March 2nd Breakfast Briefing Announcement and Registration!

Posted on February 2, 2012 by WPR

The attorneys at WPR have been hard at work planning a Breakfast Briefing concerning new developments in labor and employment law matters. Registration is now open! If you would like to register or learn more about it, please click here to view the announcement and registration: Register! 

As always, this year’s Breakfast Briefing is meant to be full of practical information for our clients and others to listen and learn while enjoying a lovely continental breakfast at Scott’s Restaurant in Jack London Square in Oakland.

If you have any questions or concerns regarding the Breakfast Briefing, feel free to e-mail alemos@wprlaw.com or mvinluan@wprlaw.com. 

 

 

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CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING’S NEW REQUIRED NOTICES REGARDING PREGNANCY DISABILITY LEAVE

Posted on February 1, 2012 by WPR

In response to the new California law which requires employers to continue to provide and pay for group health benefits to an eligible employee taking leave relating to pregnancy disability, child birth or related medical condition (PDL Leave) (see the Blog Post, dated 11/23/2011, regarding S.B. 299 for more details), the California Department of Fair Employment and Housing has developed new notices that the employer is required to post.  Notice B (click here to view: Notice B) must be posted by employers covered by both the California Family Rights Act (CFRA) and PDL (all public employers and those private sector employers who employ at least 50 employees within a 75 mile radius).  Notice A (click here to view: Notice A) must be posted by private sector employers who employ 5 or more employees, but less than the threshold for CFRA coverage.  Where 10 percent or more of the workforce speaks a language other than English, the employer must provide the notice in that language. 

The employer is also required to give employees requesting PDL leave an individual copy of the appropriate notice as soon as practicable after the employee tells the employer of her pregnancy or when the employee inquires about pregnancy leave. 

Copies of the required notices are found at www.dfeh.ca.gov/Publications_Publications.htm.

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Written Employment Agreements Required for Commissioned Employees Performing Services in California

Posted on January 30, 2012 by WPR

A.B. 1396 – - Commissioned Employees

Under previous law, an employer who had no permanent and fixed place of business in California and who entered into a contract of employment involving commissions as a method of payment for an employee’s services was required to enter into a written contract with the employee that set forth the method by which the commissions would be computed and paid. A Federal District Court in California held the law to be invalid.

A.B. 1396 is the Legislature’s efforts to restore protections for commissioned employees by now requiring the law to apply to all employers, not just those who do not have a fixed place of business in California. The new law, which amends Labor Code section 2751, will become effective January 1, 2013. It requires employers to enter into a written employment contract with an employee who performs services in California and whose contemplated method of compensation involves commissions. The written contract must specify the method by which commissions shall be computed and paid.

The employer must give a signed copy of the contract to every employee who is a party to the contract, and the employer must obtain a signed receipt from the employee verifying his/her receipt of the signed contract.

If the contract expires and the parties continue to work under the terms of the expired contract, the contract terms are presumed to remain in full force and effect until a subsequent written agreement is entered or employment is terminated by either the employer or employee.

WHAT TO DO NOW:

This law does not take effect until January 1, 2013. Employers should begin implementation of the new law as soon as practicable. By entering into a written agreement that specifies the terms of the commission and how it will be computed and paid, your company may avoid the disputes that typically arise relating to commissioned employees.

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New California Law with Strict Penalties for Misclassification of Independent Contractors

Posted on January 25, 2012 by WPR

 S.B. 459 – - Misclassification of Independent Contractors

This new law prohibits willful misclassification of individuals as independent contractors. It adds section 226.8 to the California Labor Code which specifies that it is unlawful for any person or employer to:

(1) Willfully misclassify an individual as an independent contractor (meaning the person or employer voluntarily and knowingly misclassifies an individual as an independent contractor); or

(2) Charge an individual, who has been willfully misclassified as an independent contractor, a fee or make deductions from his/her compensation for any purpose, including for goods, materials, space rental, services, government licenses, repairs, equipment maintenance, or fines arising from the individual’s employment, where any of such charges/deductions would be considered unlawful if the person had been appropriately classified as an employee.

