• NEW LAWS FOR 2015

    The following is a quick summary of the most significant changes in the law impacting California businesses.

    Paid Sick Leave for All California Employees – Effective July 15, 2015, employers doing business in California must provide paid sick days to almost all employees. Full-time and part-time employees will accrue 1 hours of paid sick leave for every 30 hours worked. California’s paid sick leave begins accruing as soon as the employee starts to work , although an employer can prohibit an employee from using accrued paid sick leave in the first 90 days of employment. Employers may “limit an employee’s use of paid sick days to 24 hours or three days in each year of employment.” Unused paid sick days carry over to the following year, but employers can place a 6-day(48-hour) cap on the paid sick day accrual. Some cities have ordinances that allow a higher cap, and employers have to comply with whichever laws are most favorable to employees. Employers must also provide written notice of the accrued and used sick leave, either on the pay stub or in a separate document, with every paycheck.

    City Paid Sick Leave Ordinances –San Francisco, Oakland and San Diego passed city-wide ordinances requiring paid sick leave for certain employees. The city ordinances are similar to California’s new paid sick leave law, but typically provide additional benefits for employees working within city limits.

    Federal Regulations Regarding Companions Goes Into Effect – Although the Department of Labor has said it will not enforce the new regulations until mid-year, effective January 1, 2015, companions will be entitled to overtime when they work more than 40 hours in a week, unless otherwise exempt from the Fair Labor Standards Act. While some personal attendants may still be exempt if the household owner employs the companion directly and the duties are limited to providing companionship and protection, caregivers employed by third-party employers and caregivers that provide care in addition to companionship and protection are now covered by the FLSA. Although personal attendants in California have been entitled to overtime after 9 hours in a day or 45 hours in a week, Californians using caregivers may need to pay weekly overtime after 40 hours in a week.

    Additional Protections Under the Fair Employment and Housing Act –

    Unpaid Interns Are Protected from Unlawful Harassment – Effective January 1, 2015, the Fair Employment and Housing Act extends protection to unpaid interns. Keep in mind that the Labor Commissioner and the Department of Labor only allow unpaid interns in a few limited situations, typically when the intern is receiving school credit and the employer receives very little benefit from the work. If you use interns, now is a good time to examine whether the interns are actually entitled to wages.

    Anti-Bullying Module for Sexual Harassment Prevention Training – All employers with 50 or more employees are required to provide 2 hours of sexual harassment prevention training to all supervisory employees every 2 years. Although “bullying” is not strictly prohibited by law, AB 2053 now requires the sexual harassment prevention training include a module on anti-bullying.

    No Discrimination Against Workers with Special Drivers Licenses – The DMV must issue an original driver’s license to California residents even if the person cannot lawful residence in the United States.  AB 1660 prohibits discrimination against an individual because he or she holds or presents a driver’s license issued under these provisions, or to require a person to present a driver’s license, except in specific situations. Additionally, FEHA’s definition of “national origin” now includes discrimination on the basis of possessing a driver’s license granted under Section 12801.9 of the Vehicle Code.  The new laws do not alter an employer’s rights or obligations regarding obtaining proof of lawful residency prior to employment. Any action taken by an employer that is required by the federal Immigration and Nationality Act (8 U.S.C. Sec. 1324a) is not a violation of law. Driver’s license information obtained by an employer must be treated as private and confidential, is exempt from disclosure under the California Public Records Act, and can not be disclosed to any unauthorized person or used for any purpose other than to establish identity and authorization to drive.

    Employers Using Third-Party Employers Are Liable for Wages and Workers’ Compensation Insurance – Labor Code section 2810.3 requires a “client employer” to share with a “labor contractor” all civil legal responsibility and civil liability for all workers supplied by that labor contractor for the payment of wages and the failure to obtain valid workers’ compensation coverage.  In other words, if your company receives workers through a contracting agency, and that agency fails to pay the worker or fails to maintain valid workers’ compensation coverage, your company could be responsible for any unpaid wages or workers’ compensation claims. Employers can still include indemnification language in their contracts, but they cannot avoid liability by hiring the worker through a third-party employer.

    Longer Statute of Limitations for Liquidated Damages and Failure to Timely Pay Final Wages – Existing law provides for criminal and civil penalties for certain wage violations and authorizes the Labor Commissioner to recover liquidated damages for minimum wage violations. AB 1723 expands Labor Code section 1197.1 to allow the Labor Commissioner to issue citations and seek penalties for the willful failure to timely pay wages of a resigned or discharged employee (e.g., waiting time penalties).

    Several Cases Cause Employers to Reconsider Mandatory Arbitration Provisions – For years employers had difficulty requiring employees to agree to resolve all dispute through arbitration. Recent U.S. Supreme Court and California court decisions make it easier for employers to require binding arbitration for some employment law claims. Employers should evaluate whether binding arbitration is the right decision for their business. There are many pros and cons to resolving cases through binding arbitration, and employers must still be careful when drafting arbitration agreements. Just because you find an arbitration agreement on line does not mean it will be enforceable.

