Dynamic Case Presentations

I am excited to be moderating a presentation hosted by the Santa Clara County Bar Association regarding using technology to enhance your case. Lisa Peck and Lisa Mak will be the presenters.

The presentation is scheduled for Nov 18th at 12:00pm – 1:30pm at the SCCBA’s conference center, but you can also attend online.

The Lisa’s will introduce and demo certain digital tools such as:

  • Trialpad for iPad
  • Powerpoint
  • Keynote
  • CaseMap
  • Airtable
  • DropBox
  • Clio
  • RocketMatter
  • Sanction
  • TimeLine 3D

Attorneys not using technology to advance their cases are at a distinct disadvantage. I’m excited to learn more about the tools I already use, and some insights into additional tools that will help me advocate for my client.

Regardless of whether you are presenting to a judge, jury, arbitrator, mediator, or opposing counsel, the “dynamic” of your case and presenting your case in a “dynamic” manner are imperatives in this digital age. Yet, for many of us, becoming a tech-savvy litigator can seem a daunting, if not prohibitively expensive (both time and money) endeavor. Join us as we explore how to boost your practice with commonly available and (mostly) easy to use apps, cloud-based subscriptions, and software for laptops and iPads and help you learn to get the wins with these high-tech boosts on an every-day budget.

Hope to see you there!

Information provided by Robert Nuddleman of the 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 on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

New Employment Laws for 2020 Signed by Governor Newsom

The California legislature and Gavin Newsom have been busy in 2019. The following is a list of the new legislation impacting California employers. Most laws go into effect January 1, 2020, but a few go into effect immediately.

Thank you to Phyllis Cheng who does an amazing job sending out updates whenever new employment laws are signed into law and when courts issue decision impacting California workplaces.

