Happy Holidays and Predictions for 2018

Happy Holidays

Before I get into my employment law predictions for 2018, let me thank my friends, family, colleagues and clients. You’ve helped make 2017 so successful. I am so grateful and blessed to have so many wonderful people in my life. Practicing law gives me the opportunity to help others and change their lives for the better. I enjoy what I do, and I like helping my clients with their employment law issues.

Here are just a few of the highlights and milestones for me in 2017:

  • I, along with my co-counsel Patrick Kitchin, obtained a seven figure settlement on behalf of a class of hair stylists in the Bay Area.
  • I hiked the mountains in New Mexico at the Philmont Scout Ranch with my two sons and three other Boy Scouts.
  • I began bicycling and jogging, increasing my cardiovascular health so I can almost keep up with my three teenage children.
  • I celebrated 19 years of marriage to my beautiful wife.
  • I conducted several presentations regarding employment laws, with a specific emphasis on home care workers, including presentations to the Professional Fiduciary Association of California, the East Bay and the Golden Gate Enrolled Agents Associations, the California Society of CPAs and the Special Needs Symposium.

Thank you and may your holiday season be filled with warmth and love, and may you experience a prosperous 2018.

Rob’s Employment Law Predictions for 2018

A client asked about my 2018 employment law predictions.

There is a significant push toward more transparency in the workplace. Laws prohibiting employers from asking about prior salaries combined with protections for employees who discuss salaries with co-workers will make it more difficult for employers to justify pay differentials. I predict that more discussions about pay will result in more litigation regarding pay practices in 2018.

The media has recently focused on sexual harassment in Hollywood and politics. The increased media hopefully opens the door for more discussions about appropriate workplace conduct. I predict we will see an increase in sexual harassment claims in 2018. I also predict employers will take greater steps to ensure their workplace is free of unlawful harassment, including training managers and supervisors how to respond to complaints. Recent changes in the law regarding what must be included in mandatory sexual harassment prevention training will also increase the dialogue regarding treating persons with dignity and respect regardless of their gender or lifestyle.

I predict employers will struggle with proper hiring techniques. Beginning 2018, employers cannot ask about prior salaries and cannot ask about convictions until after the employer extends a conditional offer of employment [not true for all employers]. Many employers don’t know about the changes. Those employers may be targeted for individual or class actions for inappropriate questions during the hiring process.

I predict wage and hour lawsuits will continue to increase in 2018. We will see more class actions and PAGA claims. Now that PAGA actions are not subject to arbitration, means more plaintiffs attorneys will use PAGA claims to avoid arbitration. Additionally, recent cases expanded the scope of discovery in PAGA actions. Plaintiffs attorneys now have more tools to obtain information during litigation.

Those are my predictions for employment law related problems in 2018. We’ll have to wait and see whether my predictions come true.

If you have questions about employment laws, feel free to contact me in the New Year. I work with employees and employers to resolve workplace disputes.

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.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with 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.

 

 

Horror Stories from Hiring Caregivers – Part 2

Horror Stories from Hiring Caregivers – Part 2

This is Part 2 in my series on cautionary tales taken from real caregiver cases I handled. As before, I left out the names to protect the parties, but the facts are real. Read on to learn how innocent mistakes when hiring caregivers can lead to dire consequences. Some have happy endings, others not. All have lessons for families hiring caregivers. You can read the first installment here.

Today’s story:

A Tale of Two Sisters

A year and a half after Mom died, the caregiver that was providing 24/7 care sued the two daughters for unpaid wages. The complaint alleged the two sisters were employers because, as trustees of Mom’s trust, they were responsible for supervising the caregiver and paying the caregiver. The caregiver claimed she was owed over $450,000 in unpaid wages and penalties.

The opposing counsel used the wage order and the FLSA to bolster her argument that the co-trustees “directly or indirectly” controlled the hours, wages or working conditions. Shortly after we resolved the case, the California Supreme Court adopted the same definition of employer.

A potential saving point in our case was the fact that the caregiver waited more than a year to file her claim. While most unpaid wage claims have a three-year statute of limitations (four-years if it constitutes and unfair business practice), we argued the shorter one-year statute of limitations for claims against a decedent applied. We resolved the case before the court heard our demurrer on the issue.

