.">California</a> and <a href="http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e-2&num=0&edition=prelim">federal</a> law have barred discrimination in employment based on gender for over 50 years, <a href="http://www.nytimes.com/2015/04/14/opinion/women-still-earn-a-lot-less-than-men.html">recent attention to the continuing wage gap between men and women</a> and the publicity brought to the subject by <a href="https://www.youtube.com/watch?v=6wx-Qh4Vczc">Patricia Arquette's acceptance speech at the 2015 Academy Awards</a> has led to enactment of a <a href="https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160SB358">new equal pay act in California</a>. The text of <a href="https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=LAB&sectionNum=1197.5.">Labor Code section 1197.5</a>, as amended by the new act, is set out below.<br />
<br />
The U.S. Census Bureau has reported that the female-to-male earnings ratio, based on median earnings of full-time, year-round workers
15 years and older is 79 percent. (See <a href="http://www.census.gov/content/dam/Census/library/publications/2015/demo/p60-252.pdf">Income and Poverty in the United States: 2014</a>.) Whether this disparity results from discrimination that can be remedied by equal pay legislation is a difficult question. For a discussion of what the data shows, Read or listen to "<a href="http://freakonomics.com/2016/01/07/the-true-story-of-the-gender-pay-gap-a-new-freakonomics-radio-podcast/">The True Story of the Gender Pay Gap: A New Freakonomics Radio Podcast</a>" at Freakonomics.com.<br />
<br />
Further insight comes from Jennifer Lawrence,<a href="https://www.washingtonpost.com/posteverything/wp/2014/12/17/stop-denying-the-gender-pay-gap-exists-even-jennifer-lawrence-was-shortchanged/"> whose salary for "American Hustle" was revealed to be lower than that of her male co-stars</a> when Sony's emails were hacked at the end of 2014. She wrote an <a href="http://www.lennyletter.com/work/a147/jennifer-lawrence-why-do-i-make-less-than-my-male-costars/">essay for Lenny</a>, in which she said: "When the Sony hack happened and I found out how much less I was being paid than the lucky people with dicks, I didn't get mad at Sony. I got mad at myself. I failed as a negotiator because I gave up early. I didn't want to keep fighting over millions of dollars that, frankly, due to two franchises, I don't need."<br />
<br />
The California act used to bar payment of lower wages to any employee than what was paid to employees of the opposite sex in the same establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. California's new law bars payment of lower wages for "substantially similar work." It is much too early to tell whether the new California law will lead to changes in pay practices or to additional lawsuits. <a href="https://law.ucdavis.edu/faculty/west/">Professor Martha West</a> explains how the advantages and the shortcomings of the new law in <a href="http://www.latimes.com/business/la-fi-qa-fair-pay-20151105-story.html">this article</a> in the Los Angeles Times.<br />
<br />
Here are some examples of decisions applying the less rigorous standards. Would they turn out differently under California's new law?<br />
<br />
<ul>
<li>The female head coach of the women's basketball team at a major university was offered a new contract at a salary of $96,000, substantially less than what the university was paying the male coach of the men's basketball team. When the university refused to do so, she sued for violation of the federal Equal Pay Act. The Ninth Circuit affirmed summary judgment in her favor, because differences in experience and qualifications justified the disparity on a basis other then gender. <a href="https://scholar.google.com/scholar_case?case=14176798525193655911&q=stanley+v.+university+of+southern+california&hl=en&as_sdt=2003">Stanley v. University of Southern California</a>, 178 F.3d 1069 (9th Cir. 1999).</li>
<li>A female construction superintendent was earning $500 per week when her employer hire a new male superintendent at $900 per week. Although they had the same job duties, the pay differential did not violate the California equal pay act, because the two had vastly different levels of experience. <a href="https://scholar.google.com/scholar_case?case=4988015461802459767&q=Green+v.+Par+Pools,+Inc.&hl=en&as_sdt=4,5">Green v. Par Pools, Inc.</a>, 111 Cal. App. 4th 620 (2003).</li>