  • AB 5 by Assemblymember Lorena Gonzalez (D-San Diego) – Worker status: employees and independent contractors. A signing message can be found here.
  • AB 9 by Assemblymember Eloise Gómez Reyes (D-Grand Terrace) – Employment discrimination: limitation of actions.
  • AB 34 by Assemblymember James Ramos (D-Highland) – Pupils: bullying and harassment prevention information.
  • AB 51 by Assemblymember Lorena Gonzalez (D-San Diego) – Employment discrimination: enforcement.
  • AB 118 by the Committee on Budget – State employment: State Bargaining Units 1, 2, 3, 4, 5, 7, 11, 13, 14, 15, 17, 20, and 21.
  • AB 170 by Assemblymember Lorena Gonzalez (D-San Diego) – Worker status: employees and independent contractors.
  • AB 203 by Assemblymember Rudy Salas (D-Bakersfield) – Occupational safety and health: Valley Fever.
  • AB 241 by Assemblymember Sydney Kamlager-Dove (D-Los Angeles) – Implicit bias: medical profession continuing education: requirements.
  • AB 242 by Assemblymember Sydney Kamlager-Dove (D-Los Angeles) – Courts: attorneys: implicit bias: training.
  • AB 267 by Assemblymember Kansen Chu (D-San Jose) – Employment of infants: entertainment industry.
  • AB 332 by Assemblymember Tom Lackey (R-Palmdale) – Peace officers: training.
  • AB 330 by Assemblymember Jesse Gabriel (D-Encino) – Appointed legal counsel in civil cases.
  • AB 333 by Assemblymember Susan Talamantes Eggman (D-Stockton) – Whistleblower protection: county patients’ rights advocates.
  • AB 355 by Assemblymember Tom Daly (D-Anaheim) – Public Employment Relations Board: Orange County Transportation Authority.
  • AB 378, Monique Limόn (D-Santa Barbara) Childcare: family childcare providers: bargaining representative
  • AB 381 by Assemblymember Eloise Gómez Reyes (D-Grand Terrace) – Postsecondary education: sexual assault and sexual violence prevention training: intimate partner and dating violence.
  • AB 406 Monique Limόn (D-Santa Barbara) – Disability compensation: paid family leave: application in non-English languages.
  • AB 525 by Assemblymember Luz Rivas (D-Arleta) – Teacher credentialing.
  • AB 538 by Assemblymember Marc Berman (D-Palo Alto) – Sexual assault: medical evidentiary examinations and reporting.
  • AB 543 by Assemblymember Christy Smith (D-Santa Clarita) – Education: sexual harassment: written policy: posters.
  • AB 547 by Assemblymember Lorena Gonzalez (D-San Diego) – Janitorial workers: sexual violence and harassment prevention training.
  • AB 560 by Assemblymember Miguel Santiago (D-Los Angeles) – Public utilities: unionization.
  • AB 595 by Assemblymember Jose Medina (D-Riverside) – Community colleges: apprenticeship programs.
  • AB 640 by Assemblymember Jim Frazier (D-Discovery Bay) – Sex crimes: investigation and prosecution.
  • AB 644 by the Committee on Public Employment and Retirement – State teachers’ retirement: compensation.
  • AB 672 by Assemblymember Sabrina Cervantes (D-Riverside) – Public employees’ retirement: disability retirement: reinstatement.
  • AB 673 by Assemblymember Wendy Carrillo (D-Los Angeles) – Failure to pay wages: penalties.
  • AB 706 by Assemblymember Evan Low (D-Campbell) – Community colleges: academic employees.
  • AB 711 by Assemblymember David Chiu (D-San Francisco) – Pupil records: name and gender changes.
  • AB 749 by Assemblymember Mark Stone (D-Scotts Valley) – Settlement agreements: restraints in trade.
  • AB 800 by Assemblymember Kansen Chu (D-San Jose) – Civil actions: confidentiality.
  • AB 894 by Assemblymember Miguel Santiago (D-Los Angeles) – Attorney General: directors and employees: exemption from civil service.
  • AB 988 by Assemblymember Marc Berman (D-Palo Alto) – Teacher credentialing: out-of-state prepared teachers: education specialist credential.
  • AB 1019 by Assemblymember Jim Frazier (D-Discovery Bay) – Apprenticeship: developmentally disabled persons.
  • AB 1033 by Assemblymember Jim Cooper (D-Elk Grove) – State employment: new employees: information.
  • AB 1152 by Assemblymember Chris Holden (D-Pasadena) – Vital records.
  • AB 1116 by Assemblymember Tim Grayson (D-Concord) — California Firefighter Peer Support and Crisis Referral; firefighters: peer support.
  • AB 1223 by Assemblymember Joaquin Arambula (D-Fresno) – Living organ donation.
  • AB 1320 by Assemblymember Adrin Nazarian (D-North Hollywood) – Public employee retirement systems: prohibited investments: Turkey.
  • AB 1349 by Assemblymember Jay Obernolte (R-Big Bear Lake) – Civil actions: discovery.
  • AB 1353 by Assemblymember Buffy Wicks (D-Oakland) – Classified employees: probationary period.
  • AB 1400 by Assemblymember Sydney Kamlager-Dove (D-Los Angeles) – Employment safety: firefighting equipment: mechanics.
  • AB 1452 by Assemblymember Patrick O’Donnell (D-Long Beach) – State teachers’ retirement.
  • AB 1510 by Assemblymember Eloise Gómez Reyes (D-Grand Terrace) – Sexual assault and other sexual misconduct: statutes of limitations on civil actions.
  • AB 1518 by Assemblymember Kansen Chu (D-San Jose) – Student athletes: contracts.
  • AB 1554 by Assemblymember Lorena Gonzalez (D-San Diego) – Employers: dependent care assistance program: notice to employees.
  • AB 1651 by Assemblymember Jose Medina (D-Riverside) – Licensed educational psychologists: supervision of associates and trainees.
  • AB 1607 by Assemblymember Tasha Boerner Horvath (D-Encinitas) – Gender discrimination: notification.
  • AB 1735 by Assemblymember Rebecca Bauer-Kahan (D-Orinda) – Evidence: privileges: human trafficking caseworker-victim privilege.
  • AB 1748 by Assemblymember Rob Bonta (D-Alameda) – California Family Rights Act: flight crews.
  • AB 1768 by Assemblymember Wendy Carrillo (D-Los Angeles) – Prevailing wage: public works.
  • AB 1805 by the Committee on Labor and Employment – Occupational safety and health.
  • AB 1820 by the Committee on Judiciary – Personal rights: civil liability and enforcement.
  • SB 17 by Senator Thomas Umberg (D-Santa Ana) – Civil discovery: sanctions.
  • SB 30 by Senator Scott Wiener (D-San Francisco) – Domestic partnership.
  • SB 41 by Senator Robert Hertzberg (D-Van Nuys) – Civil actions: damages.
  • SB 103 by the Committee on Budget and Fiscal Review – State employees: memorandum of understanding.
  • SB 142 by Senator Scott Wiener (D-San Francisco) – Employees: lactation accommodation.
  • SB 173 by Senator Bill Dodd (D-Napa) – CalFresh: postsecondary student eligibility: work-study.
  • SB 188, Mitchell. CROWN Act: Discrimination: hairstyles.
  • SB 206 by Senator Nancy Skinner (D-Berkeley) – Pay to Play Act, Collegiate athletics: student athlete compensation and representation.
  • SB 229 by Senator Robert Hertzberg (D-Van Nuys) – Discrimination: complaints: administrative review.
  • SB 271 by Senator Scott Wiener (D-San Francisco) – Employment: motion picture production workers.
  • SB 322 by Senator Steven Bradford (D-Gardena) – Health facilities: inspections: employee reporting.
  • SB 366 by Senator Ling Ling Chang (R-Diamond Bar) – Public postsecondary education: mandatory orientation for students.
  • SB 370 by Senator Thomas Umberg (D-Santa Ana) – Discovery: response to inspection demands.
  • SB 438 by Senator Robert Hertzberg (D-Van Nuys) –  Emergency medical services: dispatch.
  • SB 530 by Senator Cathleen Galgiani (D-Stockton) – Construction industry: discrimination and harassment prevention.
  • SB 534 by Senator Steven Bradford (D-Gardena) – Insurers: minority, women, LGBT, veteran, and disabled veteran business enterprises.
  • SB 542 by Senator Henry Stern (D-Canoga Park) – Trauma Treatment Act; workers’ compensation.
  • SB 544 by Senator Thomas Umberg (D-Santa Ana) – State Bar: admission: license: moral character review: mental health medical records.
  • SB 616 by Senator Bob Wieckowski (D-Fremont) – Enforcement of money judgments: exemptions.
  • SB 671 by Senator Robert Hertzberg (D-Van Nuys) – Employment: payment of wages: print shoot employees.
  • SB 688 by Senator Bill Monning (D-Carmel) – Failure to pay wages: penalties.
  • SB 698 by Senator Connie Leyva (D-Chino) – Employee wages: payment.
  • SB 707 by Senator Bob Wieckowski (D-Fremont) – Arbitration agreements: enforcement.
  • SB 778 by the Committee on Labor, Public Employment and Retirement – Employers: sexual harassment training: requirements.
  • SB 782 by the Committee on Labor, Public Employment and Retirement – Public employees’ and judges’ retirement: administration.

