New Labor Law Posters for San Francisco

Every year, federal and state employment laws alter the landscape for employers. More recently, cities and counties have entered the mix with their own rules and regulations. Companies doing business in San Francisco are likely familiar with the ever-changing rules and posters.  Effective July 1, 2016, there are some new labor law posters for San Francisco companies that must be displayed in the workplace.  Which posters you have to display depends on how many employees you have working in San Francisco.

San Francisco Labor Law Posters

You can obtain nice laminated posters from various sources, but you have to be sure the posters are up to date and appropriate for your location and the size of your company. Alternatively, you can hunt around the Internet to find the new labor law posters. In order to make it easy for you, I’m including links to the new labor law posters for San Francisco in this article with a brief description of when you need the poster.  The links and posters are accurate as of July 1, 2016, but as I’ve said before, the laws keep changing so it is always a good idea to check with an employment law specialist.

San Francisco Minimum Wage Notice with New $13.00 per hour Minimum wage

On July 1, 2016, pursuant to Proposition J, which passed in 2014 with more than 76% of the vote, San Francisco’s minimum wage increases to $13.00.  All employers, regardless of where they are located, must pay their employees who perform work in San Francisco the San Francisco minimum wage.

The current SF Minimum Wage Notice can be downloaded here.

San Francisco has a helpful FAQ about the SF Minimum Wage requirements.

San Francisco Health Care Security Ordinance (HCSO) Notice with Rate Increases for 2016

Businesses with 20 or more employees (and nonprofit organizations with 50 or more employees) must spend a minimum amount on health care benefits for each of their “covered employees” – generally, those employees who work 8 or more hours per week in San Francisco and have been employed for more than 90 days. Employers with 20-99 employees must spend at least $1.68 for each hour payable for each covered employee. Employers with 100+ employees must spend at least $2.53 for each hour payable for each covered employee. These expenditures must be made for each employee within 30 days following the end of each calendar quarter.

The current SF HCSO can be downloaded here.

You can find more information regarding the SF HCSO, including reporting requirements, here.

San Francisco Family Friendly Workplace Notice

The San Francisco Board of Supervisors passed the Family Friendly Workplace Ordinance (FFWO) on October 8, 2013 and it became effective on January 1, 2014. This ordinance gives certain employees the right to request a flexible work arrangement and gives the employer the right to refuse for legitimate business reasons.

The FFWO requires that employers with 20 or more employees allow any employee who is employed in San Francisco, has been employed for six months or more by the current employer, and works at least eight hours per week on a regular basis to request a flexible or predictable working arrangement to assist with caregiving responsibilities. The employee may request the flexible or predictable working arrangement to assist with care for:

  1. a child or children under the age of eighteen;
  2. a person or persons with a serious health condition in a family relationship with the employee;  or
  3. a parent (age 65 or older) of the employee.

The official notice can be downloaded here.

The SF Office of Labor Standards Enforcement has a helpful FAQ regarding the FFWO.

San Francisco Paid Sick Leave Notice

The San Francisco Paid Sick Leave Ordinance became effective on February 5, 2007.  All employers must provide paid sick leave to each employee (including temporary and part-time employees) who performs work in San Francisco. Although statewide Paid Sick Leave Requirements went into effect on July 1, 2015, employers with employees performing work in San Francisco are required to comply with both laws. Unfortunately, compliance with the statewide Paid Sick Leave Requirements does not guarantee compliance with San Francisco Paid Sick Leave Ordinance.

The official poster that must be posted in the workplace can be downloaded here.

There is a helpful FAQ regarding the SF Paid Sick Leave Ordinance compared to the California paid sick leave requirements.

Knowing which labor law posters to post and when to get updates is not always easy. Hopefully this article will help companies comply with the posting requirements for the various labor law posters in San Francisco.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Employer Cannot Combine Rest Periods

California law requires employees to receive a paid 10-minute rest period for every 4 hours worked, or major fraction thereof.  California employees are also entitled to an unpaid 30-minute meal break whenever the employee works more than 5 hours in a day.  The rest periods are supposed to occur in the middle of each 4-hour block, and the lunch break must typically occur before the 5th hour. So, can an employer combine rest periods into one long 20-minute rest period? According to Juan Rodriguez v. E.M.E., Inc., probably not.

Employer Cannot Combine Rest Periods

In Rodriguez, employee worked either a first or second shift. The first shift went from 7:30 a.m. to 4:00 p.m. and the second shift went from 3:30 p.m. to 11:30 p.m. During the first shift, employees received a 20-minute rest break at 9:30 or 9:40 a.m., and a 30-minute meal break at 12:30 p.m. During the second shift, employees received a 30-minute meal break at 5:30 p.m. and a 20-minute rest break at 8:00 p.m.

