Labor and Employment Archives | Page 2 of 5

California constantly keeps employers on their toes by making frequent changes to the employment laws. 2022 is no exception. This is a roundup of all top developments that employers in California should know.

Attorneys at SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) law firm provides professional legal advice and services to clients in Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, Coachella Valley, Costa Mesa, San Diego, New Jersey, New York, and surrounding locations.

Minimum Wage Increase

California state minimum wage has been increased to $15.00 per hour effective January 1st, 2022. Minimum wage is $14.00 per hour for businesses with 25 or fewer employees. The minimum exempt monthly salary has been increased to $62,400 on an annual basis and $5,200 on a monthly basis. This is twice the state minimum wage for full time employees.

The minimum hourly rate for computer software employees has been increased to $50. The minimum annual salary is now $104,149.81 ($8,679.16 monthly).

The minimum hourly rate of pay for licensed physicians has been increased to $91.07. There are higher minimum wage rates imposed by certain cities and counties. In Los Angeles, the $15 minimum wage became effective in July of 2021.

New Wage Theft Criminal Penalties (AB 1003)

Intentional theft of wages starting 2022 (including tips) will be deemed as grand theft during any consecutive 12 month period if it is of an amount greater than:

Single employee – $950
Two or more employees – $2,350

Independent contractors fall under the purview of employees and are protected by the law. Entities that retain the services of independent contractors are termed as employers and can be charged with wage theft.

Further Limits on Negotiating Employee Silence

New restrictions are imposed as per SB 331 on separation, settlement, and nondisclosure agreements. The #MeToo movement strengthened in 2018, following which non-disclosure provisions in agreements was limited by California when involving sexual harassment allegations.

Employers are not allowed to contractually prohibit former or current employees from disclosing any fact related to alleged workplace discrimination in terms of religion, race, color, creed, ancestry, national origin, mental disability, physical disability, genetic information, medical condition, gender, sex, marital status, gender expression, gender identity, sexual orientation, age, and military or veteran status.

Premiums Paid at Regular Rate

Rest period and meal premiums have to be paid at regular rate now instead of base rate of pay. The California Supreme Court, in Ferra v. Loews Hollywood Hotel, LLC, unanimously held that payments for rest breaks, meal periods, and recover periods have to be paid at regular rate of pay.

The regular rate of pay should include bonuses, commissions, and shift differentials among other nondiscretionary payments. This ruling is retroactive and employers now need to settle the liability for previous premiums paid at base rate of pay.

Lengthening of Record Retention Requirements

Employers are required to maintain personnel records for at least 2 years. SB 807 allows to increase this requirement by 4 years. These kinds of records need to be maintained for the applicable statute of limitations deadline or till the litigation is concluded, whichever is later, if litigation is filed.

Lawyers at the SBEMP law firm serve clients from Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, Coachella Valley, Costa Mesa, San Diego, New Jersey, New York, and nearby locations for a range of legal practice areas.

Have any legal questions? Contact the Attorneys at SBEMP Law Firm:

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here.

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage, Indian Wells), CA; Indian Wells, CA; Costa Mesa (Orange County), CA; San Diego, CA; New Jersey, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this newsletter, seek the advice of an attorney.

Debtors with regular income may use Chapter 13 bankruptcy for coping with their overwhelming debts. This is also called the Wage Earner’s Bankruptcy and allows debtors with enough money to repay a part or all of their debts. Individuals prefer this as an alternative to liquidation. This is bankruptcy for those that have trouble meeting immediate payment demands and not inadequate income.

One of the more attractive features of this type of bankruptcy is you get to keep your home as long as you can pay the mortgage. This is in addition to any other amount the Chapter 13 repayment plan may require.

People are given 3 – 5 years for resolving their debt under Chapter 13 by applying disposable income to reducing debt. The option gives applicants the option to eliminate unsecured debts while catching up on any missed mortgage payments.

How Does Chapter 13 Bankruptcy Work?

Chapter 13 is similar to Chapter 11 bankruptcy that usually applies to businesses. The petitioner, in both cases, submits a reorganization plan with the court for safeguarding assets against foreclosure or repossession. The filer usually requests for debt forgiveness as well. Chapter 13 and Chapter 11 bankruptcy differ from Chapter 7 filing that involves the liquidation of assets, except when they are specifically protected.

Your unsecured debt should not be more than $419,275 to be eligible for Chapter 13 bankruptcy. This includes personal loans and credit card bills. Your secured debt should not be in excess of $1,257,850, including car loans and mortgage. These figures are periodically adjusted for reflecting consumer price index changes.

