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

  • 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.

  • What’s the Deal with Alternative Workweeks?

    Some employees want to work longer hours each day in exchange for working fewer days per week.  These “alternative workweeks” are permissible, provided the employer follows prescribed methods of adopting and implementing the policies.  The most common alternative workweek situation allows employees to work four ten-hour days without receiving overtime.  Without the alternative workweek policy, the employee would be entitled to two hours of overtime every day. With a proper alternative workweek agreement, the employee can work the schedule without the employer incurring overtime pay.

    Many alternative workweek agreements are invalid because employers fail to follow the appropriate procedures for adopting the policy or they fail to notify the Labor Commissioner about the policy.  To be enforceable, an alternative workweek agreement must comply with the following:

    (1)           The employer must present a written schedule available for the employees (this can be one option or several options from which the employees can choose).

    (2)           Employees can submit alternatives to the employers options with the employer’s approval;

    (3)           The written schedule must specify the number of days and amount of hours offered (the actual days do not have to be specified);

    (4)           There must be at least two (2) consecutive days off during the week;

    (5)           If the employees elect an alternative workweek, they can switch between the various alternative workweeks offered by the employer;

    (6)           Each workday must consist of at least four (4) hours but not more than ten (10) hours;

    (7)           The employer must inform the employees what effect the alternative schedules will have on wages and benefits;

    (8)           If more than 5% of the workforce does not speak English, the notice of available schedules must also be in the language of that portion of the workforce;

    (9)           The employees must meet at least 14 days before they vote on the alternative workweek and the employees must be given advance written notice of the meeting;

    (10)        If all employees cannot attend a single meeting, the employer must hold multiple meetings;

    (11)        The employer must mail a copy of the disclosure to any employees who could not attend the meeting;

    (12)        The ballot must be all affected employees;

    (13)        The “affected employees” can be limited by division, department, job classification, shift, separate location or recognized subdivision of a work unit;

    (14)        The vote must carry by a 2/3 approval;

    (15)        The ballots must be confidential (i.e., no names or employee ID)

    (16)        The election must occur during work hours at the worksite;

    (17)        The vote cannot be used to retroactively allow an alternative workweek;

    (18)        The results of the election must be filed with the Labor Commissioner within 30 days of the election (do not send the ballots).  The results can be mailed to:

    Division of Labor Statistics & Research,

    Attn: Alternative Workweek Election Results

    P.O. Box 420603

    San Francisco, CA 94142

    (19)        The Labor Commissioner must receive the following:

    • Company name, phone, address and contact person;
    • Date of the election
    • Election results summary
    • Description of alternative workweeks from the election
    • Statement that the election was by secret ballot, written, and passed by a 2/3 vote

    (20)        The employer cannot require employees to work the new work hours for at least 30 days after the announcement of the final election results – The regulations do not appear to prohibit allowing an employee to work the alternative workweek if they voluntarily choose to do so.

    When deciding whether to adopt or offer an alternative workweek, the employer should consider:

    • What schedule(s) did you have in mind for the alternative workweek?  (i.e., hours, days, etc.)
    • Do you want to offer more than one option?  (i.e., four 9-hour days and one 4-hour day, plus four 10-hour days)
    • Will employees be able to choose not to work an alternative workweek?
    • Do you want to allow employees to submit alternatives to your options?
    • Will each employee get at least 2 days off?
    • What effect will the alternative workweek have on wages & benefits? (consider how vacation accrues, eligibility for health benefits)
    • What percentage of your workforce does not speak English? (if more than 5%, Notice of available schedules must be provided in their language)
    • Will all employees be able to attend a single meeting to discuss the proposed schedule? If not, how can all employees have a chance to meet?
    • Which employees will be “affected”?
    • How are you going to ensure the ballots are confidential? (use drop box and form)

    If an employer adopts an alternative workweek wherein the employee is scheduled to work ten hours per day and the employee actually works more than ten hours, the employer must pay one and one-half times the employee’s regular rate of pay for all hours in excess of the alternative workweek schedule.  Additionally, if an employee works more days than scheduled under the alternative workweek agreement, the employer must compensate the employee at the overtime rate even if the employee works less than forty hours during the week. Employees are still entitled to double time for hours in excess of twelve hours per day.

