• New Year and New Laws

    A new year has come, and with it a slew of new laws affecting employers in California.  The courts and legislature were busy last year.  We created a short summary reviewing some of the more significant changes that will impact employers in 2014.

    Enjoy the reading, and we hope you have a great 2014!

    Located in San Jose, California, the employment law lawyers of Phillip J. Griego & Associates, provide quality legal representation for both the employee and the employer. The firm was founded by attorney Phillip J. Griego in 1987, and its employment law attorneys have over 50 years

    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.

    Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • FAQ’s Regarding California’s Caregiver Overtime Laws

    With the new overtime requirements under the newly enacted Domestic Workers Bill of Rights (AB241), I’ve received a lot of questions about how the law will impact caregivers and the families they serve.  Many employers and employees do not understand their rights and obligations.  Hopefully the following answers to some of the common questions I’ve been receiving will help clarify the law.

    Keep in mind, this is a newly enacted statute with some ambiguities.  Future cases or amendments could affect my interpretation of the statute.

    Q: My employer told me that they are reducing my pay rate so they can afford to pay overtime.  Can my employer do that?

    A: Usually, yes.  Most employees are employed “at-will.”  This means the employer or the employee can terminate the employment relationship at any time, with or without notice, and for any reason or no reason (except an illegal reason).  When an employer lowers an employee’s pay rate, the employer is effectively terminating the old employment relationship and offering new employment under the new lower rate of pay.   Your continued employment constitutes acceptance of the terms of the unilateral contract.  As long as the employer notifies the you of the new terms of employment (e.g., the new rate of pay), the employer can change the terms.  An employer may not retroactively alter the terms of the employment.

    Employers are supposed to provide employees a new Notice to Employee under Labor Code section 2810.5 whenever the employer changes the employee’s pay rate (or any other item included in the 2810.5 Notice to Employee).

    Q: Can an employer deduct the cost of room and board from an employee’s pay?

    A: Yes, if the employer provides meals and lodging to an employee, even if the meals and lodging are provided at the client’s site, an employer can deduct specific amounts for the meals and lodging as a credit against the employer’s minimum wage obligations.  The employer must have a written agreement, and can only deduct up to certain amounts specified in the wage order.  Generally speaking, the amounts an employer can deduct are fairly low, and are usually well below fair market value (For example, an employer can only deduct $2.90 for breakfast, $3.97 for lunch, $5.34 for dinner, and $37.63 per week for an unshared room), and the employee must actually receive the meals or lodging if the employer is going to use that as a credit against the employer’s minimum wage obligation.

    Q: Can I pay a caregiver a “daily” or “weekly” rate?

    A: You can, but you shouldn’t.  A daily or weekly rate is a salary.  The law says that a salary only compensates an employee for the “regular nonovertime hours” worked.   For a domestic work employee that qualifies as a personal attendant, this means the first 9 hours in a day or the first 45 hours in a week.  If you pay a worker a daily or weekly salary, you are not paying the employee for any overtime hours.  All caregivers should be paid by the hour and should be paid for all hours worked.

    Q: Can my employer deduct for sleep time?

    UPDATE:

    The California Supreme Court granted review of Mendiola v. CPS Security Solutions, Inc. in the fall of 2013.  Until the Supreme Court issues its decision, employers may not be able to rely on the sleep time rules stated below.  If you have questions about your work situation, contact an attorney familiar with California’s overtime requirements.

    A: Under Mendiola v. CPS Security Solutions, Inc, an employer can deduct for sleep time as long as:

    1. The employee regularly receives at least 5 hours of uninterrupted sleep;
    2. The employee is provided a comfortable place to sleep;
    3. The employer and employee agree (preferably in writing) that the sleep time is not compensable; and
    4. The employee works a 24-hour shift.

    If any of those factors are missing, the employer cannot deduct for sleep time.  Additionally, the employer can only deduct the actual number of rest time hours, up to a maximum of 8 hours per 24-hour shift.  So, if the employee only receives 6 hours of uninterrupted sleep, the employer can only deduct those 6 hours.  If the employee receives 10 hours of uninterrupted sleep, the employer can only deduct a maximum of 8 hours.