Information provided by Robert Nuddleman of the 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 on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

Sexual Harassment Prevention Training

I’m pleased to announce that I will be conducting sexual harassment prevention training on August 29th in Pleasanton. The training is being hosted by the Tri-Valley Nonprofit Alliance in an effort to help non-profits complete their required training. Anyone is welcome–you don’t have to be a non-profit–but nonprofit agencies are part of TVNPA get a special discount.

The full Press Release is below. I hope to see you there.

TVNPA Offers Sexual Harassment Prevention Seminar

On Thursday, August 29, the Tri-Valley Nonprofit Alliance (TVNPA) is offering a sexual harassment prevention seminar. Starting in 2019, all for-profit and non-profit organizations state-wide with five or more employees must provide sexual harassment prevention training for their employees, and this seminar satisfies that requirement. The training is also open to non-profit volunteers and board members.

The seminar will be held from 8:30-11:15 AM at Hively (formerly Child Care Links), located at 6100 Owens Drive in Pleasanton. The seminar includes a one-hour session for all employees from 9-10 AM and an additional one-hour session for supervisory staff from 10:15-11:15 AM. For complete details and to register visit www.tvnpa.org. TVNPA members receive a registration discount.

Robert Nuddleman, a Pleasanton attorney who has specialized in employment and business law for over 20 years, will lead both sessions. Nuddleman encourages attendees to bring questions and share their relevant experiences during the sessions and will incorporate role-playing to make the seminar as engaging as possible. “This will be a great opportunity for attendees to get guidance in an extremely sensitive area from someone who has litigated sexual harassment cases for many years.”

Organizations that fail to complete the training by January 1, 2020 “could possibly be cited by the Department of Fair Employment and Housing,” says Nuddleman. “More importantly, the absence of training could be used as evidence that the employer failed to take all reasonable steps to prevent sexual harassment.”

“Most importantly,” Nuddleman adds, “educating employees about inappropriate workplace conduct, and what to do if someone is a victim of, or is aware of, potentially inappropriate conduct, can create a positive work environment.”

After 2019, organizations will be required to complete sexual harassment prevention training every two years. For FAQ’s visit https://www.dfeh.ca.gov/resources/frequently-asked-questions/employment-faqs/sexual-harassment-faqs/

For more information about TVNPA visit www.tvnpa.org

Call-In Requirement Triggers Reporting Time Pay

“On-call” time may be compensable in some instance, and not compensable in others. It has to whether you are “engaged to wait,” or “waiting to be engaged.” They may sound the same, but one is compensable and the other is not. In Ward v. Tilly’s, Inc., the court had to decide whether the company’s call-in requirements for their “on-call” employees meant the employees were entitled to “reporting time” pay when they called in to get their shifts. The answer may surprise you.

On-Call Shifts and Reporting Time Pay

Tilly’s, Inc. assigns certain employees “on-call” shifts. The on-call employees must call in two hours before their shifts start to find out whether they should actually come in to work. If they are told to come in, they are paid for the shifts; if not, they do not receive any compensation for having been “on call.”

Plaintiff Skylar Ward challenges the on-call scheduling practices claiming the single phone call constitutes “reporting for work. Tilly’s argued that employees “report for work” only by physically appearing at the work site at the start of a scheduled shift, and that employees who call in and are told not to come to work are not owed reporting time pay.