The consequences of a violation are serious and include:

          (1) If the Labor Workforce and Development Agency (“LWDA”) or a Court determines that a person or employer has violated the law, the person or employer shall be subject to a civil penalty that ranges from $5,000 to $15,000 for each violation, in addition to any other penalties or fines permitted by law;

          (2) If the LWDA or a Court determines that the person or employer has engaged in or is engaging in a pattern or practice of these violations, the penalty shall be $10,000 to $25,000 for each violation, in addition to any other penalties and fines permitted by law;

          (3) If the person or employer is a licensed contractor under the Contractors’ State License Law, the order of the LWDA or Court shall be transmitted to the Contractors’ State License Board, which must initiate disciplinary action against the license holder within 30 days. The disciplinary action can include disbarment;

          (4) The LWDA or Court shall order the person or employer to display prominently for one year on its Web site, in an area accessible to all employees and the general public, a specified notice that includes a statement that: (a) the person or employer has committed a serious violation of the law by willfully misclassifying employees; (b) the person or employer has changed its business practices to avoid further violations; and (c) any employee who believes he or she has been misclassified may contact the LWDA. If the person or employer does not have a Web site, the notice must be physically posted in a prominent location available to the general public at each location where a violation has occurred; and

          (5) The Labor Commissioner also has authority to issue a citation to assess damages and the fines specified above.

The new law also adds Labor Code section 2753 to specify that a person who, for money or other valuable consideration, knowingly advises an employer to treat an individual as an independent contractor to avoid employee status will also be in violation of the law, and subject to fines, if the person is found not to be an independent contractor. This new law is designed to deter accountants and other consultants from knowingly advising an employer to misclassify a person as an independent contractor. It does not apply to a person (such as a supervisor or manager) who provides advice to his/her employer, or an attorney authorized to practice law who is providing legal advice to the employee

WHAT TO DO NOW:

Proceed with caution when determining whether a person is an independent contractorrather than an employee. The tests that determine whether or not someone is an independent contractor are quite stringent. Misclassification can lead to significant liabilities for the employer, including tax liabilities and penalties, as well as these new fines.

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New Written Notice for All New Hires

Posted on January 6, 2012 by WPR

Effective January 1, 2012, California Labor Code section 2810.5 requires employers to provide to each employee at the time of hire with a written notice (in a language the employer normally uses to communicate employment related information to the employee) that specifies: (a) the rate or rates of the employee’s pay, (b) the basis of the rates: (c) whether the employee is paid by the hour, shift, day, week, salary, piece, commission or otherwise; (d) the employee’s overtime rate, if applicable; (e) allowances, if any, claimed as part of the minimum wage (such as meal or lodging allowances); (f) the employee’s regular payday; (g) the name of the employer, including any “doing business as” names used by the employer; (h) the physical address of the employer’s main office or principal place of business, and a mailing address, if different; (i)the telephone number of the employer; (j) the name, address and telephone number of the employer’s workers’ compensation carrier; and (k) such other information the Labor Commissioner may deem necessary. 

In addition, the employer is required to notify each employee in writing of any changes to the above written notice within 7 calendar days of any changes, unless the changes are reflected on a timely wage statement or writing provided to the employee.  An employer need not provide the required notices to employees who are covered by a collective bargaining agreement that expressly provides for the wages, hours of work, overtime premiums, and a rate of pay not less than 30 percent more than the state minimum wage.

               Public agency employers are exempt from this new notice requirement.

               The Department of Labor Standards Enforcement has made available a notice form for employer’s to complete and provide to new employees in order to comply with this new law.  The form is attached. 

What to Do Now:

Prepare a written statement in compliance with the new law for each employee who begins working for you company on or after January 1, 2012, as well as when changes are made to the information in the statement.  It is advisable to have each employee sign an acknowledgement of receipt of the document, and retain it in the employee’s personnel file.