    As noted in the update above, Mendiola v. CPS Security Solutions, Inc. is currently under review and therefore an employer may not be able to avail itself of the sleep time rules.

    See my article for more detailed information.

    Q: If I work in San Jose, but the care agency that employs me is located outside of San Jose, am I still entitled to the San Jose minimum wage?

    A: Yes.  Certain cities, such as San Jose and San Francisco, have adopted their own minimum wage ordinances.  Any employees performing work within the geographical boundaries of the specified cities must receive the minimum wage set by the ordinances.  In San Jose, the minimum wage is $10.15 per hour.  In San Francisco, the minimum wage is $10.74 per hour.

    Q: My employer wants me to become an independent contractor.  Is that legal?

    A: Likely not.  There are a number of factors that determine whether a worker is an employee or an independent contractor, and the tests can differ from agency to agency.  Under the Domestic Workers Bill of Rights, an employer includes anyone that exercises control over the employee’s hours, wages or working conditions.  It is hard to imagine a scenario where the caregiver has 100% control over his or her hours, wages and working conditions.  If you are working one day as an employee, and the next day as an independent contractor without any other changes, chances are you are really an employee.

    Q: I run domestic worker placement agency.  Do I have to comply with the new overtime laws?

    A: Not if meet the definition of a domestic work employment agency under Civil Code section 1812.5095.  See my article to see if you meet all of the requirements.

    Q: Which hours are counted toward the weekly overtime?  I work 12 hours a day, 5 days a week.  By the 4th day I’ve worked 45 hours.  Does that mean that the 5th day is all overtime?

    A: The Domestic Workers Bill of Rights uses the same, or substantially similar, language as other overtime statutes in defining which hours require overtime payments.  Cases interpreting those statutes make it clear you only count the regular hours worked towards the weekly overtime.  In other words, you only count the first 9 hours worked toward the weekly 45 hour maximum.  You don’t count the daily overtime hours toward the weekly maximum because the employer already paid overtime for the hours in excess of 9 per day.

    The following examples may help.

    Correct!

    M T W T F Total
    Total 12 12 12 12 12 60
    Reg Hrs 9 9 9 9 9 45
    OT Hrs 3 3 3 3 3 15

    Wrong!

    M T W T F Total
    Total 12 12 12 12 12 60
    Reg Hrs 9 9 9 9 0 36
    OT Hrs 3 3 3 3 12 24

    Hopefully these answers help. Each situation is unique.  The questions and answers provided above are for general information purposes only. If you have questions or concerns about your particular situation, contact an employment attorney familiar with wage and hour issues in the elder care industry.

    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.

  • Does a Domestic Employment Agency Have to Pay Overtime to Caregivers in California?

    The Domestic Workers Bill of Rights (the new California law that requires personal attendants to receive overtime when they work more than 9 hours in a day or more than 45 regular hours in a week) says most employment agencies that comply with Civil Code section 1812.5095 are not considered Domestic Work Employers.  But what does that mean?

    Employees referred by a domestic employment agency are still entitled to overtime.  The DWBA simply makes it clear that the employment agency is not the employer (assuming the agency complies with all of the qualifying requirements).  The family or homeowner that contracts with the employee is likely still liable for overtime compensation.

    Domestic employment agencies can still be considered a Domestic Work Employer if the agency fails to comply with Civil Code section 1812.5095 and Unemployment Insurance Code 687.2.  In order to avoid being considered an employer, the employment agency must comply with all of the following:

