• More Overtime Pay and Breaks for Farmworkers

    California’s Labor and Employment committee passed SB1121 in a 4 to 1 vote yesterday.  This bill, introduced by Senator Dean Florez, would amend Labor Code Section 554 relating to overtime payments as it applies to farmworkers.  Existing law exempts persons employed in an “agricultural occupation” under IWC Order No 14-80 from overtime pay and meal period requirements.

    Currently, under Wage Order 14-80, agricultural employees are entitled to overtime only when they work longer than 10 hours in a single day or more than six days during any workweek.  The wage order requires a meal period if the agricultural worker works more than five hours in a day, but is silent as to whether a second meal period is required after working ten hours in the day.

    The proposed law would strike out the language in Labor Code Section 554 that says: “This chapter, with the exception of section 558, shall not apply to any person employed in an agricultural occupation, as defined in Order No. 14-80 (operative January 1, 1998) of the Industrial Welfare Commission.”

    Proponents of the law, led by the California Applicants’ Attorneys Association, say the agricultural exemption is outdated and based on an obsolete federal provision in the Fair Labor Standards Act.  The proponents argue that California have long supported farmers through subsidies, and it is time for the State to support the people whose work in the fields makes California’s agricultural industry among the world’s most productive and profitable.

    Opponents argue that the exemption is still necessary because the nature of the work does not allow a regular eight-hour workday.  Many farmers are at the whim of the water and the weather, and therefore must work when the time is right.  Opponents also point out that requiring overtime pay after eight hours instead of ten hours will raise the cost of doing business in an industry where the profit margins are already dismal.

    I haven’t seen anybody point out the fact that since many farms are still subsidized, this bill will require the State to provide even more subsidies if our State’s farmers are to succeed.

    The Senate already passed the bill in a 23-12 vote and he bill is now headed for the Assembly floor.  If the bill passes and is signed into law, farmers throughout our state will have to drastically modify how they do business.

    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.

  • New and Expanded 1099 Filing Requirement

    A colleague of mine, Alan Foster of the Foster Law Group, picked up on a CNNMoney.com story regarding new requirements for when to send out 1099 tax forms.  If you own a business you should check out the article and see Alan’s comments reprinted (with permission) below.

    On May 5, CNNMoney.com reported as follows:

    “An all-but-overlooked provision of the health reform law is threatening to swamp U.S. businesses with a flood of new tax paperwork. Section 9006 of the health care bill — just a few lines buried in the 2,409-page document–mandates that beginning in 2012 all companies will have to issue 1099 tax forms not just to contract workers but to any individual or corporation from which they buy more than $600 in goods or services in a tax year. The stealth change radically alters the nature of 1099s and means businesses will have to issue millions of new tax documents each year. Right now, the IRS Form 1099 is used to document income for individual workers other than wages and salaries. Freelancers receive them each year from their clients, and businesses issue them to the independent contractors they hire. But under the new rules, if a freelance designer buys a new iMac from the Apple Store, they’ll have to send Apple a 1099. A laundromat that buys soap each week from a local distributor will have to send the supplier a 1099 at the end of the year tallying up their purchases. The bill makes two key changes to how 1099s are used. First, it expands their scope by using them to track payments not only for services but also for tangible goods. Plus, it requires that 1099s be issued not just to individuals, but also to corporations. Taken together, the two seemingly small changes will require millions of additional forms to be sent out.”

    The complete article is available at:

    http://money.cnn.com/2010/05/05/smallbusiness/1099_health_care_tax_change/index.htm.

    One wonders about the mindset of people who come up with legislation and rules like this. They’ve obviously never owned or managed a small business–or, seemingly, encountered a small business they liked. They constantly impose more and more costly requirements for doing business, which we know costs jobs in the private sector, while requiring ever more and more bureaucrats to be hired at taxpayer expense to make sure we obey and do what we’re supposed to.

    This report by CNNMoney.com also raises the question in my naturally-suspicious lawyerlike mind as to what other unpleasant surprises lurk in in the darkened catacombs of this “health care bill.” What does filing of Form 1099 have to do with health care?

     
    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original Article by Alan Foster of the Foster Law Group.
     
     

    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.