    You can search the Labor Commissioner’s database for employer names to find out if the employer has registered a valid alternative workweek election.

    Phillip J. Griego & Associates
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
    East Bay 925-364-4655

    Original article by Robert E. Nuddleman, a former associate of Phillip J. Griego & Associates

    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 Phillip J. Griego & Associates. 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 Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

    The attorneys of Phillip J. Griego & Associates represent 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 Trust and Estate Attorneys Need to Know About Employment Laws in the Elder and Home Care Industries

    Robert Nuddleman will be speaking at the Silicon Valley Bar Association’s luncheon seminar on October 23, 2013.  We will be discussing recent legislative and regulatory changes that will impact people working in the elder and home care industries.

    Recent legislative changes and court decisions are changing the landscape for home care workers, companions, personal attendants and the people that employ them. New state and federal regulations will increase the cost of caring for elderly clients and family members in their own homes. Conservators, trustees, and family members are potential targets for unpaid wage claims under recently expanded definition of the term “employer.” In this brown bag, we will discuss the new expansive definition of “employer” and how it impacts trust and estate attorneys. We will discuss how proposed and newly enacted legislation will impact your clients’ bottom line, and what you and your clients can do to limit exposure to potentially costly employment law claims.

    The event will be held at the Hilton Santa Clara Hotel (4949 Great America Parkway, Santa Clara, California) from noon to 1:00.  Advanced registration is preferred, but you can also pay at the door.

    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.

  • Robert Nuddleman Discusses California’s Administrative Exemption

    I am excited to be sharing the stage today with Richard Schramm of Employment Rights Attorneys and Ray Hixson of Hixson Nagatani, LLP as we discuss the administrative exemption under California’s overtime laws.  This is the first in a serious of discussions regarding wage and hour laws in California for the Santa Clara County Bar Association’s Labor & Employment Law Section.

    The purpose of the Wage & Hour Roundtable is to have an open discussion with practitioners to help each other understand complex wage and hour issues.  In this Roundtable, we will discuss California’s administrative exemption.  Attendees will receive practical information from experienced wage and hour attorneys and tools to help attorneys understand the administrative exemption.

    The administrative exemption under California wage and hour law is one of the most frequently misunderstood and misapplied exemptions.  Which duties are exempt?  To what extent can employers rely on federal regulations?  What if an employee is performing exempt duties at the same time they are performing non-exempt duties?  What role does the employer’s job description play in the analysis? Of special importance in Silicon Valley, when may an employer rely upon the administrative exemption in lieu of the software professional exemption (with its higher salary requirement) for software-related jobs? Recent court decisions try to clarify the issues, but oftentimes create confusing and sometimes conflicting results.

    The Roundtable is FREE!  Bring your lunch, your questions and your experiences as we delve into this oft misunderstood issue.

    You can register for the event at the SCCBA’s website.

    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.

    n Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Do I Have to Pay Employees When They are Sleeping?

    UPDATE:

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

    To some, this question may seem simple, but the answer may surprise you.  Generally speaking, an employer must compensate an employee for all “hours worked.”  In California, most wage orders define “hours worked” as, “the time during which an employee is subject to the control of an employer, and includes all the time that the employee is suffered or permitted to work, whether or not required to do so.”  This means that if I require my employee to be at the work site, the employee is under my control and therefore I am likely required to pay the employee.  Even if she is sleeping on the job.

    How does this general rule play out in jobs where an employee is required to be at the work site 24 hours a day?  There are a host of occupations that require a presence 24-hours a day, even if the employee is not actually performing work the whole time.  Caregivers (e.g., personal attendants), ambulance drivers, guards, and ship workers are just a few examples.  One option would be to split the 24-hour shift among several workers, and pay all workers for all hours they are required to remain on the premises.  At minimum wage ($8.00 per hour in California), this means an employer will have to pay at least $192.00 per day, and usually employ three different employees each day, just to meet the minimum wage requirements.

    Some employers choose to deduct 8 hours from the employee’s working hours as “sleep time” or as “on-call” time.  Federal regulations clearly allow an employer to deduct 8 hours from the employee’s hours worked in certain situations.  But California oftentimes does not follow the federal regulations.  A recent case, Mendiola v. CPS Security Solutions, Inc., may provide some guidance.