<li>Eight of 20 physician assistants at a particular healthcare facility were female, while 55 of 69 nurse practitioners were female. The employer paid the nurse practitioners on a regionally based scale that resulted in substantially lower pay than what the physician assistants received under a nationally based scale. In other areas of the country the regionally based scale for the nurse practitioners turned out to be higher than the nationally based scale for the physician assistants. The wage disparity did not violate the Equal Pay Act because the plaintiffs had no evidence that the pay scales were adopted based on gender. <a href="https://scholar.google.com/scholar_case?case=16815145882565803597&q=yant+v.+united+states&hl=en&as_sdt=2003">Yant v. United States</a> 588 F.3d 1369 (Fed.Cir. 2009).</li>
</ul>
<br />
For further explanation of the federal standards see the <a href="http://www.eeoc.gov/policy/docs/coaches.html">EEOC's Enforcement Guidance</a> on compensation of sports coaches.<br />
<br />
<hr align="center" size="2" />
<blockquote class="tr_bq">
(a) An employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions, except where the employer demonstrates:<br />
(1) The wage differential is based upon one or more of the following factors:<br />
(A) A seniority system.<br />
(B) A merit system.<br />
(C) A system that measures earnings by quantity or quality of production.<br />
(D) A bona fide factor other than sex, such as education, training, or experience. This factor shall apply only if the employer demonstrates that the factor is not based on or derived from a sex-based differential in compensation, is job related with respect to the position in question, and is consistent with a business necessity. For purposes of this subparagraph, “business necessity” means an overriding legitimate business purpose such that the factor relied upon effectively fulfills the business purpose it is supposed to serve. This defense shall not apply if the employee demonstrates that an alternative business practice exists that would serve the same business purpose without producing the wage differential.<br />
(2) Each factor relied upon is applied reasonably.<br />
(3) The one or more factors relied upon account for the entire wage differential.<br />
(b) Any employer who violates subdivision (a) is liable to the employee affected in the amount of the wages, and interest thereon, of which the employee is deprived by reason of the violation, and an additional equal amount as liquidated damages.<br />
(c) The Division of Labor Standards Enforcement shall administer and enforce this section. If the division finds that an employer has violated this section, it may supervise the payment of wages and interest found to be due and unpaid to employees under subdivision (a). Acceptance of payment in full made by an employer and approved by the division shall constitute a waiver on the part of the employee of the employee’s cause of action under subdivision (g).<br />
(d) Every employer shall maintain records of the wages and wage rates, job classifications, and other terms and conditions of employment of the persons employed by the employer. All of the records shall be kept on file for a period of three years.<br />
(e) Any employee may file a complaint with the division that the wages paid are less than the wages to which the employee is entitled under subdivision (a) or that the employer is in violation of subdivision (j). The complaint shall be investigated as provided in subdivision (b) of Section 98.7. The division shall keep confidential the name of any employee who submits to the division a complaint regarding an alleged violation of subdivision (a) or (j) until the division establishes the validity of the complaint, unless the division must abridge confidentiality to investigate the complaint. The name of the complaining employee shall remain confidential if the complaint is withdrawn before the confidentiality is abridged by the division. The division shall take all proceedings necessary to enforce the payment of any sums found to be due and unpaid to these employees.<br />
(f) The department or division may commence and prosecute, unless otherwise requested by the employee or affected group of employees, a civil action on behalf of the employee and on behalf of a similarly affected group of employees to recover unpaid wages and liquidated damages under subdivision (a), and in addition shall be entitled to recover costs of suit. The consent of any employee to the bringing of any action shall constitute a waiver on the part of the employee of the employee’s cause of action under subdivision (g) unless the action is dismissed without prejudice by the department or the division, except that the employee may intervene in the suit or may initiate independent action if the suit has not been determined within 180 days from the date of the filing of the complaint.<br />
(g) Any employee receiving less than the wage to which the employee is entitled under this section may recover in a civil action the balance of the wages, including interest thereon, and an equal amount as liquidated damages, together with the costs of the suit and reasonable attorney’s fees, notwithstanding any agreement to work for a lesser wage.<br />
