Notice to Employees: The Missing Form

Every employer, at the time of hiring, must provide a notice to most employees regarding certain basic terms of employment. Labor Code 2810.5. The employee must sign the notice, receive a copy of the signed notice, and the original should be maintained in the employee personnel file.

Labor Code 2810.5 Notice to Employees Requirements

The Notice to Employees must contain:

(A) The rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime, as applicable.

(B) Allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances.

(C) The regular payday designated by the employer in accordance with the requirements of this code.

(D) The name of the employer, including any “doing business as” names used by the employer.

(E) The physical address of the employer’s main office or principal place of business, and a mailing address, if different.

(F) The telephone number of the employer.

(G) The name, address, and telephone number of the employer’s workers’ compensation insurance carrier.

(H) That an employee: may accrue and use sick leave; has a right to request and use accrued paid sick leave; may not be terminated or retaliated against for using or requesting the use of accrued paid sick leave, and has the right to file a complaint against an employer who retaliates.

(I) Any other information the Labor Commissioner deems material and necessary.

The Labor Commissioner developed a form employers can use for this purpose. You can download the form here.

For whatever reason, employers are not using the Labor Commissioner’s standard form, and many are neglecting to include the notice to employees in the hiring documents. If any of the items in the notice to employees change (i.e., pay rate, workers’ compensation carrier, etc.), the employer has to provide a new signed notice to the employee.

Even if your offer letter or employment agreement contains all the required information (it likely wouldn’t because no one includes their workers’ compensation carrier information in an offer letter), employers should still use a standard form.

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.

Upcoming Presentation: Employment Laws that Impact Your Practice and Your Clients

I’m excited to present Employment Laws that Impact Your Practice and Your Clients at the East Bay chapter of the Professional Fiduciary Association of California on May 10th. The presentation will be at the San Leandro Library from noon to 1:15.

May 10th Presentation Regarding Employment Laws for Fiduciaries

We’ll talk about:

I always enjoy presenting to PFAC members. They are a wonderful group of professionals dedicated to helping others. I look forward to helping them build their practices and identify ways to help their clients. [Full disclosure, in addition to being a frequent presenter, I’m also an affiliate member of PFAC.]

I won’t be able to attend their annual conference in Southern California this year, but I hope to do a presentation at their Education Day in September.

You can register for the May 10th presentation here. The member price is only $10, and the non-member price is $20. 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.

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.

Overtime Rate for Salaried Nonexempt Employees

How to Calculate the Overtime Rate

Almost 20 years ago the California Legislature adopted Labor Code section 515(d). Section 515(d) instructs how to compute the overtime rate of pay for salaried non-exempt employees:

For the purpose of computing the overtime rate of compensation required to be paid to a nonexempt full-time salaried employee, the employee’s regular hourly rate shall be 1/40th of the employee’s weekly salary

Paying a salary does not necessarily relieve an employer of its overtime obligations. If an employee is not “exempt” from the overtime laws, the employer must still pay overtime. But, how do you compute the overtime rate of compensation for salaried nonexempt employees?

Overtime Rate Calculation: Federal versus State

Under federal law, employers divide the weekly salary by the actual hours worked. This provides the regular hourly rate, and the basis of the overtime rate under the FLSA. California, of course, has to be different.

In 1985, Skyline Homes, Inc. v. Department of Industrial Relations (1985) 165 Cal.App.3d 239, followed the DLSE rule that the regular rate of pay in California is calculated by dividing the weekly salary by 40. This usually results in a higher hourly rate. It presumes the salary only covers the “regular” hours worked (i.e., the first 8 in a day and the first 40 in a week).

In 1999, Labor Code 515(d) codified the difference between federal and state law. The overtime rate for salaried nonexempt employees is calculated by dividing the weekly salary by 40. But, what about an employee who works less than 40 hours a week? Do you use the actual hours worked or the 1/40th rule in Labor Code 515(d)?