    Minimum Wage Increase By Various Cities – Several cities passed their own ordinances requiring a higher minimum wage for employees working within certain geographical limits:

    City Rate Effective
    Berkeley $10.00$11.00 1/1/1510/1/15
    Menlo Park $10.30 7/1/15
    Oakland $12.25 3/2/15
    Richmond $9.60 1/1/15
    San DiegoRepealed/delayed by voter action $9.75 1/1/15
    San Francisco $11.05$12.25 1/1/155/1/15
    San Jose $10.30 1/1/15
    Sunnyvale $10.30 1/1/15

    We expect to see more cities adopt similar legislation, and California legislators are trying to pass a higher California minimum wage by the end of the year (currently slated to increase to $10.00 per hour on January 1, 2016).

    Employers need to update their employment handbooks and their policies to comply with the new laws. There is no better time to review your policies and practices with a knowledgeable employment attorney. The New Year affords employers the opportunity to start the year in compliance, and avoid potentially costly mistakes.

    If you have any questions about the new laws, or any employment-related matter, contact our office and speak with one of our attorneys. Let us help you figure out how to employ your workers correctly, so you can focus on growing your 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.

  • Companies Will Be Responsible For Wages of Sub-Contractors

    Does your company use workers provided by other companies?  If so, your company may be liable for the other companies’ failure to pay wages or carry state-mandated workers’ compensation insurance.

    Governor Brown signed AB 1897, which adds Labor Code section 2810.3 effective January 1, 2015.  This new law requires a “client employer” to share with a “labor contractor” all civil legal responsibility and civil liability for all workers supplied by that labor contractor for the payment of wages and the failure to obtain valid workers’ compensation coverage.  In other words, if your company receives workers through a contracting agency, and that agency fails to pay the worker or fails to maintain valid workers’ compensation coverage, your company could be responsible for any unpaid wages or workers’ compensation claims.

    A “client employer” is a “business entity that obtains or is provided workers to perform labor within the usual course of business from a labor contractor.” A “client employer” does not include any of the following:

    (i) A business entity with a workforce of less than 25 workers, including those hired directly by the client employer and those obtained from, or provided by, any labor contractor.

    (ii) A business entity with five or fewer workers supplied by a labor contractor or labor contractors to the client employer at any given time.

    (iii) The state or any political subdivision of the state, including any city, county, city and county, or special district.

    A “labor contractor” is an “individual or entity that supplies workers, either with or without a contract, to a client employer to perform labor within the client employer’s usual course of business.”

    A “labor contractor” does not include specified nonprofit, labor, and motion picture payroll services organizations and certain 3rd parties engaged in an employee leasing arrangements.

    A “worker” does not include an employee who is exempt from the payment of an overtime rate of compensation for executive, administrative, and professional employees pursuant to wage orders by the Industrial Welfare Commission described in Section 515.

    The law does not prevent client employers and labor contractors from “mutually contracting for otherwise lawful remedies for violations of its provisions by the other party.”  In other words, the client employer can require the labor contractor to defend and indemnify the client employer in the event a worker sues the client employer, but the client employer can still be sued directly.  Labor contractors, client employers and workers may not waive any of the protections provided by Labor Code section 2810.3.

    There is no “opportunity to cure” provision, but a worker or his or her representative must notify the client employer of violations at least 30 days prior to filing a civil action against a client employer for violations covered by this section.  Neither the client employer nor the labor contractor may take any adverse action against any worker for providing notification of violations or filing a claim or civil action.

    The new law does not impose liability on a client employer for the use of an independent contractor other than a labor contractor or change the definition of independent contractor.

    The new law does not impose individual liability on a homeowner for labor or services received at the home or the owner of a home-based business for labor or services received at the home.

    If you use or supply sub-contractors, you will want to review and possibly revise your client and/or vendor agreements before the new year.

    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 Laws Require Additional Training and Prohibit Harassment of Unpaid Interns

    Governor Brown signed AB 1443 and AB 2053 amending California’s Fair Employment and Housing Act.  AB 1443 expands FEHA’s anti-harassment protection to unpaid interns.  AB 2053 requires employers to add an anti-bullying module to their sexual harassment prevention training.  Employers and employees (and now volunteers) need to be mindful of the new protections and requirements.

    Protection for Unpaid Interns and Volunteers

    Existing law protects employees and applicants from unlawful discrimination and harassment in the workplace on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sexgender, gender identity, gender expression, age, sexual orientation, or military and veteran status.   AB 1443 expands FEHA’s protections to persons in unpaid internships or other volunteer positions.  The law does not make it lawful to employ unpaid interns, and the Labor Commissioner and the Department of Labor have taken strong positions that make it very difficult to use unpaid interns.  Regardless of whether the intern or volunteer is required to be paid as an employee, effective January 1, 2015, employers and employees may not discriminate or harass unpaid interns and volunteers in violation of FEHA.