Employees were disciplined if they failed to contact their stores before on-call shifts, or if they contacted the stores late, or if they refused to work on-call shifts.   

Wage Order 7, like most wage orders, contain the following regulations regarding reporting time pay:

(A) Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work, the employee shall be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay, which shall not be less than the minimum wage.

(B) If an employee is required to report for work a second time in any one workday and is furnished less than two (2) hours of work on the second reporting, said employee shall be paid for two (2) hours at the employee’s regular rate of pay, which shall not be less than the minimum wage.

(C) The foregoing reporting time pay provisions are not applicable when: [¶] (1) Operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities; or [¶] (2) Public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or [¶] (3) The interruption of work is caused by an Act of God or other cause not within the employer’s control.

(D) This section shall not apply to an employee on paid standby status who is called to perform assigned work at a time other than the employee’s scheduled reporting time.”

Cal. Code Regs., tit. 8, § 11070, subd. (5),

The court agreed that when the reporting time pay provisions were created in the 1940’s the phrase “report for work” meant physically showing up. Even though calling in from one’s cell phone is less burdensome than physically showing up at the worksite, the court concluded that the on-call scheduling alleged in this case triggered the wage order’s reporting time pay requirements.

Because Tilly’s requires employees to be available to work on-call shifts, they cannot commit to other jobs or schedule classes during those shifts. If they have children or care for elders, they must make contingent childcare or elder care arrangements, which they may have to pay for even if they are not called to work. And they cannot commit to social plans with friends or family because they will not know until two hours before a shift’s start whether they will be available to keep those plans. In short, on-call shifts significantly limit employees’ ability to earn income, pursue an education, care for dependent family members, and enjoy recreation time.

Further, because employees must contact Tilly’s two hours before the start of on-call shifts, their activities are constrained not only during the on-call shift, but two hours before it as well. That is, at the time employees are required to call in to find out whether they will be required to work on-call shifts, they cannot do things that are incompatible with making a phone call, such as sleeping, watching a movie, taking a class, or being in an area without cell phone service.

Reporting Time Pay Protects Employee Welfare

Quoting the IWC, the court confirmed “[t]he requirement for reporting time pay historically has been included in the commission’s orders on the basis that it is necessary to employee[s’] welfare that they be notified in advance when changes in their starting time must be made. It has been deemed a [maximum] of four hours’ pay adequate to encourage proper notice and scheduling.

The IWC’s purpose in adopting reporting time pay requirements was two-fold: to “compensate employees” and “encourage proper notice and scheduling.”

The court confirmed that employers do not trigger reporting time pay requirements merely by expecting employees to apprise themselves of their schedules. Tilly’s ran afoul of the reporting requirements because it “did not merely require employees to check their schedules as a necessary predicate to getting to work on time—it required employees to call in exactly two hours before the start of on-call shifts, and it ‘treat[ed] calling in late for an on-call shift or failing to call in for an on-call shift the same as missing a regularly scheduled shift.’”

If you have questions about on-call time or the pay practices in your workplace, contact the Nuddleman Law Firm, P.C. Robert Nuddleman has represented employees and employers in wage and hour matters for almost 25 years.

Original Article by Robert Nuddleman of the 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 on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims, and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

Missed Meal Break Claims Results in Multiple Violations

Almost every wage and hour lawsuit and Labor Commissioner claim that I’ve seen in the past 10 years has included a claim for missed meal and/or rest breaks. Employers who fail to provide at least one half-hour unpaid meal break whenever an employee works more than 5 hours is liable for one hour’s pay at the employee’s regular rate of pay. As Kaanaana v. Barrett Business Services, Inc. reveals, the “premium pay” is not the only liability.

Sometimes the employer has no record of the hours worked. This is problematic because the Labor Code and the Wage Orders require employers to maintain accurate records of the hours worked, including the times when lunch breaks begin and end. When an employer fails to maintain accurate records of the hours worked, the employee’s testimony alone is sufficient to establish the number of hours worked. This means an employee who testifies she did not receive a full half-hour lunch break will likely carry the day unless the employer has specific evidence to rebut the employee’s testimony.

Sometimes the employer allows employees to take the lunch but does not require the employee to clock out for lunch breaks. Instead, the employer automatically deducts a certain amount of time from the employees hour. This is problematic because the time records are not accurate, which means we default to the employee’s testimony. We have no way of showing how long the break lasted. The court may be required to base its decision on the employee’s testimony.

But what happens when the employer records show the employee clocking in and out for lunch, but the meal break is less than the full 30-minutes? In Kaanaana, the time records showed the employee breaks oftentimes were only 26-minutes because the supervisors gathered the workers before the break ended to ensure they were back at the line within 30 minutes.

