• Is Griping About Your Boss Protected Speech?

    The National Labor Relations Act of 1935 (NLRA) created the National Labor Relations Board (NLRB)  It gives employees the right to organize and bargain collectively with their employers.  This is called unionization.  It protects their activities, including speech, from any retaliation.  What first comes to mind are scenes from The Grapes of Wrath–huge corporations surrounded by picketers, signs, and angry mobs.

    Not so any more.  The NLRB has adopted a more aggressive enforcement policy with respect to small business, even non-profits.   In the modern age many forms of communication—tweets, emails, the spoken word, Facebook posts, websites—can be protectable speech even if the posts are injurious to the employers’ business.

    You Do Not Have To Be A Union Or Union Organizer To Be Protected. 

    Any employee who communicates with another employee for the purpose of forming a collective complaint to the employer is engaging in protected conduct.

    In a 2003 NLRB decision, the Board ruled that the employer violated the Act when it suspended an employee for (a) violating its rule prohibiting its employees from discussing salaries and wages with each other, (b) interrogating employees concerning their discussion of salaries and wages with each other, and (c) ultimately discharging the employee.

    The employee disclosed the salary of another employee without their permission arguably to fashion a protest against unfair wages.  The other employee’s right to privacy never entered into the analysis.  Incidentally, California Labor Code Section 232 prohibits any of the following: (a) Require, as a condition of employment, that an employee refrain from disclosing the amount of his or her wages, (b) Require an employee to sign a waiver or other document that purports to deny the employee the right to disclose the amount of his or her wages, (c) Discharge, formally discipline, or otherwise discriminate against an employee who discloses the amount of his or her wages.  The California code does not yet address the situation where an employee discloses the salary of another without their permission.  However, the Equal Pay Act that goes into effect on January 1, 2016, will include a provision stating that an employer shall not prohibit an employee from discussing the wages of others, inquiring about another employee’s wages, or aiding or encouraging any other employee to exercise his or her rights under this section. 

    In a 2014 case, the Board ruled that derogatory comments about the employer posted on the employee’s social media was protected speech under the Act.  Rumors, misrepresentations, gossip and the like are all protected unless the employer can demonstrate a real adverse impact, such as serious morale issues, on the ability of the employer to conduct business.

    As we move into the digital age the employment landscape becomes ever more complicated.  And there is no bright line on how to proceed.

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

  • Joint Employer Liability: The Case of Noe v Superior Court (Levy Premium Foodservice Limited)

    Anschutz Entertainment Group (AEG) contracted with Levy Premium Foods to manage the food and beverage services at several entertainment venues located in southern California. Levy, in turn, contracted with Canvas Corporation to provide 1099 contract laborers who sold food and beverages at AEG venues. Neither AEG nor Levy had any direct contract with the laborers. Nevertheless, in 2013, several laborers filed a wage and hour class action against AEG, Levy and Canvas for failure to pay minimum wage and willfully misclassifying them as independent contractors in violation of Labor Code section 226.8. They argued that because AEG and Levy exercised direct control over their work they were “joint employers” along with Canvas and also liable for wage and hour violations as well as civil penalties for up to $25,000 for each of the 4100 potential class members for misclassifying them as independent contractors.

    Labor Code Section 226.8, subdivision (a)(1) states: “(a) It is unlawful for any person or employer to engage in any of the following activities: [¶] (1) Willful misclassification of an individual as an independent contractor.” “Willful misclassification” means “avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.” (§ 226.8, subd. (i)(4).) It unlawful for an employer to “engage in” the act of “voluntarily and knowingly misclassifying [an] individual as an independent contractor.”

    The trial court found that the inclusion of the words “engage in” demonstrated a legislative intent to limit the statute to employers who made the actual decision to misclassify. In effect, the court equated the term “engage in” with the term “commit,” concluding that subdivision (a)(1) was limited to employers who commit the act of willful misclassification. The appellate court noted that the ordinary definitions of “commit” and “engage” are not equivalent. “Commit” is commonly defined to mean “to do, perform.” “Engage” has a broader meaning, commonly defined to mean to “involve oneself; to take part in” or “to participate.” Thus, an individual or entity can “engage” in an act without actually having “committed” that act.