    Employers should communicate to its employees that unpaid interns and volunteers are afforded the same rights to a harassment-free workplace as other employees.

    Anti-Bullying Training

    Employers with 50 or more employees are required to provide sexual harassment prevention training to supervisory employees every two years.  AB 2053 requires the training include a module regarding “prevention of abusive conduct.”  The law does not actually prohibit abusive conduct, unless such conduct otherwise violates FEHA, but it does require employers to train supervisory employees regarding conduct “that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.”

    AB 2053 instructs, “Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.”

    While abusive conduct unrelated to a protected category may not be illegal (yet), an employer could theoretically be cited for failing to train supervisors regarding such abusive conduct.  There is no indication that an employee could sue an employer for a failure to provide the requisite training, but the failure to provide the training, or a violation of a company’s anti-bullying policy, may certainly be evidence of a hostile work environment in the right case.

    Employers should ensure their next sexual harassment prevention training includes an anti-bullying module.  Employers may also want to consider updating their handbooks to ensure they have a policy prohibiting “abusive conduct.”

    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 Laws Alter Overtime Requirements for Caregivers

    The Department of Labor recently announced that it is moving forward with its Final Rule eliminating, or at least restricting, the companion exemption to the Fair Labor Standards Act.  Separately, Governor Brown just signed AB 241 adding the Domestic Workers Bill of Rights to the California Labor Code.  Both laws will have a significant impact on home care providers and recipients.

    The following are a few brief highlights about the new regulations and Labor Code sections, and how they may impact the the elder care industry.

    Revised FLSA Regulations

    Since its inception, the FLSA exempted certain domestic workers (i.e., persons employed about the home).  In 1974, Congress amended the FLSA to include some, but not all, domestic workers.  Companions, sometimes referred to as “elder sitters,” or “personal attendants”, have never been covered by the FLSA.  When Congress expanded the FLSA to cover domestic workers but not companions, the FLSA adopted regulations defining the type of work that qualified for the companion exemption.  In the almost 40 years since the 1974 amendments Congress has not deemed it necessary to modify or otherwise alter the FLSA to increase or decrease its coverage with respect to companions.  The Department of Labor, however, has decided that it must now modify its regulations to comport with Congress’ original intent.

    The revised regulations eliminate the companion exemption for any worker employed by a third-party employer.  This means that if a family uses a third-party agency to provide companion care for a family member, the companion must be paid one and one-half times the employee’s regular rate of pay for any hours worked in excess of 40 hours per week.   Workers employed directly by the family are still exempt from the FLSA’s overtime requirements.

    The regulations also narrow the type of work that constitutes “companion” services.  Under the new regulations, the term “companionship services” means “the provision of fellowship and protection for an elderly person or person with an illness, injury, or disability who requires assistance in caring for himself or herself.” Companionship services also includes the provision of “care” if the care is provided “attendant to and in conjunction with the provision of fellowship and protection and if it does not exceed 20 percent of the total hours worked per person and per workweek.”

    The provision of ‘fellowship’ means to engage the person in social, physical, and mental activities, such as conversation, reading, games, crafts, accompanying the person on walks, on errands, to appointments, or to social events.

    The provision of “protection” means to be present with the person in their home, or to accompany the person when outside of the home, and to monitor the person’s safety and well-being.

    The employee can spend no more than 20% of his or her time providing “care,” which is defined as assisting the person with activities of daily living (such as dressing, grooming, feeding, bathing, toileting, and transferring) and assisting with instrumental activities of daily living (i.e., tasks that enable a person to live independently at home, such as meal preparation, driving, light housework, managing finances, assistance with the physical taking of medications, and arranging medical care).

    “Companionship services” excludes domestic services performed primarily for the benefit of other members of the household, such as cleaning, cooking or doing the laundry for other family members.

    The FLSA provides the minimum protection, and employers are still required to comply with state laws which either mirror the FLSA or provide greater protections for workers.  The new regulations do not come into effect until January 1, 2015, to give families time to adjust.

    Although the overtime obligations do not apply to employees employed directly by the families, families are required to maintain accurate records of the hours worked and wages paid.

    California’s Domestic Workers Bill of Rights

    The Domestic Workers Bill of Rights, which creates California Labor Code sections 1450 to 1454, eliminates the “personal attendant” exemption from Wage Order 15.  Wage Order 15 applies to workers employed by the household owner.  Since it’s adoption, Wage Order 15 has always exempted personal attendants from California’s overtime rules.  Employers have always been required to pay at least minimum wage for all hours worked, but until adoption of the Domestic Workers Bill of Rights, the employees were not entitled to overtime regardless of the number of hours worked.

