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New Sexual Harassment Protection for Legislative Staff

AB403 Protects Legislative Staff from Sexual Harassment Retaliation

Employers cannot retaliate against employees for engaging in protected activity. This includes reporting or participating in an investigation regarding sexual harassment, health and safety issues, patient safety, and other violations of the law. Governor Brown signed AB403 extending similar protections to legislative employees. I suspect AB403 found so much support due to the numerous reports of inappropriate conduct in our legislature.

AB403 defines “Legislative employee” as “an individual, other than a Member of either house of the Legislature, who is, or has been, employed by either house of the Legislature. ‘Legislative employee’ includes volunteers, interns, fellows, and applicants.” Legislative employees are protected from retaliation when making a protected disclosure.

“Protected disclosure” means a “communication by a legislative employee that is made in good faith alleging that a Member of the Legislature or legislative employee engaged in, or will engage in, activity that may constitute a violation of any law, including sexual harassment, or of a legislative code of conduct.” This includes a complaint protected by California’s Fair Employment and Housing Act.

The protected disclosure can be made to a number of agencies or any “individual with authority over the legislative employee, or another legislative employee who has authority to investigate, discover, or correct the violation or noncompliance.”

So, an intern or volunteer can report concerns regarding inappropriate sexual harassment to his or her supervisor without fear of unlawful retaliation. The law is so important that it became effective when Governor Brown signed the bill on February 5, 2018.

AB403 has some unique features. Violators can be subject to $10,000 fine and imprisonment for up to a year. If the alleged victim brings a civil action and proves “by a preponderance of the evidence” t against a legislative employee,” the burden of proof then switches the allegedly offending party to demonstrate “by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the legislative employee had not made a protected disclosure.” A prevailing plaintiff can recover attorneys’ fees and punitive damages. Considering most claims against government entities and persons do not allow punitive damages, this last item is particularly significant.

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.

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.

Salary Requirement for Federal and California Overtime

UPDATE ON THE UPDATE: The Department of Labor filed an appeal on the injunction. The notice of appeal aims to lift a temporary injunction against overtime changes that were scheduled to take effect December 1. The appeal was filed in the U.S. Court of Appeals for the Fifth Circuit in New Orleans. Forbes wrote a decent article about the appeal.

UPDATE 11/22/16: A Federal Judge in Texas issued an injunction blocking the new salary requirement from going into effect. This means the new salary requirement will not go into effect on December 1st. We’ll have to wait and see if the Department of Labor intends on fighting the injunction. With the new administration taking over in January, it is unclear how the DoL will proceed.

I’m leaving the rest of the article intact because it still provides useful information about the difference between the federal and the state salary requirement and duties test for exempt employees, and the outcome of the litigation is still anyone’s guess.

Several clients ask the following question (or very similar questions) about the new federal overtime salary requirement:

I have a quick question. It looks like there is a change coming on December 1, 2016 regarding the minimum salary requirement for exempt employees. We currently have our office manager set up with a $46,000.00 annual salary. I think this may fall under the new federal minimum salary requirement. Can you confirm this and also tell me if there is a different amount for California?

Because this issue confuses a lot of employers and employees, I thought I’d share my typical response.

Federal Overtime Salary Requirement

Federal laws requires overtime compensation when a non-exempt employee works more than 40 hours in a week.  Effective December 1, 2016, in order to qualify as an exempt employee under the federal overtime laws,  the employee must receive a guaranteed salary of $913.00 per week or $47,476 per year. The employee’s primary duty must be to perform exempt duties as defined by the FLSA.

The exempt employee must regularly and customarily exercise discretion and independent judgment regarding matters of consequence. Many office managers qualify under the administrative exemption. Additionally, if the office manager supervises 2 or more people and can hire and fire employees, the office manager may also qualify under the executive exemption.  I’m going to assume for the moment that the office manager is primarily engaged in performing exempt duties. Many people misapply the exemption, thinking that because the “office manager” can decide which vendors to use that means the exemption applies. In order to ensure she remains exempt, you will need to give her a raise effective December 1st.

