Department of Labor Policies on Same-Sex Spouses and the FMLA

May 5, 2015 by

same-sex spousesSanta Rosa labor and employment law attorney blog. Department of Labor policies on same-sex spouses and the FMLA. On February 25, 2015, the U.S. Department of Labor issued a final rule regarding the recognition of legally married same-sex couples under the Family Medical Leave Act (FMLA). It allows an eligible employee who has been legally married to a same-sex partner to use FMLA leave to care for their spouse – regardless of whether they live or work in a state that recognizes same-sex marriages. If you run a business that operates in any states that do not currently recognize same-sex marriages, it is important that you take note of this change in policy.

The final rule, which went into effect on March 27, 2015, is based on the Supreme Court’s decision in United States vs. Windsor. The Windsor ruling held that it was a violation of the Fifth Amendment to restrict the federal definition of marriage to include only heterosexual couples.

Prior to the Windsor ruling, employees who were covered by the FMLA were only able to take leave to care for their spouses if their marriage was recognized by the state in which they resided. As a result of the Final Rule, the current policy of the Department of Labor is based on the laws of the state in which the marriage was performed.

For example, let’s say a man was legally married to another man in California in 2014, and then he and his husband moved to Texas, where they both currently live and work. Under the old policy, if the man’s husband became ill, the man would be unable to take FMLA leave to care for him, because Texas does not currently recognize same-sex marriages. Under the new policy, the man would be eligible to take leave under the FMLA, because the laws of California (where same-sex marriages are currently recognized) would determine his eligibility, rather than the laws of Texas.

FMLA and the Rights of Same-Sex Spouses

The FMLA allows eligible employees to take 12 workweeks worth of leave during a 12-month period under the following circumstances:

  • The birth of a child, and caring for a child within one year of the child’s birth;
  • The placement of a child with the employee via adoption or foster care, and caring for a child within one year of the child’s placement;
  • Caring for a spouse, child, or parent with a serious health condition;
  • The employee having a serious health condition; or
  • Any qualifying exigency arising from an employee’s spouse, child or parent being a covered military member on active duty.

The FMLA also allows 26 workweeks worth of leave in a 12-month period if an employee’s spouse, parent or child is a servicemember with a serious injury or illness.

As a result of this final rule, eligible employees who are legally married to same-sex spouses will be allowed to take FMLA leave for any of the reasons above, regardless of which state they live in. These employees are also entitled to take FMLA leave to care for their spouses’ children.

Another result of the rule is that an employee will be able to take FMLA leave to care for a same-sex spouse of their parent.

Questions About Same-Sex Spouses and Employee Leave

If you have any questions about your company’s policies on same-sex spouses and family leave, you should seek the advice of an attorney. The Beck Law P.C. Santa Rosa labor and employment law attorneys can address your concerns. You can call or email us today.

Filed Under: Employee Rights, Employment Law Tagged With: , , ,

A Guide to Some of California’s Most Frustrating Employee Protection Laws

December 19, 2014 by

Frustrating Employee Protection LawsA guide to some of California’s most frustrating employee protection laws. While California is typically considered one of the most worker-friendly states in the U.S., the flip-side is that many employers operating within the state believe that California’s employee-protection laws are onerous and complicated to understand. In fact, employers who operate in California as well as other states have noted how the laws within this state are frustrating to comply with, especially when compared to more business-friendly jurisdictions. What employers have been confounded by is the administrative burdens, the lack of flexibility with regards to compliance and enforcement, and also the enhanced degree of litigation possibilities. The California Chamber of Commerce decision to enact 24 additional new state employment laws and amendments will go into effect starting in 2015, which will provide additional procedures and regulations that employers must adhere to. The following includes the four most difficult and frustrating employment laws that both California employers and employees should be aware of in order to avoid violations and to be fully informed about employee rights.

The Four Most Confusing California Employee Protection Laws

  • Overtime: While in many states overtime cannot be paid until after over 40 hours have been worked by the employee, in California employees are entitled to overtime pay when they work more than 8 hours in one single day. This law has confused many new employees and employers because its effects reach beyond just overtime pay. Under the law, employees are prevented from having the flexibility to work late or leave early and subsequently make up the hours later during that same workweek without their employer being required to pay overtime wages.
  • Employee Breaks: California has extremely strict requirements for employee breaks. In fact, employers are required to provide employees with both a 30-minute meal break per every five hours of work, plus a 10-minute rest break for every four hours of work. This law has resulted in a great deal of class actions against employers, especially the section about the 10-minute rest break, which is a requirement not provided by many other states. A 2012 decision clarified the 10-minute rest break requirement, holding that employers did not have to relieve their workers of all of the work duties during the break. However, this rule has been difficult for employees who would simply like the flexibility to skip their rest break in order to take a longer lunch. While employers would like to provide their employees with the flexibility to do so, fear of litigation prevents such employers from providing this leniency.
  • Layoffs: California state law requirements for layoff reporting are some of the most stringent in the country. While federal law requires 60-day notices before any layoffs for those employers with over 100 full-time workers, California law requires the same notice from employers that have 75 or more part-time and full-time employees.
  • Employment Contract Non-Compete Agreements: Non-compete agreements provide employers with protections and prohibit employees from soliciting their employer’s clients after the employment relationship is terminated, or taking other actions that place the employees in direct competition with the employer. While in many states non-compete agreements in employment contracts are enforceable, in California non-compete agreements are not valid.