    Unlike past legislative attempts to eliminate the personal attendant exemption, this bill is narrowly drafted with the sole purpose of eliminating the personal attendant exemption except in cases where the employee wages are paid by state or county programs (i.e., In-Home Supportive Services, Lanterman Developmental Disabilities Services Act, California Early Intervention Services Act, etc.).

    “Personal attendant” means any person employed by a private householder or by any third-party employer recognized in the health care industry to work in a private household, to supervise, feed, or dress a child, or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of personal attendant shall apply when no significant amount of work other than the foregoing is required. For purposes of this subdivision, “no significant amount of work” means work other than the foregoing did not exceed 20 percent of the total weekly hours worked.

    Under the DWBR, personal attendants are entitled to overtime compensation at one and one-half times the employees’ regular rate of pay for all hours worked in excess of 9 hours per day or 45 hours per week.  The overtime obligation applies regardless of whether the worker is employed by the family or a third-party employment agency.  The only exception is if the wages are paid by through one of the listed state or county programs or if the person providing the services is the “parent, grandparent, spouse, sibling,child, or legally adopted child of the domestic work employer.”

    The DWBR, which become effective January 1, 2014, contains a sunset clause.  Unless new legislation is passed, the DWBR expires on January 1, 2017.  In the meantime, the governor is supposed to create a committee “composed of personal attendants or their representatives and the employers of personal attendants or their representatives” to “study and report to the Governor on the effects this part has on personal attendants and their employers.”

    Unintended Consequences?

    The intended purpose of the new DOL regulations and the DWBR is to increase the standard wages paid to people who take care of our family members who, by reason of age or disability, are not able to take care of themselves.  In the past, family members who could not care for themselves were either institutionalized, or a family member had to take care of them.  Since many, if not most, Americans have two-income households, it has become more cost-effective to hire a low-wage earner to care for mom and dad than for one or more family members to quit their job to perform the duty.

    I question whether these new laws will meet their intended purpose, and what unintended consequences may follow.  Take, for example, a caregiver who is providing 24-7 care for mom.  While I am not an advocate of anyone working 24-hours a day, 7 days a week, many families and workers choose to have someone overseeing mom all the time.  I’m going to put aside, for now, the benefits and drawbacks of having a single caregiver, and focus on the economic effects of the new laws in this commons situation.

    In California, most caregivers must receive at least $8.00 per hour for all hours worked (the minimum wage will increase to $9.00 per hour in 2014, and $10.00 per hour in 2016, and certain cities require a higher minimum wage).  The employer can lawfully deduct up to 8 hours from a 24-hour shift as “sleep time” provided the employee actually receives at least 5 hours of uninterrupted sleep (for more information about sleep time, see my post).  This means, the employee must receive no less than $896.00 per week ($8.00/hour x 16 hours/day x 7 days/week).  While an employer can deduct some of the costs of room and board in accordance with the Wage Order, in my experience most employers don’t have such an agreement in writing and therefore cannot lawfully deduct meals and lodging.

    Under California’s DWBR, the employee would be paid $1,164.00 ($8.00/hour x 45 regular hours + $12.00/hour x 67 overtime hours).  Under the revised DOL regulations, the employee must be paid $1,184.00 ($8.00/hour x 40 regular hours + $12.00/hour x 72 hours).  By my calculations, that about a 30% to 32% increase in wages for the employee, if the family can afford the increase.  If the family cannot afford the increase, the family will have a couple of options.

    Option number one will be to hire more workers to avoid paying overtime.  In California, because we have a daily and a weekly maximum on regular hours, there is no way to avoid some overtime liability because the employer can only deduct for sleep time if the employee works a 24-hour shift.  Under the DWBR, the minimum an employer could pay an employee for a 24-hour shift would be $156.00 per day ($8.00/hour x 9 regular hours + $12.00/hour x 7 overtime hours, with no compensation for 8 hours of sleep time).  The family would have to hire at least two workers to avoid the 45-hour weekly overtime cap.  The workers would also have to have a separate place to reside and pay for their own meals on their non-working days.

    That means instead of one worker earning $896.00 per week, and receiving room and board to boot, one employee will receive $780.00 per week and another employee will receive $312.00 per week.  The employer will pay $1,092.00 per week.  That’s about a 20% increase for the family, and a 15% decrease for the worker, excluding the loss of room and board.

    The only way to eliminate any overtime liability at all under the DWBR for 24-7 care would be to hire 6 different workers, each working no more than 9 hours a day or 45 hours a week.  Since an employer cannot deduct for sleep time for 9-hour shifts, the employer would have to pay one employee a day while he or she is sleeping, and the actual cost would be $1,344.00 per week ($192/day x 7 days/week).  Since paying no overtime would necessitate eliminating the sleep time exclusion, and because it would mean having six different workers through the week, most employers will not choose this option.

