Posts

Rest Break Reminder

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

Revision to Rest Break Decision

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

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

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

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

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

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

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

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.

The Magnificent Seven Wage and Hour Rules

The Magnificent Seven

The Magnificent Seven is one of my all-time favorite movies. The story is timeless and has been adapted several times. Yes, I know the Magnificent Seven is an adaptation of Akira Kurosawa’s Seven Samurai. Even Pixar came out with it’s own version in A Bug’s Life. I never tire of the story-line and the actors in the original Magnificent Seven. I even bare a scar on my forehead from when my brother tired to imitate James Coburn’s knife throwing skills. Thankfully the butt-end of the screwdriver hit me instead of the other end. Thanks, David!

When I saw the remake coming out with some of my current favorite actors, it definitely made my “must-see” list. It also got me thinking: what other Magnificent Sevens are worth considering?

The Magnificent Seven Wage and Hour Rules

Those familiar with my law practice know that I represent a lot of employers and employees regarding wage and hour disputes. I also frequently present seminars to attorneys, HR staff and payroll specialists regarding how to pay employees correctly. Therefore, I thought it would be fun to provide my Magnificent Seven Wage and Hour Rules.

In no particular order, here is my list of seven wage and hour rules to follow if you want to avoid problems in the workplace:

  1. Only pay a salary to employees if they are truly exempt from overtime.
  2. Keep accurate records of the hours worked for at least 4 years.
  3. Have policies in place providing for regular rest and meal breaks, and have employees clock out for unpaid meal breaks.
  4. Just because you think someone is an independent contractor, doesn’t mean the government or the courts will agree.
  5. Know if local ordinances require different rules for employees working in different cities and counties.
  6. Commission and bonus agreements should be in writing and identify when a commission or bonus is earned.
  7. Tips belong to the employees, not to the employer!

Employing workers in California can be difficult. Most employers make mistakes out of good intentions rather than evil objectives. Regardless of the intent, however, employers are responsible for following state and federal wage and hour laws. Hopefully this short list will help employers and employees avoid the most common wage and hour problems.

Now, go buy your ticket for the new Magnificent Seven. I don’t know if Denzel Washington, Chris Pratt and Ethan Hawke can match Yul Brynner, Steve McQueen and James Coburn, but I’m sure it will be a good 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. 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.

Where Can I Sue?

 

When Rachel Verdugo began working for Alliantgroup, L.P., she signed an employment agreement agreeing to file any employment-related lawsuits in Harris County, Texas, and agreeing that Texas law governed all disputes. Verdugo had to first address the question, Where Can I Sue? When Verdugo tried to sue in California, the trial court said she had to file in Texas.  Verdugo appealed contending the trial court erred because enforcing the forum selection clause and related choice-of-law clause violated California’s public policy on employee compensation.  The California court of appeal agreed and reversed the trial court’s order.

Where Can I Sue? Enforcing Forum Selection Clauses

Although a party opposing enforcement of a forum selection clause ordinarily bears the burden to show enforcement would be unreasonable or unfair, the burden is reversed when the underlying claims are based on statutory rights the Legislature has declared to be unwaivable.  In that instance, the party seeking to enforce the forum selection clause has the burden to show enforcement would not diminish unwaivable California statutory rights. Otherwise a forum selection clause could be used to force a plaintiff to litigate in another forum that may not apply California law.

Verdugo based all her claims on Labor Code provisions that not only establish when and how employers must pay overtime and other forms of compensation, provide meal and rest breaks, and provide accurate wage statements to all California employees, but also establish specific remedies for an employer’s violation of these provisions, including recovery of unpaid wages, interest, civil penalties, and attorney fees.  To protect these important rights and remedies, the Labor Code declares they cannot be waived by agreement.

Alliantgroup failed to show enforcing the forum selection clause and related choice-of-law clause in Verdugo’s employment agreement would not diminish her statutory rights by requiring her to litigate her claims in Texas under Texas law.  Alliantgroup contended Verdugo’s statutory rights would not be affected by enforcing the forum selection clause because a Texas court “most likely” would reject the parties’ choice-of-law clause and apply California law.  Alliantgroup’s supposition about what a Texas court is likely to do was not sufficient to meet its burden because Alliantgroup’s arguments on appeal suggested it would argue against applying California law if the case was litigated in Texas, and Alliantgroup did not cite any authority that convinced the court that a Texas court would necessarily apply California law.

The few cases Alliantgroup cited did not address how a Texas court would view a choice-of-law clause in the context of a wage and hour dispute between a Texas employer and a California employee.  Alliantgroup did not address the competing policies of the two states.  Alliantgroup could have eliminated any doubt about which law would apply to Verdugo’s claims by stipulating to have the Texas courts apply California law, but failed to do so.  Instead, Alliantgroup carefully phrased its arguments in terms of vague possibilities while simultaneously seeking to minimize the significance of the California statutory rights on which Verdugo bases her claims.  Alliantgroup therefore did not show Verdugo’s unwaivable statutory rights would not be diminished.

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.

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.