Acosta Sworn in as New Labor Secretary

Alexander Acosta was sworn in today as the 27th U.S. Labor Secretary. The Secretary of Labor heads the Department of Labor, which enforces and passes regulations involving:

  • Unions,
  • The workplace, and
  • Other employment controversies.

The DOL came under fire during Obama’s presidency for revising regulations to create new rules that Congress refused to pass.

Labor Secretary Changes the Law Regarding Caregivers

In 2013 the DOL moved forward with its Final Rule altering the “companion exemption” to the Fair Labor Standards Act.  FLSA traditionally exempted certain domestic workers (i.e., persons employed about the home).  In 1974, Congress amended the FLSA to include some, but not all, domestic workers.  Companions, sometimes referred to as “elder sitters,” or “personal attendants”, were not covered by the FLSA.  When Congress expanded the FLSA to cover domestic workers but not companions, the FLSA adopted regulations defining the type of work that qualified for the companion exemption.  Previous efforts to increase or decrease protections for companions never made it through Congress.  Obama directed the Labor Secretary and the DOL to modify the regulations, eliminating the companion exemption for any worker employed by a third-party employer.

The regulations also narrowed the type of work that constitutes “companion” services.  Elder care advocates criticized the regulations, while union advocates applauded them.

New Labor Secretary Under Trump

President Trump promised to roll back the overtime regulations, claiming they  harmed small businesses. We don’t know if iAcosta will defend the Obama administration’s overtime rule, or try to repeal it. According to onlabor:

Allied Progressive Executive Director Karl Frisch criticized Acosta as someone who would not likely fight for workplace safety and fair wages. According to Bloomberg BNA, some Republicans have discussed replacing the rule with a more modest proposal, raising the threshold salary to $35,000. Gregory Jacob, former DOL solicitor and friend of Acosta, thinks this is unlikely and he is more apt to withdraw the rule by publishing notice in the federal register. Catherine Ruckelshaus, general counsel for the National Employment Law Project, points out that a positive court ruling would make it difficult for President Trump to repeal, given that a repeal would have to go through notice and comment. Furthermore, continuing with the litigation presents “a tension between whatever desire they have to invalidate the rule and accepting a legal theory which… reduces their rulemaking authority,” says Sachin Pandya, employment law professor at the University of Connecticut.

I presume Acosta will hold office for a while before making drastic changes. We’ll have to wait and see.

For now, most caregivers are entitled to overtime when they work more than 40 hours in a week. In California, caregivers are also entitled to overtime when they work more than 9 hours in a day.

If you plan to hire a caregiver, or if you work as a caregiver, contact the Nuddleman Law Firm, P.C. to understand the rules affecting 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.

Compensable Commute Time Crash

It’s commute time. You’re traveling to work, listening to the radio. You’re clocking about 25 miles an hour on the freeway when you accidentally bump the car in front of you. No one’s hurt, but you know this will impact your insurance rates. Did you also know your employer could be responsible for your commute time? Sometimes, employers are responsible for paying the employee for the commute time, and for accidents while driving to/from work.

Must My Employer Pay for My Commute Time?

Usually, the answer is no. Recent court decisions, however, are creating several exceptions to the general rule. Employers must pay employees for time traveling to work-related functions. Employers must pay employees for all “hours worked.” This includes any time the employee is suffered or permitted to work. It also includes time the employee is subject to the employers control. Traditionally, traveling to and from work is not considered part of the job. In 1947, the Department of Labor adopted the Portal-to-Portal Act, which modified the federal laws regulating minimum wage and overtime.

The Portal-to-Portal Act (secs. 1–13, 61 Stat. 84–89, 29 U.S.C. 251–262) eliminates from working time certain travel and walking time and other similar “preliminary” and “postliminary” activities performed “prior” or “subsequent” to the “workday” that are not made compensable by contract, custom, or practice.

For the most part, California follows similar rules. For example, employers don’t have to pay for commute time when the employer does not control the method and means of transportation. Employees who “commute to work on their own decide when to leave, which route to take to work, and which mode of transportation to use. By commuting on their own, employees may choose and may be able to run errands before work and to leave from work early for personal appointments.” Therefore, the commute time is not compensable.

When an employee must report to the employer’s business office before going to the actual worksite, the employee is “subject to the control of the employer” from the moment of reporting to the office until the employee is released to proceed directly to his or her home.  Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575.

Is My Employer Responsible for an Accident During Commute Time?

If you asked this question 10 years ago, I would have said no. However, in 2013, a court said that an employees was “acting within the scope of employment” when she got into an accident while running personal errands on her commute home because an employee was required to use her car for work (Moradi v. Marsh USA, Inc., 219 Cal. App. 4th 886). Moradi worked for an insurance broker. She had to drive her personal vehicle to work so she could do work errands throughout the day. Because the employer required her to have her vehicle at work, the employer could be responsible for accidents while driving to/from work.

In 2017, another court followed the same logic.(Sumrall v. Modern Alloys, Inc.). In Summrall,

a construction company paid its employee only for the hours he worked at a jobsite. But rather than driving his vehicle directly from his home to the jobsite, the company expected the employee to first commute to the company’s “yard.” The employee would then drive a company truck from the yard to the jobsite, transporting coworkers and materials. One day, while driving from his home to the yard, the employee collided with a motorcyclist, who sued the construction company.