    Keep in mind, none of these calculations take into account the increased minimum wage in California that becomes effective July 1, 2014.

    Under the DOL regulations, there is a way to avoid any overtime by having 3 employees each work two 24-hour shifts and one 8-hour shift.  The employer would only pay $960.00 per week but that means each employee will only receive $320.00 per week, and this would not comply with California law.

    In summary, option number one requires the family to pay at least 20% more, but the individual employee will receive 15% less wages and now has to find a separate place to live.  The good news is that one additional person will be employed.  Keep in mind, none of these calculations consider the increased minimum wage that will take effect in 2014 and 2016.

    A second option is to place mom in a residential care or assisted living facility. The costs vary depending on the level of care required, and many allow family members to bring some of their own furniture so it can actually feel like home.  Many do not like this option because it moves mom out of the home, and it can be difficult to find a facility that provides the level of care the family desires. This option does nothing for the caregiver unless the caregiver has sufficient skills to work in a residential care or assisted living facility.

    A third option, at least in California, is to obtain government assistance.  Workers employed through IHSS or other specific state and county programs are still exempt from California’s overtime laws.  This allows every tax payer to bear the burden of increased care, but relieves some of the burden from the individual family – assuming the family qualifies for services.

    A final option is for a family-member to quit his or her job and stay home full time to take care of mom.  Before the necessity for a two-income household it was common for parents and grandparents to live with the family so the family could be responsible for taking care of themselves.  Each family will have to decide if that is a viable option for them.

    I am concerned that people will try to skirt the laws by hiring “independent contractors.”  While there are some instances where a caregiver can be an independent contractor, I cannot think of a situation where a 24/7 caregiver would be an independent caregiver.  Families should consult their attorney before hiring a caregiver directly and when choosing a third-party employment agency.

    What To Do

    The new regulations and the DWBR are already signed.  The only way to modify the DOL regulations is to convince the Secretary of Labor to repeal the changes, or to convince Congress to amend the FLSA.  In California, the purpose of the DWBR committee is to discovery what, if any, impact the new law has on families and caregivers.  I encourage everyone to get involved in the debate and share your experiences with your representatives.

    If you have questions about how these laws will impact your family or business, contact an employment attorney familiar with wage and hour laws in the home 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.

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

  • Top Mistakes Employers Make Presentation on March 28, 2013

    I will present the Top Mistakes Employers Make presentation on March 28, 2013, for the Gavilan Employers Advisory Council.  The Gavilan EAC provides local employers with relevant Information on human resource issues and other topics of interest, opportunities to network professionally, and a greater understanding of the resources available through the Employment Development Department (EDD) and the California Employer Advisory Council (CEAC). Its membership represents a cross-section of the businesses and industries in the region, and strives to build a partnership between local employers and the EDD.

    The presentation will cover new laws for employers doing business in California as well as the biggest mistakes employers make that lead to costly litigation.

    If you are interested in attending, you can register for the event on the GEAC’s website.

    Top Mistakes Presentation Gavilan_3-28-13 Flyer.

    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.

  • Brown Vetoes Domestic Workers Bill of Rights (AB 889)

    On September 30, 2012, Governor Brown vetoed the Domestic Workers Bill of Rights (AB 889).  The governor’s veto message indicates, among other things, the bill raised too many unanswered questions about what “economic and human impact on the disabled or elderly person and their family of requiring overtime, rest and meal periods for attendants who provide 24 hours care.”  Governor Brown apparently felt that we should answer some of those questions before mandating a change in the law.  He seemed particularly troubled by the fact that the bill required the Department of Industrial Relations to find answers to the question and come up with regulations at the same time.

    I think the veto was a good move for now.  Let’s gather the facts and consider the impact of a law before we change it.

    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.

  • Court Clarifies Commission Case

    By the end of this year all commission agreements in California must be in writing.  When drafting or reviewing your commission agreement it is a good idea to keep in mind several issues; one of which is whether the commissioned employee is exempt from California’s overtime laws.  A recent court decision (Muldrow v. Surrex Solutions) addresses the basic requirements of the inside salesperson exemption.

    Let me start off by reminding you that there are two different possible sales-related exemptions under California’s overtime laws: inside sales persons and outside salespersons.  Outside salespersons are exempt under most, if not all, wage orders.  Inside salespersons are only exempt if the employment is governed by Wage Order 4 (professional, technical, clerical mechanical and similar occupations) or Wage Order 7 (mercantile industry).  If some other wage order applies then the inside salesperson exemption is not available.  There are several different distinctions between the inside salesperson and the outside salesperson exemptions that I hope to address in a subsequent article.  For now, I want to focus on a couple of key points discussed in the Muldrow case.

