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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.

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.

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.

San Jose Employers Must Provide More Hours to Workers

More Hours for San Jose Employees

San Jose employers will need to offer more hours to existing part-time workers before hiring new workers in 2017.  San Jose voters approved Measure E, which will take effect sometime in the first quarter of 2017. Businesses with less than 36 employees are exempt, and other businesses can apply for a “hardship” exemption. The full text of Measure E is here.

Impartial Analysis of Measure E

The following excerpts are from the “impartial analysis” prepared by the office of the San Jose City Attorney:

  • An employee is any person who has performed at least 2 hours of work for an employer and is entitled to the State minimum wage.
  • An employer is any person that employs or exercises direct or indirect control over wages, hours or working conditions of any employee, and either is subject to San Jose’s business tax or maintains a place of business in San Jose which State law exempts from San Jose’s business tax.
  • The offer of additional work requirement does not apply where the part-time employees would be paid a premium rate or when an express waiver of the additional work requirement has been agreed to in a collective bargaining agreement.
  • It applies to welfare-to-work programs except participants may opt out.
  • Businesses with 35 or fewer employees would be exempt from the ordinance.
  • The number of employees of a chain business is determined by the combined number of employees at every location of the business, whether or not located in San Jose.
  • For a franchisee, the total number of employees would be determined by the combined total number of employees at every location owned by the franchisee, whether or not located in San Jose.
  • [T]he City may grant hardship exemptions for up to 12 months at a time to employers who demonstrate that they have exercised reasonable steps to comply and full and immediate compliance would be impracticable, impossible or futile.
  • Employers would be required to annually post a bulletin of the additional work hour requirement in various languages at the workplace.
  • The City would be authorized to issue administrative fines and penalties for noncompliance.
  • A civil action based on a violation of the ordinance can be brought by any person harmed, any person on behalf of the public, or the City.

If you work in San Jose, you may find more opportunities to work additional hours. If you have employees in San Jose, you will need to offer more hours to existing employees before hiring new employees or giving the hours to contractors.

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.

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.

Service Advisors Exempt from FLSA

Encino Motorcars, LLC is an automobile dealership. Encino’s service advisors filed a lawsuit alleging that Encino violated the FLSA by failing to pay them overtime compensation when they worked more than 40 hours in a week. At issue in this case is whether the Department of Labor’s interpretation of the service advisor exemption is valid.

History of Service Advisors Exemption under the FLSA

The Fair Labor Standards Act (FLSA) requires employers to pay over­time compensation to covered employees who work more than 40 hours in a given week. In 1966, Congress enacted an exemption from the overtime compensation requirement for “any salesman, parts-man, or mechanic primarily engaged in selling or servicing automo­biles” at a covered dealership. Congress authorized the Department of Labor to promulgate necessary rules, regulations, or orders with respect to this new provision. The Department exercised that authority in 1970 and issued a regulation that defined “salesman” to mean “an employee who is employed for the purpose of and is primarily engaged in making sales or obtaining orders or contracts for sale of the vehicles . . . which the establishment is primarily engaged in selling.” 29 CFR §779.372(c)(1) (1971).

The regulation excluded service advisors, who sell repair and maintenance services but not vehicles, from the ex­emption. Several courts, however, rejected the Department’s conclusion that service advisors are not covered by the statutory exemption. In 1978, the Department issued an opinion letter departing from its previous position and stating that service advisors could be exempt under 29 U. S. C. §213(b)(10)(A). In 1987, the Department confirmed its new interpretation by amending its Field Operations Handbook to clarify that service advisors should be treated as exempt under the statute. In 2011, however, the Department issued a final rule that followed the original 1970 regulation and interpreted the statutory term “salesman” to mean only an employee who sells vehicles. 76 Fed. Reg. 18859. The Department gave little explanation for its deci­sion to abandon its decades-old practice of treating service advisors as exempt under §213(b)(10)(A).

Does the FLSA Apply to Service Advisors?

Encino argued that the FLSA overtime provisions do not apply because service advisors are covered by an exemption in §213(b)(10)(A).The District Court granted the motion, but the Ninth Circuit reversed in relevant part. Deferring under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, to the interpretation set forth in the 2011 regulation, the court held that service advisors are not covered by the §213(b)(10)(A) exemption.

