Labor and Employment Archives | Page 3 of 5

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.

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 communities.

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.

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.

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.

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.

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.

LEAVES OF ABSENCE AND BENEFITS

Paid Family Leave
Lactation Accommodation

HIRING PRACTICES

Salary History
Criminal Background Checks

DISCRIMINATION, HARASSMENT AND RETALIATION PROTECTIONS

Harassment – Defamation Protection
Confidentiality Clauses in Settlement Agreements
Sexual Harassment
Sexual Harassment Training
Waivers of Right to Testify
Gender Representation on Boards of Directors
Discrimination Against Service Members
Sexual Harassment – Professional Relationship
Legislative Employees – Whistleblower Protection
New Human Trafficking Training

WAGE AND HOUR

Construction Industry PAGA Prohibition
Petroleum Facility Rest Break Exception
Meal Period Exception for Feed Truck Drivers
Copies of Payroll Records

WORKPLACE HEALTH/SAFETY AND WORKERS’ COMPENSATION

Injury Reporting – Statute of Limitations
Workplace Mental Health – Voluntary Standards

LIABILITY

Joint Liability – Port Trucking Companies

Labor-Related Liabilities – Direct Contractor

For any questions regarding these new laws, or existing laws, contact the Employment and Labor Law Attorneys at SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here.

Photo: License: Creative Commons 3 – CC BY-SA 3.0; Attribution: Alpha Stock Images – http://alphastockimages.com/; Original Author: Nick Youngson – http://www.nyphotographic.com/; Original Image: http://picpedia.org/handwriting/e/employment-law.html

New California Employment Laws

January 2019 will bring several new employment laws that will affect your business. On Governor Jerry Brown’s last day to sign or veto bills, he signed the following into law:

AB 1976 – Lactation Accommodation: employers cannot designate a bathroom as a space to express breast milk.
AB 2282 – Salary History: employers cannot ask about salary history but can now inquire about an applicant’s salary expectations for the position the applicant is applying for; external applicants are entitled to a pay scale upon request, after completing an initial interview.
AB 2770 – Defamation Protection: employees who make a credible report of harassment and employers who communicate with interested parties during an investigation will be shielded from liability in a defamation lawsuit.
SB 820 – Confidentiality Clauses in Settlement Agreements: settlement agreements in matters where sexual harassment, assault or discrimination have been alleged are prohibited from including a confidentiality provision that prohibits the disclosure of factual information regarding the claim.
SB 1123 – Paid Family Leave: the wage replacement program will be expanded in 2021 to any employee who takes time off for qualifying exigencies related to the covered active duty status of the employee’s spouse, domestic partner, child or parent.
SB 1300 – Sexual Harassment: this law lowers the bar for employees to initiate harassment lawsuits and the ability of employers to obtain summary judgment in those matters by, among other things, specifically affirming or rejecting prior employer-friendly judicial holdings, such as rejecting the “stray remark doctrine” and prohibiting employers’ reliance on Kelly v. Conco for the proposition that different standards of hostile work environment may apply, depending on the type of workplace involved.
SB 1343 – Sexual Harassment Training: starting in 2020, employers with five or more employees will be required to provide two hours of sexual harassment training to supervisors, and one hour to non-supervisor employees within six months of hiring/promotion, and every two years after that.

For any questions regarding these new laws, or existing laws, contact the Employment and Labor 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.

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; Princeston, NJ; and New York, NY.

A recent decision by the California Court of Appeal confirmed that the ABC test, used to determine whether an individual shall be classified as an employee or an independent contractor, will only be applied to claims involving Industrial Welfare Commission wage order violations.

Earlier this year, the California Supreme Court in Dynamex v. Superior Court of Los Angeles County held that in order to classify a worker as an independent contractor, the person or business who hires the worker must prove all three of the following factors:

(A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;

(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and

(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

This test, referred to as the “ABC Test”, presumes that any worker is an employee and places the burden on the hiring entity to demonstrate otherwise. However, after Dynamex, uncertainty remained regarding whether the new test would apply to non-wage-order claims.

On October 22, 2018, the Court of Appeal in Garcia v. Border Transportation Group, LLC held that the ABC Test applies only to claims arising out of alleged violations of the wage orders, and the Borello test will continue to be applied to all non-wage order claims.

It is important for both workers and businesses to know whether an individual worker should properly be classified as an employee or an independent contractor, and equally important to understand the correct application of the ABC Test. SBEMP’s Labor & Employment Department is prepared to guide you through the process.

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

The U. S. Supreme Court upheld the practice some companies have of requiring employees to sign away their rights to bring about class action law suits against management concerning hours or wages. This ruling allows management to compel employees to sign away their rights to join forces against management.

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