The Magnificent Seven Wage and Hour Rules

The Magnificent Seven

The Magnificent Seven is one of my all-time favorite movies. The story is timeless and has been adapted several times. Yes, I know the Magnificent Seven is an adaptation of Akira Kurosawa’s Seven Samurai. Even Pixar came out with it’s own version in A Bug’s Life. I never tire of the story-line and the actors in the original Magnificent Seven. I even bare a scar on my forehead from when my brother tired to imitate James Coburn’s knife throwing skills. Thankfully the butt-end of the screwdriver hit me instead of the other end. Thanks, David!

When I saw the remake coming out with some of my current favorite actors, it definitely made my “must-see” list. It also got me thinking: what other Magnificent Sevens are worth considering?

The Magnificent Seven Wage and Hour Rules

Those familiar with my law practice know that I represent a lot of employers and employees regarding wage and hour disputes. I also frequently present seminars to attorneys, HR staff and payroll specialists regarding how to pay employees correctly. Therefore, I thought it would be fun to provide my Magnificent Seven Wage and Hour Rules.

In no particular order, here is my list of seven wage and hour rules to follow if you want to avoid problems in the workplace:

  1. Only pay a salary to employees if they are truly exempt from overtime.
  2. Keep accurate records of the hours worked for at least 4 years.
  3. Have policies in place providing for regular rest and meal breaks, and have employees clock out for unpaid meal breaks.
  4. Just because you think someone is an independent contractor, doesn’t mean the government or the courts will agree.
  5. Know if local ordinances require different rules for employees working in different cities and counties.
  6. Commission and bonus agreements should be in writing and identify when a commission or bonus is earned.
  7. Tips belong to the employees, not to the employer!

Employing workers in California can be difficult. Most employers make mistakes out of good intentions rather than evil objectives. Regardless of the intent, however, employers are responsible for following state and federal wage and hour laws. Hopefully this short list will help employers and employees avoid the most common wage and hour problems.

Now, go buy your ticket for the new Magnificent Seven. I don’t know if Denzel Washington, Chris Pratt and Ethan Hawke can match Yul Brynner, Steve McQueen and James Coburn, but I’m sure it will be a good time.

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. We cannot answer questions about specific situations or provide legal advice over the Internet. 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. Do not post confidential or time-sensitive information in this blog. The 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.

Upcoming Presentations About Employment Laws

Upcoming Presentations

I’m very excited about two upcoming presentations that I will present regarding employment laws.

California Society of CPAs

At this upcoming presentation on October 7, 2016, I will discuss: “That’s Not My Employee! Why the California Courts and Government Agencies May Disagree” to the CalCPA at Sunrise Bistro in Walnut Creek.  We will cover:

  • Independent contractor versus employee: It’s not just your client’s problem anymore
  • Minimum wage and overtime requirements: How to pay correctly
  • Update on recent changes in California employment law

Register here.  The presentation is perfect for CPAs with small practices and CPAs that advise small to mid-sized employers.

Aging Life Care Association

At this upcoming presentation on October 21, 2016, I will discuss: “Hiring and Working with Caregivers: Risks, Liabilities and Solutions” at the Aging Life Care Association’s Western Region Chapter Conference in Monterey.  We will cover how to:

  1. Identify the most common employment risks care recipients, families and those in the circle of care face when hiring and employing caregivers.
  2. Identify ways to minimize the risk that a caregiver could claim you are the employer.
  3. Be able to educate your clients regarding the various risks and alternatives when hiring a caregiver.
  4. Have alternative methods for reducing the cost of in-home care without increasing liability.

The WRC-ALCA presentation is primarily geared toward care managers and others assisting the elderly and disabled adults in the home.  Register here.

I hope to see you at these upcoming presentations. A cornerstone of my practice is educating employers, HR professionals, fiduciaries, employees, and others regarding their rights and responsibilities in the workplace. Knowledge is power, so come get powered up!

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. We cannot answer questions about specific situations or provide legal advice over the Internet. 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. Do not post confidential or time-sensitive information in this blog. The 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.

How Much is Your Attorney Worth?

