Independent Contractor Misclassification
A few days ago, Uber agreed to pay up to $100 million to settle class-action lawsuits in California and Massachusetts claiming that its drivers are employees not independent contractors. Paying out $100 million is by no means the end of this story. The settlement does not affect other drivers’ ability to sue on the same grounds nor does it preclude the Labor Commissioner from determining that individual drivers are in fact employees (which it has done in at least one case). The U.S. Department of Labor also recently issued a formal interpretation of the federal Fair Labor Standards Act as it pertains to the classification of independent contractors. This advisory opinion signaled the intention of federal regulators to scrutinize independent contractor classifications and treat most workers as employees. Most companies do not have enough independent contractors to be subject to class action lawsuits worth $100 million, but how will a $1 million lawsuit or even a $100,000 lawsuit affect your business? If your company uses independent contractors, here are some steps you could take to minimize your exposure: Closely examine … Continue reading
Victim of Domestic Violence Leave
Women make up just under half of the U.S. labor force (46.8% according to the U.S. Bureau of Labor Statistics). Thus, ensuring that women are safe, healthy, and productive is imperative to your business and the country’s economic growth. Yet, every 9 seconds, a women in the U.S. is beaten or assaulted. A greater proportion of women are victims of domestic violence but men suffer from domestic violence as well. In fact, in 1 year, more than 10 million women and men are physically abused by an intimate partner in the United States. (National Coalition Against Domestic Violence). In an effort to protect victims of domestic violence the California legislature have enacted laws to protect employees who are victims of domestic violence. Do You Know Your Legal Obligations to Your Employees? Non-discrimination: All employers are prohibited from discharging, discriminating, or retaliating against an employee: Who takes time off to appear in court pursuant to a subpoena or court order. (Lab. Code § 230) Because of the employee’s status as a victim of domestic violence, sexual assault, or stalking, if the … Continue reading
Tip Pooling Distribution Restrictions Upheld by Ninth Circuit
Tip pooling is a common practice in the restaurant industry but the legal back and forth of how much and to whom the pooled tips could be distributed has lead to much confusion within the food services industry. Restaurants May Not Require Wait Staff to Share Pooled Tips With Back of House Staff Last month, in the case of Oregon Restaurant and Lodging Association et al. v. Perez et al., the Ninth Circuit upheld the Department of Labor’s rule barring employers from collecting tips given to waiters or other service employees and distributing to back of house staff not in the chain of service (i.e. cooks and dishwashers). Since California is within the Ninth Circuit’s jurisdiction, the Court’s decision in this case will lead to increased litigation against restaurants for unpaid wages. Highly successful restaurants have closed their doors as a result of these wage and hour claims. PRACTICAL TIP: Enterprises with tip pooling practices should have a written tip pooling policy that specifically outlines how tips are pooled and shared. Such written policies should clearly state that pooled tips will not be … Continue reading
California Aggressively Fights Wage Theft
Senate Bill (S.B.) 588 that went into effect on January 1, 2016, seeks to ensure recovery of unpaid wages by victims of wage theft. What is Wage Theft? Wage theft is defined as failing to pay workers for all of their work, regardless of whether it is intentional or merely an honest mistake. This includes paying below minimum wage, failing to pay overtime, violating meal and rest break requirements, and failing to pay for off-the-clock work. New Penalties for Wage Theft If an employee brings a successful wage claim against your company, the Labor Commissioner can now place a lien on the company’s property or levy on the business’ bank accounts and/or accounts receivable, including a lien or levy to recover the employee’s attorneys’ fees. SB 588 prevents a company from closing down its business and re-opening under a new name in order to avoid their debts to workers. Owners and anyone else acting “on behalf of” the employer are now individually liable for wage and hour violations. This means that the Labor Commissioner can now seize the personal property and bank accounts … Continue reading
Computer Fraud Prevention: How to Protect Your Company’s Information
In today’s business environment, companies live and die by the information and data you possess. Your company’s confidential information is probably housed on a network that is accessible by some, or all, of your employees. Are you doing enough to protect your company’s data from computer fraud leaving with an employee and winding up with a competitor? The Computer Fraud and Abuse Act (CFAA) The CFAA is a federal law that makes it illegal to “intentionally access a computer without authorization or exceed[ing] authorized access, and thereby obtain[ing] . . . information from any protected computer.” 18 U.S.C. § 1030(a)(2). Although commonly used to prosecute criminal hackers, the CFA is valuable to employers for the following reasons: 1) the CFAA captures a broader range of conduct than does a traditional trade secrets claim (it doesn’t require a showing that the accessed information rises to the level of a trade secret); 2) the CFAA is one of the few independent causes of action an employer can use to pursue a federal cause of action relating to such theft; and 3) the CFAA … Continue reading
Year-End Bonus: What You Need to Know