The DLSE manual (oftentimes referred to as an “underground regulation”) says you use the actual hours worked or 40, whichever is lower. However, this contradicts the plain language of Labor Code 515(d). Until recently, there was no clear guidance either way.

Supreme Court Decides Overtime Rate Calculation

On March 5, 2018, the California Supreme Court decided Alvarado v. Dart Container Corporation of California, directly addressing the issue:

Moreover, after Skyline Homes was decided, its formula for calculating the regular rate of pay in the case of a fluctuating workweek with a fixed weekly salary was codified as Labor Code section 515, subdivision (d). That subdivision provides: “(1) For the purpose of computing the overtime rate of compensation required to be paid to a nonexempt full-time salaried employee, the employee’s regular hourly rate shall be 1/40th of the employee’s weekly salary.

*Page 24 of slip opinion (emphasis in original).

Skyline Homes is, however, ambiguous in one respect. It is not clear from the opinion whether the divisor for purposes of calculating the per-hour value of a weekly salary should be the number of nonovertime hours actually worked by the employee in the workweek in question, even if that number is less than 40, or whether it should be 40 (i.e., the number of nonovertime hours that exist in a workweek). In codifying the holding of Skyline Homes, the Legislature adopted the latter rule. (Lab. Code, § 515, subd. (d)(1) [“the employee’s regular hourly rate shall be 1/40th of the employee’s weekly salary”].)

*Page 24-25 of slip opinion (emphasis in original).

As noted, the Legislature, in codifying the holding of Skyline Homes, adopted 40 as the divisor for all cases (Lab. Code, § 515, subd. (d)(1))

*Page 25 of slip opinion

Overtime Rate for Flat Sum Bonus

Should this prove too simple, the court set out a different rule for employees receiving a “flat sum bonus.” Alvarado received an “attendance bonus” — a flat amount paid to employees who work weekends. The attendance bonus was earned regardless of whether the employee worked overtime. This led the court to assume “the bonus is properly treated as if it were fully earned by only the nonovertime hours in the pay period.” *Page 19-20 of slip opinion.

The court then concluded: “therefore only nonovertime hours should be considered when calculating the bonus’s per-hour value.” *Page 20 of slip opinion.

I don’t follow the court’s logic because I don’t agree that the bonus is properly treated as if it were fully earned by only the nonovertime hours. I agree Labor Code 515(d) is not applicable to bonuses because it only applies to a “salary.” It seems more logical, to divide the bonus by all hours worked; not just the regular hours worked. The attendance bonus is earned by working on the weekend, whether the employee works overtime or not. That is how other bonuses and incentive compensation is typically factored into the overtime rate of pay. The court’s logic on this point is a bit shaky.

Unfortunately, the Supreme Court did not ask my opinion before issuing its decision, so we are stuck with their holding.

If you are an employer who pays a flat sum bonus, you will need to review your policies and possibly recalculate any overtime payments over the last 4 years.

If you have questions about wage and hour laws in California, feel free to contact me at your convenience. I’ve been representing employees and employers in wage and hour matters for more than 20 years. I had my first overtime trial before I graduated law school. I routinely represent individuals, companies and families in Labor Commissioner hearings and audits. I’d be happy to discuss your minimum wage, overtime or other compensation questions.

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

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

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.

 

Horror Stories from Hiring Caregivers – Part 2

Horror Stories from Hiring Caregivers – Part 2

This is Part 2 in my series on cautionary tales taken from real caregiver cases I handled. As before, I left out the names to protect the parties, but the facts are real. Read on to learn how innocent mistakes when hiring caregivers can lead to dire consequences. Some have happy endings, others not. All have lessons for families hiring caregivers. You can read the first installment here.

Today’s story:

A Tale of Two Sisters

A year and a half after Mom died, the caregiver that was providing 24/7 care sued the two daughters for unpaid wages. The complaint alleged the two sisters were employers because, as trustees of Mom’s trust, they were responsible for supervising the caregiver and paying the caregiver. The caregiver claimed she was owed over $450,000 in unpaid wages and penalties.

