Legal News

4/1/2013 Obamacare Employer Mandate


1/1/2013 ABA Journal. Elizabeth H. Murphy discusses the importance of small business networking. Getting Connected: Solo Lawyers Build Support Networks


3/30/2011 Home Health Employment Update - Read it here


10/27/2009 DFEH 2008 Annual Report - Read it Here! There were over 19,000 complaints filed with the DFEH in 2008 - up 20% over 2007.  Click here to see the full text of the DFEH's Annual Report.

 

10/26/2009 Calculating Overtime In The Healthcare Industry: 9th Circuit Denies Overtime to Nurses

In Parth v. Pomona Valley Hosp. Med. Ctr., 9th Cir., No. 08-55022, 10/22/09, the 9th Circuit held that a California hospital did not violate the Fair Labor Standards Act by using different base hourly rates for its nurses depending on whether a nurse chose to work a schedule of eight-hour or 12-hour shifts.

 

The pay plan in question originally was adopted in response to nurses' interest in working 12-hour shifts and later was included in a collective bargaining agreement.  The Court reasoned that the employer's actions were "perfectly reasonable" because the different rates for different schedules arrangement was requested by the nurses themselves, and bargained-for by their union.

"Though our Circuit has never been asked to determine whether an employer subject to the FLSA may alter the ‘regular rate' of pay [used to calculate overtime pay] in order to provide employees a schedule they desire, we conclude that such an arrangement does not contravene the FLSA's purpose" to protect covered workers from substandard wages and oppressive working hours."

The methodology used by the hospital to calculate the regular rate, known as the "weighted average" method, is the default method used in California.  Under this method, the regular rate of an employee who is paid two or more different rates by the same employer during the workweek is determined as a weighted average, calculated by adding the employee's total straight-time wages for the week at all rates, and then dividing that number by the total hours worked for that week.  That number (the regular rate) is then multiplied by .5 for any overtime hours (only .5 because the employee has already been paid straight time for his or her overtime hours, so is only owed the overtime premium for any overtime hours).     

 

10/23/2009 Wage & Hour Class Actions: two new cases apply heightened scrutiny in deciding whether to certify class actions

Two cases published on July 7, 2009 offer helpful insights to employers defending against wage & hour class actions: Wells Fargo Home Mortgage, 571 F.3d 953 (2009) and Vinole v. Countrywide Home Loans, Inc., 571 F3d 935 (2009).

Vinole is significant from a procedural and strategic standpoint because it approved the employer's filing of a preemptive motion to decertify under Rule 23 of the Federal Rules of Civil Procedure, filed before the plaintiffs filed their own motion for class certification.  In so ruling, the Court noted that Rule 23 mandates that certification be decided "at an early practicable time," and that there was no "per se rule," as advanced by the plaintiffs, requiring the plaintiffs to file first.

The Wells Fargo decision is significant because it rejected the district court's relilance upon a ubiform exemption policy to the "near exclusion" of other factors relevant to the question of whether class issues predominate over individual issues. 

The takeaway from these cases is twofold.  First, if you have enough evidence to defeat class certification, consider filing a Rule 23 motion to decertify, even if the plaintiff shave not filed their motion for certification.  There is no need to wait for the plaintiffs to file their motion - which can take seemingly forever, when you can have the issue resolved much sooner in the litigation.  Second, while uniform exemption policies should be avoided if at all possible, such policies will not, by themselves, lead to class certification. 

 

 

 

 

 

 


EMPLOYMENT  UPDATES

&

HELPFUL TIPS FOR 2011

 

Although it may seem hard to believe, we are well into 2011, and there are several new cases, laws, and statutes that directly impact employers in California.  This Newsletter contains information about those new laws, as well as some helpful hints for California employers as we move forward in 2011.

 

NEW LEGISLATION:

 

1.     SB 909 (Civil Code §§ 1786.16, 1786.20): If an investigative consumer report is conducted for employment purposes, the consumer/employee must be informed of the internet website of the investigative consumer reporting agency.

 

2.     AB 1814 (Government Code § 12940): The Age discrimination prohibitions in FEHA (the Fair Employment and Housing Act) do not prohibit an employer from changing or terminating health benefits or reimbursement plans to retired persons, when the person becomes eligible for Medicare benefits. 

 

3.     AB 2364: (Unemployment Ins. Code §§ 1030, 1302, 1256, 1329, 1329.1, 1537, 3011): “Good cause” to voluntarily leave employment and maintain eligibility for unemployment benefits includes leaving to protect one’s self from violence. 

 

4.     SB 1034: Private employers are now required to allow employees to take a leave of absence for the purpose of giving organ and bone marrow donations, and are prohibited from retaliating against employees who take this leave. 

 

5.     AB 361 – Limitations on Use of Medical Provider Network – Prohibits an employer that has authorized medical treatment through workers’ compensation provider network from rescinding or modifying authorization after treatment has been provided. 