    “We presume,” said the court, “the Legislature intended to penalize a broader class of employers that includes those who, through their acts or omissions, have knowingly participated or involved themselves in the willful misclassification decision. As applicable here, a joint employer who knowingly acquiesces in a co-joint employer’s decision to willfully misclassify their joint employees has necessarily “involved” itself in that misclassification decision.”

    So, what does this mean for joint employers in this situation? It means a joint employer may not be held liable under section 226.8 based solely on the acts or omissions of a co-employer. To obtain civil penalties under section 226.8 plaintiffs must demonstrate not only that AEG and Levy were joint employers, but also that they each engaged in the act of voluntarily and knowingly misclassifying the plaintiffs. The mere fact that Canvas engaged in such conduct is insufficient. Furthermore, individual employees do not have a private cause of action top collect these penalties other than by way of a Private Attorney General Action (PAGA) on behalf of California.

    What about the claims for unpaid wages and overtime? Each joint employer is liable to its employees for unpaid minimum wage and overtime compensation because Labor Code Section 1194 imposes a duty on every employer, whether singular or joint, to ensure its employees receive minimum wage and overtime compensation.

    So, once again, here is a lesson learned the hard way for these defendants. True independent contractors hired to perform duties incidental to the business of the employer is a rarity. Be informed.  Call a knowledgeable employment attorneybefore this issue becomes a problem.

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

  • On-Call Rest Break Claim Appeal Granted

    In January I posted an article about Augustus v. ABM Securities.  In that case, the appellate court held that employees were provided compliant rest breaks even though the employees were technically “on-call” and had to carry pagers and/or radios during their breaks.  Well, the California Supreme Court granted review in the case.  Therefore, employers are cautioned that relying on ABM Securities as binding authority may be risky until the Supreme Court decides the case.

    The Supreme Court’s decision will take several months at the least.  We’ll keep track of the case and post a new article once the Supreme Court issues its decision.  In the meantime, you should review your rest and meal break policies to ensure they comply 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.

  • San Francisco Minimum Wage Increases to $12.25 per hour on May 1, 2015

    Those of you working or doing business in San Francisco may see an increase in employee wages tomorrow.  Effective May 1, 2015, employees who work 2 or more hours per week in San Francisco are entitled to receive at least $12.25 per hour.

    Employers are also required to post the new San Francisco Minimum Wage Poster, which warns:

    Under the Ordinance, employees who assert their rights to receive the City’s minimum wage are protected from retaliation. Employees may file a civil lawsuit against their employers for any violation of the Ordinance. The City can investigate possible violations, shall have access to payroll records, and can enforce the minimum wage requirements by ordering reinstatement of employees, payment of back wages unlawfully withheld, and penalties

    San Francisco employers are also required to post:

    Other locales may have their own county- or city-specific posters, all of which are in addition to any state and/or federally mandated posters.

    You can download the posters individually, or contact an organization such as the California Chamber of Commerce to get all the posters from one place.

    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.

  • Some Good Tips for Maintaining a Positive Work Environment

    Like most people, I occasionally receive unwanted email solicitations from companies that want to sell me this or that.  Some of them slip through my spam-filter, but I’m able to recognize and delete them fairly quickly.  One solicitation aimed specifically for lawyers caught my eye.  The email was promoting an article on being “well-liked.”  With the abundance of lawyer jokes equating attorneys with lower-life forms, the email caught my eye.  In particular, the email pointed out that collaborating and being well-liked are two important factors in advancing one’s career.

    The email had the following advice:

    1) Do not get actively involved in cliques

    2) Never saying anything bad about any co-worker, no matter what

    3) Make your superiors feel important

    4) Listen, do not talk too much, and ask about others

    5) Participate in group solidarity activities

    6) Keep your head down and smile

    As I thought about the email, I saw that the suggestions were not just applicable to law offices.  They could apply regardless of the size of your company or the industry you work in.  Not all of the suggestions are necessarily going to work every time, and in some instances it could be counter-productive, but they are good principles to consider.

    Although the email piqued my interest, it wasn’t saved from my waste basket, but the concept is worth passing along.