    Surrex Solutions Corporation locates and provides qualified candidates for employment to other companies.  Sometimes the candidates are hired directly by the customer and other times Surrex “rents” the candidate to the customer for a specified billing rate.  Surrex employees review open positions, research and locate qualified candidates, negotiate terms of employment/hiring with candidates and customers, and obtain orders from customers for the candidates.  The Surrex employees are paid a percentage of any placement/hiring fees when the customer hires the candidate directly, and a percentage of the adjusted gross profit for candidates retained on a consultant basis.  Tyrone Muldrow, on behalf of himself and other similarly situated employees, filed a class action against Surrex claiming he was entitled to overtime.  The trial court and the appellate court rejected the claim and determined Muldrow was exempt from California’s overtime laws under the inside salesperson exemption.

    The court emphasized several earlier cases distilling the necessary criteria for the inside salesperson exemption:  “First, the employees must be involved principally in selling a product or service, not making the product or rendering the services.  Second, the amount of their compensation must be a percentage of the price of the product or service.” (quoting Ramirez v. Yosemite Water Co (1990) 20 Cal.4th785)

    In addressing the first issue (i.e, was the employee involved principally in selling a product or service), the court reduced Muldrow’s job to its essence: Surrex employees would offer a candidate’s services to a client in exchange for a payment of money from the client to Surrex.  Although there was some discussion regarding duties leading up to the consummation of the sale, all of those duties were part of the selling process and therefore the employees were “involved principally in selling a product or service.”

    As to the second issue, the employees conceded that they were paid a percentage of the price of the product for the direct hires, but claimed that since the amounts paid on the non-direct hire cases was not based on the gross price of the product or service, it was not a commission.  The court had no trouble rejecting this argument.  Nothing indicates the percentage must be based on the gross price versus an adjusted gross or net price.  The court similarly rejected the employees’ argument that the commission plan should be rejected because it was “too complex.”

    An interesting issue that was not addressed by the court (and possibly not raised by either side) was the fact that the commissions are calculated by taking the gross profit then deducting ordinary costs of doing business in order to calculate the commission.  There has been discussion for some time regarding the extent to which an employer can use the ordinary costs of doing business in the calculation of bonuses, commissions and profit-sharing agreements.  The California Supreme Court has flip-flopped on the issue at least once.  The latest rule is that, at least with respect to managerial profit sharing plans, an employer can calculate a profit sharing plan using profitability which necessarily includes the ordinary costs of doing business.  Under Muldrow, it would appear an employer can also calculate a commission based on the ordinary costs of doing business (e.g., overhead, employee costs, benefit costs, etc.)

    Commission plans can be simple or they can be complicated.  Even simple commission agreements need to carefully consider a number of factors.  Now that California law will require all commission agreements to be in writing and provided to the employee, it is extremely important for you to review and understand your commission arrangement.  If your plan is not in writing, now is the time to start working on it with a knowledgeable professional.  And don’t forget to consider any possible overtime ramifications!

    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.

  • 3 Things That Can’t Wait Until Next Year

    Well, the California legislature is at it again. Governor Brown signed several laws that change how employers do business in California. Most of the new laws are effective January 1st and require immediate action, so don’t put this off!

    1. Update Your Handbook

    You must now add “gender expression” and “genetic information” to the list of protected characteristics in your EEO and Anti-Harassment policies.

    You must now maintain an employee’s health insurance benefits at the same level of benefit during an employee’s Pregnancy Disability Leave.  Handbooks must be modified to reflect the new requirement.

    2. Revise or Create Offer Letters & Commission Agreements

    All employers must now provide the terms of employment in writing prior to commencing work.  In addition to standard information regarding pay rates, the offer letter must specify overtime rates, the regular paydays, and the contact information for the company’s Workers’ Compensation Carrier.  You will also need to provide written notice when any of the designated items changes.

    12/29/11 UPDATE

    The Labor Commissioner has drafted a template employers should use to comply with new Labor Code Section 2810.5(a).  You can download the template here.

    Beginning January 1, 2013, all employees paid on a commission basis must receive written copies of the commission plan specifying “the method by which commissions shall be computed and paid.” Given the complexity of many commission plans, do not wait until the end of 2012 to contact your employment counsel to review the plan and ensure your bases are covered.

    3. Rethink Your Hiring Practices

    The penalties for willfully misclassifying employees as independent contractors just went up.  This is an extremely high-risk area; so consult with knowledgeable counsel about your workforce status.

    Stop conducting financial background checks on applicants or employees until you speak with knowledgeable counsel regarding revisions to California’s privacy laws.  A new law limits which employers can conduct financial background checks and which employees can be the subject of such background checks.

    There are many more laws coming into effect in 2012. If you would like to receive a more detailed review of the changes, please send us an email at update@griegolaw.com with the subject line: “Send me the update.”