Attorneys use a variety of fee arrangements depending on their practices and the particular cases. Some work on an hourly rate (meaning you pay for every minute spent on your case). Others work on a contingency-basis (typical in personal injury cases where the client pays no fees unless and until there is a recovery from the other side). Some attorneys work on a flat-fee basis for some projects. Many, like me, offer a variety of fee arrangements to fit the situation. A common question is how much should you pay your attorney. Another way of asking that is: How much is your attorney worth?

Attorney Fees and Attorney Worth

In the ideal situation, the attorneys’ fees match the attorney worth. What do I mean by attorney worth? What is it worth to you in order to receive the services you receive. Oftentimes, the “worth” is not known at the beginning of the relationship. Will you win? Can the attorney successfully prosecute or defend your case? Is the attorney’s advice helpful? Sometimes it is difficult to determine the attorney worth until you know the end result. But you usually agree to the attorneys’ fees–or at least the method of determining the attorneys’ fees–at the beginning of the relationship.

As time progresses, the perceived worth of the services may change. Sometimes the perceived worth changes comes from a change in the case–the case becomes more or less valuable than originally believed. Other times the perceived worth changes because pursuing the case becomes a higher or lower priority in your life. Hopefully the change does not occur because the attorney is doing a poor job. If that’s the case, then you certainly should seek the advice of another attorney to determine whether you are receiving the services you bargained for.

How Do the Court’s Determine Attorney Worth?

In some cases, the losing party may have to pay the winning party’s attorneys’ fees. When that happens, the winning side files a motion for attorneys’ fees and the court determines the amount of attorneys’ fees to award. Usually, the court will award attorneys’ fees based on the Lodestar method. The Lodestar method looks at the attorneys’ reasonable rates and multiplies that by the number of reasonable hours the attorney spent on the case. I say “reasonable,” because the courts have discretion to determine whether an attorneys’ rates or hours are too high.

In a recent case, Hiken v. Department of Defense, that spanned several years, the winning side asked for over $380,000 in attorneys’ fees. The attorneys’ argued their rates ranged from $350 per hour to almost $700 per hour. The court thought the requested hourly rates were too high, and only awarded about $150,000,  based on a $200 per hour rate. In reversing the lower court’s award, the 9th Circuit said:

From time to time, fee applicants request awards higher than that which the evidence may, upon close review by a neutral judge, fairly permit. But a fee applicant’s decision to request a higher rate does not permit a court to disregard different rates if the evidence in the record supports them.

In other words, the court could not just reject the attorneys’ reasonable rate and create the court’s own rate just because it wants to. The case is now back at the lower level so the court can reconsider an appropriate rate.

A useful tool in determining appropriate hourly rates is the Laffey Matrix. This matrix lists hourly rates for attorneys of varying experience levels and paralegals/law clerks. The matrix is prepared and updated every year by the Civil Division of the United States Attorney’s Office for the District of Columbia (USAO). It is supposed to be used to evaluate requests for attorney’s fees in civil cases in District of Columbia courts.  Courts in other jurisdictions will oftentimes refer to the matrix when making fee awards.

Laffey Matrix and Attorney Worth

So, what does the Laffey Matrix say about attorney rates? The following is a list of rates based on years of experience from the 2015-2016 Laffey Matrix:

Experience 2015-16

  • 31+ years $568
  • 21-30 years $530
  • 16-20 years $504
  • 11-15 years $455
  • 8-10 years $386
  • 6-7 years $332
  • 4-5 years $325
  • 2-3 years $315
  • Less than 2 years $284
  • Paralegals & Law Clerks 154

The Laffey Matrix is not the final word on reasonable hourly rates. The actual rates will vary depending on location, experience, firm resources, etc. I tell all my clients that attorneys’ fees are negotiable. That doesn’t mean your attorney will work for free, but you should have a frank discussion with any prospective attorney regarding their rates and experience. Be a well-informed consumer and find the right attorney that works for you.

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. We cannot answer questions about specific situations or provide legal advice over the Internet. 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. Do not post confidential or time-sensitive information in this blog. The 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.

 

Happy Labor Day!

As an employment attorney, I thought it would be nice to share some interesting information regarding Labor Day.