    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.

  • What Is A Religion? Or “I know It When I See It.” By Phillip J. Griego

    One of the great things about the practice of law is that it is never dull or boring. A new unpublished case confirms this opinion. Plaintiff and appellant Marshel Copple filed a case under the California Fair Employment and Housing Act (FEHA) alleging religious discrimination and harassment, failure to accommodate religious practices, retaliation based on his religion, and constructive discharge for his religious practices. Copple asserted California Department of Corrections and Rehabilitation’s requirement that he work overtime violated a tenet of his religion that he sleep at least eight hours per day.   And what religion was that?—Sun Worshipping Atheism — a religion he created and of which he is the only member. The appellate court affirmed the trial court’s entry of summary judgment against Mr. Copple. The court’s reasoning is instructive.

    1. Sun Worshipping Atheism is Not a Religion as Defined Under FEHA.

    The court’s treatment of this issue reminds me of the obscenity case of Jacobellis v. Ohio (1964), wherein Justice Potter Stewart wrote in his short concurrence that “hard-core pornography” was hard to define, but that “I know it when I see it, and the motion picture involved in this case is not that.”[1]  Relying on earlier cases the court identified three “objective guidelines” to “make the sometimes subtle distinction between a religion and a secular belief system” for FEHA purposes.

    First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Well what could be more clear? Ask the court:

    Sun Worshipping Atheism does not “address fundamental and ultimate questions having to do with deep and imponderable matters.” Rather, it deals with living a healthy lifestyle. The sun is worshipped because there are health benefits that derive from it. Plaintiff fashioned Sun Worshipping Atheism after reviewing scientific data to determine healthy practices that have a positive effect on the mind, body, and soul, which he claims are all the same thing. Plaintiff’s statement that his beliefs address “[t]he nature of the universe, nature of human beings, what we need to do to be moral,” is a mere conclusion, insufficient to prove this element.

    Second, a religion is comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching.

    Sun Worshipping Atheism is not comprehensive and does not express a full set of beliefs. As discussed above, its list of practices reveal that it deals with living a healthy lifestyle, “mind-body wellbeing,” based on scientific facts synthesized by plaintiff. These include eating well, exercising, and getting enough sleep. This is to “get the most out of your human and social function as your [sic] conscious of it now.”

    Third, a religion can often be recognized by the presence of certain formal and external signs.

    Sun Worshipping Atheism lacks any outward signs. Although not conclusive, this is a strong indication the belief system is not a religious creed. There are no rituals, services, or religious holy days, nor is there any structure where its beliefs are observed. Moreover, there is no hierarchy or organization, not even an informal one. In fact, plaintiff is the only member.

    1. Because Sun Worshipping Atheism is Not a Protected Religion, None of Plaintiff’s Causes of Action survived.

    The court concluded that Sun Worshipping Atheism is a “personal philosophy . . . and a way of life” under FEHA’s definition. Purely moral or ethical beliefs that are held with the strength of religious convictions may not qualify for protection under the FEHA. Rather, the requires that the belief, observance, or practice occupy a place in the employee’s life of importance parallel to that of traditionally recognized religions—something more than a strongly held view of right and wrong.

    This case illustrates the “deep and imponderable” question of where to draw the line between freedom of expression and government regulation. It will continue to challenge our courts and legislature now and in the future.  Always check with counsel or other human resource consultants before making decisions.

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

    [1] Louis Malle’s The Lovers

  • How to Prove Discrimination When There is No Smoking Gun

    More often than not, employees do not have direct evidence of discrimination.  Occasionally an employer will say or write something that clearly indicates an unlawful motive, but in most cases the employee tries to prove the “discriminatory animus” through various other methods.  Oftentimes lawyers refer to this as indirect evidence or proving discrimination through pretext.  As one court put it, “Resort to pretextual explanation is, like flight from the scene of a crime, evidence indicating consciousness of guilt, which is, of course, evidence of illegal conduct.”  Binder v. Long Island Lighting Co. (2nd Cir. 1995) 57 F.3d 193. Proving pretext does not necessarily mean the jury must find the employer violated the law, but it is usually enough to get the matter to a jury, and then it is up to the jury to decide whether the employer violated the law.