(h) A civil action to recover wages under subdivision (a) may be commenced no later than two years after the cause of action occurs, except that a cause of action arising out of a willful violation may be commenced no later than three years after the cause of action occurs.<br />
(i) If an employee recovers amounts due the employee under subdivision (b), and also files a complaint or brings an action under subdivision (d) of Section 206 of Title 29 of the United States Code which results in an additional recovery under federal law for the same violation, the employee shall return to the employer the amounts recovered under subdivision (b), or the amounts recovered under federal law, whichever is less.<br />
(j) (1) An employer shall not discharge, or in any manner discriminate or retaliate against, any employee by reason of any action taken by the employee to invoke or assist in any manner the enforcement of this section. An employer shall not prohibit an employee from disclosing the employee’s own wages, discussing the wages of others, inquiring about another employee’s wages, or aiding or encouraging any other employee to exercise his or her rights under this section. Nothing in this section creates an obligation to disclose wages.<br />
(2) Any employee who has been discharged, discriminated or retaliated against, in the terms and conditions of his or her employment because the employee engaged in any conduct delineated in this section may recover in a civil action reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer, including interest thereon, as well as appropriate equitable relief.<br />
(3) A civil action brought under this subdivision may be commenced no later than one year after the cause of action occurs.</blockquote>
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http://www.gphlawyers.com</div>Anonymoushttp://www.blogger.com/profile/11319155121527064415noreply@blogger.com0tag:blogger.com,1999:blog-7745467351870731683.post-12994889379327779292015-07-03T15:33:00.000-07:002015-07-03T15:34:06.294-07:00Federal Appellate Court Rejects DOL Six-Factor Intern Test<a href="http://ia.media-imdb.com/images/M/MV5BNzY2NzI4OTE5MF5BMl5BanBnXkFtZTcwMjMyNDY4Mw@@._V1_SX640_SY720_.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="http://ia.media-imdb.com/images/M/MV5BNzY2NzI4OTE5MF5BMl5BanBnXkFtZTcwMjMyNDY4Mw@@._V1_SX640_SY720_.jpg" height="320" width="216" /></a>In September 2013, two interns who had worked without pay on <a href="http://www.foxsearchlight.com/">Fox Seachlight</a>'s <a href="http://www.foxsearchlight.com/blackswan/">Black Swan</a> movie convinced a United States District Judge that they were actually employees and should have been paid. That judge based his ruling on a <a href="http://www.dol.gov/whd/regs/compliance/whdfs71.pdf">six-factor test</a> that the U.S. Department of Labor derived from the Supreme Court's decision in <a href="https://scholar.google.com/scholar_case?case=15083465931783509705&hl=en&as_sdt=6&as_vis=1&oi=scholarr">Walling v. Portland Terminal Co.</a>, 330 U.S. 148 (1947):<br />
<ol>
<li>The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;</li>
<li>The internship experience is for the benefit of the intern;</li>
<li>The intern does not displace regular employees, but works under close supervision of existing staff;</li>
<li>The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;The intern is not necessarily entitled to a job at the conclusion of the internship;</li>
<li>The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.</li>
</ol>
On July 2, 2015, the Second Circuit Court of Appeals reversed the ruling in <a href="http://www.ca2.uscourts.gov/decisions/isysquery/dd565abd-468a-4350-a745-8b899c302158/2/doc/13-4478_opn.pdf">Glatt v. Fox Searchlight Pictures, Inc.</a>, Case No. 13‐4478‐cv (2nd Cir. July 2, 2015). It rejected the Department of Labor text, and stated that decisions about whether interns are employees under the Fair Labor Standards Act rest on whether the intern or the employer is the primary beneficiary of the relationship. For guidance in cases to come, the court offered the following seven non‐exhaustive set of considerations:<br />
<ol>
<li>The extent to which the intern and the employer clearly
understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that
the intern is an employee—and vice versa.</li>
<li>The extent to which the internship provides training
that would be similar to that which would be given in an
educational environment, including the clinical and other
hands‐on training provided by educational institutions.</li>
<li>The extent to which the internship is tied to the intern’s
formal education program by integrated coursework or the