If the employee’s “worksite” was the “yard,” then the employee was commuting on his own time, in his own vehicle, and therefore the employer would not be liable. However, if the employee’s “worksite” was the actual jobsite, then traveling to the yard to pick up supplies and workers was a part of the employee’s job responsibilities, and the employer could be liable for accidents occurring on the way to the yard.

Neither Moradi nor Sumrall addressed whether the employee had to be paid for the commute time. Whether the time is compensable is a slightly different analysis from whether the employer can be responsible for an accident occurring during the commute. Employers, however, need to be aware of both issues when creating policies and practices for employees driving to/from work, and to/from job sites.

Travel and Commute Time Policies

If you have questions about whether your commute time is compensable, or if you would like to discuss your travel time policies, contact the Nuddleman Law Firm, P.C. and speak with a knowledgeable employment attorney.

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.

Wage and Hour Workshop

Wage and Hour Workshop

I am pleased to announce that I am co-presenting a Wage and Hour Workshop on May 12, 2017, hosted by The Labor & Employment Law Section of the Santa Clara County Bar Association. My panel topic: In Today’s Mobile World, What Hours Really Count as Work? Richard Schramm and I will explore:

  • Which hours are “hours worked”
  • Handling On-Call time issues
  • Controlled and uncontrolled stand-by and break time
  • Non-Productive Time for Commissioned and Piece-Rate Workers
  • Concealed Hours
  • De Minimus Time
  • Travel Time

Other presenters for the wage and hour workshop will cover expense reimbursements, ethical issues in wage and hour litigation, and the best ways to gather evidence for your case. The workshop includes many distinguished panelists.

The workshop is designed for attorneys, HR professionals, and businesses. We will provide an in-depth look at some of the more confusing wage and hour issues employers and employees face in today’s workforce. And, yes, ethics credit is available for part of the workshop.

You can find more information and register here. Seats can fill up quickly, so register early.

Wage and Hour Workshop Program

Panel 1: “In Today’s Mobile World, What Hours Really Count as Work?”

Richard Schramm, Employment Rights Attorneys, LLP
Robert Nuddleman, Nuddleman Law Firm, P.C.
Panel 2: “To Reimburse or Not Reimburse? That is the Question: A  Discussion Re: Compliance with Expense Reimbursements.”

John McIntyre, Shea & McIntyre
Tyler M. Paetkau, Hartnett, Smith & Paetkau

Keynote Speaker:

Honorable Roberta Hayashi, Superior Court of California, County of Santa Clara

 

Panel 3: “The Art of Wage War: Ethical Issues in Wage and Hour Litigation.”

Tom Duckworth, Duckworth, Peters, Lebowitz Olivier LLP
Robert (“Bob”) Jones, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Panel 4: “Getting Creative With Discovery: What Are the Best Ways to Gather Your Evidence Formally or Informally in a Wage & Hour Case?”

Eleanor (“Ellie”) Schuermann, Kastner Kim LLP
Jay J. Wang, Fox, Wang & Morgan P.C.

Moderator:

Jennifer Leung, Juniper Networks and SCCBA Chair of Labor & Employment Section

I hope to see you there.

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.

Employee Benefit Plans

I oftentimes get questions about employee benefit plans, such as health insurance plans and retirement plans. ERISA laws–the Employee Retirement Income Securities Act–govern employer provided benefit and welfare plans. Although I can answer some basic questions about ERISA plans, and have even litigated a couple of cases with ERISA issues, I rely on experienced ERISA attorneys for the best advice and representation regarding employee benefit plans.

Attorneys Handling Employee Benefit Plans

One of my favorite ERISA lawyers is Ruth Silver Taube. Ruth is a valuable resource with a wealth of information. I regularly refer clients to her, and have always received positive feedback about her knowledge, advocacy and advice. At her website she gives a brief description of ERISA Plans:

There are two types of  employee benefit plans.  One is an “employee welfare plan,” and the other is “an employee pension benefit plan.”  ERISA Section 3(3), 29 U.S.C. 1002(3).  An “employee welfare benefit plan” is any “plan, fund, or program” which is “established or maintained by an ‘employer’” or an “employee organization” (union etc.) or both for the purpose of providing benefits to employees such as medical, dental, disability, vacation, etc.  ERISA Section 3(1), 29 U.S.C. 1002(1).   Long term disability (“LTD”) plans provided by the employer or employee organization or union are employee welfare benefit plans and are covered by ERISA.

Ruth has been particularly useful in handling Long-Term Disability plans. She knows how to get to the heart of a matter and advocates zealously for her clients. It’s no wonder she has had so many successful resolutions. I can’t recommend Ruth enough. I’m not in the habit of blogging about hiring another attorney, but if you have an employee benefit plan question, you can’t go wrong contacting Ruth.

If you’re in the East Bay, you should also consider contacting Cassie Ayeni Springer. I got to know Cassie at a recent Alameda County Bar Association event and was immediately impressed with her knowledge and attitude regarding representing clients. I had the opportunity to refer an employee benefit plan case to Cassie recently, and received high praise from the client regarding Cassie’s command of the issues.

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.