    Hundreds (if not thousands) of cases throughout the nation discuss various methods for proving pretext.  Kent Spriggs, in his book Representing Plaintiffs in Title VII Actionsidentifies (with appropriate case citations) the following 22 ways to prove pretext:  

    1. Statistical proof that a pattern of discrimination existed
    2. Direct evidence of discrimination
    3. Articulated reason is not the true reason
    4. Nonplaintiff selectee is less qualified
    5. Articulated comparison is not actually made
    6. Falsity of articulation stemming from inadequate opportunity to observe
    7. Change of qualifications or rules midstream
    8. If the employer departs from rules of law or its own regular rules or processes
    9. Drastic decline in performance
    10. Unequal discipline
    11. Catch-22: the employer is responsible for creating the problem that is supposedly the basis of the employer’s disqualification of employee
    12. Changing the articulated reason during the litigation
    13. Contamination: Falsity of one articulated reason impeaches other articulated reasons
    14. Excessive subjectivity or lack of factual basis
    15. Secret paper trail
    16. Surveillance as suggestive of pretext
    17. Employer’s treatment of other members of the same group
    18. Reason not reflected in performance evaluations
    19. Hostility toward retention of counsel
    20. Lack of proportionality
    21. Intent inferred from strong views of nondecisionmakers
    22. Absence of evidence supporting reasons

    The second edition of Mr. Spriggs’ book came out in 1994, and Mr. Spriggs continued to update the book at least through 2004.  There is a book with the same name written by Robert E. McKnight Jr., which I believe is an updated version of the book, but I haven’t read it yet.

    Understanding how to prove discrimination and how to avoid conduct that will lead to a discrimination claim is important for anyone representing individuals or companies in employment law disputes.  Representing Plaintiffs in Title VII Actionsis a valuable resource for any employment attorney.

    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.

  • Paid Sick Leave for All California Employees Redux

    In an earlier article on New Laws for 2015 and on our website, Associate Robert Nuddleman, mentioned the Healthy Workplaces, Healthy Families Act of 2014.  Let’s take a closer look at that new law.

    On or after July 1, 2015, all employees (including part-time and temporary employees) earn paid time off for:

    1.  The Diagnosis, care, or treatment of an existing health condition of, or preventive care for an employee or an employee’s family member or
    2. Victims of domestic violence, sexual assault, or stalking to obtain restraining, to seek medical attention, to obtain services of a domestic violence shelter, program, or rape crisis center, to obtain psychological counseling, to participate in safety planning or to find temporary or permanent housing.

    “Family Member” includes:

    1. A biological child, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis regardless of age or dependency status.
    2. A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child.
    3. A spouse.
    4. A registered domestic partner.
    5. A grandparent.
    6. A grandchild.
    7. A sibling.

    Paid leave is earned according to the following terms and conditions:

