Minimum Wage and Paid Sick Leave Increases

As you get ready to celebrate the 4th of July, don’t forget that a number of local minimum wage increases across California will take effect July 1, 2017. Eligibility rules may vary among the locations listed below. Employers should review the individual city ordinances and follow posting requirements. Employee handbooks and policies, as well as new posters, may need updating.

The following cities and counties will increase their minimum wage July 1:

  • Emeryville: $15.20 an hour for businesses with 56 or more employees; $14 an hour for businesses with 55 or fewer employees.
  • City of Los Angeles: $12 an hour for employers with 26 or more employees; $10.50 an hour for employers with 25 or fewer employees.
  • Los Angeles County (unincorporated areas only): $12 an hour for employers with 26 or more employees; $10.50 an hour for employers with 25 or fewer employees.
  • Malibu: $12 an hour for employers with 26 or more employees; $10.50 an hour for employers with 25 or fewer employees.
  • Milpitas: $11 an hour
  • Pasadena: $12 an hour for employers with 26 or more employees; $10.50 an hour for employers with 25 or fewer employees.
  • San Francisco: $14 an hour.
  • San Jose: $12 an hour.
  • San Leandro: $12 an hour
  • Santa Monica: $12 an hour for employers with 26 or more employees; $10.50 an hour for employers with 25 or fewer employees.

The Economic Policy Institute has a very good, up to date, interactive website regarding minimum wage laws in California and around the United States.

Local leave law updates

Over the last several years, California and several cities and counties have implemented mandator paid sick leave laws. The City of Los Angeles’ Paid Sick Leave Ordinance now applies to all employers. Employers with 25 or fewer employees must provide increased accrual benefits (48 hours annually for use/72 hours for total accrual cap) for sick leave benefits July 1, 2017.

San Francisco’s Paid Parental Leave Ordinance was passed with a phased-in implementation. Employers with 35 or more employees must begin complying as of July 1, 2017.

Fox Rothschild has a very good table summary of the various paid sick leave laws in California. It was last updated in September 2016, so there may be additional changes.

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.

Rest Break Reminder

A few months ago I wrote about Augustus v. ABM Security Services, where the court said employer must relieve employees of all duties in order for a rest break to be valid. ABM required the security guards to carry pagers, radios or cell phones during breaks. The court concluded on-call rest breaks are the same as no rest breaks.

Revision to Rest Break Decision

The California Supreme Court revised the opinion slightly, but the holding still stands.  The court changed final sentence in the Conclusion and so that the complete Conclusion now reads as follows:

California law requires employers to relieve their employees of all work-related duties and employer control during 10-minute rest periods.  The trial court’s summary adjudication and summary judgment orders were premised on this understanding of the law.  Rightly so: Wage Order 4, subdivision 12(A) and section 226.7 prohibit on-duty rest periods. What they require instead is that employers relinquish any control over how employees spend their break time, and relieve their employees of all duties—including the obligation that an employee remain on call.  A rest period, in short, must be a period of rest.  We accordingly reverse the Court of Appeal’s judgment on this issue.  The matter is remanded to the Court of Appeal for further proceedings consistent with this opinion.

This is not a big shocker, but it is language to remember. Employees must receive duty-free rest breaks. Employers cannot exercise any control over the employee during the rest break. Companies should review their rest break policies to ensure they are relieving employees of all duties during the rest breaks.

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.

Employing Private Household Caregivers

Practical Considerations for Employing Private Household Caregivers

Last June, Bender’s California Labor & Employment Law Bulletin published an article I co-wrote with a colleague, Carmela Woll, regarding employing private household caregivers. The article contains a lot of useful information for employers and employees to consider when hiring or working as a caregiver, and is similar to other articles I’ve posted. I thought I’d pass along some of the useful information in the article.

Introduction

Families often times come to us after they already hired one or more caregivers, with varying employment arrangements including straightforward arrangements such as payment for services or not so straightforward arrangements such as free room and board in exchange for services. These deals are often made with a handshake and the family members believe they are entering a fair agreement where the caregiver works for limited hours and gets a free place to live and some meals. Everyone sees it as a win-win situation, and may not appreciate the importance of a written agreement or having the caregiver record hours worked.

