Jointly Employed? New NLRB Ruling Has Major Implications

September 9, 2016 by

Jointly EmployedDoes your business include employees who are jointly employed (meaning that they work for you and another employer), as well as employees who work only for you? If the answer is yes, a new ruling from the National Labor Relations Board (NLRB) may complicate how your company handles collective bargaining.

In the case of Miller & Anderson, Inc., the NLRB was faced with the issue of whether workers who are solely employed by one employer can collectively bargain alongside jointly employed workers without the permission of their employers. It does not mark the first time the NLRB has ruled on the jointly employed issue. In 2000, in the case of M.B. Sturgis, Inc., the NLRB ruled that employer consent was not necessary. In 2006, however, the NLRB took the opposite approach in Oakwood Care Center, 348 N.L.R.B. No. 37, and held that Sturgis was incorrect.

The ruling in Miller & Anderson is a return to the Sturgis standard. It holds that jointly employed workers in this situation can bargain collectively, regardless of whether their employers approve.

A Return to the Old Standard

This issue involves Section 9(b) of the National Labor Relations Act. Section 9(b) refers to different types of bargaining units, such as “employer units,” “craft units,” and “plant units.” The NLRB has long held that when employer units contain employees who work for multiple employers, these “multi-employer” units can only bargain collectively with the consent of all parties – meaning all of the employers involved have to give their permission.

But what happens when some of the employees are employed by a “supplier” employer (such as a temp agency) and perform work for a “user” employer? (The NLRB refers to these types of units as “Sturgis” units.) Does a Sturgis unit constitute a multi-employer unit?

In Oakwood, the NLRB ruled that Sturgis units are multi-employer units. However, Miller & Anderson reverses this holding. It states that multi-employer units are created “without regard for any preexisting community of interest among the employees of the various separate employers.” According to the ruling, a traditional multi-employer unit contains employees whose employers have nothing to do with one another, aside from being in the same industry.

A Sturgis unit, on the other hand, contains employees who are all employed by the same employer (even though some of the employees are joint employees, who also work for a different employer). The Miller & Anderson ruling states that because workers in Sturgis units share an employer, Sturgis units are not multi-employer units, and that they meet Section 9(b)’s definition of an employer unit – which does not require employer consent to bargain collectively. [Read more…]

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Am I An Independent Contractor Or Employee?

December 24, 2015 by

independent contractorA common complaint among workers in today’s economy is the eagerness of many employers to label them as an independent contractor. The Department of Labor has now issued a memorandum criticizing the overuse of the term “independent contractor” and clarifying what constitutes an employee under the Fair Labor Standards Act (FLSA).

Economic Realities of Independent Contractor vs. Employee

Courts apply an “economic realities” test to determine if a worker is an employee or an independent contractor. In most circumstances, the test asks the following questions:

  • To what extent is the worker’s output integral to the employer’s business?
  • Does the worker have an opportunity to make or lose money based on his or her managerial skill?
  • What are the relative investments of the employer and the worker? (If the worker has made an investment, this would indicate that he or she is an independent contractor.)
  • Does the work require special skills or initiative? (The Department of Labor cites electricians, carpenters, and construction workers as examples of the types of workers that typically operate as independent contractors.)
  • How permanent is the relationship between the employer and the worker? (If the work is permanent, that would suggest that the worker is an employee.)
  • How much control does the employer exercise (or retain)?

The Department of Labor’s memo emphasizes that the test should be viewed from the lens of the FLSA’s “suffer or permit” standard. This refers to a clause in the FLSA which states, “’Employ’ includes to suffer or permit to work.”

According to the memo, the “suffer or permit” standard means that a worker is an employee if he or she is dependent on the employer. The standard exists in order to broaden the FLSA’s applicability, by expanding the definition of an employer/employee relationship. The memo states that the economic realities test is not determinative, and that the most important factor in determining whether a worker is an employee is whether he or she is economically dependent on the employer.