    CPS provides on-site security guards at construction sites.  The company provides a trailer with full amenities (e.g., bed, bathroom, kitchen, internet, tv, etc.) and the guard is required to live on the premises.  Monday through Friday, the guards are on active patrol 8 hours during the day (5:00 a.m. to 7:00 a.m. and 3:00 p.m. to 9:00 p.m.), and must remain on the premises at night.  On the weekends, the guards are on active patrol 16 hours during the day (5:00 a.m. to 9:00 p.m.), and must remain on the premises at night.  The guards can technically leave the premises at night, but they have to notify the employer ahead of time so the employer can schedule a relief guard, and the guard has to carry a pager and be able to report back to the site within 30 minutes.

    The employer and employees had written “On-Call Agreements,” specifying that the guards were free to engage in their own personal pursuits during the evening, so long as they remained on the premises.  If the guard responded to an incident during the night, the guard would be paid for the time spent responding to the incident. Otherwise, so long as the guard received at least 5 hours of uninterrupted “sleep time,” the guard would not be paid for the on-call period.  Mendiola sued CPS on behalf of himself and other similarly situated guards, alleging the guards should have been paid for all hours spent at the work site because they were subject to the employer’s control.

    Unsurprisingly given past court decisions, the court determined that the time spent on site was compensable “on-call” time.  The significant restrictions placed upon the employee combined with the fact that the employee’s presence on site was primarily for the benefit of the employer meant the employer was required to pay the employee for all hours spent at the site.

    The court went on to say that when the employees worked a 24-hour shift (e.g., weekend shift), the employer could deduct 8 hours for the time the employee spent sleeping.  This is surprising because, with the exception of wage order 5 (which has a different definition of “hours worked” for employees that are required to reside on the premises, and for certain other exceptions such as ambulance drivers and attendants), there is no applicable statutory or regulatory exception for sleep time.  After concluding that the federal regulations were not appropriate authority upon which to analyze the “on-call” time, the court concluded it could follow federal regulations with regard to “sleep time.”  The court relied Monzon v. Schaefer Ambulance Service, Inc. (1990) 224 Cal.App.3d 16 and Seymore v. Metson Marine, Inc. (2011) 194 Cal.App.4th 361.  Although those cases revolved around different wage orders, both cases concluded that an employer could deduct for sleep time when an employee worked a 24-hour shift, provided the employee actually received the sleep time and the employer and employee agreed that the employee would not be paid for the time spent sleeping.  The Mendiolacourt went even further and concluded that the “sleep time” rule is applicable to all wage orders that have similar definitions of “hours worked.”

    We agree with the courts in Seymore and Monzon that because the state and federal definitions of hours worked are comparable and have a similar purpose, federal regulations and authorities may properly be consulted to determine whether sleep time may be excluded from 24-hour shifts. Further, we find this determination to be applicable to all wage orders that include essentially the same definition of “hours worked” found in Wage Order No. 9, including Wage Order No. 4.

    The court’s decision indicates an employer does not have to pay employees when they are sleeping if:

    1. The employee is working a 24-hour shift,
    2. The employee receives at least 5 hours of uninterrupted sleep time,
    3. The employee is provided a comfortable place to sleep, and
    4. The employer and employee enter into an agreement covering the sleep time.

    Based on the court’s decision, I have a few recommendations.  Do not assume that just because an employee has nothing to do means you don’t have to pay the employee.  You must pay employees for all hours worked.  If you have an employee working a 24-hour shift, you may be able to deduct up to 8 hours for sleep time, but you must have an agreement in place before the employee performs the work.  The agreement should be in writing, and preferably reviewed by an attorney familiar with wage and hour laws.

    I highly recommend speaking with an attorney to see whether your payroll practices 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.

  • Are You Ready for the San Jose Minimum Wage Ordinance?

    The San Jose Minimum Wage Ordinance goes into effect on March 11, 2013.  Passed by voters during the last election, the new ordinance requires employers doing business in San Jose to pay a minimum of $10.00 per hour for any employee that works at 2 hours per week in San Jose.