The opposing counsel used the wage order and the FLSA to bolster her argument that the co-trustees “directly or indirectly” controlled the hours, wages or working conditions. Shortly after we resolved the case, the California Supreme Court adopted the same definition of employer.

A potential saving point in our case was the fact that the caregiver waited more than a year to file her claim. While most unpaid wage claims have a three-year statute of limitations (four-years if it constitutes and unfair business practice), we argued the shorter one-year statute of limitations for claims against a decedent applied. We resolved the case before the court heard our demurrer on the issue.

It took some time to convince the other side that the caregiver was a “personal attendant,” and therefore not entitled to overtime. Remember, this was before the Domestic Workers Bill of Rights was adopted in 2014. As a personal attendant, she also could not recover meal and rest break penalties. We resolved the case through private mediation. In exchange for a complete release of claims, my client paid $27,000 in back wages, $10,500 in penalties and $17,500 to the plaintiff’s attorney for costs and fees. This is in addition to over $30,000 my client paid my firm.

Although we were confident in our arguments, the client still had potential liability. If we lost the statute of limitations argument, the caregiver had a valid minimum wage claim. She received a salary that did not cover 24-hour care. Although Mom did not necessarily require 24-hour care, there were no time records to confirm the actual hours worked. Even if we defeated the claims, the client likely would have spent close to the settlement amount defending the case.

What lessons did we learn regarding caregivers?

1.     Make sure the employment agreement is in writing.

2.     Be sure to designate the capacity in which you are acting (e.g., conservator, trustee, etc.) in the employment agreement.

3.     Maintain a record of the hours worked.

4.     Do not hire a single caregiver to provide 24/7 care (we learned this one before, but it’s one that repeatedly comes up).

More stories will follow.

If you, or someone you know, has questions about employing or hiring caregivers, feel free to contact the Nuddleman Law Firm. I represent caregivers, families, fiduciaries, attorneys, care agencies, home health agencies, residential care facilities and others involved in the circle of care.

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.

Hiring Caregivers Horror Stories – Part 1

Horror Stories from Hiring Caregivers – Part 1

I help a lot of families, trustees, conservators and other fiduciaries resolve disputes with caregivers. I also represent a number of caregivers in disputes with the families that hired them. I frequently educate those in the circle of care regarding the common pitfalls when hiring caregivers. I encourage families to use reputable care agencies or 3rd party employers because most families are not prepared to become employers.

The following real case is a cautionary tale to show how innocent mistakes can lead to dire consequences. I left out the names to protect the parties, but the facts are real.

Sleeping with the Enemy

My first venture into what can happen when hiring caregivers was in 2007. A colleague represented a trustee who, along with the conservator, wanted to terminate the caregiver. Not only had the caregiver moved her entire family into the home, the caregiver was sleeping with the successor trustee who was trying to undermine the current trustee. The caregiver and her family damaged the home, and were treating the employer’s credit card as their personal bank. In order to ease the transition, they offered the caregiver a fairly generous severance, which the caregiver rejected. We suspect the successor trustee helped her in that decision.

The trustee had to initiate an unlawful detainer action to remove the caregiver and her family. When she finally left, the trustee discovered burned cabinets, rat feces in the kitchen, missing furniture, and soiled clothing strewn about the home.

The caregiver hired an attorney, who demanded $350,000 in unpaid wages. The attorney claimed the caregiver worked 24-hours a day, 7 days a week. Because the caregiver only received $750 per week, the wages did not cover all hours worked, even at minimum wage. At that time, caregivers were not entitled to overtime. We spent significant time, money and resources convincing the opposing counsel that the caregiver was not owed the wages she claimed. Unfortunately, when you added the various penalties, the claim was worth more than $350,000 . Fortunately, the opposing counsel didn’t figured that out before we settled the case.

We agreed to early mediation and with the help of a very good mediator, resolved the case without litigation. My client paid the caregiver $94,500 in back wages, and paid her attorney $63,000 in attorneys’ fees and costs.