Department of Labor Facts re Labor Day

  • Labor Day, the first Monday in September, is a creation of the labor movement and is dedicated to the social and economic achievements of American workers.
  • The first governmental recognition came through municipal ordinances passed during 1885 and 1886.
  • February 21, 1887 Oregon passed Labor Day bill. New York actually introduced the legislation first, but Oregon passed the law first.
  • On June 28, 1895, Congress passed an act making the first Monday in September of each year a legal holiday in the District of Columbia and the territories.

Who First Proposed Labor Day?

It was a McGuire, but was it Peter or Matthew? Peter McGuire was the general secretary of the Brotherhood of Carpenters and Joiners. He also cofounded the American Federation of Labor. Some records he first suggested a day to honor those “who from rude nature have delved and carved all the grandeur we behold.”

Others say that Matthew Maguire, secretary of the Central Labor Union in New York, proposed the holiday in 1882.

At the height of the U.S. Industrial Revolution Americans worked long days, oftentimes 7-days a week just to eke out a basic living. Children worked alongside adults in deplorable conditions, and immigrants often faced extremely unsafe working conditions. Workers began joining together in collectives and unions to fight the inhumane working conditions.  According to History.com, “on September 5, 1882, 10,000 workers took unpaid time off to march from City Hall to Union Square in New York City, holding the first Labor Day parade in U.S. history.”

Labor Day: A Fight for Change

For those that started the movement, Labor Day was more than just a day off from work. It was a statement that all workers deserve to be treated fairly. Many of us take modern working conditions for granted.

Ben Railton, an Associate Professor of English and American Studies at Fitchburg State University and a member of the Scholars Strategy Network says:

Like the American labor movement itself, these histories are messy, conflicted, include both triumphs and tragedies, aren’t easily boiled down into a straightforward narrative. But one clear takeaway is this: As with every victory achieved by the labor movement (including eight-hour workdays, the weekend, health protections, child labor laws, and numerous other successes), Labor Day would not exist without the movement’s more radical and activist elements and efforts. Remembering the holiday’s origins can thus help us not only celebrate all that the labor movement has achieved, but also recognize the continued need for radical activism.

Celebrate the last days of Summer. Enjoy time with your friends and family, but don’t forget the struggles of our forefathers that made this day possible.

Happy Labor Day!

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. We cannot answer questions about specific situations or provide legal advice over the Internet. 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. Do not post confidential or time-sensitive information in this blog. The 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.

Will the Domestic Workers Bill of Rights Be Extended?

Senator Connie Leyva introduced SB 1015 to eliminate the “sunset clause” in the Domestic Workers Bill of Rights. The DWBR (eff. 1/1/14) entitles personal attendants, aka caregivers, to overtime premiums whenever they work more than 9 hours in a day or more than 45 hours in a week.

Sunset Clause in Domestic Workers Bill of Rights

The original statute contained a sunset clause:

This part shall remain in effect only until January 1, 2017, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2017, deletes or extends that date.

Several bills tried to modify or eliminate the Domestic Workers Bill of Rights. SB 1015 simply eliminates the sunset clause. The bill passed the Assembly on August 18th. It passed the Senate on August 30th (just before the last day for each house to pass bills).

Governor Brown and the Domestic Workers Bill of Rights

The SB 1015 moves to the governor’s office, where he will have 12 days to veto the bill before it becomes law. I anticipate Governor Brown will sign the bill considering he signed the original DWBR. According to Senator Leyva, the bill was sponsored by the California Domestic Workers Coalition and supported by over 100 community, labor, education and legal rights organizations. The original law required the governor to convene a committee to explore the impact of the law. I have been unable to locate any information regarding the committee or what conclusions it reached.

Is the Domestic Workers Bill of Rights a boon for low-income workers or a bane for the elderly community? Either way, the Domestic Workers Bill of Rights is likely here to stay.

UPDATE 9/12/16: Governor Brown signed AB 1015, so it is official. The Domestic Workers Bill of Rights is here to stay.

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. We cannot answer questions about specific situations or provide legal advice over the Internet. 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. Do not post confidential or time-sensitive information in this blog. The 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.