January 24, 2011
As I have stated over and over, the U.S. Citizenship & Immigration Services and the Immigration & Customs Enforcement (ICE) has been, and will continue to come after employers who hire undocumented workers. A large number of employers during 2010 found out the hard way that noncompliance will be dealt with. Now, the U.S. Citizenship & Immigration Services (CIS) released a new I-9 manual on January 5. The manual is a big improvement from previous versions in that it helps clarify many issues and is easier to navigate through. It can be found at http://www.uscis.gov/files/form/m-274.pdf.
Also, as noted, Immigration & Customs Enforcement (ICE) has been aggressively fining companies for mere technical I-9 violations. Even where the company has no unauthorized workers, ICE has recently been coming down hard on mere technical violations.
For example, in September 2010, Abercrombie and Fitch was fined $1 million because it’s digital I-9 software had a glitch which resulted in some I-9’s having blank fields. Even though all of the employees in question were work authorized and all had I-9’s, ICE still fined the company in order to send a message. The Officer in Charge of the investigation noted: “This settlement should serve as a warning to other companies that may not yet take the employment verification process seriously or provide it the attention it warrants. ” The ICE press release can be seen at http://www.ice.gov/news/releases/1009/100928detroit.htm.
Until Congress creates a digital social security card to help employers through the process, I-9’s that are not compliant will affect the value of your company and expose management to liability. Employers are encouraged to be proactive in this area and ensure compliant I-9 practices. If you have any questions or want us to review your I-9s please call for an appointment. Don’t ASSUME it is being done correctly! The fines and penalties are stiff.
January 18, 2011
We have had many discussions with clients regarding exempt v. nonexempt Misclassification in this area has cost employers millions. Now, California employers litigating wage cases involving alleged misclassification of employees have a new and favorable published case in their arsenal. In Taylor v. United Parcel Service, Inc., a California Court of Appeal rejected a UPS supervisor’s claims that he was improperly classified as an exempt employee and should have instead been paid overtime and ensured meal and rest breaks. The court held, as a matter of law, that the employee qualified for both the administrative and executive exemptions from overtime laws. The court further held that the employee did not have sufficient evidence to support his claims to even warrant a trial on the issues.
The Taylor case contains a lot of good language on issues pertinent to the administrative and executive exemptions, including issues surrounding authority to hire and fire (as pertains to the executive exemption) and the administrative/production worker dichotomy (as pertains to the administrative exemption).
Although the Taylor case is a positive decision for California employers on exempt/non-exempt issues, employers are still cautioned to carefully review their exempt classifications because the wage and hour litigation flood continues in California.
UPS was required to demonstrate the following: (1) his duties and responsibilities involve management of the enterprise or a “customarily recognized department or subdivision thereof; (2) he customarily and regularly directs the work of two or more employees; (3) he has the authority to hire or terminate employees, or his suggestions as to hiring, firing, promotion or other changes in status are given “particular weight”; (4) he customarily and regularly exercises discretion and independent judgment; (5) he is primarily engaged in duties that meet the test of the exemption; and (6) his monthly salary is equivalent to no less than two times the state minimum wage for full-time employment. UPS were able to prove all of the above criteria.
Note: Don’t get confused with terminology. Salaried v. Hourly is the same as Exempt v. Nonexempt. If you have any doubts we can get you a form that has an easy formula to determine if an employee meets the exemption criteria.
January 10, 2011
Effective January 1, 2011, Assembly Bill 569 exempts construction workers, commercial drivers, certain security officers and employees of electrical and gas corporations or publicly owned electric utilities from California’s meal break requirements IF those employees are covered by a valid collective bargaining agreement containing specified terms, including meal period provisions.
Don’t forget, California has two court decisions currently on appeal to the California Supreme Court so the current state of affairs regarding breaks is still somewhat up in the air. The California Supreme Court should be making a decision within the next six months (hopefully) so in the meantime PLEASE make sure employees are aware (put up signs) that they are entitled to their ten minute breaks and obviously their 30 minute uninterrupted lunch break no later than the start of the fifth hour.
Heat Illness Regulations
Effective November 4, 2010, the California Labor Commissioner issued new heat regulations that apply to all outdoor places of employment where the temperature exceeds 85 degrees Fahrenheit. The regulations, enforceable by Cal-OSHA, require that employers must provide sufficient shade to accommodate at least 25 percent of the workforce at one time, cool down periods of no less than 5 minutes upon request, as well as a specified amount of drinking water per hour worked. The regulations also include changes to training requirements for both supervisory and nonsupervisory employees. Such training is now required to be given to before employees begin work if the type of work anticipated may result in exposure to the risk of heat illness.
No More COBRA Subsidies
As you are aware, as part of the federal economic stimulus package, the American Recovery Investment Act of 2009 required employers pay 65% of group healthcare insurance plan premiums of COBRA eligible employees who involuntarily terminated from their employment between September 1, 2008 and December 31, 2009. Several subsequent federal laws extended the subsidy eligibility period. At this time, involuntary terminations after MAY 31, 2010, do not qualify for a subsidy, and all subsidy payments will stop by no later than AUGUST 31, 2011.