It took some time to convince the other side that the caregiver was a “personal attendant,” and therefore not entitled to overtime. Remember, this was before the Domestic Workers Bill of Rights was adopted in 2014. As a personal attendant, she also could not recover meal and rest break penalties. We resolved the case through private mediation. In exchange for a complete release of claims, my client paid $27,000 in back wages, $10,500 in penalties and $17,500 to the plaintiff’s attorney for costs and fees. This is in addition to over $30,000 my client paid my firm.

Although we were confident in our arguments, the client still had potential liability. If we lost the statute of limitations argument, the caregiver had a valid minimum wage claim. She received a salary that did not cover 24-hour care. Although Mom did not necessarily require 24-hour care, there were no time records to confirm the actual hours worked. Even if we defeated the claims, the client likely would have spent close to the settlement amount defending the case.

What lessons did we learn regarding caregivers?

1.     Make sure the employment agreement is in writing.

2.     Be sure to designate the capacity in which you are acting (e.g., conservator, trustee, etc.) in the employment agreement.

3.     Maintain a record of the hours worked.

4.     Do not hire a single caregiver to provide 24/7 care (we learned this one before, but it’s one that repeatedly comes up).

More stories will follow.

If you, or someone you know, has questions about employing or hiring caregivers, feel free to contact the Nuddleman Law Firm. I represent caregivers, families, fiduciaries, attorneys, care agencies, home health agencies, residential care facilities and others involved in the circle of care.

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.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with 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.

Hiring Caregivers Horror Stories – Part 1

Horror Stories from Hiring Caregivers – Part 1

I help a lot of families, trustees, conservators and other fiduciaries resolve disputes with caregivers. I also represent a number of caregivers in disputes with the families that hired them. I frequently educate those in the circle of care regarding the common pitfalls when hiring caregivers. I encourage families to use reputable care agencies or 3rd party employers because most families are not prepared to become employers.

The following real case is a cautionary tale to show how innocent mistakes can lead to dire consequences. I left out the names to protect the parties, but the facts are real.

Sleeping with the Enemy

My first venture into what can happen when hiring caregivers was in 2007. A colleague represented a trustee who, along with the conservator, wanted to terminate the caregiver. Not only had the caregiver moved her entire family into the home, the caregiver was sleeping with the successor trustee who was trying to undermine the current trustee. The caregiver and her family damaged the home, and were treating the employer’s credit card as their personal bank. In order to ease the transition, they offered the caregiver a fairly generous severance, which the caregiver rejected. We suspect the successor trustee helped her in that decision.

The trustee had to initiate an unlawful detainer action to remove the caregiver and her family. When she finally left, the trustee discovered burned cabinets, rat feces in the kitchen, missing furniture, and soiled clothing strewn about the home.

The caregiver hired an attorney, who demanded $350,000 in unpaid wages. The attorney claimed the caregiver worked 24-hours a day, 7 days a week. Because the caregiver only received $750 per week, the wages did not cover all hours worked, even at minimum wage. At that time, caregivers were not entitled to overtime. We spent significant time, money and resources convincing the opposing counsel that the caregiver was not owed the wages she claimed. Unfortunately, when you added the various penalties, the claim was worth more than $350,000 . Fortunately, the opposing counsel didn’t figured that out before we settled the case.

We agreed to early mediation and with the help of a very good mediator, resolved the case without litigation. My client paid the caregiver $94,500 in back wages, and paid her attorney $63,000 in attorneys’ fees and costs.

It is important to note that this case took place over 10 years ago, when caregivers were not entitled to overtime. Had this case occurred today, the liability would have been significantly greater.

What lessons did we learn regarding hiring caregivers?

  1. It’s never a good idea to let the caregiver’s family move into the residence.
  2. Hiring a single caregiver to provide care to an elderly or disabled person increases the chance of elder or dependent-adult abuse.
  3. Hiring a single caregiver to provide 24/7 care is costly.
  4. Allowing an employee to sleep with a family member can get expensive.

More stories will follow.

If you, or someone you know, has questions about employing or hiring caregivers, feel free to contact the Nuddleman Law Firm. I represent caregivers, families, fiduciaries, attorneys, care agencies, home health agencies, residential care facilities and others involved in the circle of care.

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.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with 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.