It is important to note that this case took place over 10 years ago, when caregivers were not entitled to overtime. Had this case occurred today, the liability would have been significantly greater.

What lessons did we learn regarding hiring caregivers?

  1. It’s never a good idea to let the caregiver’s family move into the residence.
  2. Hiring a single caregiver to provide care to an elderly or disabled person increases the chance of elder or dependent-adult abuse.
  3. Hiring a single caregiver to provide 24/7 care is costly.
  4. Allowing an employee to sleep with a family member can get expensive.

More stories will follow.

If you, or someone you know, has questions about employing or hiring caregivers, feel free to contact the Nuddleman Law Firm. I represent caregivers, families, fiduciaries, attorneys, care agencies, home health agencies, residential care facilities and others involved in the circle of care.

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.

 

Berkeley Minimum Wage Increase

Berkeley Minimum Wage Increase

Minimum wage increases are all the rage. Berkeley, CA is no exception.  Effective October 1, 2017, Berkeley minimum wage increases to $13.75 per hour (from $12.53). It will increase again on October 1, 2018 to $15.00 per hour, and continue to increase each year. Because Berkeley has a higher minimum wage rate than the one set by California or the Federal government, the higher local minimum wage rate takes precedence and must be paid to all employees covered by the local minimum wage regulation. Berkeley’s minimum wage ordinance applies to any employee who “In a calendar week performs at least two (2) hours of work for an Employer within the geographic boundaries of the City.”

Employers must post the Berkeley Minimum Wage Poster, which you can download here. The same poster talks about Berkeley’s new Paid Sick Leave Ordinance and Berkeley’s Family Friendly and Environment Friendly Workplace Ordinance.

Berkeley Paid Sick Leave

In addition to the Berkeley minimum wage increase, Berkeley also has its own Paid Sick Leave Ordinance the becomes effective October 1st. The Paid Sick Leave Ordinance (PSL) requires all employees earn 1 hour of paid sick leave for every 30 hours worked. “Small Business” employers with fewer than 25 employees may cap an employee’s accrued paid sick leave at 48 hours and may cap the use of paid sick leave to 48 hours per year. Employers with 25 or more employees may cap an employee’s accrual of paid sick leave at 72 hours, but may not cap how much paid sick leave an employee uses in a calendar year. All Employers, regardless of where they are located, must provide paid sick leave to their Employees who perform at least 2 hours of work per week within the geographic limits of the City of Berkeley.

Berkeley Family Friendly and Environment Friendly Workplace Ordinance

The Family Friendly ordinance provides each employee the right to ask for a flexible or predictable work schedule. Employers must respond in writing within 21 days to any written request. The ordinance applies to employers who regularly employs 10 or more employees working in the City. Covered employers include the City but not any other federal, state, or local government entities. It applies to employees who regularly work at least 8 hours per week in Berkeley, and have worked for the same employer for at least three months. Eligible employees can request a flexible or predictable working arrangement.

A “Predictable Working Arrangement” means “a change in an Employee’s terms and conditions of employment that provides a consistent or reliable pattern of work assignment, including but not limited to days scheduled to work, start time and end time and work site location with at least seven (7) calendar days’ notice prior to the start of the scheduled shift.”

A “flexible working arrangement” means a change in an employee’s terms and conditions of employment that provides flexibility. Employees may request changes such as:

  • Modified work schedules.
  • Changes in start/end times for work.
  • Part-time employment.
  • Job-sharing arrangements.
  • Working from home.
  • Telecommuting.
  • Reduction or change in work duties.
  • Part-year employment.

Employees must request the changes in writing. Employers must respond to the request within 21 days.

As is common for local ordinances, employers cannot retaliate against employees under any of the new ordinances. If you work in Berkeley, or have employees working at least 2 hours per week in Berkeley, become familiar with these new laws.

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

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

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.

