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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.

On-Duty Meal Agreement in Care Homes

 

Most employees in California are entitled to a 30-minute uninterrupted meal break when the employee works at least 5 hours in a day. Employers that fail to provide the required meal break may be subject to a penalty equal to one hour at the employee’s regular rate of pay.  When “the nature of the work prevents an employee from being relieved of all duty,” and when the employer and employee enter into a written on-duty meal agreement, the employer may be able to avoid the penalty.  The on-duty meal agreement, however, must “state that the employee may, in writing, revoke the agreement at any time.”

In Palacio v. Jan & Gail’s Care Homes, Inc., an employee brought a class action alleging the employer failed to inform the employees that they had a right to revoke the company’s on-duty meal agreement.  The court not only denied class certification, but also held the care homes do not have to tell employees they can revoke an on-duty meal agreement.

Care Homes do not have to tell employees they can revoke an on-duty meal agreement

But, why?  If the regulations require on-duty meal agreements to contain a provision that the employee may revoke the agreement in writing, how come the court said the employer did not have to have such a provision in the agreement?  Because a different part of the regulations specifically state:

Employees with direct responsibility for children who are under 18 years of age or who are not emancipated from the foster care system and who, in either case, are receiving 24-hour residential care, and employees of 24-hour residential care facilities for the elderly, blind or developmentally disabled individuals may be required to work on-duty meal periods without penalty when necessary to meet regulatory or approved program standards and one of the following two conditions is met:

(1) (a) The residential care employees eats with residents during residents’ meals and the employer provides the same meal at no charge to the employee; or

(b) The employee is in sole charge of the resident(s) and, on the day shift, the employer provides a meal at no charge to the employee.

So, while most employers that can use on-duty meal agreements must inform employees of the right to revoke the on-duty meal agreement at any time, Care Homes do not have to tell employees they can revoke an on-duty meal agreement.  Employers should also be aware that not ever employer can use an on-duty meal agreement.

If you have a question about your on-duty meal agreement, or whether such an agreement is appropriate in your workplace, contact an attorney familiar with on-duty meal agreements.

 

Employer Must Pay for Commute Time

Joseluis Alcantar sued his employer, Hobart Service, alleging Hobart did not compensate its technicians for the time they spent commuting in Hobart’s service vehicles from their homes to their job sites and from those job sites back home.  The general rule is that employers are not required to compensate employees for their commute to and from work.  So why did Joseluis think his employer must pay for commute time to and from work?  Because Hobart’s policies placed Joseluis under Hobart’s control while commuting.

Employer Must Pay for Commute Time

Employers must compensate an employee for all “hours worked,” which includes any time the employee is under the employer’s control.  Although Hobart did not require employees to bring company vehicles home, Joseluis alleged Hobart did not provide sufficient protected parking at the home office.  Since Joseluis was responsible for the safety of the vehicle and the expensive equipment in the vehicle, and because Hobart’s home office did not have sufficient space for all company vehicles, Joseluis felt he had to take the company vehicle home in order to keep it safe.

Hobart’s policies, among other things, severely restricted Joseluis’ off-work use of the company vehicle:

Personal use of the service vehicle, other than commuting from home to the first work assignment and from the last work assignment to home, is strictly prohibited unless prior written approval is granted by management. (An example of personal use for which prior approval could be granted would be in case of a dental appointment which cannot be scheduled after hours or on a weekend.)

Hobart also prohibited employees from carrying passengers without prior approval, and from transporting alcohol.  Hobart also required Joseluis to respond to telephone calls on his company-issued cell phone while commuting.

According to the court:

An employee’s commute is not typically compensable under California labor law, even “when the employee commutes in a vehicle that is owned, leased, or subsidized by the employer.” Cal. Lab. Code § 510(b). The time may be compensable, however, if the employee can classify it as “hours worked.” The Industrial Welfare Commission has defined “hours worked” as “the time during which an employee is subject to the control of an employer,” including “all the time the employee is suffered or permitted to work, whether or not required to do so.” See Cal. Code Regs. tit. 8, § 11040(2)(K).

Joseluis argued that, as a practical matter, he was required to commute in the company vehicle, and since the employer controlled what he could and could not do during that commute, the employer must pay for commute time.  The court concluded that a reasonable jury could conclude that Joseluis’ commute time was compensable.

Employers who allow employees to use company vehicles to commute to and from work should carefully review their policies and procedures.  Too many restrictions on employee use of the company-vehicles could lead a court to conclude the employer must pay for commute 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, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

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

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

Employer Responsible for Attorneys’ Fees After Labor Commissioner Appeal

A California appellate court held an employer responsible for attorneys’ fees after Labor Commissioner appeal.

In Royal Pacific Funding Corporation v. Arneson, the employer appealed a $29,500.00 Labor Commissioner award.  After the employee retained an attorney for the appeal who notified the employer of the employee’s intent to add additional claims to the appeal, the employer dismissed the appeal.