California Overtime Salary Requirement

California has a slightly lower minimum salary requirement. To qualify as an exempt employee under California laws, the employee must receive a guaranteed salary equal to two times the state minimum wage (currently $10.00 per hour). That comes out to $41,600 per year (2 x minimum wage x 40 hours per week x 52 weeks per year). The minimum wage will increase over the next couple of years according to the following schedule:

Rate (Jan. 1) 26 Employees or More 25 Employees or Less
2017 $10.50 $10.00
2018 $11.00 $10.50
2019 $12.00 $11.00
2020 $13.00 $12.00
2021 $14.00 $13.00
2022 $15.00 $14.00
2023 $15.00 $15.00
2024 Indexed* Indexed*

* Rate adjusted to changes in Consumer Price Index (if any) to a cap of 3.5 percent each year. (Source)

As the minimum wage increases, so does California’s minimum salary requirement. By 2019, barring any changes in the law, employers with 25 or more employees must employees more than the federal minimum wage. Employers with less than 25 employees can get away with paying the federal minimum wage until 2020. As I mentioned, this assumes no further changes to California or Federal law. With the recent election, it’s anyone’s guess as to what the future holds.

Required Duties

Other major differences exist between state and federal law overtime exemptions. To qualify as exempt under California law, the employee must be “primarily engaged in” exempt duties. That sounds similar to the federal “primary duty,” but differs significantly. “Primarily engaged in” exempt duties under California law means the employee spends more than 50% of her time performing exempt duties. An employee’s “primary duty” under federal law means the employee can perform other, non-exempt duties, so long as the primary purpose of the position is to perform exempt duties.

Take the classic fast food manager example. Her primary duty is to oversee and run the restaurant. Because the restaurant is understaffed, the manager spends most of her time running the cash register and flipping burgers. The manager might meet the federal overtime exemption because her primary duty is to oversee the restaurant’s operations. The manager is not exempt under state law because she is not primarily engaged in performing exempt duties.

I hope this helps.  Feel free to give me a call if you have any questions.

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.

Presentation at EB Low Cost Ed Day

On Saturday, October 29th, I’ll be conducting a presentation at CalCPA’s East Bay Low Cost Ed Day. I’m looking forward to the presentation, where I will discuss Wage & Hour Best Practices – How to Best Advise Your Clients in this Complex Area.

Presentation Topics

  •   Employees v. Independent Contractors
    • Differences
    • Consequences of Misclassification
  •  Applicable laws & Agencies
    •  State v. Federal v. City/County
    • IWC & Wage Orders
    • City/County Ordinances
    • Opinion Letters
    • Enforcement Manual
  • Basic Pay Requirements
    • Minimum Wage
    • Regular “Workdays” and “Workweeks”
    • Regular Rate of Pay
    • Overtime
    • Bonuses & Commissions
  •  Exempt & Non-Exempt Employees
    • Nonexempt Employees
    • Exempt Employees – salary + duties
  • Meal and rest periods
  • How/when to pay employees
    • Time record requirements
    • Pay stub requirements
    • Deductions from pay
    • Payment upon separation
  • Employees In or About the Home
    • Caregivers
    • Other Household Employees
    • Special Rules for Live-Ins

I will be presenting from 1:00 p.m. to 2:40 p.m. at the Crow Canyon Country Club. You can register here and the event is open to members and non-members.

I hope to see you there.

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.

Employment Law Changes for 2016

Many people ask me why I practice employment law. One reason is that it is never boring. Employment law changes every year. The legislature never fails to adopt new employment laws trying to create a more equitable and fair workplace. The courts constantly struggle to interpret the old laws in new situations, and how to apply the new employment law changes. California passed 75 bills in 2016 that either revise existing law or create new employment laws.

New Employment Law Changes for 2016

Here is a compendium of the employment law changes adopted by the California legislature in 2016:

  • ABX2-7 by Assemblymember Mark Stone (D-Scotts Valley) – Smoking in the workplace
  • AB 326 by Assemblymember Jim L. Frazier Jr. (D-Oakley) – Public works: prevailing wage rates: wage and penalty assessments
  • AB 488 by Assemblymember Lorena Gonzalez (D-San Diego) – Employment discrimination
  • AB 736 by Assemblymember Ken Cooley (D-Rancho Cordova) – State teachers’ retirement: executive positions
  • AB 908 by Assemblymember Jimmy Gomez (D-Los Angeles) – Paid Family Leave
  • AB 1066 by Assemblymember Lorena Gonzalez (D-San Diego) – Agricultural workers: wages, hours, and working conditions
  • AB 1311 by Assemblymember Jim Cooper (D-Elk Grove) – Temporary services employees: wages
  • AB 1627 by the Committee on Budget – State employment: memorandum of understanding: Bargaining Unit 7
  • AB 1661 by Assemblymember Kevin McCarty (D-Sacramento) – Local government: sexual harassment prevention training and education
  • AB 1669 by Assemblymember Roger Hernández (D-West Covina) – Displaced employees: service contracts: collection and transportation of solid waste
  • AB 1676 by Assemblymember Nora Campos (D-San Jose) – Employers: wage discrimination
  • AB 1684 by Assemblymember Mark Stone (D-Scotts Valley) – Civil actions: human trafficking
  • AB 1687 by Assemblymember Ian C. Calderon (D-Whittier) – Customer records: age information: commercial online entertainment employment service providers
  • AB 1692 by Assemblymember Susan Bonilla (D-Concord) – County employees’ retirement: Contra Costa County
  • AB 1709 by Assemblymember James M. Gallagher (R-Plumas Lake) – Deaf or hard-of-hearing individuals
  • AB 1840 by Assemblymember Mike A. Gipson (D-Carson) – State agencies: interns and student assistants: hiring preference
  • AB 1843 by Assemblymember Mark Stone (D-Scotts Valley) – Applicants for employment: criminal history
  • AB 1875 by Assemblymember Rocky Chávez (R-Oceanside) – State teachers’ retirement: option beneficiaries: trusts
  • AB 1887 by Assemblymember Evan Low (D-Campbell) – State government: discrimination: travel
  • AB 1918 by Assemblymember Patrick O’Donnell (D-Long Beach) – Teacher credentialing: temporary certificates
  • AB 1926 by Assemblymember Jim Cooper (D-Elk Grove) – Public works: prevailing wage: apprentices
  • AB 1953 by Assemblymember Shirley N. Weber (D-San Diego) – Peace officers: civilian complaints
  • AB 2025 by Assemblymember Lorena Gonzalez (D-San Diego) – Barbering and cosmetology: labor law education requirements
  • AB 2028 by Assemblymember Jim Cooper (D-Elk Grove) – Public employees’ retirement: involuntary termination: reinstatement
  • AB 2061 by Assemblymember Marie Waldron (R-Escondido) – Supervised Population Workforce Training Grant Program
  • AB 2063 by Assemblymember James M. Gallagher (R-Plumas Lake) – Work-based learning opportunities: work experience education and job shadowing
  • AB 2068 by Assemblymember Chris Holden (D-Pasadena) – Talent services
  • AB 2126 by Assemblymember Kevin Mullin (D-South San Francisco) – Public contracts: Construction Manager/General Contractor contracts
  • AB 2230 by Assemblymember Kansen Chu (D-San Jose) – Overtime compensation: private elementary or secondary academic institutions: teachers
  • AB 2248 by Assemblymember Chris Holden (D-Pasadena) – Teacher credentialing: out-of-state trained teachers: English learner authorizations
  • AB 2288 by Assemblymember Autumn R. Burke (D-Inglewood) – Apprenticeship programs: building and construction trades
  • AB 2296 by Assemblymember Evan Low (D-Campbell) – Digital signatures (applicable to DFEH online right-to-sue requests)
  • AB 2337 by Assemblymember Autumn R. Burke (D-Inglewood) – Employment protections: victims of domestic violence, sexual assault, or stalking
  • AB 2375 by the Committee on Public Employees, Retirement, and Social Security – Public Employees’ Retirement System: omnibus bill
  • AB 2376 by the Committee on Public Employees, Retirement, and Social Security – County employees’ retirement: Los Angeles County
  • AB 2393 by Assemblymember Nora Campos (D-San Jose) – School employees: sick leave: parental leave