    At first glance it might seem that the law only applies to businesses physically located in San Jose, but that is not accurate.  The ordinance defines an employer as:

    any person, including corporate officers or executives, as defined by Section 19 of the California Labor Code, who directly or indirectly through any other person, including through the services of a temporary employment agency, staffing agency or similar entity, employes or exercises control over the wages, hours or working conditions of any Employee and who is either subject to the Business License Tax Chapter 4.76 of the Municipal Code or maintains a facility in the City.”

    The City’s perspective is that anyone carrying on or conducting business in San Jose is subject to the Business License Tax.  Even if your business is located outside of San Jose if you provide goods or services in San Jose you are an “employer” under the SJMWO.

    Not all employees working in San Jose are covered by the SJMWO.  Employees who are not otherwise entitled to payment of minimum wage under California minimum wage laws (e.g., outside salespersons, certain family members of the employer, etc.) are not “employees” under the SJMWO.  Additionally, the employee must work in San Jose at least 2 hours per week.

    In addition to paying the increased minimum wage, employers subject to the SJMWO must post the SJMWO poster in a conspicuous place.  You can download copies of the SJMWO poster here.

    The City has developed a list of FAQ’s that they hope to post on their website soon.  Unfortunately, there were a few errors in the FAQ’s that require revision, so we don’t know when the FAQ’s will be posted.

    The City has, or soon will, set up an enforcement mechanism for complaints regarding violations.  One of the benefits of the enforcement/complaint process is the ability to resolve the matter through early mediation or conciliation.  One of the drawbacks is that complaints do not need to be filed with the City agency and nothing prohibits an employee from pursuing a claim with the City and in court.

    As with many wage and hour statutes and regulations, an employee suing an employer for a violation of the SJMWO is entitled to recover his/her attorneys’ fees, but a successful employer is not able to recoup its attorneys’ fees even if the employer proves there was no violation.  The City hopes that its administrative process will allow the parties to resolve cases early without extensive litigation and that the attorneys’ fees, therefore, will not be a significant issue in resolving a case.  I’ll hold my opinion until I see the results.

    One of the concerns is that an employer who has a posting violation, for example, may be subject to a $50.00 per day per employee penalty (plus attorneys’ fees), if the employer fails to have the required posting in a conspicuous place.  The penalty begins from the date of the violation and continues until the violation ceases.  For example, if you have 5 employees that each travel to San Jose at least 2 hours per week and you fail to have the correct poster, you could face over $90,000.00 in penalties.

    Employers are also required to maintain payroll records, and to allow the City access to such records, for 4 years.

    Of course, employers may not discriminate in any manner or take adverse action against any person in retaliation for exercising any of the rights under the SJMWO.

    Failing to understand and comply with the SJMWO may have devastating effects on your business.  Every employer and every employee should become familiar with the SJMWO so they can understand their rights, remedies, and responsibilities.

    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, a 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.

  • Domestic Workers Rights Bill (AB 889) Sitting on Governor’s Desk

    Those of you who follow my blog know that I’ve written about the domestic workers rights bill on previous occasions.  An amended version of the bill has passed the senate and the assembly and is sitting on Governor Brown’s desk.  I urge you to contact Governor Brown and tell him whether you support the bill or not.  I, for one, do not support the bill as written and I think it can have some dire consequences if put into law.

    First, I want to clarify a few points.  Proponents of the bill, as well as the legislative declaration justifying the bill, incorrectly state that domestic workers are denied rights that are afforded to other workers.  This is simply not true. Domestic workers, like most other workers, are entitled to minimum wage, overtime premiums, a safe and healthful work environment, a work environment free of unlawful harassment, and a myriad of statutorily granted rights.  Look at Wage Order 15.  Read the Fair Employment and Housing Act.  Look at the OSHA statutes. All apply to domestic workers.