The employees filed a class action lawsuit alleging they were owed the premium pay under Labor Code 226.7 because they did not receive the full 30-minute meal period. The employees also argued that because the meal period was “truncated,” it was an “on-duty meal period,” and the employer should pay for the entire 30-minute meal period. The employees sought liquidated damages under Labor Code 1194.2 for failing to pay minimum wage for the entire meal period and “waiting time” penalties under Labor code 203 for failing to pay all wages owed at the end of the employment. Finally, the employees sought PAGA penalties for the missed meal breaks.

The employer argued the employees were only entitled to the premium pay. Barrett Business Services argued the few minutes missed were de minimus, and therefore not compensable.

The court concluded the employees were not entitled to payment for the entire meal period, but were entitled to payment for the 3 to 5 minutes they actually worked during the meal period:

the right to be free from employer control for a 30-minute meal period, and the right to be paid for time worked during that meal period, are distinct rights with distinct remedies. The remedy for an employer violation of the former right is the hour of premium pay provided under section 226.7. The remedy for the latter is payment of wages for time worked (see § 1194), along with any applicable penalties for the failure to pay for time worked when the wages were due. But we find no persuasive basis in legal authorities to support plaintiffs’ claim that their remedy for time worked during the meal period is payment of wages for the full 30-minute meal period, rather than payment of wages for the three to five minutes actually worked.

While acknowledging that the Wage Order could be interpreted to require payment for the entire meal period, the court believed “that a truncated meal period, such as occurred in this case, is not in every case the equivalent of an on-duty meal period.”

The court determined the employees could recover liquidated damages for the 3 to 5 minutes the employees worked during the lunch break, and the employees could recover waiting time penalties since the employees worked time (albeit just a few minutes) without compensation.

The court remanded the case back to the trial court to determine what PAGA penalties to award, but reminded the court that the court could award less than the full PAGA penalties “if, based on the facts and circumstances of the particular case, to do otherwise would result in an award that is unjust, arbitrary and oppressive, or confiscatory.”

In February 2019, the California Supreme Court granted review of Kaanaana v. Barrett Business Services, Inc., but on a different issue.

I have some suggestions for employers that want to avoid meal break problems, or at least provide a defensible position if a dispute arises:

  • Make sure employees are afforded and take the full 30-minute meal period.
  • Publish the company’s official–and compliant–meal and rest break policy.
  • Keep accurate records of hours worked including meal breaks.
  • Never automatically deduct time from an employee’s record of hours worked. Only deduct time if the employee confirms (preferably in writing) the employee forgot to clock out.
  • Never require employees to return to work from their breaks early. Err on the side of granting more time than required.

If you have questions about implementing or enforcing appropriate workplace policies, or if you believe your company is not complying with the law, the Nuddleman Law Firm, P.C. represents employers and employees in variety of employment matters including meal and rest break claims. Contact our office for more information.

Original Article by Robert Nuddleman of the 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 on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims, and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

Labor Commissioner Takes Expansive View of ABC

The ABC Test established by Dynamex made it difficult for employers to classify workers as independent contractors for claims “under the wage orders.” But what does that really mean? Which cases are “claims under the wage orders?” Not surprisingly, the Labor Commissioner takes a very broad view of the ABC test’s applicability.

The Labor Commissioner oftentimes issues opinion letters on various topics within their jurisdiction (i.e., wage and hour questions). Courts are not required to follow the Labor Commissioner opinions, particularly when the Labor Commission changes its position on a topic, but most courts will at least afford the opinion some weight.

Earlier this year the Labor Commissioner issued an opinion regarding “Application of the “ABC” Test to Claims Arising Under Wage Orders.” The opinion discusses (or at least mentions) many of the cases interpreting the ABC test since Dynamex. Even if courts don’t follow the opinion letter, the Labor Commissioner will most certainly follow its own decision.

The Labor Commissioner points out that “Dynamex ties application of the ABC test to enforcement of obligations imposed by the wage orders.”

Because wage order provisions are not independently actionable (see Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1132), the “obligations imposed by a wage order” do not appear only in the wage orders themselves. Wage order obligations are also imposed by certain Labor Code provisions, which serve to enforce the wage orders. In such cases, the IWC employer definitions are imported into the Labor Code provision.

[fn4] Some Labor Code provisions expressly reference the substantive standards of the wage orders. (See, e.g., Labor Code section 1197 [”The minimum wage for employees fixed by the [JWC] or by any applicable state or local law, is the minimum wage to be paid to employees .. .”]; section 1198 (”The maximum hours of work and the standard conditions of labor fixed by the [IWC] shall be the maximum hours of work and the standard conditions of labor for employees.”]; section 226.7 [“An employer shall not require an employee to work during a meal or rest or recovery period mandated pursuant to an applicable statute, or applicable regulation, standard, or order of the [IWC] …”].)