  • AB 2404 by Assemblymember Ken Cooley (D-Rancho Cordova) – Public Employees’ Retirement System: optional settlements
  • AB 2532 by Assemblymember David S. Chiu (D-San Francisco) – Employment services: verification
  • AB 2535 by Assemblymember Sebastian Ridley-Thomas (D-Los Angeles) – Employment: wages: itemized statements
  • AB 2551 by Assemblymember James M. Gallagher (R-Plumas Lake) – Contract procurement: surface storage projects
  • AB 2687 by Assemblymember Katcho Achadjian (R-San Luis Obispo) – Vehicles: passenger for hire: driving under the influence
  • AB 2763 by Assemblymember Mike Gatto (D-Glendale) – Transportation network companies: personal vehicles
  • AB 2780 by Assemblymember Chris Holden (D-Pasadena) – Fair Employment and Housing Council: membership: length of terms
  • AB 2843, Chau. Public records: employee contact information
  • AB 2844, Bloom. Public contracts: discrimination
  • AB 2899 by Assemblymember Roger Hernández (D-West Covina) – Minimum wage violations: challenges
  • SB 3 by Senator Mark Leno (D-San Francisco) – Minimum Wage
  • SB 24 by Senator Jerry Hill (D-San Mateo) – California Public Employees’ Pension Reform Act of 2013: joint powers authority: employees
  • SB 95 by the Committee on Budget and Fiscal Review – State employees: memorandum of understanding
  • SB 269 by Senator Richard D. Roth (D-Riverside) – Disability access
  • SB 693 by Senator Ben Hueso (D-San Diego) – Public contracts: skilled and trained workforce
  • SB 702 by Senator Mike McGuire (D-Healdsburg) – Employment of minors: agricultural packing plants
  • SB 826 by Senator Mark Leno (D-San Francisco), among other things, the 2016-17 budget begins implementing the state’s new $15 per hour minimum wage by raising the statewide minimum wage to $10.50 per hour beginning on January 1, 2017
  • SB 848 by the Committee on Budget and Fiscal Review – State Employment
  • SB 916 by Senator Ben Allen (D-Santa Monica) – Teacher credentialing
  • SB 954 by Senator Robert M. Hertzberg (D-Van Nuys) – Public works: prevailing wage: per diem wages
  • SB 1001 by Senator Holly J. Mitchell (D-Los Angeles) – Employment: unfair practices
  • SB 1015 by Senator Connie M. Leyva (D-Chino) – Domestic work employees: labor standards
  • SB 1038 by Senator Ben Allen (D-Santa Monica) – Community colleges: employees
  • SB 1063 by Senator Isadore Hall III (D-Compton) – Conditions of employment: wage differential: race or ethnicity
  • SB 1139 by Senator Ricardo Lara (D-Bell Gardens) – Health professionals: medical degree programs: healing arts residency training programs: undocumented immigrants: nonimmigrant aliens: scholarships, loans, and loan repayment
  • SB 1146 by Senator Ricardo Lara (D-Bell Gardens) – Discrimination: postsecondary education
  • SB 1167 by Senator Tony Mendoza (D-Artesia) – Employment safety: indoor workers: heat regulations
  • SB 1180 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Public school employees: military veterans: leave of absence for illness or injury
  • SB 1203 by Senator Robert M. Hertzberg (D-Van Nuys) – Retirement systems: joint powers authorities: benefit formulas
  • SB 1234 by Senator Kevin De León (D-Los Angeles) – Retirement savings plans
  • SB 1241 by Senator Bob Wieckowski (D-Fremont) – Employment contracts: adjudication: choice of law and forum
  • SB 1342 by Senator Tony Mendoza (D-Artesia) – Wages: investigations: subpoenas
  • SB 1353 by Senator Richard Pan (D-Sacramento) – State Teachers’ Retirement System: funding
  • SB 1375 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Educational equity: sex equity in education: federal Title IX notifications
  • SB 1379 by Senator Tony Mendoza (D-Artesia) – Community colleges: part-time, temporary employees
  • SB 1413 by Senator Mark Leno (D-San Francisco) – School districts: employee housing
  • SB 1442 by Senator Carol Liu (D-La Canada Flintridge) – Discrimination: regulations and enforcement
  • SB 836 by Committee of the Budget and Fiscal Review – State budget, including Private Attorney General’s Act (PAGA) amendments
  • AB 1732 by Assemblymember Phil Ting – single-user restrooms (for members of the public in business establishments)