    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.

  • Obama Directs DOL to Expand FLSA to Cover In-Home Care Workers

    “President Obama announces a new rule that will ensure in-home care workers are included in the same minimum wage and overtime protections afforded to other workers under the Fair Labor Standards Act.”

    Last year the California legislature failed to pass legislation that would have added substantial burdens to families hiring home workers, including personal attendants or other in-home care providers.  President Obama is taking credit for newly proposed Department of Labor regulations modifying overtime and minimum wage requirements for in-home care workers.  The DOL previously attempted to make similar changes in 1993 and again in 2001, but those rules never became formalized.

    A copy of the currently proposed regulations can be downloaded here. To save you the time of having to read the 186-page document, I’ve summarized the proposed changes below.  The new regulations would not take affect until after the public is allowed the opportunity to comment on the proposed changes.

    Current regulations provide an exemption from the FLSA for in-home companions.  Like babysitters, the in-home companions care for the elderly or infirm and are typically employed by the household or family as opposed to a third-party employer.  There are a number of regulations defining what a “companion” can or cannot do and still remain exempt from the overtime and minimum wage obligations of the FLSA.  The new regulations make it clear that a companion is someone who provides fellowship and protection, but does not perform general household work.  The legislative history uses the example of a neighbor who comes over to help with grandma or grandpa.

    Under the new regulations, an exempt companion can:

    • Occasionally help the elderly person get dressed or undressed, but this cannot be a part of the regular duties.
    • Occasionally assist the elderly person with grooming including combing and brushing hair, assistance with brushing teeth, applying deodorant or washing face/hands following a meal.
    • Assist the elderly person with using the toilet or changing diapers.
    • Occasionally driver the elderly person to appointments, but this cannot be a part of the regular duties (the regulations suggest the companion should typically accompany the elderly person using a taxi or public transportation).
    • Cook meals so long as the meals are going to be eaten by the elderly person while the companion is there (e.g., no more preparing a week of meals at a time) and is not to be eaten by other members of the household.
    • Do some “light laundry” for the elderly person (but not for others), which can include putting clothes in the washer or dryer and assisting the elderly person with putting away or folding the clothes.
    • Occasionally assisting with bathing, but this cannot be a part of the regular duties.
    • Provide reminders of medical appointments or a predetermined medicinal schedule (e.g., provide pills out of a presorted pill box)

    Under the new regulations a companion cannot:

    • Do household chores for the benefit of other household members.
    • Vacuum, wash windows, dust or other similar “housekeeping” chores.
    • Provide medical care such as changing bandages, taking vital signs, evaluating health or other diagnostic or medically-related tasks (pulse, blood sugar, respiration, temperature) – The DOL is requesting comments on whether companions should be allowed to apply band-aids.
    • Determine whether prescription medications need to be taken.

    The new regulations make it clear that third-party employers (e.g., agencies) cannot take advantage of the exemption.  Even if the if agency is a joint employer with the family/household member, the employee must received federal minimum wage and overtime.  The definition of what constitutes family or household member for the purposes of determining the employer includes “an individual who is a child, niece, guardian or authorized representative, housemate, or person acting in loco parentis to the elderly or infirm individual needing companionship or live-in services.”

    The new regulations also change the record-keeping requires for live-in domestic workers.  Currently employers can avoid formal pay records for domestic live-in domestic workers if the parties have an agreement setting forth the agreed upon work hours with notifications for any deviations from the standard hours.  The DOL has determined that such lax record-keeping is no longer sufficient, and that even live-in domestic workers will be required to turn in accurate records of the actual hours worked, and employers are required to maintain those records as specified in the Act.  It is my understanding that companions employed by the family/household, regardless of whether they are live-in companions or not, will not have to keep records of hours worked, but that is not entirely clear.  Companions employed by third-parties will have to keep accurate records of hours worked.

    If you are interested in submitting your comments to the DOL regarding the proposed changes, you will eventually be able to log onto http://www.regulations.gov and search for RIN 12350AA05.  When I searched for it today, it was not available, likely because the regulations are not yet ready for public comment.

    If you or someone you know uses, employs or works with companions or other domestic workers, familiarize yourself with the proposed regulations and submit your comments.

    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.

  • A Word to the Wise About Lawyers

    Not all lawyers are alike and some, unfortunately, take shortcuts that can have serious consequences.  I provide you with the following excerpt from a recent decision by California’s Fourth Appellate District.  While the facts of the case are interesting in and of themselves, the opening paragraphs are very telling regarding unacceptable work by attorneys.