Well-intentioned, family members can open themselves up to significant personal liability with these handshake arrangements. California’s broad definition of “employer” puts individual family members at risk for a host of wage and hour issues. Failing to maintain accurate records, misunderstanding pay obligations, and unwritten agreements regarding meals and lodging can lead to costly mistakes. Most family members are not prepared to take on the responsibilities of an “employer,” and are not familiar with some of the unique aspects of employing a private household caregiver. Wage and hour claims can be filed up to four years after the wages were due and the liability can be staggering, particularly for a family trying to make ends meet and care for a loved one.

The purpose of this article is to identify some common “red flag” areas that you should know when you or your client wants to hire a private household caregiver.

Credit for Lodging and Meals

In California, Wage Order No. 15-2001 applies to “Household Occupations,” including most workers employed by the household owner. Although an employer may use meal and lodging as a credit against minimum wage, Wage Order No. 15-2001 limits the amount that can be used to offset the employer’s minimum wage obligation, and the amount of the credit depends on the type of lodging provided. Moreover, the credits may only be applied if the employer and employee enter into a voluntary written agreement before the work is performed. A handshake or verbal agreement won’t suffice. The written agreement must specify the amounts that will be deducted, and cannot be more than the amounts set forth in the Wage Order.

Domestic Workers Bill of Rights

Wage Order No. 15-2001 defines “personal attendant” as any person employed by a private householder or by any third-party employer recognized in the health care industry to work in a private household, to supervise, feed, or dress a child, or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of personal attendant applies when no significant amount of work other than the foregoing is required. For these purposes, “no significant amount of work” means work other than the foregoing did not exceed 20 percent of the total weekly hours worked. Prior to January 2014, “personal attendants” were exempt from many of the typical wage and hour obligations under Wage Order No. 15, including overtime premium pay. However, if a caregiver spent more than 20% of his/her time doing non-personal attendant work, the employee did not qualify as a personal attendant and was entitled to overtime.

This changed in September 2013, when the Governor signed the Domestic Workers Bill of Rights (DWBR), which created California Labor Code sections 1450 to 1454, and extended overtime protection to “personal attendants.” Employers have always been required to pay at least minimum wage for all hours worked, but until adoption of the DWBR, “personal attendants” were not entitled to overtime regardless of the number of hours worked.

Under the DWBR, personal attendants are entitled to overtime compensation at one and one-half times the employees’ regular rate of pay for all hours worked in excess of 9 hours per day or 45 hours per week. The overtime obligation applies regardless of whether the worker is employed by the family or a third-party employment agency. The only exception is if the wages are paid through one of the listed state or county programs (i.e., In-Home Supportive Services, Lanterman Developmental Disabilities Services Act, California Early Intervention Services Act, etc.) or if the person providing the services is the “parent, grandparent, spouse, sibling, child, or legally adopted child of the domestic work employer.”

The DWBR Broadly Defines “Employer”

For purposes of the DWBR, “domestic work employer” is any person, including corporate officers or executives, who directly or indirectly, or through an agent or any other person, including through the services of a third-party employer, temporary service, or staffing agency or similar entity, employs or exercises control over the wages, hours, or working conditions of a domestic work employee. This definition provides a strong argument that a family member could be considered an employer whenever the family member directly or indirectly exercises control over the wages, hours and working conditions. In Guerrero v. Superior Court, the court found the County of Sonoma was the employer because the county was obligated to ensure the work was actually performed and because the County “held the purse” strings. This same logic could be used to sue a family member that hires, pays or otherwise directs the employment of a caregiver.

FLSA Regulations

Since its inception, the Fair Labor Standards Act (FLSA) exempted certain domestic workers (i.e., persons employed about the home) from its provisions. 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 never covered by the FLSA. Recent revisions to FLSA regulations eliminated the companion exemption for any worker employed by a third-party employer. This means that if a family uses a third-party agency to provide companion care for a family member, the companion must be paid one and one-half times the employee’s regular rate of pay for any hours worked in excess of 40 hours per week.  Companions employed directly by the family are still exempt from the FLSA’s overtime requirements. Although the overtime obligations do not apply to companions employed directly by the families, families are required to maintain accurate records of the hours worked and wages paid.