The Rodriguez case hinged on the extent to which Wage Order 1-2001 permits an employer to combine rest periods and whether an employer had to provide them before or after the meal break. The Rodriguez court relied on Brinker, which held “Employers are . . . subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible.” The Brinker court left open under what circumstances an employer could deviate from “the preferred course.”

E.M.E. argued that its shift schedules provided the required 20 minutes of total rest periods, and that “no statute or provision of the wage order barred a single combined rest period.” E.M.E. argued that practical considerations rendered “the preferred course” infeasible. The company had provided the combined rest periods for over 30 years, and resulted from requests by the employees. The company also argued the combined rest periods increased productivity because it eliminated having to prepare equipment for starting and stopping work (e.g., cleaning paint gun before break and then refilling the paint container for spraying before starting again). Several employees submitted declarations stating they “preferred the combined break in the morning because it allowed them to buy a meal from the food truck and provided for a better rest.”

The court was not swayed:

Under the circumstances established here, section 12(A) of Wage Order 1-2001 obliged E.M.E. to provide a 10-minute rest break in the middle of the work periods occurring before and after the 30-minute meal break “insofar as practicable.”

The court believed a jury must decide “whether the rest break schedule stated in the wage order was not practicable.”

The lesson, even if employees are asking to combine rest periods, employers risk litigation when the employer deviates from the “preferred course” established by the wage orders.

under the applicable wage order provision, rest breaks in an eight-hour shift should fall on either side of the meal break, absent factors rendering such scheduling impracticable.

Don’t Combine Rest Periods

Unless the employer can prove the “preferred course” is infeasible, employers should schedule a 10-minute rest break around the 2-hour mark, followed by an unpaid 30-minute lunch break around the 4-hour mark, and a final rest break around the 6-hour mark.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

FLSA Changes Tip Pool Rules

You take your significant other out for a nice dinner.  The wait staff was friendly, the atmosphere was wonderful, the food was great and even the busboy was friendly. With a warm glow of the great service still shining on your face, you leave a sizable tip; confident that–as is common in many establishments–the tip will be divided among the all those that contributed to your wonderful experience so they can all benefit from your generosity. You believe the tip will be shared with the kitchen staff. After all, the chef and sous chefs prepared the delicious meal. But is that what really happens?  Are Tip Pools valid, and who can participate in a Tip Pool?

In Oregon Restaurant and Lodging Association v. Perez, the 3-judge panel departed from 9th Circuit and Supreme Court precedent regarding whether a “valid tip pool” can include persons who are not “customarily and regularly” tipped. The 9th Circuit previously held that an employer that does not use tips to satisfy the employer’s minimum wage obligation could require servers to contribute their tips to a tip pool that included kitchen staff who are not ordinarily tipped in the restaurant industry.  Cumbie v. Woody Woo, Inc. (“Cumbie ”), 596 F.3d 577, 578-579 (9th Cir.2010)

Cumbie relied on Supreme Court precedent in Williams v. Jacksonville Terminal Co., 315 U.S. 386, 62 S.Ct. 659, 86 L.Ed. 914 (1942), which held that “[i]n businesses where tipping is customary, the tips, in the absence of an explicit contrary understanding, belong to the recipient. Where, however, [such] an arrangement is made …, in the absence of statutory interference, no reason is perceived for its invalidity.” Williams, 315 U.S. at 397 (internal citations omitted). Thus, “Williams establish[ed] the default rule that an arrangement to turn over or to redistribute tips is presumptively valid.” Cumbie, 596 F.3d at 579.

Under the Fair Labor Standards Act of 1938 (“FLSA”), as amended in 1974, an employer may fulfill part of its hourly minimum wage obligation to a tipped employee with the employee’s tips. 29 U.S.C. § 203(m). This practice is known as taking a “tip credit.” Section 203(m) of the FLSA obligates employers who take a tip credit to (1) give notice to its employees, and (2) allow its employees to retain all the tips they receive, unless such employees participate in a valid tip pool. Under section 203(m), a tip pool is valid if it is comprised exclusively of employees who are “customarily and regularly” tipped.

Under Cumbie, because §203(m) was silent regarding whether an employer who did not use tips to cover part of the employer’s minimum wage obligation could require a tip pool including employees who are not customarily and regularly tipped, the FLSA did not prohibit the practice.  The court held that Congress only put restrictions on tip pools when the employer uses tips to cover part of the employee’s minimum wage.