    • The employee must work more than 30 days within a year of the commencement of employment or within a year of July 1, 2015, whichever is later.
    • The employee can earn up to 24 hours of paid sick leave in a calendar year.
    • The employee accrues paid sick days at the rate of one hour per every 30 hours worked. If the employee is an exempt employee, he or she accrues sick days based on the their normal weekly work schedule or 40 hours per week, whichever is less.
    • An employee can use accrued paid sick days after 90 days of employment.
    • An employer can limit the use of paid sick days to 24 hours or three days in each year of employment.
    • Accrued paid sick days carry over to the following year of employment. However, the employer can impose a maximum cap of 48 hours or 6 days until sick leave is used.
    • An employer is not required to pay an employee for accrued, unused paid sick days upon termination, resignation, retirement, or other separation from employment. However, if rehired within one year of the date of separation, the employer must reinstate previously accrued and unused paid sick days.
    • The employer can require the employee to use paid sick leave in minimum increments of no more than two hours.
    • The rate of pay is the employee’s hourly wage at the time of the leave. If in the 90 days before taking accrued paid sick leave the employee had different hourly pay rates, was paid by commission or piece rate, or was a nonexempt salaried employee, then the rate of pay will be calculated by dividing total wages, not including overtime premium pay, by the total hours worked in the full pay periods of the prior 90 days of employment.
    • The employee must provide reasonable advance notice if the need for paid sick leave is foreseeable. If the need for paid sick leave is unforeseeable, the employee must provide notice of the need for the leave as soon as practicable.
    • The employee must receive payment for sick leave no later than the payday for the next regular payroll period after the sick leave was taken.
    • An employer cannot require the employee to find a replacement to cover the days during which the employee uses paid sick days.
    • An employer need not provide paid sick leave if it has a PTO policy that meets the minimum conditions and grants the same leave for the same purposes as this paid sick leave law.
    • The employee must receive written notice of accrued paid sick leave (or PTO an employer provides in lieu of paid sick leave) on an itemized wage statement or in a separate written notice provided to the employee with his or her wage statement.
    • The state can sue an employer for violations of the new law, seeking reinstatement, back pay, costs, attorneys’ fees, and penalties of up to $4,000 per employee per day.  Aggrieved employees can also sue the employer under the statute and on behalf of other “aggrieved employees” pursuant to the Labor Code Private Attorney General Act (“PAGA”)
    • Penalties include:
      • (1) the dollar amount of paid sick days withheld multiplied by three, or two hundred fifty dollars ($250), whichever amount is greater, not to exceed four thousand dollars ($4,000 and
      • (2) fifty dollars ($50) for each day the violation occurred or continued, not to exceed thousand dollars ($4,000).
    • The Labor Commissioner may file of a civil action to enforce its order and the employer may be ordered to pay to the state fifty dollars ($50) for each day or portion of a day a violation occurs or continues for each aggrieved employee.
    • In an administrative or civil action brought under this article, the Labor Commissioner or court, as the case may be, will award interest on all amounts due and unpaid.

    Now is the time to prepare for this new law and to learn these new rights so that employees and employers alike will be informed come July 1st.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
    Original article by Phillip J. Griego 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 Supreme Court Refuses Sleep Time Exemption

    The California Supreme Court issued its decision in Mendiola v. CPS Security Solutions, where the court examined California’s sleep time rules for employees working 24-hour shifts.  I previously wrote about this case in 2013, and then updated the article when the Supreme Court granted review of the case.  I attended the oral arguments and I can’t say I am surprised by the court’s ruling. In essence, the court held that California does not allow an employer to deduct sleep time from the employee’s hours worked.

    The court did not overturn a previous case under wage order 9 dealing with ambulance drivers/attendants, but limited that case to the specific facts of that case.  The court did disapprove of another case that expanded the sleep time deduction to non-ambulance drivers/attendants.

    California requires employers to pay employees for all “hours worked.”  Most wage orders define hours worked as any time the employee is subject to the employers control, and includes any time the employee is suffered or permitted to work.  This means that if the employer requires the employee to be in a specific place, the employee is under the employee’s control and must be compensated for that time.  There are some exceptions, such as wage order 5 which has a special definition of “hours worked” for employees that are required to live on the premises.

    This case is going to have significant impact in the caregiver industry.  Even at minimum wage (currently $9.00 per hour in California), caregivers working 24-hour shifts will earn at least $283.50 per day–more if the employee does not qualify as a personal attendant under the Domestic Workers Bill of Rights.  With weekly overtime, if the employee works 7 days per week, the employer will have to pay no less than $2,088.00 per week.  That’s almost $109,000.00 per year for 24-hour live-in care.

    Most families will not be able to afford the cost of live-in care unless they employe 2 or 3 different caregivers each day.  This may be good news for residential care facilities and other homes for the aged, but it’s bad news for anyone who wants to spend their last years in the home.

    There may be other alternatives to 24-hour care that families and care agencies should explore, and some employees may still qualify under a different definition of “hours worked.”  For example, if the employer does not require the employee to remain on the premises, then the employee is not necessarily working just because the employee chooses to remain on the premises after his/her shift ends.

    If you work a 24-hour shift, or if you have employees working a 24-hour shift, you should consult with an attorney familiar with California’s wage and hour laws to make sure you are handling things correctly.

    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 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.