Suggestions for Minimizing Risk When Hiring Caregivers

From a liability standpoint, it is almost always safer for families to use a care agency rather than hire a caregiver directly. Reputable care agencies pay their employees according to state and federal law, and have required and recommended insurance coverage in case of problems. Using a care agency also eliminates the problem of finding replacement personnel if the caregiver does not work out or calls in sick. Using a care agency is more expensive than hiring directly, but care agencies are now required to conduct background checks, Tuberculosis tests, and provide minimum training.

Caregivers should only be hired directly when the family members, or the elderly person, are prepared to take on the responsibilities of an employer. That means setting up payroll, keeping track of hours worked, maintaining adequate workers’ compensation insurance and all the other responsibilities and liabilities that come with being an employer. If a care agency is prohibitively expensive, and the family has an aversion to taking on the responsibilities and liabilities of being an employer, a third party employer could be an option. There are a few third party employers catering to the homecare industry, but very few.

It’s best to avoid paying caregivers a daily, weekly or monthly salary. A salary only compensates the employee for the regular hours worked.  If the personal attendant works more than 9 hours in a day or more than 45 hours in a week, the salary does not cover the overtime hours. Caregivers should be paid an hourly rate—and overtime should be paid when it is worked.

When the caregiver is required to remain on the premises, the caregiver must be paid for the time spent on the premises even if the caregiver is sleeping. In Mendiola v. CPS Security Solutions, Inc., the court confirmed that an employee must be paid for all hours worked, including when the employee is subject to the employer’s control—even if the employee is sleeping. Unless the employee is relieved of all duties and free to leave the premises, the employee is still subject to the employer’s control.

Have a written employment agreement. California Labor Code section 2810.5 requires the basic pay information, including the paid sick leave policy, to be in writing, signed by the employee. A written employment agreement should—at a minimum—confirm the at-will nature of the employment, the hourly rates to be paid, and the types of duties the employee is expected to perform.

When seeking to apply credit for lodging or meals towards payment of wages, be sure to have a written agreement with the caregiver before the work begins. Refer to Wage Order No. 15-2001 to determine the maximum amount of credit that may be applied.

Caregivers should not be hired as independent contractors. Different agencies use different tests to determine whether a worker should be classified as an employee or an employer. Regardless of which test applies, it will be difficult for any caregiver to qualify as an independent contractor. Aside from the tax implications, California Labor Code section 226.8 imposes a fine of between $5,000 and $25,000, for “willfully” misclassifying someone as an independent contractor.

To avoid more exposure to payment of overtime, do not let personal attendants perform medical procedures or clean the house and other housekeeping chores. A personal attendant is there to provide fellowship and protection, and to assist the care recipient with the activities of daily living. When a caregiver performs work that should be done by a licensed medical professional, or if the caregiver spends more than 20% of her/his time doing laundry and cleaning the house, the caregiver will not qualify as a personal attendant thus resulting in greater exposure to liability for payment of overtime wages.

About the Authors

Carmela Woll is the principal attorney at the Law Office of Carmela J. Woll, in Santa Cruz, California.  She represents and advises both employees and employers in labor and employment law matters, with a focus on providing counsel to small businesses and non-profit corporations.  Ms. Woll also conducts private and public sector workplace investigations. 

Robert Nuddleman is the principal attorney at the Nuddleman Law Firm, P.C., representing individuals and companies in federal and state court and before various administrative agencies, focusing on overtime claims, breach of contract, trade secret protection, claims of sex, race, age, and pregnancy discrimination and/or harassment and accommodating persons with disabilities. Mr. Nuddleman is the current chairperson for the Alameda County Bar Association’s Labor & Employment Law Section and the former chairperson for the Santa Clara County Bar Association’s Labor & Employment Law Section. 

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 about wage and hour or other employment law issues, 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.

Answers to “Day of Rest” Questions

I want my day of rest. It’s a story as old as the bible. Literally. Can an employer require, or even allow, an employee to work seven days a week without a day of rest? I get that question a lot. Until now, no cases directly addressed the point.

Court Tackles Day of Rest Question

Every once in a while a federal appellate court won’t know the answer to state law questions. When that happens, they can ask the California Supreme Court for answers. In Mendoza v. Nordstrom, the Ninth Circuit needed answers to some questions about California’s “day of rest” provisions. The California Supreme just answered those questions.