receipt of academic credit.</li>
<li>The extent to which the internship accommodates the
intern’s academic commitments by corresponding to the
academic calendar.</li>
<li>The extent to which the internship’s duration is limited
to the period in which the internship provides the intern with
beneficial learning.</li>
<li>The extent to which the intern’s work complements,
rather than displaces, the work of paid employees while
providing significant educational benefits to the intern.</li>
<li>The extent to which the intern and the employer
understand that the internship is conducted without
entitlement to a paid job at the conclusion of the internship.</li>
</ol>
<br />
<br /><div class="blogger-post-footer">Content from Gutierrez, Preciado & House, LLP
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<br />The Department of Labor regulations define the circumstances under which compensation must be paid for lectures, meetings and training programs. Under <a href="http://www.ecfr.gov/cgi-bin/retrieveECFR?gp=1&SID=33cba60e769baf4b73a3e982e87f971e&h=L&mc=true&n=sp29.3.785.c&r=SUBPART&ty=HTML#sg29.3.785_126.sg5">29 CFR sections 785.27- 785.32</a>, time spent on such activities must be counted as working time unless (a) Attendance is outside of the employee's regular working hours; (b) Attendance is in fact voluntary; (c) The course, lecture, or meeting is not directly related to the employee's job; and (d) The employee does not perform any productive work during such attendance. An example of an application of the regulations to training city employees appears in from the Department's Wage and Hour Division.<br />
<a href="http://www.dol.gov/whd/opinion/FLSA/2009/2009_01_15_15_FLSA.htm">Opinion Letter FLSA2009-15</a><div class="blogger-post-footer">Content from Gutierrez, Preciado & House, LLP
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<br />
<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjji5sYxEIKWYJq7IpjWbxJaNVE4KeU46gmKDxXoZ50l2NCwBNSYHpu9ECdBvvjtbxg0b-F9vhYMIhKj58ROOC02P1dcnTqY7szPkwqS0X22LruVlt0CxDjIlDwXXEr1WAyNFVusU-p9mgV/s1600/Jet+Blue+Plane.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjji5sYxEIKWYJq7IpjWbxJaNVE4KeU46gmKDxXoZ50l2NCwBNSYHpu9ECdBvvjtbxg0b-F9vhYMIhKj58ROOC02P1dcnTqY7szPkwqS0X22LruVlt0CxDjIlDwXXEr1WAyNFVusU-p9mgV/s1600/Jet+Blue+Plane.jpg" /></a></div>
Virgin America and Jet Blue are defendants in separate lawsuits alleging that they do not pay their flight attendants for all the hours that they work. According to the complaints, the airlines, require the flight attendants to put in time on the ground getting ready for their flights, but do not start paying them until they are on board ready to go. The Virgin America complaint is available <a href="https://onedrive.live.com/redir?resid=3D709543321C80EF!5463&authkey=!ANdBPSMvMKQRSXg&ithint=file%2cpdf">here</a>, and the Jet Blue complaint <a href="https://onedrive.live.com/redir?resid=3D709543321C80EF!5464&authkey=!AJm4dHADNz0wqHA&ithint=file%2cpdf">here</a>.<br />
<br />
The standards for what are sometime called preparatory activities (or donning and doffing, when referring to uniforms or protective gear) differ under federal and California law:<br />
<br />
Under California law, time spent on preparatory activities is compensable if the activity is compelled by the necessities of the employer's business and is not de minimis. The standard is explained in the following opinion letters from the Division of Labor Standards Enforcement: <a href="http://www.dir.ca.gov/dlse/opinions/1994-02-03-3.pdf">1994.02.03-3</a>, <a href="http://www.dir.ca.gov/dlse/opinions/1998-12-23.pdf">1998-12-23</a>, <a href="http://www.dir.ca.gov/dlse/opinions/1988-05-16.pdf">1988-05-16</a>.<br />
<br />
<a href="http://uscode.house.gov/view.xhtml?req=(title:29%20section:203%20edition:prelim)%20OR%20(granuleid:USC-prelim-title29-section203)&f=treesort&edition=prelim&num=0&jumpTo=true">Section 203</a>(o) of the Fair Labor Standards Act excludes from work time "any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee." In addition, the Portal-To-Portal Act provides in <a href="http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section254&num=0&edition=prelim">section 254</a> that employers are not liable under the FLSA for the following activities: "(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities," unless there is a contrary agreement or custom and practice. The effect of those provisions and of Supreme Court interpretations is discussed in <a href="http://www.dol.gov/whd/FieldBulletins/AdvisoryMemo2006_2.htm">Wage and Hour Advisory Memorandum 2006-2</a>.<div class="blogger-post-footer">Content from Gutierrez, Preciado & House, LLP