The Ninth Circuit held that section 213(b)(10)(A) must be construed without placing controlling weight on the Department’s 2011 regulation.

According to the court:

When an agency is authorized by Congress to issue regulations and promulgates a regulation interpreting a statute it enforces, the interpretation receives deference if the statute is ambiguous and the agency’s interpretation is reasonable. See Chevron, supra, at 842–844. When Congress authorizes an agency to proceed through notice-and-comment rulemaking, that procedure is a “very good indicator” that Congress intended the regulation to carry the force of law, so Chevron should apply. United States v. Mead Corp., 533 U. S. 218, 229–230. But Chevron deference is not warranted where the regulation is “procedurally defective”—that is, where the agency errs by failing to follow the correct procedures in issuing the regulation. 533 U. S., at 227.

One basic procedural requirement of administrative rulemaking is that an agency must give adequate reasons for its decisions. Where the agency has failed to provide even a minimal level of analysis, its action is arbitrary and capricious and so cannot carry the force of law. Agencies are free to change their existing policies, but in explaining its changed position, an agency must be cognizant that longstanding policies may have “engendered serious reliance interests that must be taken into account.” FCC v. Fox Television Sta­tions, Inc., 556 U. S. 502, 515. An “[u]nexplained inconsistency” in agency policy is “a reason for holding an interpretation to be an arbitrary and capricious change from agency practice,” National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 981, and an arbitrary and capricious regulation of this sort re­ceives no Chevron deference.

Applying those principles, the Ninth Circuit determined that the 2011 regulation was issued without the reasoned explanation that was required in light of the Department’s change in position and the significant reliance interests position that service advisors are exempt from the FLSA’s overtime pay requirements. Employers had negotiated and structured compensation plans against this background understanding. In light of this background, “the Department needed a more reasoned explanation for its decision to depart from its existing enforcement policy.” The Department instead said almost nothing. It did not analyze or explain why the statute should be interpreted to exempt dealership employees who sell vehicles but not dealership employees who sell services. “This lack of reasoned explication for a regulation that is inconsistent with the Department’s longstanding earlier position results in a rule that cannot carry the force of law, and so the regulation does not receive Chevron deference.”

This is not the first time the DOL has changed courses and reinterpreted the law. In this instance, the court found that the DOL’s failure to include a reasoned explanation regarding the change of course was sufficient to render the DOL’s interpretation void.

Minimum Wage Tracker

Companies are struggling to keep up to date with the different minimum wage obligations.  Federal minimum wage is lower than California minimum wage which is lower than some cities’ minimum wage.  I’ve been struggling to find a useful place that has all the information I and my clients need to find the different minimum wage obligations, and have been hoping for a minimum wage tracker for some time.

Minimum Wage Tracker

I’m sure the Economic Policy Institute didn’t create its tracker just for me–particularly since I was not aware of the site before today–but they created a minimum wage tracker that is useful and comprehensive.  The tracker can be accessed through EPI’s website.

You can click on any state, or any city with a minimum wage ordinance, and get information regarding the current minimum wage obligations.  The tracker is particularly useful for any companies with employees working in multiple cities.

Minimum Wage Tracker

Minimum Wage Tracker

So, thank you EPI for the very useful minimum wage tracker!

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.

Meal and Lodging Credits in the Workplace

The Federal FLSA allows an employer to, under certain circumstances, count as wages “the reasonable cost … to the employer of furnishing such employee with board, lodging, or other facilities.” 29 U.S.C. § 203(m). The Department of Labor has just issued a new guidance document explaining the requirements for meal and lodging credits in the workplace under section 3(m) of the Fair Labor Standards Act (FLSA), as well as the proper method of accounting for this credit in calculating wages, with many examples involving home care workers.

Meal and Lodging Credits in the Workplace

The Q&A section answers such questions as:

What is a section 3(m) credit?

Under what circumstances may an employer claim the Section 3(m) credit for lodging?

What does it mean for lodging to be “regularly provided by the employer or similar employers”?

How do you determine if the employee “voluntarily accepted” the lodging?

What does is mean for lodging to be provided “in compliance with Federal, State, and Local Laws”?

What does it mean for an employee to receive the “primary benefit of the lodging” in the section 3(m) context?