Labor Code sections 550–558.1 prohibit an employer from “caus[ing] his employees to work more than six days in seven.” (Labor Code §552) That doesn’t apply if the employee works less than 30 hours per week or less than 6 in a day. (Labor Code §556) Those statutes, however, don’t answer all the questions.

Mendoza worked as a barista and later a sales representative for Nordstrom in San Francisco and San Diego. On several occasions, Mendoza’s supervisor and co-workers asked him to fill in for another employee. This meant Mendoza had to work more than six consecutive days. Mendoza sued Nordstrom for allegedly violating California’s day of rest provisions. The trial court concluded:

(1) section 551 guarantees a day of rest on a rolling basis, for any seven consecutive days; but

(2) under section 556, the guarantee does not apply so long as an employee had at least one shift of six hours or less during the period, as Mendoza and Gordon did; and

(3) Nordstrom did not “cause” Mendoza to work more than six consecutive days because it did not force or coerce him to do so.

The court dismissed the action and Mendoza appealed. The Ninth Circuit asked the Supreme Court to answer a couple of questions.

Day of Rest Questions Answered

Here’s what the California Supreme Court said:

Question #1: Is the day of rest required by sections 551 and 552 calculated by the workweek, or does it apply on a rolling basis to any seven-consecutive-day period?

Answer: A day of rest is guaranteed for each workweek.  Periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited.

This means employees can work more than seven days in a row when those days span multiple workweeks. For example, the standard workweek is Sunday through Saturday. Employers can schedule an employee to work Wednesday through Wednesday. The seven consecutive days span multiple workweeks.

Question #2. Does the section 556 exemption for workers employed six hours or less per day apply so long as an employee works six hours or less on at least one day of the applicable week, or does it apply only when an employee works no more than six hours on each and every day of the week?

Answer:  The exemption for employees working shifts of six hours or less applies only to those who never exceed six hours of work on any day of the workweek.  If on any one day an employee works more than six hours, a day of rest must be provided during that workweek, subject to whatever other exceptions might apply.

This one is fairly straight-forward. Labor Code section 556’s exception for shorter shifts only applies if all the shifts are less than 6 hours.

Question #3. What does it mean for an employer to “cause” an employee to go without a day of rest (§ 552):  force, coerce, pressure, schedule, encourage, reward, permit, or something else?

Answer: An employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled.  An employer is not, however, forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest.

This, I think, is the most important part. If employers advise employees of their right to a day of rest, employees can work seven days in a row. To me, this makes sense, since the wage orders usually require employers to compensate employees at the overtime rate for the first eight hours worked on the “seventh consecutive day of work in a workweek.” See, e.g., IWC Order 4-2001, subs. 3(A)(1). Why require seventh day overtime, if the employer can’t let the employee work seven days in a row?

What does “Cause” mean?

Mendoza claimed an employer could not “allow,” “suffer,” or “permit” an employee to work a seventh day. Nordstrom argued “unless the employer requires, forces, or coerces seventh-day work, it has not caused the employee to work.” The court rejected both arguments, and substituted its own:

an employer‘s obligation is to apprise employees of their entitlement to a day of rest and thereafter to maintain absolute neutrality as to the exercise of that right. An employer may not encourage its employees to forgo rest or conceal the entitlement to rest, but is not liable simply because an employee chooses to work a seventh day.

The court specifically held, “[t]he payment of overtime is not an impermissible employer inducement; it is, instead, simply compliance with a federal- and state-imposed legal obligation.”

Employers with employees working without a day of rest should advise employees of their right to a day off. Even better, they should ask the employee if s/he wants to work seven days in a row and leave it up to the employee’s discretion. Getting it in writing helps, of course.

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 about wage and hour or other employment law issues, 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.

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.

Labor Law and Payroll Tax Seminar

Labor Law and Payroll Tax Seminar

The California Employment Development Department (EDD) and the Division of Labor Standards Enforcement (DLSE or Labor Commissioner) are hosting a free seminar regarding labor law issues, wage and hour requirements and payroll tax issues. The presentation will cover:

  • Record keeping requirements
  • Reporting requirements
  • Employer obligations
  • Payment requirements
  • Common wage and hour laws
  • Employer and employee rights and responsibilities
  • How to distinguish between an employee and an independent contractor

The presentation is being held on March 15, 2017, from 9 a.m. to 3:30 p.m. at the Dublin Civic Center.