    1. The agency must have a bond registered with the secretary of state.
    2. The agency must have a signed contract with the worker that specifies:
      1. The agency will assist the worker in securing work;
      2. How the agency’s referral fee is paid; and
      3.  The worker is free to sign a contract with other employment agencies and perform work for other persons.
    3. The worker must inform the agency of any restrictions on the hours, location, conditions or type of work the worker will perform.
    4. The worker is free to renegotiate with the hiring person the amount to be paid for the work.
    5. The agency cannot provide any training regarding how the worker performs the work, but the agency can offer voluntary orientation training regarding the terms of the agreement.
    6. The agency cannot exercise “direction, control or supervision” regarding the manner and means of performing the work, but the agency can:
      1. Tell the worker about the services to be provided and the conditions of employment specified by the hiring party;
      2. Contact the hiring person to determine whether he/she is satisfied with the worker, but this contact should not be used to identify needed improvements in the worker’s performance and then to discipline or train the worker;
      3. Tell the worker regarding new referrals;
      4. As the worker to tell the agency if the worker is unable to perform the work.
    7. The agency cannot provide any of the tools, supplies or equipment to be used by the worker.
    8. The worker is not obligated to pay the agency’s fee, and the agency is not obligated to pay the worker, if the person that hires the worker fails to pay for the work.
    9. Payment for the work is made directly to the worker or the agency, but if the payment is made to the agency then the agency must deposit the funds into a trust account.
    10. The relationship between the worker and the person that hires the worker is only terminable by them, not the agency (although the agency is not required to make additional referrals)
    11. The agency must charge a reasonable, negotiable fee based on a fixed percentage of the job cost.
    12. The agency must inform the worker in writing that:
      1. The worker may be required to get business permits or licenses;
      2. The worker is not eligible for unemployment insurance, state disability insurance, social security insurance, or workers compensation through the agency
      3. If self-employed, the worker must pay self-employment tax, state tax and federal income tax.
    13. The agency must verify the worker’s legal status and authorization to work prior to providing referrals.
    14. The agency must orally and in writing provide the following notice to the person hiring the worker:
      “[Name of the agency] is not the employer of the domestic worker it referred to you.  The domestic worker may be your employee or an independent contractor depending on the relationship you have with him or her.  If you direct and control the manner and means by which the domestic workers performs his or her work you may have employer responsibilities, including employment taxes and workers’ compensation, under sate and federal law.  For additional information contact your local Employment Development Department and the Internal Revenue Service.”
    15. The agency cannot specify in any notice, advertisement or brochure that the referred workers are independent contractors.
    16. The agency must insert the following statement in any paid advertisement or promotional material:
      “[Name of the agency] is a referral agency”
    17. The agency’s advertisements and solicitations cannot refer to any required bond or to any licensure acquired by the agency.

    Failure to comply with all of the above requirements may create an employer-employee relationship subjecting the agency to liability for unpaid overtime.

    If you are an employment agency, receive referrals from employment agencies, or work for an employment agency and have questions about how the Domestic Workers Bill of Rights applies to you, contact an attorney familiar with employment agencies and in-home 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 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 Employee Constructively Discharged When Employer Refused to Reimburse Mileage Expenses

    California’s Second Appellate District reversed a judgment in favor of Franklin Management Real Estate Fund, Inc. concluding that an employee could state a cause of action for wrongful constructive discharge when an employer refuses to reimburse a low-wage earner for mileage expenses.

    Jorge Vasquez worked as a maintenance technician, earning $10.00 per hour.  His job required him to travel to various locations including the hardware store.  According to Vasquez, he drove about 30 miles a day incurring over $300.00 per day in fuel and maintenance costs.  When Franklin Management Real Estate Fund refused to reimburse Vasquez for the mileage expenses he quit and sued his employer for constructive discharge in violation of public policy.

    The trial court originally dismissed the complaint after concluding that an employer’s failure to pay mileage expenses of $15 per day was not conduct “so intolerable or aggravated that a reasonable person in the employee’s position would have felt no choice but to resign.”  On appeal, Vasquez argued that the employer, in effect, required Vasquez to use his own wages to pay for the employer’s costs of doing business.  Since Vasquez only earned $10.00 per hour, the mileage expenses allegedly represented a significant portion of his take-home pay.

    The appellate court found that under Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, a jury could find that the employer “knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.”  The court also concluded that California’s minimum wage law represents a fundamental policy for purposes of a claim for wrongful termination or constructive discharge in violation of public policy.

    Although California is an at-will state, employers cannot terminate an employee for engaging in protected conduct.  Employers also cannot force employees to work under intolerable or aggravated working conditions.  When the working conditions become intolerable as a result of an employer’s violations of the law, the employee may be able to establish a wrongful constructive discharge in violation of public policy.
    If you believe you have been wrongfully terminated, or forced to quit due as a result of a violation of law, you should contact an attorney familiar with wrongful termination cases.
    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.