After Cumbie, the Department of Labor issued new regulations.  Specifically, the DOL revised 29 C.F.R. § 531.52 by replacing the sentence:

In the absence of an agreement to the contrary between the recipient and a third party, a tip becomes the property of the person in recognition of whose service it is presented by the customer.

with the following language:

Tips are the property of the employee whether or not the employer has taken a tip credit under section [20]3(m) of the FLSA. The employer is prohibited from using an employee’s tips, whether or not it has taken a tip credit, for any reason other than that which is statutorily permitted in section [20]3(m): As a credit against its minimum wage obligations to the employee, or in furtherance of a valid tip pool.

The Oregon Restaurant court held that the “2011 rule expressly prohibits the use of a tip pool that violates section 203(m) regardless of whether an employer uses a tip credit.”

Even though the 9th Circuit previously held that the FLSA unambiguously allowed employers to split tips among all employees as long as the employer does not use the tips to satisfy any part of its minimum wage obligations, the court ignored the fact that “prior judicial construction of a statute ‘trumps an agency construction otherwise entitled to Chevron deference’ when ‘the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” Oregon Restaurant and Lodging Ass’n v. Perez (9th Cir., Feb. 23, 2016, 13-35765) 2016 WL 706678, at *11[quoting Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs. (“Brand X ”), 545 U.S. 967, 982, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005).]

The 9th Circuit already held the FLSA unambiguously allows employers to split tips among all employees in the chain of service, regardless of whether the employees “customarily and regularly” receive tips, so long as the employer does not use the tips to cover the employer’s minimum wage obligations.  A subsequent interpretation of the FLSA by the DOL—which is what the regulations are—does not trump prior judicial precedent and the DOL regulations are therefore entitled to no deference.  Since the revised regulations are entitled to no deference, in the absence of a congressional change in the law or binding precedent from the Supreme Court, the 9th Circuit is obligated to follow its prior precedent.

UPDATE: 9TH CIRCUIT DENIES PETITION FOR REHEARING EN BANC

On September 6, 2016, the 9th Circuit denied the defendants’ request for a panel rehearing and denied their request for a rehearing en banc. That means the court’s decisions stands, and it will now be up to the U.S. Supreme Court to decide whether to review the matter.  

Judge O’Scannlain, joined by Judges Kozinski, Gould, Tallman, Bybee, Callahan, Bea, M. Smith, Ikuta and N.R. Smith, dissented from the denial of rehearing en banc because they believe the panel’s opinion rejected court precedents, and opened two circuit splits. In layman terms, that means some of the judges believed the other judge’s got it wrong. According to the dissenters, the majority decision creates a conflict between the different courts in the nation so employers won’t know what rules to follow.

Hopefully the U.S. Supreme Court will take the matter for review (the court is not required to hear every case), and decide the issue once and for all. Or at least, deny it until the Department of Labor decides to change the rules again.

–Robert Nuddleman

 

So, where does that leave you and your tip.  Under the FLSA–which is different than California law–tip pools are only valid if the tip goes to people who are customarily and regularly tipped.  If you want the kitchen staff to receive a tip for the food they prepared, you may need to tip them separately.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Unconscious Bias in the Workplace

In February, I interviewed Suzanne Wertheim of Worthwhile Research and Consulting regarding the ways people communicate in the workplace.  Dr. Wertheim recently wrote an article for Fast Company regarding The Common Habit That Undermines Organizations’ Diversity Efforts.  The article talks about how unconscious bias can lead to “unconscious demotions.”

Dr. Wertheim is a linguistic anthropologist and Founder/CEO of Worthwhile Research and Consulting. She writes and teaches about language, bias, and diversity.  She is a great educator and a wealth of knowledge.  Her article discusses some  less-discussed consequences of unconscious bias–i.e., demotions in the workplace–and what people can do to try to avoid common pitfalls.

In her article, Dr. Wertheim shares an interesting anecdote about a party-goer who mistakenly assumes an African-American attending the party was a waiter, when in fact he was a state senator.  That senator, later became President of the United States. There is no indication that the faux pas was intentional, and by all accounts there was no indication of express bias on the party-goer’s part.  Nonetheless, it is those unconscious biases that oftentimes direct our points of view and distort our perspective.

More and more studies are realizing the impact of unconscious bias in our lives and the workplace.  Understanding that unconscious bias exists is a first step toward recognizing that we all make judgments based on our past experiences and our subconscious can make connections between two categories of things when there really is no connection (e.g., assuming a person of color is the waiter instead of a senator).

Making employment decisions based on unconscious bias regarding someone’s age, race, gender, etc. is just as illegal as making a conscious decision regarding someone’s employment based on a protected category.  I highly recommend you read Dr. Wertheim’s article and consider how your environment is impacted by unconscious bias.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.