When is housing “adequate” for purposes of whether an employer can claim a section 3(m) credit?How does an employer comply with the requirement to keep accurate records with regard to section 3(m)?

How does Section 3(m) apply if a live-in home care worker is a member of a union or subject to a collective bargaining agreement (CBA)?

How do you determine the amount of a section 3(m) credit?

What is the “reasonable cost” of the facilities?

And many more.

Employers who want to use meal and lodging credits in the workplace are encouraged to review the Q&A section and the Field Assistance Bulletin.

Employers in California should keep in mind that state and federal law are not the same with regard to meal and lodging credits in the workplace.  State regulations limit the amount of credit employers can use to offset minimum wage obligations, and there must be a written agreement between the employer and the employee.  Employers should also keep in mind that providing meals or lodging as part of the compensation could increase the employee’s regular rate of pay for overtime premium purposes.

If you have questions about the meals and lodging you receive from your employer, or if you provide meals and lodging to your employees as part of their compensation, speak with an employment attorney familiar with wage and hour issues as soon as practical.

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, Berkeley, San Ramon, Concord, 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.

New Laws Require Overtime for Caregivers, Personal Attendants and Companions

California and federal law requires overtime for caregivers, personal attendants and companions.  Different laws could apply depending on whether the employee is hired by a third-party employer or directly by the home owner.  Robert Nuddleman helps families, care agencies and caregivers understand their respective rights and obligations.

California’s Overtime Requirements for Caregivers

Prior to 2014, persons hired to work in the home to dress, feed and/or supervise a person who cannot care for themselves as a result of age and disability were not entitled to overtime pay.  The Domestic Workers Bill of Rights, which became effective January 1, 2014, eliminated the “personal attendant” exemption from Wage Order 15, which applies to workers employed by the household owner.

Although some employees whose wages are paid by state or county programs (i.e., In-Home Supportive Services, Lanterman Developmental Disabilities Services Act, California Early Intervention Services Act, etc.) are still exempt from California’s overtime laws, most other personal attendants working in the home 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 or if the person providing the services is the “parent, grandparent, spouse, sibling, child, or legally adopted child of the domestic work employer.”

Federal Overtime Requirements for Companions

Since its inception, the FLSA 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.  Effective January 1, 2015, new Department of Labor regulations modified the definition of companion and when those workers must be paid overtime.

The revised regulations eliminate 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.   Workers employed directly by the family are still exempt from the FLSA’s overtime requirements.

The regulations also narrow the type of work that constitutes “companion” services.  Under the new regulations, the term “companionship services” means “the provision of fellowship and protection for an elderly person or person with an illness, injury, or disability who requires assistance in caring for himself or herself.” Companionship services also includes the provision of “care” if the care is provided “attendant to and in conjunction with the provision of fellowship and protection and if it does not exceed 20 percent of the total hours worked per person and per workweek.”

The FLSA provides the minimum protection, and employers are still required to comply with state laws that either mirror the FLSA or provide greater protections for workers.  The revised FLSA regulations are somewhat historic in that it is one of the only occasions where federal law provides greater protection for the workers than California law.  Because employers are required to comply with state and federal law, many families must now pay overtime when the employee works more than 9 hours in a day (state) or more than 40 hours in a week (federal).

Shortly before the federal regulations were to go into effect, a D.C. circuit court judge declared the regulations void. On August 21, 2015, an appellate court overturned the decision, declaring the regulations valid. The Ninth Circuit and the U.S. Supreme Court have not yet ruled on the issue, therefore it is unclear whether California workers are entitled to the protections provided by the new federal regulations.

The recent changes in California and federal law require many employers and employees employed about the home to renegotiate the terms of employment.  Knowing the lawful ways to employ household workers and understanding employee rights to overtime will enable both parties to negotiate fair and reasonable terms of employment.

Whether the employee is hired directly by the family, through a care agency or a referral agency, and where the services are performed alter the rights and responsibilities of the employee and the employer.  Robert Nuddleman has been representing and advising employers and employees regarding wage and hour obligations for over two decades.  He frequently presents seminars and training regarding domestic worker rights and obligations. If you have questions about your rights or responsibilities, contact Robert Nuddleman.