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhaAkERx9zZEqTdRdvdzQQLnik4Oz_gki0dPga-qBF6Y199D0QY-rp8bUU0gJz4gXNgxlRmRyT9HAROJONrFhGUfIdk6aKORWQqL0vogX-EZ6WTlkAoOk-SiAs3tsF0xIqhtZKlUp7cC7wC/s1600/Personality+Test.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="138" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhaAkERx9zZEqTdRdvdzQQLnik4Oz_gki0dPga-qBF6Y199D0QY-rp8bUU0gJz4gXNgxlRmRyT9HAROJONrFhGUfIdk6aKORWQqL0vogX-EZ6WTlkAoOk-SiAs3tsF0xIqhtZKlUp7cC7wC/s200/Personality+Test.jpg" width="200" /></a></div>
<a href="http://www.time.com/">Time Magazine</a> has a cover story this week entitled "<a href="http://time.com/3917703/questions-to-answer-in-the-age-of-optimized-hiring/">How High Is Your XQ?</a>" which describes the current interest among employers in the use of personality tests to make hiring, promotion and termination decisions. The answers to test questions are supposed to reveal personalty traits that are correlated with success on the job. You may hear the area referred to as "people analytics." The providers of such testing include <a href="http://www.hoganassessments.com/">Hogan Assessment</a>, <a href="https://www.calipercorp.com/">Caliper</a>, <a href="http://www.prophecyhealth.com/">Prophecy Healthcare</a>, <a href="http://www.peggedsoftware.com/">Pegged Software</a>, <a href="https://www.gallupstrengthscenter.com/">Gallup's StrengthFinder</a>, and <a href="http://www.infor.com/solutions/hcm/">Infor</a>.<br />
<br />Testing raises legal issues that employers need to be aware of before they put people analytics into practice:<br />
<br /><b>Reasonable accommodation:</b> The disability laws require employers to provide reasonable accommodations during the hiring process, to make sure that applicants are not screened out because of an inability to perform tasks that are not essential functions of the job. The EEOC's guidance on "<a href="http://www.eeoc.gov/facts/jobapplicant.html">Job Applicants and the Americans with Disabilities Act</a>" gives this example: "An employer gives a written test to learn about an applicant's knowledge of marketing trends. Maria is blind and requests that the test be given to her in braille. An individual's knowledge of marketing trends is critical to this job, but the employer can test Maria's knowledge by giving her the test in braille. Alternatively, the employer could explore other testing formats with Maria to determine if they would be effective, for example, providing a reader or a computer version of the test."<br />
<br /><b>Disparate impact:</b> Testing may exclude people with certain protected characteristics, This is referred to as disparate impact. For example, in <a href="https://scholar.google.com/scholar_case?case=8655598674229196978&q=Griggs+v.+Duke+Power+Co.,+401+U.S.+424&hl=en&as_sdt=2003">Griggs v. Duke Power Co.</a>, 401 U.S. 424 (1971) (the Supreme Court's seminal case on disparate impact), the employer's requirement that applicants have a high school diploma and submit to an intelligence test excluded a disproportionate number off African American applicants from consideration. Where a disparate impact on those with a protected characteristic is shown, the employer must that the testing is job-related and consistent with business necessity. Even if the employer can make that showing, the testing may still be unlawful if the employees can show that there is a less discriminatory alternative. The process for determining whether a test is job-related and consistent with business necessity is called validation. A group of federal agencies (including the EEOC) has developed <a href="http://www.uniformguidelines.com/uniformguidelines.html">Uniform Guidelines on Employee Selection Procedures</a> for use in making sure that testing has sufficient validity to survive scrutiny under the discrimination laws. For a discussion of applying the guidelines to Prophecy, see <a href="http://www.biddle.com/articles/Prophecy-Assessments-Legally-Defensible_9-10-2012.pdf">Legal Defensibility of the Prophecy Assessment</a>, from Biddle Consulting (one of the partners in the development of Prophecy). For further information, see also the EEOC's fact sheet on "<a href="http://www.eeoc.gov/policy/docs/factemployment_procedures.html">Employment Tests and Selection Procedures</a>."<div class="blogger-post-footer">Content from Gutierrez, Preciado & House, LLP
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<br />
In <a href="http://www.courts.ca.gov/opinions/documents/B261007.PDF">Williams v. Superior Court (Pinkerton)</a>, Case No. B261007 (Cal. Ct. App. June 9, 2015), the employee's complaint asserted a single representative PAGA claim. The trial court ordered the underlying dispute over whether there had been a Labor Code violation to arbitration. The Second District Court of Appeal reversed the order as contrary to <i>Iskanian</i>. "[W]e conclude
that petitioner’s single cause of action under PAGA cannot be split into an