Other clarifications offered in the memo include:

Even if an employer and worker have an agreement stating that the worker is an independent contractor, this agreement will have no bearing on whether the worker is actually considered an independent contractor or an employee.

Whether a worker receives a 1099-MISC from the IRS (which is intended for independent contractors) is not considered evidence that the worker is actually an independent contractor.

The economic realities test is qualitative, rather than quantitative, meaning that not all of the factors need to be present in order for the worker to be considered an employee. [Read more…]

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

SB 358: Equal Pay for Substantially Similar Work

October 20, 2015 by

equal payThe concept of paying men and women equal pay for equal work should be familiar to California employers but under new legislation, wage equality requirements no longer apply only to employees with identical job descriptions. Employers are now required to pay male and female employees equal wages for doing “substantially similar” work.

The legislation in question, California Senate Bill 358, was signed into law on October 6, 2015 by Governor Jerry Brown at the Rosie the Riveter National Historical Park in Richmond. The new legislation amends Section 1197.5 of the California Labor Code.

What Does the equal pay Bill Say?

SB 358 states that an employer may not pay any of its employees at lower wage rates than employees of the opposite sex for work that is substantially similar, when viewed “as a composite of skill, effort, and responsibility and performed under similar working conditions,” unless the employer can demonstrate that:

  • The wage differential is based upon one or more of the following factors: a seniority system, a merit system, a system that measures earnings by quantity or quality of production, and/or a bona fide factor other than sex (such as education, training or experience.)
  • Each factor is relied upon reasonably, and
  • The factor or factors relied upon account for the entire wage differential.

The legislation clarifies that if an employer cites a “bona fide factor other than sex,” it must not be based on, or derived from, a sex-based differential in compensation. In addition, the factor must be related to the job in question, and it must be consistent with a business necessity.

Other aspects of the legislation include:

  • The Division of Labor Standards Enforcement, which is in charge of administering and enforcing the legislation, may supervise the wages that are due to employees when a violation takes place.
  • Employers must maintain records of the wages and wage rates, job classifications, and other terms of employment of their employees. The records must be maintained for at least three years.
  • When an employee files a complaint with the Division of Labor Standards Enforcement, the name of the employee will be kept confidential until the Division establishes the validity of the complaint. (There is an exception to this, however, if abridging the employee’s confidentiality prevents the Division from investigating the complaint.) If the employee withdraws the complaint before his or her confidentiality is abridged, then the Division will maintain the employee’s confidentiality.

Your Equal Pay Responsibilities Under the New Law

If you run a business in Sonoma County, Mendocino County or Lake County California, and you have not monitored whether there is a gender gap in your employee’s wages, it is time to start. Consulting an attorney to ensure your wages meet the standards of this legislation may be far less expensive than dealing with a gender discrimination lawsuit. [Read more…]

Filed Under: California Employment Law, California Labor Law, Gender Discrimination, Wage and Hour Law Tagged With: , , , , ,

Will Mandatory Arbitration Agreements Become a Thing of the Past in California?

October 6, 2015 by

binding arbitration, arbitrationIn a previous blog post, we discussed a decision by the Ninth Circuit regarding mandatory arbitration agreements for employees. A major change to this area of law may be on the way in the state of California, if Assembly Bill 425 is signed into law. This bill would altogether prohibit employers from requiring their employees to sign arbitration agreements as a condition of their employment.

AB 425 was passed by the California Assembly and Senate in August 2015. If it is signed into law by Governor Jerry Brown, it will take effect on January 1, 2016. The bill would become Section 925 of the California Labor Code.

What Does the Bill Require?

AB 465, if enacted, will prohibit any employer from requiring an employee, as a condition of employment, to agree to the waiver of “any legal right, penalty, forum, or procedure for any employment law violations.” It also prohibits employers from threatening, retaliating against, or discriminating against employees for refusing to sign such waivers. In addition, it stipulates that if a waiver of this type will be unenforceable if it is required from an employee (or a potential employee) as a condition of employment or continued employment.

