U.S. Department Of Labor Is “Spot Checking” Employers

February 22, 2010

The U.S. Department of Labor, Wage and Hour Division is responsible for the administration and enforcment of Federal Laws involving labor standards. We have a number of clients who have received letters that they were subject to a “Compliance Review.” The purpose of the visit is to determine whether certain federal laws have been violated. The Wage & Hour Division does not require an investigator to previously announce the scheduling of an investigation, although in many instances the investigator will advise an employer prior to opening an investigation. The investigator has the latitude to initiate unannounced investigations in many cases in order to directly observe normal business operations and develop facts quickly.

These investigations are initiated for a number of reasons, all having to do with enforcement of the laws and assuring an employer’s compliance. Many of them are initiated because of a complaint. In addition, the Wage & Hour Division selects certain types of businesses or industries for investigations. Typically low-wage industries because of the high rates of violations, the vulnerability of their workers, or rapid changes in an industry such as growth or decline. I have also seen where they will visit high schools and request to see the work permits for students. Afterwards, they will visit the businesses to determine if the employer is in compliance with the various child labor laws.

When the investigator arrives, he or she will want to review time and payroll records, I-9’s, a list of current positions, job descriptions, a list of all independent contractors, a list of all current and former employees with home addresses and telephone numbers (going back two years) and will tour the establishment.  You are premitted to have a representative present but all interviews of employees are one-on-one with the investigator.

The times are changing. Federal and State agencies are working together and will report violations to each other. Please review your personnel policies, practices, and procedures. If you have any doubts about possible violations please call to discuss.


HUGE California Traffic Tickets Fines Effective 01/06/10

February 15, 2010

 California needs money, so pay close attention to the rules of the road! I was able to pull this up and thought you might be interested.

 
 Please be extremely careful in your driving and car registration & insurance matters.  State of California is broke and they are trying hard to squeeze all of us hard to collect money.  Effective immediately, if you do not stop at the red light, be ready to pay $ 436 in fines or if you pass a school bus with flashing red signals, you will be charged $ 616.  The state of California is going for blood, so be extra careful in driving, you can not afford messing with them.  I have been hearing that highway patrols are under pressure to issue a lot more tickets than last year with at least 30% increase in fines over 2009, so beware of radar guns, highway and traffic cameras installed everywhere and the tougher enforcement of parking rules.  Just for your info, the next time you park in the handicapped zone, even for a minute, you will be looking at almost $ 1000 in parking tickets, so it’d better be worth it.
 
 
   

 Traffic Tickets Fines (Effective 01/06/2010)
Violation 
Total Fine Due
VC 12814.6 
$214 
Failure to obey license provisions. 
VC 14600(A) 
$214 
Failure to notify DMV of address change within 10 days
Note: The fine may be reduced with valid proof of correction.
VC 16028(A)
$796
Failure to provide evidence of financial responsibility (insurance)
Note: This fine may be reduced with proof of insurance on or after the violation date.
VC 21453(A)
$436
Failure to stop at a red signal.
VC 22350
$214
VC 22349
Unsafe Speed, 1 to 15 miles over the limit.
VC 22350
$328
VC 22349
Unsafe Speed, 16 to 25 miles over the limit.
VC 22450
$214
Failure to stop at a stop sign.
VC 22454(A)
$616
Passing a school bus with flashing red signals.
VC 23123(A)
$148
Drive using wireless phone not hands free, First offense
VC 23123(A)
$256
Drive using wireless phone not hands free, For each subsequent offense.
VC 23123.5(A)
$148
Drive while wireless device to send, read or write text.
VC 23124(B)
$148
Minor drive using wireless phone.
VC 22500(I)
$976
Parking in a bus loading area.
VC 22507.8(A through C)
$976
Violation of disabled parking provisions, first offense.
VC 22507.8(A through C)
$1876
Violation of disabled parking provisions, second offense.
VC 26708(A)
$178
Unlawful material on vehicle windows.
VC 27150(A and B)
$178
Adequate muffler required
VC 27315(D and E)
$148
Mandatory use of seat belts.
VC 27360(A and B)
$436
Mandatory use of child passenger restraints
Note: This fine may be reduced by completing a court authorized child seat diversion program.
VC 27400
$178
Headsets/Earplugs over both ears.
VC 27803 (A through C)
$178
Motorcycle safety helmet requirements.
VC 34506.3
$616
Commercial Driver – Log book violation
VC 4000(A)
$256
No evidence of current registration.
Note: The fine may be reduced with valid proof of correction.
VC 4159
$178
Notify DMV of change of address within 10 days.
Note: The fine may be reduced with valid proof of correction.
VC 5200
$178
Display of license plates.
Note: The fine may be reduced with valid proof of correction.
VC 9400 (A through C)
$178
Commercial weight fees due.
Note: The fine may be reduced with valid proof of correction.