For your convenience, we have attached the Notice to Employee Labor Code 2810.5 Form here: Labor code 2810.5

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Happy Holidays!

Posted on December 23, 2011 by WPR

To all of our wonderful readers, happy holidays! WPR thanks you for your constant support and wishes you the best for this holiday season. 

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December 2011 E-Alert: Limited on Employment Credit Reports

Posted on December 20, 2011 by WPR

A.B. 22

NEW LAW LIMITS EMPLOYMENT CREDIT  REPORTS 

This new law, effective January 1, 2012, prohibits employers or prospective employers (except financial institutions) from obtaining a consumer credit report for employment purposes unless the position of the person for whom the report is sought is:

1.     A position in the State Department of Justice; 

2.     A managerial position (someone covered by the executive    exemption under California Wage  Order 4); 

3.     A sworn peace officer or other law enforcement position; 

4.     A position for which the information contained in the report is required by law to be disclosed or obtained; 

5.     A position that involves regular access for any purpose, other than the routine solicitations and processing  of credit card applications in a retail establishment, to all of the following types of information of any one person: 

          a) Bank or credit card account information;

          b) Social security number; and 

          c) Date of birth. 

6.     A position in which the person is or would be a named signatory on the employer’s bank or credit card account, or authorized to transfer money or enter into financial contracts on the employer’s behalf; 

7.     A position that involves access to confidential or proprietary information that derives independent economic value from not being generally known; 

8.     A position that involves regular access to $10,000 or more of cash of the employer, a customer, or client, during the workday; or 

9.     The written notice to the employee that a credit report will be sought must also include the reasons for obtaining the report. 

What to do Now:

If your company or agency uses credit reports as part of the hiring process or other employment purposes, it should evaluate its procedures and limit its application to only those positions specified by the new law.

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Pre-Disciplinary Due Process Checklist

Posted on December 15, 2011 by WPR

Joe’s presentation at CALPELRA provided a good overview of the pre-disciplinary and post-disciplinary due process obligations of public employers.  He answered such questions as:  (1) when does an employee have a property interest that triggers due process obligations; (2) what employer actions trigger due process; and (3) what rights are due for pre-deprivation due process.   Attached you can find a helpful Pre-Disciplinary Due Process Checklist the team here at WPR put together to help public agency employers evaluate their pre-disciplinary due process obligations: CalPELRA Due Process Checklist

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Joe Wiley, Monna Radulovich and Masa Shiohira Return from a Successful CALPELRA Conference in Monterey

Posted on December 12, 2011 by WPR

Joe, Monna and Masa attended and presented at CALPELRA’s 2011 Annual Training Conference regarding Labor Relations in Turbulent Times, held on November 28th through December 2nd.  Approximately 1,000 persons from a variety of cities, counties, courts and special districts attended the conference.

Masa and Joe shared their insight with a presentation on the Best Ways to Use Communication Tools During Labor Negotiations. They focused on face-to-face interaction, e-mail, blogs and websites, and other methods of communications with represented employees, unrepresented/management employees, board/council or decision makers, and the public. 

Joe and Monna spoke about Constitutional Issues in Public Sector Labor Relations, focusing on the Due Process and First Amendment issues that public agencies frequently face when considering discipline of public employees.  Here is an attachment of their presentation: 2011 CalPELRA Annual Training Conference

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SAVE THE DATE FOR AN UPCOMING WPR BREAKFAST BRIEFING!

Posted on November 23, 2011 by WPR

WPR will present a Breakfast Briefing on Friday, March 2, 2012 at Scott’s Restaurant in Jack London Square, Oakland, California.  Details concerning the program will follow, but the presentation will include the new federal regulations under the Americans with Disabilities Act and reasonable accommodation of disabled employees.  We will provide practical tips to guide you in evaluating requests for reasonable accommodation.  We hope to see you there.

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