COVID-19 Alert   We have changed our procedures for COVID-19.   Learn More
What to consider when laying off employees due to COVID-19. Learn More

  • 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.

  • Recent Article Reveals Long Delays at State Labor Commissioner’s Office

    A recent article from the Los Angeles Daily Journal (Vol. 125 No. 057, March 23, 2012) reports “Wage claims get uneven treatment, records show.”  According to the article, data obtained through a Public Records Act request and interviews with lawyers representing business and workers reveals significant delays.

    State law requires the Labor Commissioner to conduct its hearings within 120 days after filing.  The Daily Journal’s analysis shows that 11 of the 16 regional offices did not meet that obligation in 2011.  Different offices report different average waiting periods, with Oakland showing the worst results: over 400 days to get to a hearing.  Santa Rosa, on the other hand, gets its cases to hearing within 85 days.  San Francisco heard its cases within 301 days on average.  San Jose averaged approximately 275 days to get to a hearing.

    The study did not discuss how long it takes for a decision to get mailed after the hearing.  By law, the decision is supposed to be written within 15 days after the hearing.  In my experience, however, it often takes several months to receive the actual decision.  This sometimes means a case can take between one to two years to resolve if filed with the Labor Commissioner.  Cases take even longer if they are then appealed to superior court for a trial de novo.

    Budget cutbacks and state-mandated furloughs as well as an increase in claims filed are main causes of the long delays.  In some cases, the state assigns hearing officers from other jurisdictions to help carry some of the load, and I’ve seen an improvement in the speed with which cases proceed in the last few months, but there are still significant delays.  In many instances, a case can move more quickly through court than through the Labor Commissioner.

    The Daily Journal article also discusses perceived inconsistent rulings reported by several practitioners.

    When deciding whether to proceed with a Labor Commissioner claim, claimants should consider the length of time it will take to receive a decision.  Employers should realize that they may need to maintain records for a longer period than required by law so they can ensure they have appropriate evidence and witnesses by the time a hearing comes around.

    If you are contemplating filing a claim with the Labor Commissioner, or if you’ve recently been notified that a claim has been filed, I highly recommend speaking with competent counsel familiar with the Labor Commissioner and wage and hour issues.

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

  • Do you know whether you have to pay your employees overtime wages?

    Powerhouse auditing firm PricewaterhouseCoopers recently found out the hard way when the 9th Circuit held that unlicensed junior accountants —  the young accountants who perform the auditing work—may be classified as non-exempt employees. See Campbell v. PricewaterhouseCoopers, LLP, —F.3d—, 2011 WL 2342740 (9th Cir., June 15, 2011) [www.ca9.uscourts.gov/datastore/opinions/2011/06/15/09-16370.pdf].

    What does it mean to be exempt?

    Whether an employee is exempt or non-exempt affects the employer’s obligation to pay overtime. In California, if a non-exempt employee works over 8 hours per day, or over 40 hours in week, then the employer must usually pay time and a half—that is, 1.5x regular wage rate multiplied by the number of overtime hours. Depending on the employee’s hourly wage, frequency of overtime work, and the employer’s number of employees, overtime wages can add up to large amounts.

    But if an employee is correctly classified as exempt, then the employer does not have to pay overtime, no matter how many hours the employee works.

    Obviously, employers have an interest in classifying employees as exempt where possible. However, employers cannot willy-nilly declare all employees exempt, and misclassifying employees can lead to significant penalties for the employer.

    California law generally exempts employees who have executive functions (such as the CEO), administrative functions, and professional functions from overtime pay. The California Labor Commissioner has a list of exempt employees.

    What does this mean for you?

    PwC argued the junior accountants should be exempt from overtime pay under the administrative exemption or under the professional exemption. The 9th Circuit disagreed and held that the junior accountants are not “categorically ineligible” from being non-exempt. Slip op. at 1. That’s a lot of double negatives. Basically, the court reiterated that classifying an employee as exempt depended on the specific facts of the case and that it was possible for a court to find that junior accounts were non-exempt.

    For employers, Campbell raises the specter of the risk of misclassifying employees. If the district court finds that the junior accountants are non-exempt, then PwC may be liable to thousands of junior accountants for unpaid wages going back up to four years before the lawsuit was filed. That’s a lot of money at stake.

    So, bottom line, if you do not know whether your employees are exempt, check with an attorney to analyze the facts and make sure you’re not incurring possible liability.  If you think you are improperly classified, talk with an attorney familiar with California’s overtime laws.

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

    Original article by Kate Bowerman, Summer Intern at 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.

  • Leave Entitlements

    I was looking for some information regarding the various leave laws that employers must consider, and came across a guide from the Department of Fair Employment and Housing.  It is a fairly good summary of most of the various leave laws impacting companies doing business in California.  I noticed it does not discuss leaves of absence under USERRA and other available leaves under California’s Military and Veterans Code, but it is still a good summary.