    I also encourage you to read AB 889.  The proponents and the legislative declaration make some very broad statements regarding the horrors that domestic workers endure, including verbal and sexual abuse, sexual assaults, termination without notice or severance pay, and the ability to advocate collectively for better working conditions.  The legislative declaration also expresses concern over the fact that domestic workers usually work alone, behind closed doors and out of the public eye, leaving them isolated, vulnerable to abuse and exploitation.  What the AB 889 proponents won’t tell you is that AB 889 does nothing about any of those issues.  More importantly, it implies that other employees are entitled to notice prior to termination or severance pay.  “At-will” employment has been the statutory standard in California since 1937, and hardly anyone is entitled to severance pay.  I don’t like proponents or our legislature using red herrings to avoid the actual issues.  It is particularly upsetting when the proposed bill doesn’t even address the evils that being used to justify the new legislation.

    There is a grain of truth to the argument that some domestic workers do not get overtime. “Personal attendants” under Wage Order 15 are not entitled to overtime premiums, but they are entitled to minimum wage.  If the proponents of AB 889 want personal attendants to receive overtime premiums then pass a bill that says, “Personal attendants under Wage Order 15 are not exempt from the overtime requirements of California law.”  With that simple change, personal attendants would enjoy the same rights to overtime that every other domestic employee already has.

    The personal attendant exemption only applies to people that spend their time dressing, feeding and supervising an elderly or disabled person.  If the worker spends more than 20% of his or her time performing duties other than dressing, feeding or supervising the person, then the worker does not qualify for the exemption and is entitled to overtime.

    I don’t dispute that personal attendants perform vital services and deserve a fair wage, but  I question whether requiring overtime premiums for personal attendants makes the most sense.  What many proponents fail to mention is the fact that personal attendants are entitled to minimum wage for all hours worked, which includes any hours that they are under the employer’s control including hours spent sleeping.  So, if I work as a personal attendant 24 hours a day, regardless of how I spend those hours (e.g., sleeping, reading, talking on the phone, etc.), my employer must pay me $192.00 per day.  Over the course of a year that’s over $70,000.00.  Add in the fact that I get free room and board and the pay doesn’t look that bad.  In fact, it is significantly above the poverty level despite what AB 889 proponents tell you.

    Of course, no one should be required to work endless days without a break.  But this proposed law doesn’t do anything to prevent an employer from asking an employee to work 24 hours a day, 7 days a week.  In California, there are no laws that prevent my employer or any other employer from asking an employee to work 24 hours a day, 7 days a week.

    The difference, according to AB 889 proponents, is that personal attendants do not get overtime.  Neither do a host of other occupations. Sheep herders, camp counselors, irrigators, ski lift operators, and a host of other occupations are not entitled to overtime. In fact, the law allows you to pay a exempt manager about 1/2 what you would pay a personal attendant and never have to pay overtime premiums regardless of the number of hours you ask the employee to work.

    If employers are required to pay personal attendants overtime like other domestic workers, especially without any exception for time spent sleeping, the wages will almost double ($1,344.00 per week at minimum wage versus $2,208 per week if entitled to overtime).  That’s great, if the families can afford it.  Unfortunately no one has been able to show me any data that indicates an elderly person living on a fixed income can afford to pay someone $315.00 per day for 24 hour care.  Either a family member will need to take care of the elderly person or the elderly person will need to move into assisted living.

    There is another option.  The employer can start to employ 3 to 4 workers each work week and ensure no one works more than 8 hours in a day.  Unfortunately, now the worker who was earning $192.00 per day is only earning $64.00 per day and no longer has housing (you’d have to rotate who gets to sleep in the same room in order to avoid the 7th consecutive day overtime requirement).  If this legislation is intended to increase the wages for personal attendants, there is a significant chance that the change will have the opposite effect.  The good news is there will be more opportunities and job openings as employers scramble to fill the increased demand.

    My real problem with AB 889 is that the statute unnecessarily increases liability where it shouldn’t.  AB 889 defines a “domestic work employer” as “any person, including corporate officers or executives, who directly or indirectly, or through an agent or any other person, including through the services of a third-party employer, temporary service, or staffing agency or similar entity, employes or exercises control over the wages, hours, or working conditions of a domestic work employee.”

    The first thing you’ll note is that the statute eradicates the typical protections granted by forming a corporation without the mess of actually having to prove the corporation is a sham. I think that is a bad idea. You should also note that the employer includes anyone that “directly or indirectly” exercises control over the wages, hours or working conditions even if the domestic worker already has an employer.  Let me give you a real world example.