  • Sexual Harassment and Discrimination – It’s Not Just a California Thing

    If you do business in California, are employed in California, or just listen to the news then you are undoubtedly aware that sexual harassment and discrimination lawsuits are prevalent.  Regardless of the industry or the size of the employer, companies are required to ensure the workplace is free from sexual harassment.  After reviewing a recent article about Debrahlee Lorenzana’s lawsuit claiming she was harassed because she dressed too sexily, I decided to see what other news popped up regarding sexual harassment and discrimination outside of the San Francisco Bay Area and the Silicon Valley.  Here’s a snippet of what I found from around the country today:

    A Florida teacher’s lawsuit alleges she was fired because administrators found out her baby was conceived outside of wedlock.

    Missouri woman accuses tree trimming company of “shady” sex discrimination.

    Madison County woman alleges granite company tried to coerce her into sexual acts under threat of being bowled over.

    Ohio Judge throws out sexual harassment claim stemming from book recommendation.

    EEOC files sexual harassment charge against Ann Arbor Days Inn.

    These are just a few of the cases around the nation.  Remember, an ounce of prevention is worth $150,000.00+ in attorneys’ fees.  Educate your employees regarding appropriate workplace conduct and take all allegations of sexual harassment seriously.

    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.

  • Tip-Pooling v. Tip-Allocation: Can Managers Receive Tips?

    If you asked me this question a year ago I probably would have told you, “not unless the tip is left for the manager and the manager alone.”  After a flurry of cases in 2009, however, my answer may be a little different.

    Labor Code Section 351 states, in pertinent part,:

    No employer or agent shall collect, take, or receive any
    gratuity or a part thereof that is paid, given to, or left for an
    employee by a patron, or deduct any amount from wages due an employee
    on account of a gratuity, or require an employee to credit the
    amount, or any part thereof, of a gratuity against and as a part of
    the wages due the employee from the employer. Every gratuity is
    hereby declared to be the sole property of the employee or employees
    to whom it was paid, given, or left for.

    Courts have long interpreted this to mean that tips left for employees may not be shared with management employees.  Managers and supervisors are agents of the employer.  Requiring employees to share their tips with the employer’s agents violates Labor Code 351.

    Courts have interpreted this to prohibit tip-pooling arrangements where managers or supervisors receive a part of the tip.  See, e.g. Jameson v. Five Feet Restaurant, Inc. 107 Cal.App.4th 138 (2003) [prohibiting a tip-pooling policy that required servers to share 10% of their tips with floor managers].  Courts have allowed  tip-pooling arrangements so long as managers and supervisors do not receive tips left for the employees.  See, e.g., Leighton v. Old Heidelberg, Ltd 219 Cal.App.3d 1062 (1990) [approving tip-pooling policy that required waitress to share 15% of her tips with bussers that worked the same tables]; Budrow v. Dave & Buster’s of California, Inc., 171 Cal.App.4th 875 (2009) [approving tip-pooling policy that required servers to share tips with bartenders]; Etheridge v. Reins International California, Inc. 172 Cal.App.4th 908 (2009) [approving tip-pooling policy that required servers to share tips with kitchen staff, bartenders, and dishwashers].

    A recent appellate court case carved out an exception to the seemingly straight-forward rule against sharing tips with management employees.  In Chua v. Starbucks, 174 Cal.App.4th 688 (2009) the court upheld Starbuck’s “tip-allocation” policy where customers put tips into a tip jar that was intended to compensate all employees working the shifts, including shift supervisors.  There were several key features to Starbuck’s policy that differentiated the “tip-allocation” policy from other seemingly similar “tip-pooling” policies.

    Unlike a typical restaurant, the tip was not left on the table and was not part of the general bill or otherwise left for a specific individual.  Starbuck’s had a tip bucket on the counter making it obvious that the tip would not be for any one specific employee.  Rather, the tips were intended for a team of employees.  Had the tip been left for a specific individual then the court likely would not have allowed the shift supervisors to share in the tip.

    Starbuck’s tip-allocation policy only provided tips to people within the “chain of service.”  In Starbuck’s case, the weekly tips were added up and divided amongst the employees that worked during that week.  Employees received a pro-rata share of the tips based on the total hours worked by the employees.

    It is important to note that while shift supervisors were allowed to receive a portion of the tip-allocation, store managers and assistant store managers did not receive any portion of the tips.  Shift supervisors, while having some authority to hire, fire and discipline other employees, at least worked within the chain of service and were less likely to be considered the company’s “agents.”  I suspect this particular criteria will be the subject of further litigation in future cases.

    Tip-pooling and tip-allocation cases are on the rise.  If you require employees to share their tips with other employees you should seek the advice of competent professionals to advise you regarding how to ensure your company complies with the 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.