Are Non-California Resident Workers Entitled To California Protections?

February 23, 2009

Well, the Ninth Circuit Court recently ruled in Sullivan v. Oracle Corp, that the California Labor Code provides the same protections for non-California residents who perform work here and then withdrew their decision! They have since asked the California Supreme Court to decide the question. They have agreed to do it but not until later this year.

Because this matter is unresolved, California employers who have employees who occasionally perform work in California, but reside and primarily work in other states need to do the following:

  • Consider tracking the hours worked by nonexempt nonresident employees;
  • Consider paying nonresident nonexempt employees daily overtime and double-time if applicable;
  • Conduct or have us conduct an audit so that you know how many overtime and double-time hours may have been worked;
  • Make sure you have properly classified these nonresident workers as either exempt or nonexempt;
  • If you choose not to pay these individuals overtime and want to wait for the court to decide then make sure you properly track the hours and create an internal memo that you are not paying them because of the ambiguity in the law. This will help against a claim for waiting time penalties.

As we all know, the cash cow for attorneys right now are wage and hour claims. You must make sure that you are following all of  the guidelines on the Inustrial Welfare Commission Orders for your particular industry. If you are not sure, and what us to come in and do a quick audit specifically taylored for wage and hour, then let us know. It will only take about thirty minutes or so. The cost is nominal but the results are far reaching. Employers are getting so many claims from laid off employees who now want to argue that they did not get all of their breaks and lunches. Some of the claims that I have handled are ridiculous while others do have some merit. We cannot take this area of the law for granted. As you can see from the beginning of this article, even the Ninth Court Circuit of Appeals is confused by California law! 

Finally, I know you guys must get tired of hearing me preach about wage & hour but as you can see it continues to be a major issue.


New FMLA Regulations

February 17, 2009

There are a significant number of changes to the FMLA regulations. Here are some key highlights but I would suggest that you obtain additional information to ensure that you are completely in compliance.

  1. Employees who take intermittent FMLA leave for planned medical treatment have a statutory obligation to make a “reasonable effort” to schedule such leave so as not to disrupt unduly the employer’s operations.
  2. If an employee voluntarily performs “light duty” work, time spent doing such work will not count against an employee’s FMLA entitlement, and the employee’s right to job restoration is held in abeyance during the light duty period.
  3. Employers may not request additional information beyond that information included in the Dr’s certification document.
  4. FMLA protection is expanded to include family members caring for a “covered service member” with a serious injury or illness incurred in the “line of duty on active duty.”
  5. The terms and conditions of an employer’s paid leave policies apply and must be followed by the employee in order to substitute any form of accrued paid leave for unpaid FMLA leave.
  6. Family members of personnel on active duty may also take FMLA leave for “qualifying exigencies,” defined as: (1) short notice deployment (2) military events and related activities (3) childcare and school activities (4) financial and legal arrangements (5) counseling (6) rest and recuperation (7) post-deployment  activities (8) additional activities where the employer and employee agree to the leave.
  7. If an employer has no handbook or other written material, it must provide general FMLA notice to new employees upon being hired. An employer has 5 business days to respond to an employee’s request for leave.  If an employee suffers individual harm because the employer fails to follow the notification rules, the employer may be liable.

If you are not sure about the changes shown above, or cannot find a more detailed descrpiton, please let us know.


General “Releases” Takes The Worry Away From The Layoff Picture

February 10, 2009

Employers are being faced with lawsuits after employees are being laid off due to economic times. We have seen a large number of former employees going after their employer for a variety of reasons. Age, Gender and Race discrimination, retaliation complaints, and Wage & Hour allegations have been on the rise. Although I do not agree that we should be “paying off ” individuals heading out the door due to a simple lay off, employers need to stop and consider certain employees who may cause a problem after they leave. We generally know who they are! Employers are offering two weeks pay (or more in some cases) or severance packages for laying off these individuals or key management personnel who are no longer affordable.

General releases are an option. They can simply be a one page document without a lot of legalese. They are designed to release the right of the former employee from any claim arising out of the  work environment with the exception of workers compensation and unemployment insurance benefits. The release can contain a single payment option or wage continuation for a specified period (the individual does not report to work during this time frame).

These releases are not recommended for every employee who is being laid off. Arguably when such a document is presented some may get the notion that they have a claim and may want to defer to counsel. Trust me, most will take the money and run! They know that attorneys get their cut and when it is all said and done they are back to the same amount they would have received anyway. Also, there are those who may argue that the amount is not enough. Hold back a little to see if there is any resistance. If so, you can always add to the pot.

Just as an “FYI” be advised that the general releases cannot include a “noncompete clause” nor a “no-solicitation clause” (pulling away other employees). These clauses are generally not enforceable in California.

As always, if you need any assistance in this area, please contact us immediately.


OBama Signs Pro-Labor Orders-More Trouble For Employers!

February 2, 2009

It’s simple! The democrats are back in charge! For employers, this is not going to be a good thing. California employers have enough to deal with. Friday, President Obama signed a series of executive orders that he says should “level the playing field” for labor unions in their struggles with management. Union officials say the new orders by Obama will undo Bush administration policies that favored employers over workers. Furthermore Obama expressed, “You cannot have a strong middle class without a strong labor movement.” James Hoffa, president of the International Brotherhood of Teamsters, stated, “It’s a new day for workers.”

Now for those of you that are wondering what this means let me assure you that it is not a good thing for management.  Union organizing activities will be on the rise. They will be recruiting on a large scale level to bring the union into as many work environments as possible. They are chasing the income from the dues that all employees will have to pay even if an employee does not want to be a part of the union. In addition, word has it that the vote to bring the union in will no longer be by secret ballot. This means that employees who do not want the union in, could be pressured into voting it in to avoid being harassed by those who want it. From an employee perspective, they could approach this as a good thing. They already feel that the employer has the upper hand and may reach out to the union to help them get pay increases as well as protection from being terminated. There are challenges ahead.

Complicating this matter even further are the do’s and don’ts of a union campaign. Employers have to be careful not to violate the process. Violations could land the employer in federal court. I have been down this path before. I have established a list of do’s and don’ts and have a one hour training session available for managers and supervisors. If you get approached by the union let me know right away. An “anti-union” campaign can be legally conducted but it has to be done a certain way.  

It is clear from the Obama administration that the new president and the controlling democrats have an attitude that will favor the employee. Management, as usual, will have their backs against the wall. Potts & Associates will continue to help you wage the battle.