The Labor Commissioner then sets out the types of claims that involved enforcement of obligations imposed by the wage orders:

Obligations of employers under the wage orders include those relating to overtime; minimum wages; reporting time pay; recordkeeping (including itemized pay stub obligations); business expense reimbursement for cash shortages, breakage, or loss of equipment; business expense reimbursement for required uniforms, tools, and equipment; meal periods; and rest periods. (See, e.g., Wage Order No. 1-2001, sections 3, 4, 5, 7, 8, 9, 11, 12.)

“But wait,” you may be saying, “didn’t Dynamex specifically exclude expense reimbursement claims from the ABC test?” No, it didn’t. The drivers challenged which test was applicable to their 2802 claim “insofar as that claim seeks reimbursement for business expenses other than business expenses encompassed by the wage order.” The issue of which test applies to expense claims other than those encompassed by the wage order was not before the court. To the extent the expense reimbursement claim is related to expenses encompassed by the wage order, the ABC test still applies.

The following quotes and cites from the opinion letter will hopefully clarify the Labor Commissioner’s view of which tests apply to which claims:

Dynamex and decisions following it have applied the ABC test to Labor Code sections enforcing minimum wage, overtime, meal and rest breaks, and itemized pay stubs.

See, e.g., Garcia v. Border Transportation Group, LLC (20 18) 28 Cal.App.5th 558, 570-71 [Dynamex only applies to “wage-order claims”]; Alvarez v. XPO Logistics Cartage LLC (C.D. Cal. Nov. 15, 2018, No. CV 18-03736) 2018 WL 6271965, at *4 [Dynamex applies “for the purpose of wage orders”]; Karl v. Zimmer Biomet Holdings (N.D.Cal. Nov. 6, 2018, No. C 18-04176) 2018 WL 5809428, at *3 [”ABC test applies only to claims arising under Industrial Welfare Commission Wage Orders”]; Johnson v. Serenity Transportation, Inc. (N.D.Cal. Aug. I, 20 18, No. 15-CV-02004) 2018 WL 3646540, at* 11 [Supreme Court recently adopted the ABC test ‘·for purposes of the wage orders”].

We don’t know whether the ABC Test applies to section 203 claims for waiting time penalties. (see Garcia v. Border Transportation Group, LLC (2018) 28 Cal.App.5th 558,571, fn.11 [stating section 203 claim did
not “arise under the wage order”, and Futrell v. Payday California. Inc. (2010) 190 Cal.App.4th 1419, 1425, 1428-31 [applying “suffer or permit” standard to section 203, which could imply the ABC test applies].)

We will have to wait and see how the court and the legislature refine, limit or expand the ABC test. For now, the conservative approach means that employers in California should treat workers as employees–at least for wage and hour purposes–unless the hiring entity can prove each of the following factors:

  • (A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and
  • (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and
  • (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

If you have a question about classifying your workers, or if you believe you were incorrectly classified as an independent contractor, contact the Nuddleman Law Firm, P.C. Robert Nuddleman helps employers and employees comply with and enforce employment laws in California.

Original Article by Robert Nuddleman of the 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 on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims, and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

Bay Area Home Care Provider pays $340,000 for Client Harassment

EEOC Obtains $340,000 for Caregivers Harassed Daily by 80-Year-Old Client

 According to the Equal Employment Opportunity Commission, R. MacArthur Corp. agreed to pay $340,000 in damages to five former employees resulting from a client’s inappropriate sexual conduct. R. MacArthur Corp.’s successor, San Oak Caring Hands LLC, agreed to implement measures to prevent future harassment.

According to the EEOC’s suit, “caregivers employed by RMC, a franchisee of Home Instead Senior Care, reported that an 80-year-old client in Alameda, Calif., repeatedly groped them, offered lewd com­ments about their breasts and buttocks, and made additional racially and sexually offensive comments while they were providing in-home assistance.” The EEOC claimed that the employer failed to act on employee complaints and even retaliated against one complaining caregiver by refusing to place her in other available assignments.

The employee who brought the charge to the EEOC said, “I’m hoping this settlement will encourage other in-home caregivers to realize that while we take care of people, we also deserve to be treated with respect and dignity, and the laws protect us from harassment even when our workplace is inside someone else’s home.”

Under a five-year consent decree settling the suit, RMC will pay $340,000 to five caregivers. San Oak Caring Hands, the entity that now owns and operates RMC’s Home Instead franchises, will institute thorough anti-harassment training and policies that emphasize prevention, prompt correction and compe­tent investigation. San Oak will engage a consultant to review discrimination matters and provide perio­dic reporting of its training, policies and complaint investigation to the EEOC.

EEOC Senior Trial Attorney Linda Ordonio-Dixon said, “It’s important that we send a clear message that harassment is not part of a caregiver’s job description and that employers must do what they can to prevent and correct any abuses, even if the workplace happens to be in a client’s home. In-home care­givers can be particularly vulnerable to harassment, and one of the EEOC’s top priorities is to defend vulnerable workers against discrimination.”