The above is not a completely exhaustive lists of all of the California laws that are difficult to understand and comply with. However, understanding the basics of these laws will keep employers out of trouble and allow employees to understand their basic rights. When you need labor and employment law legal assistance, make sure to contact the labor and employment attorneys at Beck Law, P.C. in Santa Rosa, California.

Filed Under: Blog, California Employment Law, California Labor Law Tagged With: , , , ,

Landmark CA Temporary Worker Protection Law

October 31, 2014 by

Fruits warehouseLandmark California temporary worker protection law. This month, Governor Jerry Brown of California signed a new bill into law that will finally hold businesses responsible for situations when subcontracted temporary staffing agencies that a business utilizes underpay and/or endangers temporary workers. The law, previously known as Assembly Bill 1897, was created to address at least some of the accountability issues facing the temporary worker industry. In industries such as food processing and warehousing, outsourcing work to low-paying temporary staffing agencies has become extremely profitable practice for two reasons. First, the cost of using temporary workers is less than the costs associated with utilizing full-time employees. For example, under the Affordable Care Act, businesses are not required to provide health insurance policies for temporary workers, though they are required to cover the costs associated with providing health insurance to full-time employees. Second the use of temporary workers has allowed companies to skirt responsibilities regarding the adherence to workplace regulations and laws. Companies have been able to avoid responsibility for workplace regulation violations even if they are the one’s overseeing the work of temporary employees.

Temporary Worker Protection Law Aims to Curb Abuse of Temporary Worker Status

In the past decade, Southern California’s Inland Empire has become the home to a massive retail distribution industry that has been known to exploit low-wage temporary workers in order to produce a wide assortment of retail products at low costs. These temporary workers have spoken out about the unsafe working conditions and rampant wage theft that they have experienced. Worker advocates and labor unions have criticized the businesses who exploit the labor of California’s temporary workers, and the state has finally decided to take notice with the implementation of the new law specifically created to protect temporary workers.

AB 1897 requires “the client employer to share with a labor contractor all civil legal responsibility and civil liabilities when it comes to paying wages to temporary workers. AB 1897 also prohibits client employers who utilize temporary staffing agencies from shifting the legal duties and liabilities associated with workplace safety to the contracted agency. As a result of these regulations, the state of California now has the right to fine businesses when the temporary staffing agencies they have contracted with have violated federal and state workplace laws.

Though it may seem obvious to some that businesses employing temporary staff should be held accountable for violations and bad working conditions that are experienced by temporary workers, the new law has created some discord amongst the business community. In fact, the California Chamber of Commerce has spoken out against AB 1897, stating that the law would “discourage further growth in this state, and will certainly discourage out-of-state companies from [re]locating here.” However, regardless of this dissent, California remains committed to protecting the rights and safety of all California employees regardless of their status as a full-time or temporary employee. In fact, AB 1897 is one of the many labor-friendly laws that has been recently passed in California. Other relevant laws include raising California’s minimum wage to $10 per hour, as well as newly governor-approved bill that will require employers to provide employees with paid sick leave.

If your business needs legal representation in Sonoma County, Mendocino County, or Lake County California contact the attorneys at Beck Law, P.C. We are prepared to help you in any way that we can.

Filed Under: Blog, California Employment Law, California Labor Law Tagged With: , , , ,

Are Waistlines Rising Along With Increased Employee Payroll Taxes? Survey Says Yes!

October 19, 2013 by

Employee Payroll Tax PeanutsA survey by Harris Interactive for the American Institute of CPAs indicates that the 2013 increase in employee payroll taxes has created tremendous stress on employers and employees alike.  Of course it is obvious that paying more in payroll taxes means an employee takes less money home to their families; however, the stress of how to make ends meet is taking its toll in other ways as well:  particularly in employee health and relationships.

Many Americans are feeling tremendous financial stress in this economy and, accordingly, it is taking great toll on their waistlines, their sleep patterns and their friendships.  The Harris survey, conducted on behalf of the American Institute of CPAs asked “1,011 U.S. adults to name all the ways financial stress is affecting their lives. Of those who rated their financial stress as “very” or “somewhat high,” nearly half (47%) said they are sleeping less, while 43% said they have less patience with friends or are seeing them less often; and 31% are eating more junk food or gaining weight.”