Working with Caregivers: Solutions to Common Problems

On September 20th I will be presenting: Working with Caregivers: Solutions to Common Problems at the PFAC’s Northern California Education Day. For those of who you are not familiar with PFAC, the Professional Fiduciary Association of California is an organization dedicated to servicing professional fiduciaries by providing ongoing educational opportunities, legislative advocacy, and professional resources. PFACE helps professional fiduciaries provide excellent service as well as advocate for and advance the profession throughout California.

There will be a number of other great topics and speakers about a wide variety of subjects from investment and allocation issues, neuropsych exam issues, coordinating special needs trusts and understand SSA, SSDI and SSI. You can view the entire schedule here.

My presentation regarding working with caregivers starts at 2:15 p.m.

I will cover:

  • The past, current and future of caregiver laws
  • Who is the Employer and Why is it Important?
  • The difference between a household worker, a personal attendant and a companion
  • The Right and Wrong Ways to Pay
  • What Happens When a Worker Gets Injured
  • Simple Solutions to the Most Common Problems

I hope you can join me and the rest of the distinguished speakers. The annual event is always enlightening and an opportunity to work with a great group of people.

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.

Minimum Wage and Paid Sick Leave Increases

As you get ready to celebrate the 4th of July, don’t forget that a number of local minimum wage increases across California will take effect July 1, 2017. Eligibility rules may vary among the locations listed below. Employers should review the individual city ordinances and follow posting requirements. Employee handbooks and policies, as well as new posters, may need updating.

The following cities and counties will increase their minimum wage July 1:

  • Emeryville: $15.20 an hour for businesses with 56 or more employees; $14 an hour for businesses with 55 or fewer employees.
  • City of Los Angeles: $12 an hour for employers with 26 or more employees; $10.50 an hour for employers with 25 or fewer employees.
  • Los Angeles County (unincorporated areas only): $12 an hour for employers with 26 or more employees; $10.50 an hour for employers with 25 or fewer employees.
  • Malibu: $12 an hour for employers with 26 or more employees; $10.50 an hour for employers with 25 or fewer employees.
  • Milpitas: $11 an hour
  • Pasadena: $12 an hour for employers with 26 or more employees; $10.50 an hour for employers with 25 or fewer employees.
  • San Francisco: $14 an hour.
  • San Jose: $12 an hour.
  • San Leandro: $12 an hour
  • Santa Monica: $12 an hour for employers with 26 or more employees; $10.50 an hour for employers with 25 or fewer employees.

The Economic Policy Institute has a very good, up to date, interactive website regarding minimum wage laws in California and around the United States.

Local leave law updates

Over the last several years, California and several cities and counties have implemented mandator paid sick leave laws. The City of Los Angeles’ Paid Sick Leave Ordinance now applies to all employers. Employers with 25 or fewer employees must provide increased accrual benefits (48 hours annually for use/72 hours for total accrual cap) for sick leave benefits July 1, 2017.

San Francisco’s Paid Parental Leave Ordinance was passed with a phased-in implementation. Employers with 35 or more employees must begin complying as of July 1, 2017.

Fox Rothschild has a very good table summary of the various paid sick leave laws in California. It was last updated in September 2016, so there may be additional changes.

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

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

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

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

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.

Employing Private Household Caregivers

Practical Considerations for Employing Private Household Caregivers

Last June, Bender’s California Labor & Employment Law Bulletin published an article I co-wrote with a colleague, Carmela Woll, regarding employing private household caregivers. The article contains a lot of useful information for employers and employees to consider when hiring or working as a caregiver, and is similar to other articles I’ve posted. I thought I’d pass along some of the useful information in the article.

Introduction

Families often times come to us after they already hired one or more caregivers, with varying employment arrangements including straightforward arrangements such as payment for services or not so straightforward arrangements such as free room and board in exchange for services. These deals are often made with a handshake and the family members believe they are entering a fair agreement where the caregiver works for limited hours and gets a free place to live and some meals. Everyone sees it as a win-win situation, and may not appreciate the importance of a written agreement or having the caregiver record hours worked.