    California employers and employees should ensure they are familiar with the various rights and obligations imposed by the leave laws impacting their work and should review their handbooks to ensure they are up to date.

    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.

  • More Overtime Pay and Breaks for Farmworkers

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

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

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

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

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

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

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

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

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

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

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

  • Makeup Time versus Comp Time

    One reader asked what the rules are regarding makeup time.

    It should first be noted that there are two different Labor Code provisions employers and employees need to know. Labor Code §204.3 regarding Comp time allows an employee to work more hours in one workweek and take the time off (at time and one-half) at a later date. This is different from the makeup time provisions of Labor Code §513, which allows an employee to work extra time in one day and make it up with time off (in an equal amount of time) during the same workweek.

    Comp Time
    Labor Code §204.3 allows an employee to compensating time off under certain circumstances in lieu of overtime compensation. First, the comp time must be at one and one-half times the employee’s regular rate. In other words, if the employee should be paid one hour of overtime, the employee must receive one and one-half hours of comp time.

    Second, there must be a written agreement between the employer and the employee, or in a collective bargaining agreement, allowing comp time before the employee accrues the comp time. The employee cannot accrue more than 240 hours of comp time.

    Finally, the employee must request the use of comp time in writing. Upon discharge from employment, any unused comp time shall be paid at the employee’s current rate of pay, or the average of the employee’s regular rate over the last three years, whichever is greater.

    Employees can require the employer pay the comp time in cash for any accrued comp time over the preceding two pay periods. Industries under IWC Orders Nos. 1, 3, 8, 10, 13, and 14 cannot use comp time (industries handling products after harvest or preparing agricultural products for market on the farm, industries in the canning, freezing, and preserving industries, industries affecting public housekeeping and amusement and recreation industries, and the manufacturing industry.)

    The Labor Commissioner has issued the following Caveat regarding comp time:

    The provisions of Section 204.3 are patterned on provisions found in 29 U.S.C. §207(o). It should be noted that these compensatory time provisions are only applicable under the federal law to state and local government employees; the compensating time provisions under federal law are not applicable to employees of private employers. Any employer utilizing the provisions of Section 204.3 should be advised of this caveat as use of the compensating time provisions of the state law may result in violation of the federal law.

    In other words, while a private employer can adopt a comp time plan under California law, if the employee works more than 40 hours in the workweek, the employer may owe the employee overtime pay under the Fair Labor Standards Act.

    Makeup Time
    Labor Code §513 states:

    If an employer approves a written request of an employee to make up work time that is or would be lost as a result of a personal obligation of the employee, the hours of that makeup work time, if performed in the same workweek in which the work time was lost, may not be counted towards computing the total number of hours worked in a day for purposes of the overtime requirements specified in Section 510 or 511, except for hours in excess of 11 hours of work in one day or 40 hours in one workweek. An employee shall provide a signed written request for each occasion that the employee makes a request to make up work time pursuant to this section. An employer is prohibited from encouraging or otherwise soliciting an employee to request the employer’s approval to take personal time off and make up the work hours within the same week pursuant to this section.

    This Labor Code section is incorporated into each of the IWC Orders except 14:

    If an employer approves a written request of an employee to make-up work time that is or would be lost as a result of a personal obligation of the employee, the hours of that make-up work time, if performed in the same workweek in which the work time was lost, may not be counted toward computing the total number of hours worked in a day for purposes of the overtime requirements, except for hours in excess of eleven (11) hours of work in one (1) day or forty (40) hours of work in one (1) workweek. If an employee knows in advance that he or she will be requesting make-up time for a personal obligation that will recur at a fixed time over a succession of weeks, the employee may request to make-up work time for up to four (4) weeks in advance; provided, however, that the make-up work must be performed in the same week that the work time was lost. An employee shall provide a signed written request for each occasion that the employee makes a request to make up a work time pursuant to this section. While an employer may inform an employee of this make-up time option, the employer is prohibited from encouraging or otherwise soliciting an employee to request the employer’s approval to take personal time off and make-up the work hours within the same workweek pursuant to this section.

    The Makeup Time exception requires:

    1. Written request by the employee to make up time which would be lost by the employee due to a personal obligation
    2. Makeup hours worked in one day may not exceed eleven (11) nor, of course, may the number of makeup hours worked in one workweek exceed forty (40).
    3. Request may be made for makeup time for a recurring personal obligation which is “fixed in time over a succession of weeks” provided a written request is made every four (4) weeks.
    4. Employers are prohibited from soliciting or encouraging employees to make a request for makeup hours, but informing employees of this right is permitted.
    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.