Procedure for Chapter 13 Bankruptcy

You should consult with a bankruptcy attorney that provides you with a free case evaluation and filing estimation.

Debtors or petitioners need to:

List creditors and the claimed amount
Disclose the source and amount of their income
List all owned property, including leases and contracts in their name
Provide a breakdown of their monthly living expenses
Provide tax information, including a statement of unpaid taxes and their most recent federal tax return

The debtor should also propose a repayment plan shortly after filing for bankruptcy. A bankruptcy administrator or judge will hold a hearing for determining whether it meets the bankruptcy code requirements and is fair or not. The court has the final say even if creditors raise objections to the plan.

The debtor is required to work with a trustee. This trustee will distribute payments to various creditors. Under Chapter 13, the debtor doesn’t need to have any direct contact with the creditors. In fact, the law requires all creditors to cease from attempting to recover the debts that are covered by the Chapter 13 bankruptcy process. However, this is only when all terms of the bankruptcy agreement are being met.

Have any legal questions? Contact the Attorneys at SBEMP Law Firm:

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here.

The Greater Coachella Valley Chamber of Commerce (GCVCC) and Ryan Quadrel, Associate Attorney with SBEMP hosted a webinar on NEW employment law updates effective January 1, 2022. This one-hour webinar was packed with content that every business owner must know in order to be compliant with NEW Federal and California State law updates. Employers learned what’s new, how new laws apply to businesses of different sizes, and what 2022 means for minimum wage and hourly pay compliance.

Labor Law

Labor laws refer to regulations that control the relationship between employers and employees when employees organize into a union.

These laws control whether employees can join together to negotiate the terms of employment collectively. Laws that allow collective bargaining establish the obligations and rights of the employer and employees as well.

Labor Law Litigation

Union agreements are enforceable in court, despite the fact that a significant part of labor law involves arbitration and negotiations.

As the courts have the jurisdiction to enforce and strike down agreements, labor lawyers sometimes litigate the matters in a formal, judicial setting. Labor lawyers also need to draft and file lawsuits and use the rules of the civil procedure to conduct discovery and argue their case in court.

Lobbying

Over time, labor laws have changed significantly in the US. Early government official displayed mistrust of unions. The first union in the US was formed in 1834 with the aim of negotiating a 10-hour workday.

Despite the fact that the US now has unions and labor laws, there are smaller and limited in comparison to other industrialized nations.

There has been a drastic change in the interactions and relationship between the employer and employee due to major legislations throughout the 20th century. Both corporations and unions depend on lobbyists to advocate for changes in the law as the laws that are instated are so significant.

Labor lawyers might work with lawmakers to understand their stand as they draft and consider changes to labor laws on a federal and state level.

Other Employment Laws

Labor law comprises only one area of employment law. Other than labor laws, there are laws that control all employment relationships in the US. These laws disallow any discrimination on the basis of color, race, sex, age, disability, and national origin.

They lay down the safety standards for employees, and establish compensation programs for employees who are injured while working. Labor attorneys must comprehend and work with these laws along with laws that specifically pertain to unions.

Who practices Labor Law?

Lawyers who practice labor law work in various types of legal employment. They may work on behalf of the union to negotiate a contract with an employer.

They might, on the other hand, work for a corporation to negotiate with the union. A labor attorney may be an employee, or they may work in private practice and provide services to an employer or the union on a contract basis.

Other than lawyers who work in private practice, labor lawyers also work for the National Labor Relations Board (NLRB). Attorneys do their part to conduct the Board’s work when the NLRB steps in to monitor the unionization process.

Attorneys perform these tasks when the Board prosecutes labor law violations. They might work in an adjudicative capacity to establish whether violations have taken place and issue suitable sanctions.

The Business of Doing Business

Labor laws determine the way that Americans conduct business. Labor lawyers shape, challenge and enforce labor laws. Their work affects almost all Americans in a direct or indirect manner. Attorneys who practice labor law enjoy the demands and rewards of this high-risk and high-profile area of law.

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here.

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Costa Mesa (Orange County), CA; San Diego, CA; New Jersey, NJ; and New York, NY.

In a rare wage and hour victory for employers, the California Court of Appeal, in AHMC Healthcare, Inc. v. Superior Court (2018), 24 Cal.App.5^th 1014, held that an employer’s timekeeping system, which automatically rounds employees’ time entries to the nearest quarter hour, did not violate California’s laws requiring employers to pay employees for all time worked. So long as the rounding policy is neutral both on its face and in its application, it is not unlawful, even if some employees lose compensable time as a result.