Well-intentioned, family members can open themselves up to significant personal liability with these handshake arrangements. California’s broad definition of “employer” puts individual family members at risk for a host of wage and hour issues. Failing to maintain accurate records, misunderstanding pay obligations, and unwritten agreements regarding meals and lodging can lead to costly mistakes. Most family members are not prepared to take on the responsibilities of an “employer,” and are not familiar with some of the unique aspects of employing a private household caregiver. Wage and hour claims can be filed up to four years after the wages were due and the liability can be staggering, particularly for a family trying to make ends meet and care for a loved one.

The purpose of this article is to identify some common “red flag” areas that you should know when you or your client wants to hire a private household caregiver.

Credit for Lodging and Meals

In California, Wage Order No. 15-2001 applies to “Household Occupations,” including most workers employed by the household owner. Although an employer may use meal and lodging as a credit against minimum wage, Wage Order No. 15-2001 limits the amount that can be used to offset the employer’s minimum wage obligation, and the amount of the credit depends on the type of lodging provided. Moreover, the credits may only be applied if the employer and employee enter into a voluntary written agreement before the work is performed. A handshake or verbal agreement won’t suffice. The written agreement must specify the amounts that will be deducted, and cannot be more than the amounts set forth in the Wage Order.

Domestic Workers Bill of Rights

Wage Order No. 15-2001 defines “personal attendant” as any person employed by a private householder or by any third-party employer recognized in the health care industry to work in a private household, to supervise, feed, or dress a child, or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of personal attendant applies when no significant amount of work other than the foregoing is required. For these purposes, “no significant amount of work” means work other than the foregoing did not exceed 20 percent of the total weekly hours worked. Prior to January 2014, “personal attendants” were exempt from many of the typical wage and hour obligations under Wage Order No. 15, including overtime premium pay. However, if a caregiver spent more than 20% of his/her time doing non-personal attendant work, the employee did not qualify as a personal attendant and was entitled to overtime.

This changed in September 2013, when the Governor signed the Domestic Workers Bill of Rights (DWBR), which created California Labor Code sections 1450 to 1454, and extended overtime protection to “personal attendants.” Employers have always been required to pay at least minimum wage for all hours worked, but until adoption of the DWBR, “personal attendants” were not entitled to overtime regardless of the number of hours worked.

Under the DWBR, personal attendants are entitled to overtime compensation at one and one-half times the employees’ regular rate of pay for all hours worked in excess of 9 hours per day or 45 hours per week. The overtime obligation applies regardless of whether the worker is employed by the family or a third-party employment agency. The only exception is if the wages are paid through one of the listed state or county programs (i.e., In-Home Supportive Services, Lanterman Developmental Disabilities Services Act, California Early Intervention Services Act, etc.) or if the person providing the services is the “parent, grandparent, spouse, sibling, child, or legally adopted child of the domestic work employer.”

The DWBR Broadly Defines “Employer”

For purposes of the DWBR, “domestic work employer” is any person, including corporate officers or executives, who directly or indirectly, or through an agent or any other person, including through the services of a third-party employer, temporary service, or staffing agency or similar entity, employs or exercises control over the wages, hours, or working conditions of a domestic work employee. This definition provides a strong argument that a family member could be considered an employer whenever the family member directly or indirectly exercises control over the wages, hours and working conditions. In Guerrero v. Superior Court, the court found the County of Sonoma was the employer because the county was obligated to ensure the work was actually performed and because the County “held the purse” strings. This same logic could be used to sue a family member that hires, pays or otherwise directs the employment of a caregiver.

FLSA Regulations

Since its inception, the Fair Labor Standards Act (FLSA) exempted certain domestic workers (i.e., persons employed about the home) from its provisions. In 1974, Congress amended the FLSA to include some, but not all, domestic workers. Companions, sometimes referred to as “elder sitters,” or “personal attendants,” were never covered by the FLSA. Recent revisions to FLSA regulations eliminated the companion exemption for any worker employed by a third-party employer. This means that if a family uses a third-party agency to provide companion care for a family member, the companion must be paid one and one-half times the employee’s regular rate of pay for any hours worked in excess of 40 hours per week.  Companions employed directly by the family are still exempt from the FLSA’s overtime requirements. Although the overtime obligations do not apply to companions employed directly by the families, families are required to maintain accurate records of the hours worked and wages paid.