    Mom is getting on in years and needs help around the house.  She has a trust set up where the son is the trustee of the estate, and the courts have appointed a conservator of the person.  The trustee is responsible for ensuring the bills are paid and the conservator is responsible for making sure mom’s needs are being met.  The son/trustee knows he’s not qualified to find and supervise a companion, so he hires a reputable home care provider agency. The agency decides who to hire and what to pay the worker. The agency places a nice person in the home to live with mom and to make sure she doesn’t fall down the steps.  Three years later, mom passes away.  Two months later the son/trustee, the conservator, and the home care provider agency all get letters demanding $385,000.00 in unpaid overtime.  Who is the employer?

    Under AB 889, all three, and mom as well, are likely the employer.  The son/trustee indirectly exercised control over the wages.  The conservator directly or indirectly exercised control over the hours and working conditions.  The agency, the only entity that really should be responsible, is also obviously responsible.  If you hire a plumbing company to fix your plumbing, should you be responsible if the plumbing company fails to pay the actual plumber just because you told him when to show up?  How about the cable installer or any enumerable other people that could conceivably be considered your employees.  Under the proposed law, you would be considered the employer of anybody who comes into your home or onto your premises to perform work in or around the household.

    I suspect the legislature is trying to curtail the prevalent use of “independent contractors” in the home-care industry.  There are already laws in place that prohibit incorrectly classifying employees as independent contractors, many of which contain very steep penalties.  Enrolling a new law that says the same thing, but in an overly broad manner that will have undesired, and hopefully unintended, consequences is not a good idea in my book. If employers are not following the laws we currently have, what makes you think a broader law will encourage compliance?

    If you want personal attendants to receive overtime premiums then tell the legislature to fund the Industrial Welfare Commission so that the IWC can do its job of reviewing and revising the wage and hour laws to protect the health, safety and welfare of California’s employees.  Regardless of whether you think personal attendants should receive overtime premiums, I do not support this bill and I encourage you to contact Governor Brown today and let him know your thoughts.

    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.

    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.

  • Are the DOL Numbers Correct? Recent Study Questions Accuracy of Economic Impact on Home Care Industry

    A recent article written by Hoffman Miller Advertising on behalf of Private Care Association questions the validity of the economic impact analysis published by the Department of Labor regarding the proposed modification of FLSA regulations on the home care industry.  When the DOL initially proposed amending FLSA regulations eliminating the companion exemption for workers employed by third-party employers, the government produced an economic impact analysis indicating the revised regulations would have little effect.  I’m not an economist, but even I questioned the data and conclusions as contrary to common sense. Given the increased number of home care providers and the expected increased need for home care services, it is unlikely that requiring overtime premium for companions would have little impact.

    The home care industry including Private Care Associates “engaged a private Research Company, Navigant Economics, to conduct an independent study on the effects of these proposed changes.”  The report can be viewed at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2017109

    According to the research company, “the deadweight losses from the proposal would far exceed the PRIA’s estimate, and that the costs of the proposal would likely exceed the benefits.”

    The proposed repeal Companion Care Exemption and the Live-in Exemption to the FLSA would likely create substantial disruptions in the market for home health care, increasing the costs of companion care and reducing its availability. The Department of Labor’s PRIA understates the costs of the rule in important ways, including minimizing or ignoring a variety of compliance costs, underestimating the elasticity of demand for labor, and assuming incorrectly that demand for companion care is completely inelastic. As a result, its finding that the costs of the proposed rule would be de minimis is both unsupported and incorrect. We conclude that the costs of the rule would be substantial, including reduced availability of companion care services, lower quality of care, and increased fiscal pressure on both state governments and the Federal government, and that net costs would almost certainly exceed the net benefits.

    As mentioned by Hoffman Miller Advertising:

    While the comment period for the proposed rule already closed on March 21, the home care industry continues to encourage individuals to express their concerns to their elected representatives in Congress and to the DOL’s Secretary of Labor, Hilda Solis.

    U.S. Department of Labor

    200 Constitution Ave., NW

    Washington, DC 20210

    (202) 693-6000

    Email talktosolis@dol.gov

    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.