    We reluctantly return in this case to the question of default judgments with a cautionary tale – well, three actually. The first is a tale for plaintiff‘s attorneys, who may assume a defendant‘s default is an unalloyed gift: an opportunity to obtain a big judgment with no significant effort. It is not. Instead, when a defendant fails to timely respond to the complaint, the first thing plaintiff‘s counsel should do (after offering an extension of time to respond) is review the complaint with care, to ascertain whether it supports the specific judgment the client seeks. If not, a motion to amend is in order. In this case, counsel for plaintiff Gil Kim failed to do that. Instead, he simply asked the court to enter defendants‘ defaults on the complaint as initially alleged. Unfortunately for Kim, the factual allegations of that complaint do not support any judgment in his favor.

    And even when the allegations of a complaint do support the judgment plaintiff seeks, he is not automatically entitled to entry of that judgment by the court, simply because defendant defaulted. Instead, it is incumbent upon plaintiff to prove-up his damages, with actual evidence. It is wholly insufficient to simply declare, as Kim did here, that defendants‘ breach of one or more promissory notes ―caused [him] tremendous financial loss, and that a judgment of ―$5 million against each defendant, for a total of $30 million . . . would be a reasonable sum. That evidence may establish the amount Kim feels entitled to recover, but it fails utterly to demonstrate what he is legally entitled to recover. Kim‘s failure to offer any significant evidence to support his damage claims precludes any monetary judgment in his favor.

    We consequently reverse the default judgment entered in Kim‘s favor, and remand the case to the trial court with directions to enter judgment in defendants‘ favor.

    The second cautionary tale is for trial courts. And it‘s not the first time we have told this tale. As we previously explained in Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 868, ―[i]t is imperative in a default case that the trial court take the time to analyze the complaint at issue and ensure that the judgment sought is not in excess of or inconsistent with it. It is not in plaintiffs‘ interest to be conservative in their demands, and without any opposing party to point out the excesses, it is the duty of the court to act as gatekeeper, ensuring that only the appropriate claims get through. That role requires the court to analyze the complaint for itself — with guidance from counsel if necessary — ascertaining what relief is sought as against each defaulting party, and to what extent the relief sought in one cause of action is inconsistent with or duplicative of the relief sought in another. The court must then compare the properly pled damages for each defaulting party with the evidence offered in the prove-up. Unfortunately, the trial court in this case seems not to have done that, and instead simply gave Kim what he asked for – which in this case was $30 million. Even more unfortunately, this trial court is certainly not alone in doing so, even since Heidary was published. (See, e.g., Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th1161 [$8 million in compensatory damages awarded on a complaint alleging $50,000 in damages].) We need to shore this up. The court‘s role in the process of entering a default judgment is a serious, substantive, and often complicated one, and it must be treated as such.

    And third, this case is a cautionary tale for appellate counsel. Those who practice before this court are expected to comport themselves honestly, ethically, professionally and with courtesy toward opposing counsel. The fact a respondent has no obligation to file a brief at all, in no way excuses his counsel‘s misconduct if he chooses to do so. The conduct of Timothy J. Donahue, Kim‘s counsel herein, which included seeking an extension of time to file his brief under false pretenses, and then filing a brief which was not just boilerplate, but a virtual copy of a brief for another case – including a boilerplate accusation of misconduct against appellants‘ counsel and a boilerplate request for sanctions based on a purportedly ―frivolous appeal – will not be countenanced. Donahue‘s response to this court‘s notice, informing him that we were contemplating the imposition of sanctions on our own motion, was both truculent and dismissive, going so far as to assert that we must have issued the notice in error. We did not. Nor did we appreciate him responding to our order that he appear to address possible sanctions against him by sending in his stead an attorney who had not been informed sanctions were being considered, and knew nothing about our order. Donahue‘s conduct on appeal was inappropriate in nearly every respect, and we hereby sanction him in the amount of $10,000.

    When I became an attorney a good friend of mine expressed concern because his experiences with his attorney were less than positive.  From my friend’s perspective he paid a significant amount of money and the attorney merely used boilerplate forms and “plugged in the names.”  I cannot comment on that attorneys’ practices, but my friend’s perspective played a significant role in how I approach cases.

    Deciding how to proceed in a case begins with the initial meeting with the client.  I draw on my past experience and knowledge to educate my clients regarding different approaches and likely outcomes.  I then work with my client to execute a plan of action intended to meet my client’s goals.  While I certainly use past experience and work product to further my client’s interests, it is not enough to simply change the names and submit a document to the courts without ensuring the documents are accurate, appropriate to the situation and drafted to meet the intended outcome.  Unfortunately not all lawyers are alike.

    I heard a joke recently that 99% percent of the attorneys out there ruin the public image of the remaining 1% of us hard-working folk.  I’ve been lucky enough to surround myself with colleagues and co-workers that I respect and who consistently hold themselves to a higher standard.  I never want to have an opinion written about my work product that even implies I gave less than 100% of my attention.  Taking the time to do things correctly may not be the cheapest way to approach a situation, but it’s the only way I feel comfortable doing 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.