Suggestions for Minimizing Risk When Hiring Caregivers

From a liability standpoint, it is almost always safer for families to use a care agency rather than hire a caregiver directly. Reputable care agencies pay their employees according to state and federal law, and have required and recommended insurance coverage in case of problems. Using a care agency also eliminates the problem of finding replacement personnel if the caregiver does not work out or calls in sick. Using a care agency is more expensive than hiring directly, but care agencies are now required to conduct background checks, Tuberculosis tests, and provide minimum training.

Caregivers should only be hired directly when the family members, or the elderly person, are prepared to take on the responsibilities of an employer. That means setting up payroll, keeping track of hours worked, maintaining adequate workers’ compensation insurance and all the other responsibilities and liabilities that come with being an employer. If a care agency is prohibitively expensive, and the family has an aversion to taking on the responsibilities and liabilities of being an employer, a third party employer could be an option. There are a few third party employers catering to the homecare industry, but very few.

It’s best to avoid paying caregivers a daily, weekly or monthly salary. A salary only compensates the employee for the regular hours worked.  If the personal attendant works more than 9 hours in a day or more than 45 hours in a week, the salary does not cover the overtime hours. Caregivers should be paid an hourly rate—and overtime should be paid when it is worked.

When the caregiver is required to remain on the premises, the caregiver must be paid for the time spent on the premises even if the caregiver is sleeping. In Mendiola v. CPS Security Solutions, Inc., the court confirmed that an employee must be paid for all hours worked, including when the employee is subject to the employer’s control—even if the employee is sleeping. Unless the employee is relieved of all duties and free to leave the premises, the employee is still subject to the employer’s control.

Have a written employment agreement. California Labor Code section 2810.5 requires the basic pay information, including the paid sick leave policy, to be in writing, signed by the employee. A written employment agreement should—at a minimum—confirm the at-will nature of the employment, the hourly rates to be paid, and the types of duties the employee is expected to perform.

When seeking to apply credit for lodging or meals towards payment of wages, be sure to have a written agreement with the caregiver before the work begins. Refer to Wage Order No. 15-2001 to determine the maximum amount of credit that may be applied.

Caregivers should not be hired as independent contractors. Different agencies use different tests to determine whether a worker should be classified as an employee or an employer. Regardless of which test applies, it will be difficult for any caregiver to qualify as an independent contractor. Aside from the tax implications, California Labor Code section 226.8 imposes a fine of between $5,000 and $25,000, for “willfully” misclassifying someone as an independent contractor.

To avoid more exposure to payment of overtime, do not let personal attendants perform medical procedures or clean the house and other housekeeping chores. A personal attendant is there to provide fellowship and protection, and to assist the care recipient with the activities of daily living. When a caregiver performs work that should be done by a licensed medical professional, or if the caregiver spends more than 20% of her/his time doing laundry and cleaning the house, the caregiver will not qualify as a personal attendant thus resulting in greater exposure to liability for payment of overtime wages.

About the Authors

Carmela Woll is the principal attorney at the Law Office of Carmela J. Woll, in Santa Cruz, California.  She represents and advises both employees and employers in labor and employment law matters, with a focus on providing counsel to small businesses and non-profit corporations.  Ms. Woll also conducts private and public sector workplace investigations. 

Robert Nuddleman is the principal attorney at the Nuddleman Law Firm, P.C., representing individuals and companies in federal and state court and before various administrative agencies, focusing on overtime claims, breach of contract, trade secret protection, claims of sex, race, age, and pregnancy discrimination and/or harassment and accommodating persons with disabilities. Mr. Nuddleman is the current chairperson for the Alameda County Bar Association’s Labor & Employment Law Section and the former chairperson for the Santa Clara County Bar Association’s Labor & Employment Law Section. 

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