You can search for each of the new employment law changes at: http://www.leginfo.ca.gov/bilinfo.html

I’ve written articles about several of the changes. Luckily, the new employment law changes are written down so I don’t have to memorize them all.

The ever-changing landscape of employment laws makes this area particularly challenging, and I’m always up for a good challenge. And this doesn’t even cover the federal employment law changes such as the higher salary requirement for exempt employees.

Whether you’re an employer struggling with California’s employment laws, or an employee with questions about your rights under the law, talk with a knowledgeable attorney familiar with California’s complex employment laws.

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

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

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

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

Upcoming Presentations About Employment Laws

Upcoming Presentations

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

California Society of CPAs

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

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

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

Aging Life Care Association

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

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

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

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

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

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

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

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

Is Your Workforce a Suicide Squad?

Ok. I admit it. I’m a fan of super-hero movies. When I found out DC’s Suicide Squad was opening on my daughter’s birthday it was a no brainer. So I loaded the family into the mini-van and took them to see it opening day. The basic plot consists of a team of dangerous, incarcerated super villains “recruited” for a top-secret mission.

Amanda Waller, the U.S. intelligence officer who assembles the team, specializes in getting people to do what she wants. She has one character’s heart locked in a box. She motivates another character by promising he can spend time with his family. The idea is that each member of the team has separate motivations. Waller uses–OK, exploits–those motivations toward a common goal.

Suicide Squad in Your Workplace?

As a movie, Suicide Squad did not disappoint. As an employment attorney, it got me thinking. I’m not suggesting employers run out and hire dangerous super villains. If we put aside Waller’s I-don’t-care-who-gets-killed mentality, and the hundreds of zombie-like bad guys put down by rapid machine-gun fire, there may be a few lessons for life and the workplace.

  1. A properly motivated team can overcome extreme obstacles.
  2. You can’t properly motivate someone unless you know what makes them tick.
  3. Although others can motivate us, we work better when we motivate ourselves.
  4. Working as a team is almost always better than working alone (except when it’s not).
  5. When management warns you of the consequences should you fail to follow directions, you’d better follow directions (Alas, poor Slipknot, we knew thee little).
  6. Failure is always an option, but we probably won’t like the results.
  7. A carrot is usually a better motivator than a stick.

Workplace Fairness

I frequently advise employee clients that employers are not required to treat employees fairly. I also advise my employer clients that treating employees fairly is the best way to avoid problems (including legal problems) in the workplace. Consider your work environment.  Whether you’re an employee or an employer, are you motivating your colleagues and yourself toward success? Are you treating others the way you want to be treated? Do you have a killer crocodile living in your sewer? If you answered yes to at least two of those questions, you probably have a stable workforce that is building toward success. If not, then think about what you can change to improve your workplace

I’m hoping to see Jason Bourne soon.  We’ll just have to wait and see if I can any more bright ideas about the workplace.

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.

Confidentiality Obligations Interfere with Protected Rights

Many employers, particularly those in Silicon Valley, prohibit employees from using or disclosing “confidential information.”  Many employee handbooks have policies limiting employee discussions regarding confidential business information outside the workplace.  Employers typically use very broad definitions of “confidential information,” and, according to the General Counsel for the National Labor Relations Board, the confidentiality obligations may interfere with protected rights.

On March 18, 2015, Richard F. Griffin, Jr., General Counsel for the NLRB issued a report concerning recent employer rule cases.  The report discusses different policies and workplace rules that the NLRB determined violated employee Section 7 rights.  According to the General Counsel, “Under the Board’s decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), the mere maintenance of a work rule may violate Section 8(a)(1) of the Act if the rule has a chilling effect on employees’ Section 7 activity.”

Employees have a Section 7 right to discuss wages, hours, and other terms and conditions of employment with fellow employees, as well as with nonemployees, such as union representatives. Thus, according to the General Counsel,

an employer’s confidentiality policy that either specifically prohibits employee discussions of terms and conditions of employment— such as wages, hours, or workplace complaints—or that employees would reasonably understand to prohibit such discussions, violates the Act. Similarly, a confidentiality rule that broadly encompasses “employee” or “personnel” information, without further clarification, will reasonably be construed by employees to restrict Section 7-protected communications.

Citing Flamingo-Hilton Laughlin, 330 NLRB 287, 288 n.3, 291-92 (1999).

In contrast, broad prohibitions on disclosing “confidential” information are lawful so long as they do not reference information regarding employees or anything that would reasonably be considered a term or condition of employment, employers have a substantial and legitimate interest in maintaining the privacy of certain business information.

Citing Lafayette Park Hotel, 326 NLRB 824, 826 (1998), enforced, 203 F.3d 52 (D.C. Cir. 1999); Super K-Mart, 330 NLRB 263, 263 (1999).

The report covers several areas, but for today’s article I wanted to point out a few of the rules regarding confidentiality discussed by the General Counsel.  You can review the entire report here.

Rules That Interfere with Protected Rights

The General Counsel found the following rules regarding confidentiality would unlawfully interfere with protected rights:

  • Do not discuss “customer or employee information” outside of work, including “phone numbers [and] addresses.”
  • “Never publish or disclose [the Employer’s] or another’s confidential or other proprietary information. Never publish or report on conversations that are meant to be private or internal to [the Employer].”
  • “Discuss work matters only with other [Employer] employees who have a specific business reason to know or have access to such information.. .. Do not discuss work matters in public places.”