You may be wondering how, under those regulations, an employee’s agreement to arbitrate would be legally valid. The statute stipulates that any waiver of employment rights (such as an agreement to arbitrate) must be “knowing and voluntary and in writing, and expressly not made as a condition of employment.” If the employer seeks to enforce the waiver, then the employer would have the burden of proof to show that the waiver was knowing and voluntary.

There are several other important aspects of AB 465:

  • If the bill is enacted, it will apply only to waivers that were signed on or after January 1, 2016 – so you do not have to worry that this legislation will render any current contracts invalid.
  • It authorizes reasonable attorney’s fees to the prevailing claimant.
  • It exempts organizations that are considered self-regulatory under the Securities Exchange Act of 1934, and it does not apply to regulations adopted under that Act pertaining to any requirement of a self-regulatory organization that a person arbitrate disputes between an employer and an employee.
  • It does not apply to employees who were individually represented by legal counsel when negotiating the terms of an agreement to “waive any right, penalty, remedy, forum or procedure for a violation of this code.”

Binding Arbitration and Preparing for the Future

If AB 465 is passed into law, it will have major ramifications for employers who require their employees to sign arbitration agreements. If you are an employer in California, and you would like your employees to commit to arbitration, it may be in your best interests to begin thinking now about how you will revise your policies if the bill is enacted. [Read more…]

Filed Under: Binding Arbitration, California Employment Law Tagged With: , , , ,

An Important Entertainment Law Ruling: Do Interns Have to be Paid?

August 19, 2015 by

do interns have to be paidDo interns have to be paid? A recent federal ruling provides some interesting insight into the issue of where the line is drawn between unpaid interns and paid employees. The case, Giatti v. Fox Searchlight Pictures, involved several unpaid interns in the film industry who sued for lost wages under the Fair Labor Standards Act (FLSA). In considering their case, the United States Court of Appeals for the Second Circuit adopted a “primary beneficiary” test, intended to determine whether workers should be considered employees.

The primary beneficiary test, as laid out in the decision, focuses on what an intern receives in exchange for his or her work. The test consists of the following “non-exhaustive” considerations, including the extent to which:

  • The intern and the employer clearly understand that there is no expectation of compensation. (If there is the promise of compensation, whether it be express or implied, this would suggest that the intern is an employee.)
  • The internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  • The internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  • The internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  • The internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  • The intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  • The intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

The court added that none of the factors are dispositive, and that they do not all need to point in the same direction in order to provide an indication as to whether an intern should be considered an employee.

The Department of Labor’s Test

The court rejected the test proposed by the interns, which was developed by the U.S. Department of Labor. This test provides that there is not an employment relationship if the following six factors all apply:

  • The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  • The internship experience is for the benefit of the intern;
  • The intern does not displace regular employees, but works under close supervision of existing staff;
  • The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  • The intern is not necessarily entitled to a job at the conclusion of the internship; and
  • The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

The Department of Labor filed an amicus curiae brief supporting the use of this test, but the court nonetheless chose not to apply it. The court held that this test was “too rigid for our precedent to withstand.”

The FLSA and Your Workplace

The experienced Beck Law P.C., employment and labor law attorneys  in Santa Rosa can provide you with advice about any questions you may have in Sonoma County, Mendocino County and Lake County California about the Fair Labor Standards Act. You can call or email our office today to schedule a consultation.

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I’m Being Laid Off But Must Train My Replacement?

March 5, 2015 by

santa rosa employment attorny, laid off, lay offsI’m being laid off but have to train my replacement? SCE is Southern California’s biggest utility provider. The company has recently faced public criticism after it was confirmed that SCE would be laying off many members of its large IT department in order to replace them with new hires from Tata Consultancy Services (TCS) in Mumbai, India, as well as from Infosys, an IT company in Bangalore. These new employees will be allowed to begin work in Southern California through the U.S. federal government’s H-1B program. The intent of the H-1B program is to allow foreign workers to access jobs in the U.S. that employers are unable to fill with U.S. employees. The main complaint about using the two Indian companies is that SCE already had U.S. employees who were trained, ready and willing to complete the work required, thus negating the very need for H-1B employees in the first place.

