Back in January 2012 I blogged about regular rate issues as an anticipated hot issue for 2012 and beyond. In that post I explained that the “regular rate” is not the rate an employer regularly pays. Rather it is the required overtime rate of pay that considers all compensation paid to the employee. I also explained … Continue Reading
Tag Archives: Wage and Hour
Hot Topics in Employment Law (Come See Me Speak)
Posted in DiscriminationIf you work in Human Resources in Hospitality, are in Los Angeles on Thursday, and are interested in a terrific networking event with a fun and informative speaker, then look no further. The Los Angeles Hotels Human Resources Association is sponsoring an event on Thursday, April 25th, and I am the guest speaker. Get ready … Continue Reading
Where Things Stand With Suitable Seating Claims
Posted in Wage and HourWe’ve been following the fate of “suitable seating” class actions for three years now. There was a brief glimmer of hope in 2011 when a federal judge in LA dismissed a class action by bank tellers because they didn’t claim that they’d ever asked for seats. But the Ninth Circuit Court of Appeal, finding no … Continue Reading
Close Enough – California Court Allows Rounding Off Time Entries
Posted in Wage and HourCalifornia court allows rounding off of workers’ time entries… Continue Reading
Why Salaried Non-Exempt Employees Are a Bad Idea (AB 2103)
Posted in Wage and HourCalifornia law generally requires the payment of overtime to non-exempt employees for hours worked over 8 in one workday, and over 40 in one workweek, and on the 7th day of the workweek. The calculation is straightforward for non-exempt employees paid only an hourly wage. But some employers pay hourly employees a fixed salary, such … Continue Reading
New Statute Clarifies Requirement for Commission Agreements (AB 2675)
Posted in Wage and HourI recently blogged about AB 1396 which requires written commission agreements in California by January 1, 2013 (link). Since then, AB 2675 was enacted to refine what is not considered a commission under that requirement. AB 2675 clarifies that the following types of payments are not considered commissions for purposes of this requirement: Short-term productivity … Continue Reading
Be Sure to Catch the New Season of CIU – Criminal Investigation Unit!
Posted in Wage and HourActually, it’s not a new police procedural coming this Fall. As I’ve written before, the Division of Labor Standards Enforcement now has a Criminal Investigation Unit – with powers to issue search warrants, make arrest, and even carry guns. Like many, my initial reaction to labor commissioners with guns can best be described as … Continue Reading
REMINDER: WRITTEN AND SIGNED COMMISSION AGREEMENTS ARE REQUIRED BY JANUARY 1ST
Posted in Wage and HourThe dog days of summer are almost over, and it is time to think about that to-do list for year end. One item on that list for all California employers should be to make sure you have updated, accurate, and signed commission agreements on file. As you may recall, last year AB 1396 was passed, … Continue Reading
The DLSE’s Growing Arsenal
Posted in Wage and HourI 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 … Continue Reading
The Latest (But Not Last) Word on the Administrative Exemption in California
Posted in Wage and HourCalifornia employees are exempt from the overtime requirements if they satisfy the executive, professional, or administrative exemptions. Of these, the administrative exemption is the least well-defined. Much of this uncertainty stems from the requirement that the employee’s duties involve “performance of office or non-manual work directly related to management policies or general business operations of his/her … Continue Reading
The Shape of Meal and Rest Period Claims Post-Brinker
Posted in Wage and HourMeal and rest period class actions haven’t gone away since the California Supreme Court issued its Brinker decision. While it’s become harder for plaintiffs to get classes certified, there’s an approach they’ve been using more and more often. Most employers realize the importance of policies that specifically inform employees of the breaks that they’re provided. But plaintiffs … Continue Reading
Cases on hold pending Brinker sent back to Courts of Appeal
Posted in Wage and HourSix cases that had been in grant and hold status with the California Supreme Court pending the decision in Brinker v. Superior Court were all transferred back to their respective Courts of Appeal today. The six cases are: Brinkley v. Public Storage, Faulkinbury v. Boyd & Associates, Brookler v. Radio Shack Corp., Tien v. Tenet Healthcare, Flores … Continue Reading
‘TIS THE SEASON FOR UNPAID INTERNSHIPS (OR NOT)