EEOC San Francisco District Director William Tamayo noted, “According to the U.S. Bureau of Labor Statistics, home health aides have been projected to be the fourth-fastest growing occupation in the nation. In fact, California has just passed legislation, AB 3082, ensuring that the state Department of Social Services develop anti-harassment training and a method to track cases of sexual harassment of in-home care providers.”

One of the difficulties in caring for persons with diminished capacity is the lack of impulse control. Some care recipients lack the ability to control their sexual comments and conduct. Placing employees in such an environment creates a risk for the employer, but the person still requires care. The company may have to choose between providing services to a client that requires services and protecting its employees from unlawful harassment. Having handled several similar cases, I know this is a very difficult decision.

There are steps employers can take to protect employees even if the client’s medical condition creates a potentially hostile work environment. Open communication channels are necessary, and the company has to ensure the employees know that their protection is important. If an employer cannot establish sufficient measures to protect the employees, the company may not be able to provide the services the client needs.

Original Article by Robert Nuddleman of the 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 on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims, and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

Appealing Labor Commissioner Decisions – A Cautionary Tale

Gbolahan Sarumi probably thought it was a good idea to appeal the Labor Commissioner decision. He obviously believed the employee was not entitled to the money awarded, or at least that Gbolahan was not responsible for the payment. He filed his appeal to Superior Court, and several weeks later filed the required bond. He probably didn’t know that when the appeal was later dismissed–even if it is dismissed through settlement–he would forfeit his right to recover the bond.

In Chavez v. Sarumi, the court had to decide whether a late-filed bond could be returned to the person who posted the bond, or if it had to be turned over to the employee. Employers appealing an adverse Labor Commissioner decision must:

first post an undertaking with the reviewing court in the amount of the order, decision, or award. The undertaking shall consist of an appeal bond issued by a licensed surety or a cash deposit, with the court in the amount of the order, decision, or award.

Labor Code §98.2(b)

Some court clerks refuse to accept the appeal without the bond or cash deposit. Others allow the employer to file the appeal and leave it up to the parties and the court to fight it out. In Chavez v. Sarumi, the court made it clear that:

“…when the appeal is dismissed without a settlement, and the employer fails to pay the amount awarded by the Labor Commissioner within 10 days of dismissal, section 98.2, subdivision (b) expressly provides for forfeiture of the undertaking to the employee; it does not provide for the release of funds to individuals who posted the undertaking on behalf of the employer.”

Citing Tabarrejo v. Superior Court, (2014) 232 Cal.App.4th 849

The exact facts of this case are a bit murky. It seems there was also a corporate defendant at the Labor Commissioner, but since the corporation was suspended it could not participate in the appeal. I’m assuming Gbolahan was a managing agent or director of the corporation . It’s possible the hearing officer allowed the employee to “pierce the corporate veil,” but Gbolahan more likely was held liable under Labor Code section 558.1.

It also seems there may have been a settlement of some sort because the decision talks about a “stipulation” between the parties regarding attorneys’ fees. I suspect the employer agreed to pay the full amount of the award, and possibly some amount of attorneys’ fees, once the employer realized he would be responsible for the employee’s reasonable attorneys’ fees if the employee recovered any amount.

I cannot tell whether the employer was represented when he filed the appeal or when he resolved the case. If he was represented when the appeal was filed, then hopefully the attorney advised Gbolahan about the risks involved in appealing Labor Commissioner decisions.

I don’t know why the “stipulation” between the parties did not address the disposition of the bond. This could have been a critical error. When resolving claims, be sure to resolve all claims, and consider what and how the payment will be made.

Whether you are the employee or the employer, deciding whether to appeal a Labor Commissioner claim requires thinking through all the possible consequences of the appeal. Even if you are confident in your position, a court will not necessarily rule in your favor. Appealing the Labor Commissioner decision can have adverse consequences for the employer and the employee.

If you are considering an appeal from the Labor Commissioner, or if you need assistance with a Labor Commissioner claim, contact the Nuddleman Law Firm, P.C. We are happy to help you defend or prosecute your claim.

Original Article by Robert Nuddleman of the 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 on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims, and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

ARE NON-SOLICITATION AGREEMENTS AN ILLEGAL RESTRAINT OF TRADE?

Alan Foster of the Foster Law Group wrote a very good article on non-solicitation agreements. He gave me permission to reprint it here. It is a good adjunct to my article regarding AMN Healthcare. Without further ado:

Although not directly holding non-solicitation agreements as illegal restraints of trade in violation of California law, two 2018 cases seem to be moving the Courts, and the law, in that direction.

In Donald Golden v. California Emergency Physicians Medical Group, et al., 896 F.3d 1018 (2018) the Ninth Circuit Court of Appeals held, if restrictions in a settlement agreement impose a “restraint of substantial character” on future employment, they run afoul of California Business and Professions Code Section 16600, as an illegal restraint upon a former employee even if they do not prevent the former employee from competing for business with the former employer.