In AHMC, the employer used a timekeeping system that automatically rounded employees’ time entries up or down to the nearest quarter hour, instead of using the employees’ exact check-in and check-out times. The policy was applied to all employees equally. Two former hourly employees of AHMC, Inc. challenged the policy, claiming that whenever a rounding policy results in any loss to employees, no matter how minimal, the policy violates California law.

The California Court of Appeal rejected this argument. The Court acknowledged that rounding allows employers to calculate wages efficiently. Therefore, the fact that an employer uses rounding does not automatically invalidate the employer’s wage calculations. Rather, the policy must be reviewed to determine whether it is facially neutral and whether its application primarily benefits the employer or the employees.

If a rounding policy is applied evenly to all employees and rounds employees’ times both up and down so that it does not favor only the employer, it is not presumed to be unlawful on its face. When applied, a rounding policy is “fair and neutral” if it “does not systematically undercompensate employees.” (AHMC Healthcare, Inc. v. Superior Court, supra, 24 Cal.App.5^th at p.1026.) A rounding policy does not “systematically undercompensate” employees if rounding results demonstrate that, overall, the practice produces a net benefit to employees as a whole. In other words, the rounding practice sometimes produces a gain of time for employees and, at other times, a loss of time for employees. “[F]luctuations from pay period to pay period are to be expected under a neutral system,” so long as the overall net effect is a benefit to employees as a whole. (Id.)

In the case of the hourly AHMC employees, they were unable to provide any evidence indicating that the employer’s rounding policy singled out any particular group of employees for disparate treatment, and the policy required rounding of employees’ times upward and downward so that it did not favor only the employer. Therefore, it was facially neutral. In application, the policy resulted in most employees getting paid for more time than they actually worked or their time was not affected. Thus, the policy was neutral in application. The fact that a small group of employees actually lost time was not enough for the Court to strike down the policy as unlawful. California law does not require that every employee must “gain or break even over every pay period” in order for a rounding policy to be lawful.

Takeaways: If an employer rounds employees’ times in order to calculate wages, the rounding policy must allow for rounding time upward and downward. Moreover, the policy must apply evenly to all employees. Additionally, employers should review the actual results of its rounding practices to see if the rounding, as a whole, results in employees gaining or losing time or both. If, in practice, an employer’s policy consistently results in the employees losing time, the application of the rounding practice should be examined more carefully to identify potential factors causing the disparate result. The good news is a policy of rounding time will not be considered unlawful and invalid on its face just because rounding will necessarily cause employees to lose some time.

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here.

Employment Law

Employment law refers to a collection of laws and regulations that control the relationship between employers and employees. Employment laws stipulate when an employer can hire employees as well as when the employees can work.

The law encompasses what an employer must pay their employee as remuneration. These laws lay out the minimum requirements for employee working conditions.

Attorneys at SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) law firm provides professional legal advice and services to clients in Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and surrounding communities.

Following Employment Law

An employer has a lot to know when they want to hire an employee. There are minimum wage laws that require the employer to pay a specific amount. There exist laws that prevent the employer from discriminating against employees or applicants on the basis of certain characteristics.

Employers must offer a safe working environment to their employees. They may also need to provide medical insurance options in some cases. The employer must collect and submit payroll taxes on the employee’s behalf.

It is sometimes challenging for employers to keep up with the many regulations of employment law, and they are often left overwhelmed. US labor laws have evolved throughout American history. They are not located in one place, and this makes it important for employers to seek help from lawyers.

On their part, employees want the enforcement of labor laws. They may require help from an employment attorney to comprehend what the laws are and whether their employer is in violation of the law. They may consult an employment attorney to help them enforce the law when their employer is in violation.

Major Employment Laws in the US

Notable employment laws in the US include:

Minimum Wage Laws

The Fair Labor Standards Act of 1938 determines a federal minimum wage. Many states have minimum wage laws as well. States cannot set a lower minimum wage. However, they can set the minimum wage higher than the federal law necessitates.

Overtime Pay

Employees are entitled to overtime pay. According to the Fair Labor Standards Act, an employer must pay time and a half for any hours that an hourly employee works over 40 hours weekly.

There is no maximum number of hours that an employee can work in a week. However, the employer must pay overtime for each hour that an employee works over 40 hours per week.

Family and Medical Leave

The US does not have a requirement for paid medical leave. But according to the Family and Medical Leave Act of 1963, large employers must offer employees up to 12 weeks of unpaid family leave.

Collective Bargaining

Employees are legally entitled to organize collective bargaining with an employer. A company must negotiate in good faith if over 50 percent of a workforce wants to organize.