SCE and the Alleged H-1B Program Abuse

SCE is one of Southern California’s largest utility companies, which, before layoffs, reported having 1,800 employees in its IT department alone, with an additional 1,500 workers on contract. The IT department’s transition effort will result in an estimated 400 employee layoffs along with an additional 100 employees terminating their employment voluntarily. The employees who will be leaving SCE’s IT department have years of experience in their jobs, and will be forced to train their replacements in the upcoming months as part of the broader transition effort. Not surprisingly, many of the workers feel betrayed by SCE, and believe this transition is an attempt to pay lower wages to foreign employees, through the abuse of the U.S. federal government H-1B program. This argument is somewhat persuasive when one considers the very goals and purpose of the H-1B program, which is to provide employers access to non-U.S. employees when there are not enough domestic employees to provide the unique services that their businesses require. However, as one employee put it,

“Not one of these jobs being filled by India was a job that an…employee wasn’t already performing”.

Laid Off and Training My Replacement

The fact that some of the laid-off U.S. employees will be training their own successors seems to support the claim that the U.S. employees are skilled, trained and capable of providing all of the employment services that SCE requires.

In response, SCE has stated that the transition towards using Tata and Infosys H-1B employees will inevitably “lead to enhancements that deliver faster and more efficient tools and applications for services that customers rely on. Through outsourcing, SCE’s information technology organization will adopt a proven business strategy commonly and successfully used by top U.S. companies that SCE benchmarks against.”

However, SCE’s response does not touch on the issue of why California, home to Silicon Valley and some of the most advanced tech specialists and professionals, was not an adequate location to find the employees that SCE required. Some from within SCE have voiced concerns that the new Indian tech workers do not posses the necessary skill levels of the very people that they will soon replace.

The layoffs at SCE are a unique example of the immigration issues involved in foreign labor and employment. If you think you need a Santa Rosa Labor Attorney, or Mendocino County Labor Lawyer, contact the California labor and employment lawyers at Beck Law P.C. in Santa Rosa today.

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

Can An Employer Fire An Employee For Discussing A Raise?

February 24, 2015 by

fire an employee, california labor lawCan an employer fire an employee for discussing a raise? You have a great Office Supervisor that deserves additional compensation for her dependable work. You decide to reward her with a fantastic performance review and an excellent raise. But, because not all of your your employees are exceptional and you have only so much money to go around, you would prefer that the Office Supervisor keep her raise to herself and not share this information with her co-workers. As she leaves your office, you tell her: By the way, I would prefer you not tell anyone about your raise. If you do, it may cause a lot of disruption in the office, and hurt other employee’s feelings. Actually, I need to trust that you will not tell anyone in this office or you may lose your job over it.

From an employer’s point of view, this statement may seem like a good reminder, given what you think about the other employees, how fairly you want to compensate the other employees, and how much you appreciate the hard work and dedication of this particular employee over the others, given that cash flow is tight. You know your business and what your limits are, and you just don’t want to deal with all the other employees’ complaints. The bottom line is you want the raise to go to the person who earned it, you believe it is reasonable to ask that some things remain private, and frankly, you don’t want to have to explain yourself.

Can you say this to your employee? The answer is: NO. In fact, it is illegal.

Under the National Labor Relations Act, employers cannot prevent employees from discussing wages, salaries, raises, evaluations, cuts in pay, bonuses, benefits, or anything related to their employment among themselves. Employees may discuss ALL WORKING conditions among themselves and they are free to organize, share information and band together as a group. As taken from the NLRB website:

“The law we enforce gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away. These rights were written into the original 1935 National Labor Relations Act and have been upheld in numerous decisions by appellate courts and by the U.S. Supreme Court”

More specifically, Section 7 of the National Labor Relations Act clearly states:

“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.”