 

NEW CASES:

 

1.     Turman v. Turning Point of Central California (Nov. 23, 2010) Hostile work environment harassment by third parties (residents of a half-way house) is not necessarily “inherent in the job” if the employer does not provide real evidence of its efforts to stop the harassment from occurring.  Tip: if your business involves third parties who may misbehave, make reasonable efforts to be sure that your employees are aware that the work environment may involve questionable behavior, obtain their written consent, and remove them immediately if they report that the environment has become uncomfortable. 

 

 

2.     Bamonte et al. v. City of Costa Mesa. (US Supreme Court, December, 2010) – No right to privacy in employer-provided text messaging devices, if there is a written policy to that effect, notwithstanding rogue manager’s verbal statement to the contrary.  Tip: update your technology/social media policy to clearly state that employees have no right to privacy in text messages, and train managers not to make contrary verbal statements to employees.

 

3.     Kirby v. Immoos Fire Protection, Inc. (July 27, 2010) – Defendant has the right to attorneys’ fees as the prevailing party on rest period claim.  Note: on review.

 

4.     Silguera v. Crateguard, Inc. (July 30, 2010) – Wrongful termination action viable against employer who fires employee based upon a non-compete agreement with former employer.

 

5.     Bright v. 99 Cent Only Stores (November 12, 2010) – Employer failure to provide “suitable seating” as required by the Wage Orders can result in penalties allowable under the Wage Order and the Labor Code.  

 

Tip:  Check the applicable Wage Order, and be sure that the workplace provides an appropriate seating area for employees to utilize during breaks – separate from toilet areas.  Retail employers, for example, must provide suitable lockers, closets, clean changing rooms, resting facilities and clocks in all main work areas, sufficient elevator and escalator services for buildings higher than 4 floors, and facilities for securing hot food and drinks during the night shift.  Room temperature must be at least 68 degrees.

 

6.     Thompson v. North American Stainless, LP, (January 24, 20110), the US Supreme Court ruled that a retaliation claim may be brought not only by a person who engaged in protected activity, but by one who tried to dissuade someone else from engaging in protected activity.  Tip: before you take adverse action against an employee, be sure that he or she did not recently engage in protected activity, or dissuade another from doing so.

 

NEW DLSE OPINIONS:

 

There was only one DLSE Opinion Letter issued during 2010, adopting the Department of Labor’s six criteria for determining whether in “intern” or “trainee” is exempt from minimum wage.  Those requirements, as set forth in the DLSE’s April 7, 2010 letter, are: (i) that the training, even though it includes operation of the employer’s facilities, is similar to that which would be given in a vocational school; (ii) the training is for the benefit of the trainees or students; (iii) the trainees or students do not displace regular employees, but work only under close observation; (iv) the employer derives no immediate advantage from the activities of trainees or students, and on occasion the employer’s operations may be actually impeded; (v) the trainees or students are not necessarily entitled to a job at the conclusion of the training period; and (vi) the employer and the trainees or students understand the trainees or students are not entitles to wages for the time spent in the training.

 

PRACTICAL TIPS:

 

            Following is a list of practical tips that may help to limit or prevent potential liability for employment-related decisions:

 

1.     Audit your wage and hour practices.  This is especially important when determining whether exempt and non-exempt employees are properly classified, and whether non-exempt employees are being paid for all hours worked. 

 

2.     Update your policies to comply with the Genetic Information Nondiscrimination Act, which is now in effect.  This Act prohibits discrimination on the basis of genetic information. 

 

3.     Make sure that your disability policy does not contain an inflexible termination provision.  The Equal Employment Opportunity Commission has recently taken the position that termination after a specific length of disability leave may violate the Americans with Disabilities Act. 

 

4.     Review relationships with independent contractors to make sure that they are not actually employees.  Misclassifying someone as an independent contractor can lead to severe penalties, so make sure that any contractors satisfy the “control” test for determining status. 

 

5.     Consider a policy that advises employees who need an accommodation to request one.  Courts are very strict in terms of enforcing anti-disability laws, so be sure that medical and disability leave issues are handled carefully. 

 

6.     Make sure your company has a complaint procedure in place.  Most employee handbooks contain some form of complaint procedure, which is very important to establish whether an employee has complied with company policy.  Having an effective complaint procedure is very important when mounting a defense to a complaint of wrongful termination, discrimination, or harassment. 

 

7.     Update your social media policy.  With Facebook, Twitter, Yelp and other readily-available means of public communication, it is important to regulate employees’ comments in order to minimize potential defamation or statements that could be attributed to the company. 

 

8.     Always document employee performance problems.  This is essential in every company.  If you wish to terminate someone based upon performance, and they challenge the decision as unlawful, your first and primary defense will be the documentation that you have supporting the company’s decision to terminate.