California Employment Law : Employment Lawyer & Attorney : Fox Rothschild Law Firm : San Francisco, Oakland, Los Angeles, San Diego

I have the privilege of participating in a panel discussion on The DLSE's Growing Arsenal: What Employers Need to Know. Joining me on the panel will be:

• Elliot S. Beckelman, Attorney, Department of Industrial Relations, DLSE, and Member, Criminal Investigations Unit; and
   
• Shannon Walpole, Corporate Counsel Director, Employment Law, Ross Stores, Inc.

The presentation runs from 8:30 to 9:30 on September 7th at PG&E, 245 Market Street (at Main), 1st Floor, Conference Room A in San Francisco. It will be hosted by the California Minority Counsel Program, PG&E, and Fox Rothschild LLP. Topics will include best practices for complying with the Wage Theft Protection Act and the DLSE's new Criminal Investigation Unit. You can see more details here.

If you're in the area, I promise you a lively discussion on some very current topics.

• Print
• Comments
• Trackbacks
• Share Link

California employment law is tricky stuff. You have to pay attention or you'll miss something.

Last Thursday, when everyone was paying attention to the Brinker decision, the Division of Labor Standards Enforcement issued a new version of the Wage Theft Protection Act form to be given to all non-exempt, non-union employees at the time of hire. They also expanded the FAQs on the requirement for the second time in three months.

From the beginning, one of my gripes about this form was the question that read:

Employment agreement is (check box):  □ Oral    □ Written

As discussed in more detail here, in real life, some terms of employment are oral, others are written, and some are implied. Well that question is out. It's been replaced with the (in my opinion) less objectionable:

Does a written agreement exist providing the rate(s) of pay? (check box): □ Yes  □ No
     If yes, are all rate(s) of pay and bases thereof contained in that written agreement? □ Yes  □ No
 

There's also a much more concise summary of the employer's ongoing duties at the end (one paragraph instead of four).

You can access the new form here. At present, it's only available in English. But the DLSE says other language versions will be posted soon. Employees who've already received the old notice, don't need to be given the new one (unless there's been a substantive change in the information previously provided).

Your ever-vigilant bloggers will continue to keep an eye on developments.

• Print
• Comments (1)
• Trackbacks
• Share Link

On November 23, 2009, the Division of Labor Standards Enforcement (“DLSE”) issued an Opinion Letter stating that California employers may deduct from the leave balances of exempt employees for partial day absences, including absences of less than four hours. Of course, employers must not deduct from the wages of an exempt employee for any partial day absences.  The letter marches through a number of possible scenarios, and may be worth reading if you have a specific question.  One interesting point involves the drafting of employee handbooks.  Employers should make clear that vacation time will be deducted on a mandatory basis once sick leave is exhausted.  I doubt most employers have have such langauge in their policy documents.

• Print
• Comments
• Trackbacks
• Share Link

When clients ask me what the law says, I can sometimes give them a definitive answer. I know, for example, that the California Family Rights Act applies to employers with 50 or more employees within 75 miles of the affected employee’s worksite. I know that employers of any size in California must provide up to four months off for employees disabled because of pregnancy, childbirth, or related medical conditions.

But some of the time, definitive answers are impossible. This is especially true when the answer depends on an interpretation provided by the Division of Labor Standards Enforcement.

Last month, the DLSE issued an opinion letter saying employers could reduce exempt employee’s work schedules and salaries as a temporary cost-cutting measure. I applaud that interpretation for recognizing the economic realities employers in California face. But until the DLSE issued that opinion letter on August 19, 2009, no one I know would have advised an employer that that was the law. In fact, there was a 2002 DLSE Opinion Letter that went the opposite way on this issue.

Other examples abound. Like when the DLSE said that exempt employees must be paid for a month in which they performed any work, which resulted in an uproar, which led to the DLSE retracting that opinion.  Or a 2002 Opinion Letter, where the DLSE said employers could not require employees to use their vacation time unless it gave them 9 months advance notice. Then it revisited the issue in 2005 and in a memo from the Labor Commissioner to DLSE staff, said that there was no basis for the 9-month requirement. Instead, the DLSE said that employers must only provide reasonable notice, which it defined as “as far in advance as possible but generally no less than one full fiscal quarter or 90 days, whichever is greater.”

One could ask: if there was no basis for the 9-month requirement, what’s the basis for the 90-day requirement? Or one could ask: how are employers supposed to comply with the law when the agency charged with enforcing it can’t make up its mind as to what the law requires? But I choose to ask: will clients pay for me to consult a Ouija board?

• Print
• Comments
• Trackbacks
• Share Link