It’s time for reviews, year-end bonus, and raise determinations. I thought this would be the perfect time to get a better understanding of bonuses. What is a Bonus? A bonus is something “extra” that an employer provides to employees without the obligation to do so. Nevertheless, they are considered wages and are governed by state and federal wage and hour laws. Why give Bonuses? As an employer, employee bonuses are a great idea if you could afford it. Although money is not the only motivator in employee performance, it is nevertheless an effective motivator. More importantly though, a bonus demonstrates your appreciation for your employees’ hard work and performance throughout the year. Different Types of Bonuses Bonuses may either be “earned” or “discretionary.” A business may have a compensation plan that incentivizes employees with a bonus of they hit a certain yearly sales goal, work a certain number of hours in a year, or based on the company’s profits for the year. When there is a criteria that an employee has to meet, then employees earns the bonus when they … Continue reading
What You Need To Know When Hiring a Domestic Worker – AB 241
In the past couple of weeks, I’ve had many conversations with members of the “sandwich generation” and baby boomers about the challenges they face as their parents age. The heartbreak of watching parents age and lose their independence coupled with raising their own children is stressful enough. Yet, many are now finding themselves as employers for the first time (or first time in a long time) and must navigate the complicated terrain of employment regulations. If you are personally hiring your first live-in caregiver, here are a few basics you should know. You must pay at least minimum wage As of January 1, 2016, the minimum wage in California is $10.00 per hour. Caveat: San Francisco’s minimum wage is currently $12.25 per hour and goes up to $13.00 per hour in July 1, 2016. Domestic Workers Entitled to Overtime Pay AB 241, also known as the Domestic Worker Bill of Rights defines a domestic worker as any person who provides services related toe the care of people in the home, or maintain private households or their premises. Domestic workers includes nannies, … Continue reading
Hiring an Employee – “Have You Ever Been Convicted?”
I received a lot of questions from employers who have read my post on job application questions related to arrests and criminal records. The main concerns that businesses have are related to managing risks in hiring an employee and the desire to ensure that they do not engage in negligent hiring. Most wanted to know whether they could ask about criminal convictions. The answer is yes, but . . . Inquiries into criminal convictions must: Come after you’ve determined that the applicant meets the qualifications for the job; Not be related to marijuana convictions two years or older; Be accompanied by a statement that a conviction will not automatically prohibit employment (unless it is for a position that where federal or state law prohibits one with a criminal conviction from holding); Be job related and consistent with business necessity. There are 3 factors to consider when making the determination: The nature and gravity of the offense or conduct Careful consideration of the nature and gravity of the offense or conduct is the first step in determining whether a specific crime may be relevant to concerns about risks … Continue reading
Job Application Questions – Arrest and Criminal Records
I’ve received a number of calls from colleagues who are California criminal defense attorneys whose clients have run into employment problems because of their criminal arrest records. As an employer do you know what job application questions you can and can’t ask when it comes to arrests and criminal records? California Labor Code section 432.7 makes it illegal for any employer to request job applications to disclose, or considering as a factor in determining any condition of employment, information concerning: An arrest or detention that did not result in a conviction; Referral to, or participation in, a pretrial or posttrial diversion program; Conviction that has been expunged, sealed or dismissed; Marijuana possession convictions two or more years old; or Misdemeanor convictions for which probation was completed or otherwise discharged and the case has been dismissed. Employers may ask an employee or applicant for information about arrests for which the employee or applicant is out on bail or on his own recognizance pending trial. There are additional exceptions for a health facility employer to ask applicants who will work with patients … Continue reading
Could UPS Have Saved $96,000 with a Well-Written Job Description? Maybe
The end of the year is fast approaching, which means that it is time for California employers to evaluate their policies and procedures to ensure compliance with new California laws that go into effect in January 2012. While you’re cleaning house, don’t forget to review each job description at your company. Here’s why. Last month, United Parcel Service (UPS) was ordered to pay more than $96,000 in damages after the company fired an employee because of her disability. The Fair Employment and Housing Commission (Commission) determined that UPS unlawfully terminated the employee who was able to perform the essential functions of her job. UPS hired the employee in question in 1997 primarily as an Operations Management Specialist. Her essential duties were to handle customer calls and complaints on shipments. Although she occasionally located packages in a warehouse, handling packages was not part of her job. In 2007, the employee had knee surgery and took a leave of absence to recover. She continued to carry out the essential customer service functions of her job. She had some restrictions, such as limited standing, … Continue reading