Rules That Do Not Interfere with Protected Rights

The General Counsel found the following rules regarding confidentiality would not unlawfully interfere with protected rights:

  • No unauthorized disclosure of “business ‘secrets’ or other confidential information.”
  • “Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [Employer] is cause for disciplinary action, including termination.”
  • “Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors or customers.”
  • Prohibition on disclosure of all “information acquired in the course of one’s work” when “nested among rules relating to conflicts of interest and compliance with SEC regulations and state and federal laws” such that employees would reasonably understand the information described as encompassing customer credit cards, contracts, and trade secrets, and not Section 7-protected activity.

California employers should also be aware that California’s revised Equal Pay Act now prohibits employers from interfering with employees’ right to discuss their own wages as well as other employee wages.

Employers should carefully review their existing confidentiality agreements and workplace rules to ensure they do not interfere with protected rights.

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.

California Court Rejects Unconscionable Arbitration Agreement

Martha Carbajal sued her former employer, CW Painting, for unpaid wages.  The employer moved to compel arbitration pursuant to the employment agreement Carvajal signed.  The trial court denied the motion and refused to enforce the unconscionable arbitration agreement. CW appealed, but the Fourth Appellate District agreed with the trial court.  You can read the full opinion here.

Procedurally Unconscionable Arbitration Agreement

The appellate court held the arbitration agreement was procedurally unconscionable because it was part of an adhesion contract CW Painting imposed on Carbajal as a term of her employment.  The court took particular issue with the fact that, although the arbitration provision required the parties to arbitrate their disputes under the American Arbitration Association’s (AAA) rules, the agreement did not identify which of AAA’s many different rules would apply, CW Painting did not provide Carbajal with a copy of the rules it believed applied, and CW Painting required Carbajal to sign the agreement without telling her where she could find the governing rules or giving her an opportunity to determine which rules would apply.

Substantively Unconscionable Arbitration Agreement

The court went on to find the arbitration agreement substantively unconscionable because it allowed CW Painting to obtain injunctive relief in court while requiring Carbajal to seek relief through arbitration.  The agreement also waived the statutory requirement that CW Painting post a bond or undertaking to obtain injunctive relief, and it effectively waived Carbajal’s statutory right to recover her attorney fees if she prevailed on her Labor Code claims.

The court refused to sever these unconscionable terms and enforce the remainder of the arbitration provision,and instead declared the whole contract void because multiple unconscionable terms permeated the entire agreement.

The court rejected CW Painting’s contention the Federal Arbitration Act (9 U.S.C. § 1 et seq.; FAA) governed the dispute because CW Painting failed to timely present  evidence that the contract with the arbitration provision had a substantial relationship to interstate commerce.

Although many courts will enforce arbitration agreements, California courts will not rubber-stamp an employer-mandated arbitration clause.

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.

Nuclear Power Plant Supervisor Not a Whistleblower

Energy Northwest operates a nuclear power plant in Richland, Washington. Sanders, a maintenance manager, administered temporary staffing contracts for Energy. After nineteen years of employment, Energy terminated Sanders’ employment because he  improperly approved temporary staffing per diem and travel payments to the father of his daughter’s child. Sanders claimed he was a whistleblower, and Energy terminated him because he objected to the severity level designation of an internal “condition report,” in violation of  42 U.S.C. § 5851. A “condition report” is a report generated by employees when safety procedures may have been violated.

The whistleblower retaliation provision of the Act, 42 U.S.C. § 5851,FN:1 protects energy workers who report or otherwise act upon safety concerns. The statute specifically prohibits employers from discharging or otherwise discriminating against employees for several enumerated acts, including notifying an employer of a violation, initiating an enforcement proceeding, or testifying in a safety or enforcement proceeding. See 42 U.S.C. § 5851(a)(1)(A–E). The statute also includes a catch-all provision protecting employees “in any other action to carry out the purposes of this chapter . . . .” Id. at § 5851(a)(1)(F).

Sanders had no independent knowledge of possible safety violations prior to the creation of the internal condition reports at issue. Sanders did not generate the condition reports and Energy was already aware of the potential safety violations, and its internal process for remediation was underway. According to the majority opinion, the safety problems Sanders identified were not “overlooked, neglected, or concealed by management” and were not “concrete [and] ongoing” issues. The court found that Sanders’ conduct fell outside the scope of the Act’s protection, and the district court properly granted summary judgment. Sanders tried to amend his complaint to include state-law disability and retaliation claims, but the court denied the motion, in part, because it was made less than three weeks before the close of discovery and a year after filing the complaint.