The Court held that Section 16600 prevented any contract from imposing a “restraint of substantial character” on an individual’s employment, irrespective of whether it limited the individual’s ability to “compete”. The Appellate Court engaged in a de novo review of the lower court’s analysis of the degree to which the post-employment restrictions in the settlement agreement hampered plaintiff’s ability to practice medicine and reversed the lower court on the basis that the settlement agreement language clearly imposed a restraint of substantial character upon Dr. Golden’s ability to practice medicine.

The Golden decision supports the view that, under Section 16600, post-employment restrictions will be considered to impose a “restraint of substantial character” on employment irrespective of their impact on the ability of the former employer to compete.

In AMN Healthcare, Inc. v. Aya Healthcare Services, Inc., 2018 Cal. App. LEXIS 989 (Nov. 1, 2018), the Court of Appeal of California, Fourth Appellate District, also held that employee non-solicitation agreements are void under California Business and Professions Code Section 16600 when such agreements restrain an individual from practicing their chosen profession, and indicated, in dicta, that employee non-solicitation agreements may be void in general under Section 16600, regardless of the circumstances. However, the Court of Appeal stopped short of holding that all nonsolicitation agreements are impermissible under California law. Yet, it expressed doubt over the continuing viability of older case law that applied a reasonableness standard to analyzing non-solicitation agreements.

California law has become extremely antithetical to non-solicitation agreements and companies should not assume they will be enforced by the Courts. Protection can still be provided through trade secret and confidential information agreements that impose enforceable restrictions on former employees so that the employer’s trade secret information is protected. If you are still using a non-solicitation agreement in your business that has not been reviewed for possible needed updates within the last several years, we suggest that you immediately contact your attorney to verify that it is still effective under current law.

Alan Foster provides strategic business planning, entity formation and ongoing counsel on operational issues, contracts, corporate finance and securities, intellectual property protection and counseling, employment and compensation, mergers and acquisitions, and real estate transactions.

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 on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims, and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

Travel Time is Not Compensable

California Employees Must Be Paid for All “Hours Worked”

California protects workers’ rights to compensation. It has a very broad definition of “hours worked.” It includes any time an employee is suffered or permitted to work and any hours an employee is subject to the employer’s control. An employer usually does not have to pay an employee for the regular commute to and from work. Employers usually have to pay when an employee travels from one site to another. Employers may have to pay employees if the employer requires the employee to run errands or engage in other business before reaching the job site. Does the employer have to pay if the employee commutes in a vehicle while carrying company tools?

In Hernandez v. Pacific Bell Telephone Company Plaintiffs sought compensation for the time they spent traveling in an employer-provided vehicle–loaded with equipment and tools–between their homes and a customer’s residence (the worksite) under an optional and voluntary Home Dispatch Program. The trial court concluded the travel time was not compensable. The Court of Appeal agreed and affirmed, finding:

  1. the Home Dispatch Program was not compulsory; and
  2. simply transporting tools and equipment during commute time was not compensable work where no effort or extra time is required to effectuate the transport.

Travel Time Was Not Subject to Employer’s Control

The plaintiffs argued that the travel time to and from the technician’s home and worksite satisfied the “control test.” Plaintiffs focused on the numerous restrictions placed on technicians under the Home Dispatch Program. Technicians could not use the company vehicle personal matters and only authorized persons could ride in or drive the vehicle. Technicians had to drive directly between home and the worksite; they could not stop along the way to run errands or drop off or pick up children from school or talk on a cell phone while driving. Plaintiffs argued by imposing these restrictions, the employer controlled the commute.

The employer pointed out that the Home Dispatch Program was voluntary. Employees were not required to bring the company vehicle home. Employees could have picked up the vehicle at the company site each day. The court agreed with Pacific Bell:

[Plaintiffs] do not address the cases such as Overton, Alcantar, and Novoa in which the courts found commute time in an employer-provided vehicle is not compensable when the employee is not required to use that transportation. Nor do they address the emphasis in Morillion on the compulsory nature of the transportation by bus or the court’s observation “that employers do not risk paying employees for their travel time merely by providing them transportation. Time employees spend traveling on transportation that an employer provides but does not require its employees to use may not be compensable as `hours worked.'”

Hernandez at p.141.

Plaintiffs also tried to analogize their situation to cases where employees were required to deliver tools or equipment to the job site. The court was not persuaded. While employees were required to bring tools necessary to perform the work, every employee has to do that even if the “tools” consist of a laptop or a hammer. Merely bringing the tools necessary to perform the work does not “suffer or permit” the employee to work.

Deciding which hours are compensable or not can be difficult. Federal and state laws do not always agree, and Labor Commissioner Opinion Letters are unreliable. To correctly analyze whether an employee is entitled to compensation, contact the Nuddleman Law Firm, P.C.

Original Article by Robert Nuddleman of the 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 on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims, and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.