Posted in Class Actions, Wage and HourIt is starting to feel like summer, with graduation dates on the calendar, long daylight hours, and plenty of high school and college students and recent graduates looking for resume-building work experiences. However, before you bring on any unpaid interns this summer – beware. There has been a recent flurry of lawsuits by interns claiming … Continue Reading
A View Of The Post-Brinker Landscape
Posted in Class Actions, Wage and HourIn the few weeks since the decision in Brinker v. Superior Court, two court decisions that we know of have invoked the elements of Brinker in their discussions. In the first case, the court in Schulz v. Qualxserve, LLC granted class certification to a group of field technicians who service and repair computers and are paid on a piece-rate basis. … Continue Reading
California Supreme Court Says No Attorneys Fees in Meal and Rest Period Claims
Posted in Wage and HourIn an opinion filed on April 30th, the California Supreme Court held that attorneys’ fees are not awarded to the winners in cases involving meal and rest period claims. In Kirby v. Immoos Fire Protection, Inc., the Court unanimously held that neither prevailing plaintiffs nor victorious employers can receive an award of attorneys’ fees in … Continue Reading
Into the Weeds with Brinker Part 3: Rest Breaks
Posted in Wage and HourWhile the focus of post-Brinker discussion has been meal breaks, let’s not forget that the Court also clarified rules regarding rest breaks. Again, we have math. The wage orders provide that employers must “authorize and permit” employees to take rest periods “at the rate of ten (10) minutes net rest time per four (4) hours … Continue Reading
Into the Weeds with Brinker Part 2: What Does Provide vs. Ensure Really Mean?
Posted in Wage and HourWe have all read the alerts and blog postings indicating that employers are only required to “provide” meal breaks, but need not “ensure” that they are taken. What does that really mean for employers? Do employers still need to pay the meal premium for missed breaks, late breaks, and breaks less than 30 minutes? California … Continue Reading
DLSE Issues New Form For Wage Theft Protection Act Notice
Posted in Wage and HourDLSE updates Wage Theft Protection Act Notice… Continue Reading
Into the Weeds on the Timing of Meal Breaks Under Brinker
Posted in Wage and HourNow that we all have read about the Brinker ruling, and breathed our collective sigh of relief, it is time to get into the weeds on some very practical issues impacting California employers. One such issue is the timing of the meal break. The ruling clearly states that the first meal break must start “no … Continue Reading
A Useful Questionnaire For Distinguishing Employees from Independent Contractors
Posted in Wage and HourWe’ve written quite a bit about the new penalties for mischaracterizing employees as independent contractors. But we haven’t talked as much about how to draw the distinction. Partly that’s because different government agencies use different approaches. And some of it’s due to the fact that these can be very fact-specific determinations and it’s hard to … Continue Reading
San Francisco Demands A Lot From Employers
Posted in Wage and HourOne of my recurring themes is the challenges that California law imposes on employers. (I had a great idea for an image to put here, but it’s incredibly difficult to find a tasteful photo of someone beating a dead horse.) We’ve summarized the various legal requirements in these guides. But San Francisco employers have it worse. In addition … Continue Reading
Recap of 50 Legal Tips in 50 Minutes
Posted in Employment LitigationLast week I participated on a panel that presented "50 Legal Tips in 50 Minutes" at the Cornell HR in Hospitality Conference. Our goal was to provide 50 practical and pithy tips for HR practitioners. The presentation was well received. For a summary of tips 1-26 click here; for a summary of tips 27-50 click here… Continue Reading
Not Satisfied With The Threat Of Crippling Financial Penalties, Labor Commissioner Adds Armed Cops To Her Arsenal
Posted in Wage and HourYesterday, the Division of Labor Standards Enforcement issued a press release announcing that it was launching a Criminal Investigation Unit to investigate “wage theft and other criminal activities against workers.” “Wage theft” is part of the DLSE’s new lingo (see, for example, The Wage Theft Protection Act). Presumably, it’s intended to suggest that employers who don’t … Continue Reading
A Rare Bone for Employers
Posted in Wage and HourOne of the hot topics these days is proper classification of workers as employees or independent contractors. Getting it wrong can result in audits, penalties, individual lawsuits and potentially class action litigation. In the face of such daunting exposure and possible liability, it is more important than ever to reassess your particular situation and get … Continue Reading