Safe Working Conditions

Employees are entitled to safe working conditions. The Occupational Safety and Health Act of 1970 (OSHA) offers employees protection from work hazards such as extreme temperatures, noise, chemicals, sanitation issues, and conditions that are likely to lead to injuries. Employers cannot retaliate against an employee if they choose to exercise their rights under OSHA.

Employers cannot discriminate against employees on the basis of protected characteristics. Employers must carefully avoid any type of discrimination against employees on the basis of race, age, color, sex, religion, or national origin.

Civil Rights Considerations

Employees have First Amendment rights. But employers have a right to conduct their business without employee interference. Civil rights protect the right to privacy of employee as well.

Lawyers at the SBEMP law firm serve clients from Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, San Diego, New Jersey, New York, and nearby locations for a range of legal practice areas.

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here.

Do you have to pay an employee for answering an after-hours work related call that only lasted a few minutes?

The Industrial Welfare Commission Orders, Section 2, describes “hours worked” as time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so. So, answering short calls, texts, and emails would fall under the definition of hours worked.

These small increments of time can be hard to track and previously were disregarded as “de minimis” time. De minimis time is commonly defined as a few seconds or minutes in duration, and where the failure to count such time is justified by industrial realities. However, the California Supreme Court held in 2018 that the de minimis rule has not been adopted by California laws, which require that employees be paid for “all hours worked.”

If it is not necessary for your employees to answer calls after-hours, create a policy that prohibits employees from working off the clock. If an employee still works after-hours, pay them for the time worked, but you can also discipline the employee for violating your policy.

For any questions regarding new laws, or existing laws, contact the Labor and Employment Law Attorneys at SBEMP.

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here.

This question was recently posed to Vee Sotelo regarding employees that called out the day before or after a paid holiday (day off):

Our company has a policy that requires employees to be at work the day before and after a company-observed holiday in order to be paid for that holiday. If an employee calls in sick the day before or after the holiday, can the company require the employee to produce a doctor’s note in order to receive pay for the holiday?

Here is Vee Sotelo’s response:

As you know, the Labor Commissioner has adopted the position that as long as the employees have job-protected sick days available under the Paid Sick Leave Law to be used, requiring the employees to produce a doctor’s note in order to use their available sick days is a violation of the Paid Sick Leave Law. Therefore, the focus of the analysis is on whether or not the employees are using their accrued and available sick days in order to call out sick the day before or after the holiday. If employees call out sick the day before or the day after a scheduled holiday closing and they have no sick days accrued and available, it does not matter that they claim to have been sick or were legitimately sick before or after the holiday. The absence is not protected by the Paid Sick Leave Law. Under these circumstances, the employer can apply its policy of requiring a doctor’s note to substantiate the absence. Once the employees run out of the accrued and available sick days, any further absences (even for legitimate reasons) would not be protected under the Paid Sick Leave Law.

If an employee still had sick days available and called out sick the day before or after the scheduled holiday closing, the employer will not be able to require the employee to produce a doctor’s note to substantiate the absence, even though the employer has a policy that allows it to require a doctor’s note when an employee is absent under these circumstances.

The bottom line is that, if an employee has not yet depleted her accrued and available sick leave and uses one or more of those days to extend her holiday, there is nothing the employer can really do about it. The employer cannot ask for a doctor’s note and cannot discipline the employee for violating the employer’s policy prohibiting employees from calling out sick the day before or after a holiday. However, if the employee has already used all of her accrued and available sick days for the year, then any subsequent absence from work would not be protected under the Paid Sick Leave Law, even if the employee was legitimately sick or needed to take the time off to care for a legitimately sick family member. In that case, the employer can ask for a doctor’s note if the employee calls out sick before or after a holiday.

For any questions regarding new laws, or existing laws, contact the Labor and Employment Law Attorneys at SBEMP.

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here.

Senate Bill 1343 Law

Senate Bill 1343 was approved by Governor Jerry Brown in September 2018. Starting in January 2019, SB1343 requires that all employers with 5 or more employees: 1) provide two hours of sexual harassment training to supervisors every two years; and 2) provide all other employees 1 hour of training within 6 months of being hired (or promotion to supervisor), and every two years thereafter.

The Department of Fair Employment and Housing (DFEH) recently clarified that SB1343 requires that all employees be trained during 2019. Therefore, employees who received training in 2018 or before, are required to be re-trained in 2019.

The sexual harassment training must include harassment based on gender identity, gender expression and sexual orientation. The training must also include abusive conduct prevention training.

Set Up Training Sessions

The lawyers in the Labor & Employment Department of SBEMP are able to provide sexual harassment training and further information on all of the new laws taking effect in 2019. To set up a training session, or for any of your labor & employment questions, please do not hesitate to contact our office.

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here.