The employee’s attorney filed a motion for attorneys’ fees, which the employer opposed.  The trial court denied all attorneys’ fees “on the theory that there must be a court award under Labor Code section 98.2 before a party can collect its fees.”  The appellate court reversed the decision and ordered the trial court to determine the employee’s reasonable attorneys’ fees.

Attorneys’ Fees After Labor Commissioner Appeal

Attorneys’ fees on appeal from a Labor Commissioner Order, Decision or Award are governed by Labor Code section 98.2, which provides:

If the party seeking review by filing an appeal to the municipal or superior court is unsuccessful in the appeal, the court shall determine the costs and reasonable attorney’s fees incurred by the other parties to the appeal, and assess that amount as a cost upon the party filing the appeal.

In 2003, the legislature amended Labor Code section 98.2 to include the statement, ” An employee is successful if the court awards an amount greater than zero.”

Royal Pacific Funding argued that under Arias v. Kardoulias (2012) 207 Cal.App.4th 1429, the employee cannot recover attorneys’ fees because the court never determined the case on the merits, and therefore the employee was not “successful” on the appeal.  In Arias, the court denied an employer’s attorneys fees when the employer got an appeal dismissed on procedural grounds, because such a procedural dismissal could not be equated with a superior court determination of the merits. According to the appellate court, interpreting 98.2 to require a decision on the merits “turns the basic purpose of the 2003 amendment on its head.”

Employees and employers must think carefully before appealing a California Labor Commissioner decision.  Employees may be allowed to add additional claims on appeal, and the non-successful appellant may be obligated to pay the other side’s attorneys’ fees.  Before you appeal you Labor Commissioner case, contact an experienced attorney familiar with wage and hour claims.

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

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

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

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

Hours Worked for Calculating Worker Pay

What are the “Hours Worked” for Purposes of Calculating Employee Pay?

Employers must pay employees for all “hours worked.”  But does an employer have to pay an employee when the employee is not actually rendering services on behalf of the employer?  The answer may surprise you.

Definition of Hours Worked

The Industrial Welfare Commission, the agency charged with promulgating California regulations regarding the terms and conditions of employment, typically define “hours worked” as ” the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.”  This includes any time the employee is required to be in a specific location, and any time the employee actually performs work, even if the work is not previously approved.

Wage Order 5 regarding the Public Housekeeping Industry, adds a special definition “in the case of employee required to reside on the employment premises.” For employees required to reside on the premises (such as residential care facilities and apartment managers) “hours worked” is the “time spent carrying out assigned duties.”  This special definition only applies to persons employed in the Public Housekeeping Industry, which includes “any industry, business, or establishment which provides meals, housing, or maintenance services whether operated as a primary business or when incidental to other operations in an establishment not covered by an industry order of the Commission.”

Employees working in the health care industry also have a special definition of “hours worked: “the time during which an employee is suffered or permitted to work for the employer, whether or not required to do so, as interpreted in accordance with the provisions of the Fair Labor Standards Act.”

These differing definitions lead to confusion and potentially costly mistakes.  Employees and employers need to understand which hours are counted as hours worked so that employees can be properly compensated.

Sleep Time

Recent California Supreme court decisions make it clear that, unless the employee is covered by Wage Order 5, employees that are required to remain on the premises are entitled to compensation, even if the employee spends some of that time sleeping.   There are a few exceptions, such as ambulance drivers, but for the most part employers are required to compensate employees for all hours worked.

On-Call Time

Some employers need employees to be available to answer cell phone calls and/or email messages.  Depending on several factors, the time spent waiting for the phone to ring or for the email to come may be compensable or not.  Is the employee “waiting to be engaged?” or “engaged to wait?”  State and federal law define compensable on-call or stand-by time differently.  Although technology has made it easier for employees to work away from the job site, that same technology also creates new liabilities for employers.

Meals and Rest Breaks

All employees are entitled to take regular meal and rest breaks.  Failure to provide required rest breaks to non-exempt employees can carry significant penalties.  Employers are required to maintain accurate records of the hours worked, including meal breaks taken.  Employers that do not maintain accurate records of meal breaks have a difficult time defending meal and rest break violation claims.  Courts and the Labor Commissioner continue to struggle with how much control an employer can exercise over an employee during the required breaks, and how far an employer has to go to ensure the employee is afforded the opportunity take all required breaks.

Despite the media attention given to this topic, many employers still fail to adequately relieve employees, and large and small companies routinely face litigation involving meal and rest break claims.  Employers are much more likely to violate wage and hour laws than anti-discrimination laws, and employees are much more likely to pursue wage claims.

Understanding the employer and employee rights and obligations is the first step in resolving any potential issues.  Robert Nuddleman has advised and litigated unpaid wage claims on behalf of hundreds of clients. Because he represents employees and employers, he understands the motivating factors behind the dispute, and how to avoid issues before they become problems, and how to resolve problems when they occur.