• Minimum Pay for Computer Worker Exemption is Decreased

    The “Governator” signed SB 929 which, among other things, amends Labor Code Section 515.5, the Computer Software Exemption. The amended statute reduces the hourly rate computer workers must earn in order to be exempt from the overtime regulations of California law.

    Beginning January 1, 2008, computer workers must receive at least $36.00 per hour and be primarily engaged in duties that meet the tests set forth in Labor Code Section 515.5. The computer exemption is the only California exemption that allows the employee to receive an hourly wage and still be exempt from overtime requirements. Employers can choose to pay the salary equivalent of $36.00 per hour, which would be $74,880.00. On September 30, 2008, the Governor signed AB 10 which increased the minimum annual salary to $75,000.00.

    When Labor Code Section 515.5 was initially enacted, employers had to pay at least $41.00 per hour to meet the exemption. The Labor Commissioner was (and still is) required to increase the amount every year. The Labor Commissioner’s last increase (announced October 2006 and became effective January 2007) increased the minimum hourly rate to $49.77 per hour.

    The Labor Commissioner will continue to increase the minimum hourly rate for computer workers each year based on the California Consumer Price Index for Urban Wage Earners and Clerical Workers, but now it will be starting from a lower hourly rate.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • California Employers Must Allow Leave For Spouses of Armed Forces

    On October 9, 2007, the “Governorator” signed AB 392 (introduced by Ted Lieu, D-Torrance) which requires employers with 25 or more employees to allow spouses of military members 10 days of unpaid leave when the military member is on leave from deployment. AB 392 adds Section 395.10 to the Military and Veterans Code and is effectively immediately.

    A qualified employee is one who works 20 or more hours per week and is the spouse of a deployed member of the armed forces, national guard or reserve. The employee must notify the employer within 2 business days of receiving official notice that the serving spouse will be on leave from deployment and that the employee would like to take the leave. The employee must also submit documentation certifying that the employees spouse will be on leave during the unpaid leave.

    Employers with 25 or more employees should modify their policies to reflect the availability of this new leave and should prepare blank certification forms that the employee can fill out requesting the leave.

    If you require assistance modifying your handbook or preparing the required certification, contact an attorney familiar with the new leave requirements.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Question re: Alternative Workweeks

    JD asks:

    I want to work a flexible workweek where I work 10 hours one day and fewer hours on the other days. My employer insists that I can’t do that without obligating them to pay me overtime. What are my options in this matter?

    JD’s employer has a couple of options. The employer could offer an alternative workweek which would require 2/3 of the eligible employees to vote on and approve an alternative workweek. See Alternative Workweeks: A Primer. While there are limitations on the number of daily and weekly hours the employee can work without the employer incurring overtime obligations, the available schedules are fairly limitless.

    Under an alternative workweek plan, no workday can be less than 4 hours and cannot exceed 10 hours. Section 56.7.3 of the DLSE Enforcement Manual states:

    An alternative workweek schedule may be any combination of hours up to ten (10) hours per day within a forty (40) hour workweek. For instance, a workweek of four days of nine (9) hours and one day of four (4) hours would be valid. The schedules must be consistent; but may differ from one workweek to the next if the schedule is a regularly recurring one. For instance, an alternative workweek schedule which provides that in the first week the employee works Monday through Thursday and in the second week works Tuesday through Friday would be valid so long as the schedule is regular and recurring.

    Another acceptable alternative workweek would be to allow employees to work 10 hours on Monday, 8 hours on Tuesday through Thursday and 6 hours on Friday. As long as the schedule is regular and recurring the possible combinations are up to the employer and the employee.

    Of course, adopting an alternative workweek would require the employer to comply with all of the requirements of Labor Code Section 511 and any applicable wage orders. On a case by case basis, it might be simpler for an employer to allow employees to use the Makeup Work Time option contained in Labor Code Section 513.

    Labor Code Section 513 allows an employer to approve a written request from an employee to make up work time that is or would be lost as a result of a personal obligation of the employee as long as the makeup work time is performed in the same workweek in which the work time was lost. In order for the employer not to incur any overtime obligations:

    1. The employer cannot encourage or otherwise solicit an employee to request the employer’s approval to take the personal time off and make up the hours within the same week;
    2. The makeup hours must be worked in the same workweek in which the time was lost;
    3. The employee must request the makeup time in writing; and
    4. The employee cannot work more than 11 hours in any one day and cannot work more than 40 hours in the workweek.

    The makeup work time provisions of Labor Code Section 513 are much easier to implement. I would recommend to any employer wishing to allow employees to use the makeup time provisions to obtain the request prior to working the overtime and prior to missing the work if at all possible. I recommend against “blanket” requests that cover extended periods of time. Instead, employers should have a separate request from the employee for every week when the employee wants to use the makeup provisions of Labor Code Section 513.

    Of course, nothing requires an employer to offer an alternative workweek or to approve an employee’s request to make up work time.

    If you are considering adopting an alternative workweek or if you have any questions about the makeup work time provisions of Labor Code Section 513, you should seek the advice of counsel.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Clarification of “Bona Fide” Sick or Disability Plan

    I previously wrote about whether employers must pay exempt employees if they are sick (Do I Have To Pay My Exempt Employees If They Are Sick?). The First Appellate District of California issued a decision this week in Sumuel v. Advo, Inc. clarifying what constitutes a “bona fide plan, policy or practice of providing compensation for loss of salary occasioned by both sickness and disability.”

    As you may recall, most exempt employees must receive their full weekly salary for any workweek wherein they perform any work. One exception to that rule is if the employer has a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by both sickness and disability. (See 29 CFR Part 541.602(a)(3)) In a case of first impression, the California Appellate Court was asked to review Advo’s salary policies to determine whether Advo made an impermissible deduction from the exempt employees’ salaries.

    Under Advo’s plan, if an employee knew s/he was going to be absent for more than 7 days, Advo would stop the employee’s salary on the first day of the absence so the employee could qualify for State Disability Insurance and Advo’s Short Term Disability Plan. Advo would later make up the difference between what the disability insurances paid and the employee’s weekly salary. This sometimes took several days or even weeks for the employee to receive the full salary. The employees argued that because Advo implemented this plan even if the employee began the disability leave mid-week, Advo effectively failed to pay the employee the full salary for those weeks.

    Adopting language from a Department of Labor opinion letter, the court rejected the employee’s arguments and concluded that Advo’s policy was acceptable.

    A January 7, 2005, DOL opinion letter provides the following guidance as to the meaning of “bona fide” in this context: “[A] plan that has defined sick leave benefits which have been communicated to eligible employees, and that operates as described in the plan, will in general qualify as bona fide. In addition, to be bona fide, the plan must be administered impartially, and its design should not reflect an effort to evade the requirement that exempt employees be paid on a salary basis.”

    The Advo court concluded that the employer’s sick leave/disability leave plan did not violate the “salary” rule because it was communicated to employees, operated as described, was administered impartially, and was not designed to evade the overtime pay requirement.

    Employers that reduce an exempt employee’s salary for sickness or disability should have their policies reviewed by counsel familiar with the FLSA and California law.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.