The survey seems like it is confirming what most Americans are feeling, and comes as common sense.  Junk food is cheap.  Eating fresh fruits and vegetables is becoming more costly.  And, it appears there is less time to grow a garden, should one have a plot of ground in which to do so.  Americans are working harder and longer hours than ever before.  After a working mom picks up her kids from day care, at 6:00 at night, and it is near payday, she may have only $15 that has to stretch a few days – the solution she may choose – McDonalds, Taco Bell, or the like.  After doing homework and baths with the kids and getting them to sleep, does she have time to meet with friends? There would be no time for that. Finally, she could sleep a lot sounder if she had $200 to last until the next pay check, instead of $15.

AICPA National CPA Financial Literacy Commission chairman Ernie Almonte commented: “Mounting money pressures are making Americans cranky, tired and unhealthy. This can lead to a double whammy, with ensuing physical and emotional stress potentially leading to higher long-term costs. Americans must find ways to cope with money stress even when financial challenges seem daunting.”

Filed Under: Blog, California Labor Law Tagged With: , , ,

Current California Lunch Break and Rest Period Employee Labor Laws

October 25, 2012 by

The Santa Rosa Labor Law Attorneys at Beck Law P.C. work with both employees and employers in regard to all areas governing compliance with California Labor / Wage and Hour Laws.  So as not to violate current California lunch break and rest period employee labor laws, as of April 12, 2012 it is a California requirement that all non-exempt employees get uninterrupted meal breaks and rest periods according to a decision by the Supreme Court (Brinker vs. Superior Court) See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004.  The Petaluma Employment Law Lawyers at Beck Law P.C. suggest to employers that all Employee Handbooks and Policies are updated by an experienced labor attorney to ensure compliance with these new laws so that overtime violations will be avoided.  In turn, we encourage employees to contact an experienced labor and employment lawyer, such as Beck Law P.C., if they feel their legal rights are being violated.

GENERAL GUIDELINES FOR EMPLOYERS AND EMPLOYEES

The employer must relieve the employee of all duty:  The Wage and Hour Labor Law Attorneys Beck Law P.C. interpret this to mean that literally ALL NON-EXEMPT EMPLOYEE DUTY must be relieved. We encourage employers to have built in contingencies to their policies to ensure that non-exempt employees do not eat at their desks or take any phone calls or instructions while they are “clocked out”.

The employer must relinquish control over all activities of the employee:  The Ukiah Labor Attorneys at Beck Law P.C. suggest all of our business clients provide a break area for employees and to encourage non-exempt employees to take a full break as well as leave the premises whenever necessary.

The employer must permit an uninterrupted 30-minute break:  The Lake County Labor and Employment Lawyers at Beck Law P.C. suggest our business clients provide a break schedule and appoint an Office Supervisor that monitors all non-exempt employees to make sure breaks are taken in a timely manner.  All non-exempt employees must “clock in” and “clock out” and are never permitted to work at home or “off clock.”

The employer must not impede or discourage the employee from taking their 30-minute meal break:  In order to demonstrate compliance with this law as well as avoid meal period violations, the attorneys at Beck Law P.C. suggests employers hire experienced employment law attorneys to prepare the appropriate legal language to be included in all Employer Handbooks and Policies that clearly outlines the break schedule stating that employees have a responsibility to take their breaks in a timely manner.  Additionally, we encourage fellow employees to never discuss work related matters with a non-exempt employee while they are taking a break.

All Non-Exempt Employee Lunch Breaks and Rest Periods Must be Provided and Taken in a Timely Manner:  Current California labor laws for rest breaks and meal periods require that the employer provide non-exempt employees with a 30 minute uninterrupted meal break after 5 hours of work (unless the employee’s workday is completed within 6 hours), and a 10 minute rest break time after each 3 ½ hours of work.

10 Minute Breaks Must Be Paid By Employer.  Not only must an employer require a non-exempt employee to take an un-interrupted lunch or Rest break, but the employer must pay for it, according to current labor laws.  rest break violations and meal break violations can occur if a non-exempt employee is interrupted during a break or meal period and said employee is entitled to additional compensation for working through a meal break.  In addition to the one hour of pay, the extra compensation can increase the amount of overtime that you are due.

Employers May Not Pressure or Coerce the Non-Exempt Employee to Forgo a Lunch or Rest Break:  Only if ALL of the above are met will an employee be deemed to have taken a break. In particular, the California Supreme Court noted that the “wage order and the governing statute do not countenance an employer’s exerting coercion against the taking of, creating incentives to forego, or otherwise encouraging the skipping of legally protected breaks.”