 

Are You Calculating Overtime Properly? Maybe Not!

February 8, 2010

There have been some recent class action lawsuits that demonstrated employers may not be calculating overtime correctly.  To be clear, I am not speaking of the required “over eight hours in a day or over forty hours in a week.” As I am sure you already know, non-exempt employees in California must be paid at an overtime rate of pay for overtime hours. The overtime rate is calculated by applying a multiplier of 1.5 or 2.0 to the employees’ “regular rate of pay.” Ordinarily the regular rate of pay is the employees’ straight time rate of pay, BUT not always! Employers sometimes fail to include other types of compensation when calculating the regular rate of pay, which can result in liability.

The rule in California is that the regular rate of pay must include all remuneration from the employer. Here is an example for our clients who provide free lunch and dinner during their shifts. If the employee makes $10.00 per hour, in an eight hour shift their regular rate of pay would be $80. However, their regular of pay must be calculated adding the $80 to the cost of the meals. If the cost of the meal to the employer is $7, (or whatever the determined number is based upon the fair market value) the equivalent of an extra $14.00 is added to the regular rate of compensation of $80. Therefore, the employees are receiving a total of $94.00 per day which is the true dollar amount of their “regular pay” or $11.75 per hour and not $10.00 per hour. Based upon these numbers the rate of overtime would be “$17.63 and not $15.00 per hour. The difference creates a shortfall of $2.63 which would lead to potential liability including penalties, liquidated damages, interest, and attorney fees.

Keep in mind that the above concern may well include bonuses, incentives, gratuities (mandatory 15% for tips on large groups), free or subsidized lodging, or even winning a free trip for making a sales goal. As many of you have heard me preach over and over again, the wage and hour lawsuits are out of control. Employers have to scrutinize their payroll policies, practices, and procedures very closely.


Is The Inability To Have Sex A Protected Disability?

February 2, 2010

I see I really got your attention with this title! I pulled this from the internet and thought you might get a kick out of this. I tell you, just when I thought that I have seen it all, up jumps another far reaching decision.  

Human Resources Executive Online recently published an article by author Mark McGraw on the Kathy E. Adams vs. Condoleezza Rice decision by the DC Circuit and the recent trend of expanding the protections of the ADA.  CDF LLP Partner Mark S. Spring was quoted in the article about the difficulties employers face in managing these disability issues and the need for skilled human resources professionals to help train managers and supervisors to recognize and properly deal with these issues.  Click here for article: http://www.hreonline.com/HRE/story.jsp?storyId=115377289.

In Adams v. Rice, the plaintiff, a cancer survivor, claimed she was limited in a major life activity because she was unable to have sexual relations.  The issue in the case was whether such limitation would enable the plaintiff, Adams, to qualify as a “disabled” individual.  After holding that sex is “a cornerstone of family and marital life, a conduit to emotional and spiritual fulfillment, and a crucial element of intimate relationships…,” the Court of Appeals reversed the granting of summary judgment and held that Adams has proven that she has a record of disability as a result of her limitation.  Cases like Adams v. Rice, combined with the looming ADA Amendments Act of 2008 http://www.callaborlaw.com/archives/new-laws-legislation-congress-attempting-to-expand-americans-with-disabilities-act-protections.html, illustrate the trend to expand the ADA’s protections to an unprecedented level that is far beyond what Congress and former President Bush intended when the law was enacted in 1991. 

Look for disability discrimination to remain a hot button issue and major challenge for employers in the next few years.