Although I am not presenting at this seminar, I’ve presented similar topics to various groups in the past, and it is an area that requires attention. Many new or smaller employers, and even some more established and larger employers, make small but costly mistakes. This presentation will help employers understand their obligations, and make corrections to avoid problems in the future.

I doubt the presentation will cover what to do if you’ve already made a mistake without increasing your liability, which is unfortunate. I always prefer to include possible resolutions to common labor law issues when an employer discovers a possible problem.

Register for Labor Law Seminar

Employers interested in attending can register at www.edd.ca.gov/Payroll_Tax_Seminars/ or call 888-745-3886. The agencies conduct these presentations periodically, so if you can’t make the March 15th presentation, check for other available dates.

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

Properly Paying Caregivers: SNT Symposium

Properly Paying Caregivers for Special Needs Trust Beneficiaries

I am excited to present Properly Paying Caregivers for SNT Beneficiaries at this year’s Special Needs Planning SymposiumSharon Novak of TEAM Risk Management Strategies, LLC and I will cover:

  • Employees versus Independent Contractors
  • Personal Attendants versus Companions
  • Who is an Employer when Hiring Caregivers
  • Minimum Wage and Overtime Obligations
  • Paid Sick Leave Requirements
  • Payroll Taxes, Unemployment Insurance and Workers’ Compensation
  • Conducting Background Checks
  • Common Myths and Misconceptions when Hiring Caregivers

The presentation will be part of a 2-day symposium, with 14 sessions, 10+ speakers and 2 workshops. Set in beautiful Sonoma, California, you can view the full schedule here.

Properly Paying Caregivers Presentation  Set for Saturday, February 18th, at 2:30 p.m.

Kevin Urbatsch did a wonderful job gathering wonderful speakers, including professional fiduciaries, trusts and estates attorneys and other professionals experienced in handling special needs trusts. I look forward to seeing you all 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.

Fair Pay Act Investigations

California recently enacted new standards to combat discriminatory pay practices. California’s Fair Pay Act prohibits paying any employee less than the amount paid to employees of the opposite sex, race or ethnicity for doing “substantially similar work.” Employers have the burden of demonstrating that pay differential are based entirely and reasonably upon:

  • Seniority system, merit system, or system that measures earning by quantity or quality of production; or
  • Bona fide factor that is not based on or derived from sex-based differential compensation and that is job-related and consistent with business necessity.

Fair Pay Act Presentation

I recently attended a great presentation sponsored by the Alameda County Bar Association where Hillary Benham-Baker, Jamie Rudman and Carolyn Rashby did an excellent job describing the interplay between the various state and federal statutes, regulations and orders regarding equal pay. Jamie described a speaking engagement where Julie Su, California’s Labor Commissioner, discussed enforcing California’s Fair Pay Act. The Labor Commissioner discussed what questions Deputy Labor Commissioners would typically ask during Fair Pay Act investigations to determine what constitutes “substantially similar work.” I asked Jamie’s permission to share the information, as they represent excellent questions employers should ask themselves when evaluating whether they are complying with the law.

Fair Pay Act Questions To Determine What Constitutes “Substantially Similar Work”

·         What are the actual tasks performed for each job?  What percentage of time is spent on each?

·         What experience, training and education are required for each job?

·         What knowledge is required to perform each job?

·         What kinds and amounts of physical and/or mental effort are required for each job?  Is one job more physical difficult or stressful?

·          What programs, equipment, tools or products are required for each job? What training is needed to use the programs, equipment, tools or products?

·         What is the working environment?  Does one job involve an exposure to hazards or damages?

·         Does one job require supervision of other employees?

·         What is the difference in terms of the job obligations, levels of authority and/or degrees of accountability?

·         What are the programs, equipment, tools or products used for each job?

·         What kinds and amounts of physical and/or mental effort required for each job?

Employers need to understand what constitutes substantially similar work so they can properly evaluate whether or why employees should be paid the same. Pay disparities must be justified by legitimate business reasons.

If you have questions about equal pay, fair pay or any other employment-related issues, contact me at your convenience.

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.