What this means, in simple terms is:  A written company policy stating that you permit meal breaks and rest periods will not be legal if you do not enforce your employees to take timely breaks, that are monitored with accurate time keeping records that demonstrate that non-exempt employees “clocked in” and “clocked out” on time, every work day.  Even on extremely busy days, managers must not pressure non-exempt employees to work through breaks and must ensure rest and meal breaks are taken on time and un-interrupted, or compensate the employee in the amount of one hour’s wage for each interruption or violation.

Missed Meal Breaks and Rest Periods are considered a Wage and Not a Penalty:  In Murphy v. Kenneth Cole Productions, Inc. the courts decided that missed meal breaks are considered a wage and not a penalty. What this means is under California labor law code meal break rule violations can be collected by employees for 3 years and sometimes 4 years under the California unfair competition statute, whereas a penalty is only collectable for 1 year.

What are the Timing Requirements that Comply with First or Second Meal Periods during the Workday?

Train your management to keep in mind the 5-hour mark.  When an employee works more than five hours, a meal period must be provided no later than the end of the employee’s fifth hour of work (simply stated:  no later than the start of the employee’s sixth hour of work).  When an employee works of a period of more than 10 hours, a second meal period must be provided no later than the end of the employee’s tenth hours of work (no later than the start of the employee’s eleventh hour of work).

Filed Under: Blog, California Employment Law, California Labor Law, Employment Law, Labor Law, Meal Break Violations, News, Overtime Violations, Rest Break Violations, Wage and Hour Law Tagged With: , , , , , , , , , , ,

Santa Rosa Employer Employee Data Privacy Protection

October 19, 2012 by

internet securityNew Nightmare for Santa Rosa Employer Employee Data Privacy Protection & Employer Responsibilities

Scenario:  A key employee resigns and you find that they have shared private and personal information about your customers on Facebook.

Nowadays, employers collect a great deal of personal information about their employees, customers, patients, clients, and others along the course of the work day. Companies use employees’ personal information for many reasons such as administration of payroll, employee benefit plans, and evaluation of employment applications, the handling of independent contractors, terminated employees, retired employees and so forth.  In this computer dependent age, personal data is being shared and transferred between organizations online; and thus, maintaining compliance with applicable data privacy laws is an ever increasing responsibility of employers.

Companies need to be aware of their obligations under the profusion of data protection laws and regulations that govern the collection, use and transfer of personal information. Additionally, data privacy laws include not only active employee information, but extend to any non-employee groups whose personal data they may acquire.

Minimizing Employer Risk

The Petaluma employment law attorneys at Beck Law P.C. suggest the following to attempt to minimize employer risk.

Companies should seek counsel annually with an experienced employment law attorney, to acquire the appropriate legal interpretive guidance on compliance matters so as to avoid legal violations and security breaches involving employee personal data.

Policies should include legal language specifically directed to employee procedures in regard to data privacy to ensure the best practices that aim to limit the amount of personal data they collect, process, transfer and store.

Companies should limit access to personal data and provide training to staff that handles personal data.

Companies should include legal language in their policies stating that business computers will be monitored and reviewed periodically to ensure employees are applying appropriate security measures regarding personal data.

Even Still:   All the precautionary measures in the world will not stop a dishonest employee from selling your business’s personal information, such as your customer social security numbers online and you, as the business owner will be held accountable for their actions.

There is absolutely nothing an employer can to do to prevent an employee from texting information from their personal phone or simpler still, writing down the information and throwing it in their purse or pocket before walking out the door.

Therefore, the labor and employment attorneys at Beck Law P.C. offer these further tips:

Perform all due diligence during the interview process when hiring a new employee.  Take your time, and have multiple interviews so that you begin to trust the person you are about to hire, before you hire them.  Call all references and carefully listen to not only what they say, but more importantly, what they don’t say.  Ask lots of questions to cull out information that may give you more clues to this person’s integrity.  Use your intuition, and perform all interviews with other trusted staff members to get their feedback,  and if any one of you feel something is not quite right with this person’s integrity, move on until you feel very comfortable with who you are going to hire.

For current employees:  Know your employees, be attentive and listen to them, use good communication and eye contact.  Always honor and praise good work.  Be on the look- out for suspicious behavior such as when an employee uses negative body language or challenges you in ways that you find inappropriate to the situation, as this may an indication of guilt that they may be doing something behind your back.  Listen to other employees who report that they do not feel comfortable about another employee’s actions.  If you feel a negative feeling about an employee, trust your feeling, as you are most likely correct.  If you suspect and employee of dishonesty, begin your due diligence research and contact an experienced employment attorney, such as Beck Law P.C. to handle the appropriate legal remedy and counseling process to remove said employee from your work place.

Filed Under: Blog, Employee Data Privacy, Employer Data Privacy, Employment Law Tagged With: , , , , , , , , , , ,
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