You may then wonder, can I as an employer discuss one employee’s raise with another employee? The answer is again: NO.

Whereas employees can discuss all work related information with each other, you as an employer must protect the privacy of every employee, and you are not allowed to discuss information regarding one employee with another employee, unless that employee is a supervisor; and even then, information can only be shared that is relevant/necessary for the supervisor to do the job, and nothing more. For example: An employer and a supervisor may discuss an employee’s bonus only if that employee is working directly under that supervisor. An employer may not “tell” an employee anything about another employee’s bonus. [Read more…]

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

Workplace Harassment or Just Playful Conversation?

August 29, 2013 by

Workplace Harassment

Q: I’m an employer of a local business, and recently there’s been a problem between several employees. One of the employees claims the others are sexually harassing her. I’m not sure the conduct qualifies as harassment, and it seems like just playful conversation. What should I do?

A: A claim of harassment by an employee should be taken very seriously by the employer, as harassment of any type, sexual, discriminatory or otherwise, continues to be a common problem in the workplace in California. The California Code of Regulations is helpful in identifying several different layers of sexual harassment, but these principles may also be applied to other types of harassment as well:

  1. Where submission to harassment is a condition of employment;
  2. Where the choice to submit or not affects employment decisions;
  3. When the purpose or effect of the conduct alleged as harassment unreasonably interferes with the employee’s work performance;
  4. When the purpose or effect of the conduct alleged as harassment unreasonably interferes with the employee’s work performance; or
  5. When the conduct alleged to be harassment creates an intimidating, hostile or offensive work environment.

Fair Employment and Housing Act

2 Cal Code Regs §§7287.6(b), 7291.1(f)(1). These categories set the prohibitions on the variety of conduct by employers and co-employees. Under the Fair Employment and Housing Act (FEHA), California law defines two types of methods to prove sexual harassment in the workplace: conduct which establishes a quid pro quo, and conduct creating a hostile work environment. Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 42 Cal.Rptr.3d 2, 11.

Sexual Favoritism

Does your employee contend that the harassment is a result of some quid pro quo arrangement with another employee or manager? The California Supreme Court defined such quid pro quo harassment as conduct that leads to “sexual favoritism”, including the award of job benefits or bonuses if the employee submits to sexual advances. Miller v. Department of Corrections (2005) 36 Cal.4th 446, 461-462. However, this also incorporates the converse, such as a manager threatening to demote or take punitive action against an employee should they not submit to sexual advances or conduct requested, expressly or impliedly.

Your employee may also be referencing a claim of a hostile work environment. The California Supreme Court has also set forth the standards in Lyle in relation to what constitutes a hostile work environment sufficient to create harassment:

Under Title VII, a hostile work environment sexual harassment claim requires a plaintiff employee to show she was subjected to sexual advances, conduct, or comments that were (1) unwelcome (see Meritor, supra, 477 U.S. at p. 68, 106 S.Ct. 2399); (2) because of sex (Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 80-81, 118 S.Ct. 998, 140 L.Ed.2d 201 (Oncale)); and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment (id. at p. 81, 118 S.Ct. 998; Meritor, supra, 477 U.S. at p. 67, 106 S.Ct. 2399). In addition, she must establish the offending conduct was imputable to her employer. (Meritor, supra, 477 U.S. at pp. 69-73, 106 S.Ct. 2399.)

Lyle, 42 Cal.Rptr.3d at 12. Whenever an employee performs any type of investigation prompted by a claim of harassment, these three elements are necessary and essential questions to ask and conclusions to determine before taking any action. It may very well be that such “harassment” is in fact nothing more than workplace conversation which the employee has taken out of context, for the mere discussion of sex or vulgar, sexual language is generally insufficient to show the harassment was “because of sex”; the conduct must involve some treatment to the employee on the basis of sex itself.

In either sense, every employer should take a claim of harassment seriously. [Read more…]

Filed Under: Blog, California Employment Law, California Labor Law, Employment Law, Labor Law, News, Workplace Harassment 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.

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Disclaimer

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