arbitrable 'individual claim' and a nonarbitrable representative claim."<br />
<br />
Hence, employees who are willing to forego any individual recovery and be content with a percentage of the civil penalties under PAGA may avoid arbitration.<div class="blogger-post-footer">Content from Gutierrez, Preciado & House, LLP
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<a href="http://static01.nyt.com/images/2015/06/02/us/02COURTWEB/02COURTWEB-master675.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="http://static01.nyt.com/images/2015/06/02/us/02COURTWEB/02COURTWEB-master675.jpg" height="133" width="200" /></a></div>
In <a href="http://www.supremecourt.gov/opinions/14pdf/14-86_p86b.pdf">EEOC v. Abercrombie & Fitch Stores, Inc.</a>, Case No. 14-86 (June 1, 2015), the United States Supreme Court ruled that <a href="http://www.abercrombie.com/shop/us">Abercrombie</a> was not entitled to summary judgment on a disparate treatment claim by a Muslim woman who was not hired because the headscarf she wore pursuant her religious obligations conflicted with the employer's dress code. The decision exposed a rare split between Justice Scalia (who wrote the 8-1 majority decision) and Justice Thomas (who dissented). <a href="http://www.nytimes.com/interactive/2014/06/24/upshot/24up-scotus-agreement-rates.html?_r=0&abt=0002&abg=1">The New York Times has reported</a> that Scalia and Thomas agreed 91 percent of the time in decisions handed down through end of the 2013-14 term of the Court. (Comprehensive data on Supreme Court decisions is available from <a href="http://scdb.wustl.edu/about.php">The Supreme Court Database</a>.)<br />
<br />
Abercrombie has a dress code (termed a "Look Policy") that prohibits the wearing of "caps" at work, because that is too informal for its desired image. When Samantha Elauf (a practicing Muslim who wears a headscarf) applied for a job at an Abercrombie store, an interviewer concluded that she was qualified for the job, but worried that her headscarf might conflict with the dress code. The district manager eventually directed the interviewer not to hire Elauf because her headscarf would violate the dress code.<br />
<br />
The EEOC brought suit on Elauf's behalf in the District Court for the Northern District of Oklahoma, which granted summary judgment to the EEOC on liability, denied summary judgment to Abercrombie, and awarded $20,000 in damages after a trial. <a href="https://scholar.google.com/scholar_case?case=10939561546323822519&q=eeoc+v.+abercrombie+%26+Fitch&hl=en&as_sdt=2003">EEOC v. Abercrombie & Fitch Stores, Inc.</a>, 798 F.Supp.2d 1272 (N.D. Okla. 2011). The District Court rejected Abercrombie's claim of undue hardship if it had to accommodate the wearing of a headscarf, noting that it granted numerous exceptions to the Look Policy, and had recently granted eight or nine head scarf exceptions.<br />
<br />
The Tenth Circuit reversed, and ordered the District Court to grant summary judgment to Abercrombie. <a href="https://scholar.google.com/scholar_case?case=15935646601799997381&q=eeoc+v.+abercrombie+%26+Fitch&hl=en&as_sdt=2003">EEOC v. Abercrombie & Fitch Stores, Inc.</a>, 731 F.3d 1106 (10th Cir. 2013). It arrived at that conclusion, because Elauf never specifically informed Abercrombie that wearing a headscarf was based on her religious beliefs, or that she would need an accommodation for that practice.<br />
<br />
In reversing the Tenth Circuit's decision, the Supreme Court stated that Title VII's ban on religious discrimination focuses on the employer's motivation, not its knowledge. As Justice Scalia explained for the, "an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed." Justice Thomas disagreed, arguing that the refusal to hire Elauf was a mere application of the "neutral" Look Policy, which did not rest on <i>intentional</i> discrimination: "Abercrombie refused to create an exception to its neutral Look Policy for Samantha Elauf ’s religious practice of wearing a headscarf. Ante, at 2. In doing so, it did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious practices."<br />
<br />
The Court's decision was not a complete vindication for the EEOC. The case was sent back to the Tenth Circuit to determine whether the District Court's summary judgment for the EEOC was supported by the evidence. "On remand, the Tenth Circuit can consider whether there is sufficient evidence to support summary judgment in favor of the EEOC on the question of Abercrombie’s knowledge. The Tenth Circuit will also be required to address Abercrombie’s claim that it could not have accommodated Elauf ’s wearing the headscarf on the job without undue hardship."<div class="blogger-post-footer">Content from Gutierrez, Preciado & House, LLP
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