Upload
others
View
2
Download
0
Embed Size (px)
Citation preview
PASCO 2012 Wage & Hour Update
Agendag
A Warning, Then AnotherA Warning, Then AnotherWage Theft Prevention ActBrinker & Other StuffBrinker & Other StuffFrom The Governor’s Desk
A Warningg
Another Warningg
Wage Theft Prevention Act (1)g ( )
Labor Code §2810.5
Provides employees notice of basic employment information
Notice must be given to all new non-exempt hires in private sectorUnnecessary if CBAUnnecessary if CBANotice of change must be within 7 days (wage statement is ok)
Wage Theft Prevention Act (2)g ( )
Labor Commissioner Guidancehttp://www.dir.ca.gov/dlse/Governor_signs_Wage_Theft_Protection_Act_of_2011.html
Template (revised 5/4/12)
FAQ l FAQ examples: #6 Don’t have to use DLSE’s template
#7 Must be a stand alone document
#8 Can’t be waived
#9 All hourly and piece rates must be on notice
#10 Employee signature not required, but note it#10 Employee signature not required, but note it
#18 “Pay” = wages on notice & must include all compensation
including commissions
#25 N l i#25 No annual requirement
Wage Theft Prevention Act (3)g ( )
Brinker – Meal
Provide unpaid 30-minute meal break to employees who work more Provide unpaid 30 minute meal break to employees who work more than five hours in a day
Duty-free (no work expected)
F t l i Free to leave premises
Must start before the end of the 5th hour of workE.g., 8:00 am – 4:00 pm shift
Must start lunch by 12:59 pm
Early lunch ok, late lunch not ok
W k h h l h? Work through lunch? Employer choice = penalty
Employee choice = straight pay
Brinker – Rest
Authorize and permit paid 10-minute rest period for every four (4) hours worked or major fraction thereofmajor fraction thereof
3.5 hrs – 6 hrs = one 10-minute break
6 hrs – 10 hrs = two 10-minute breaks
10 hrs – 14 hrs = three 10-minute breaks
Take in the middle of each work period to the Take in the middle of each work period to the extent practicable to do so
Deleon v. Verizon Wireless, LLC,
Advanced commissionsAdvanced commissionsVesting process/ chargeback periodSensible, explicit planSe s b e, e p c p a“Can you hear me now?”
Aleman v. Airtouch
Reporting-Time Pay Split-Shift Compensation
Christopher v. Smithkline Beechamp
Ph ti l l / d t ilPharmaceutical sales reps / detailersOutside sales exemptionSelling v. promotingCA v. DOL
Nicholas Laboratories v. Chen
Reimbursement for Legal Fees under Labor Code §2802
Nicholas sued its former employee Chen for among other things breach of contract and conversion
Chen cross complained for indemnity under Chen cross-complained for indemnity under
Labor Code §2802 for the costs of defending
the suit
Court found in favor of Chen on complaint
and Nicholas on cross-complaint
Legislature did not intend to provide indemnification for first party disputes between employer and employee
“American Rule” applies – each party to a lawsuit must ordinarily pay his own attorney fees
From the Governor’s Desk
AB 2103 – Explicit Mutual Wage Agreements Labor Code §515 (Amended)Labor Code §515 (Amended)
This law is intended to overturn the case of Archiga v. Dolores Press (2011) 192 Cal App 4th 567Cal.App.4th 567Employer and employee can agree on a set salary per week for non-exempt employees but it cannot encompass overtimeencompass overtimeOvertime must be paid and tracked separately
SB 1255 – Injury “Presumed” For Wage Statement Violations Labor Code §226(e)(2) (Amended)Labor Code §226(e)(2) (Amended)
Employees can recover Employees can recover damages if they suffer an injury for wage statement violations
“Injury” is presumed for most failures to comply
ith th t t twith the statute
But, a “knowing and intentional” failure does intentional failure does not include an isolated and unintentional payroll error due to a clerical or http://www.dir.ca.gov/dlse/PayStub.pdf
inadvertent mistake
Labor Code §2751W itt C i i A t J 1 2013Written Commission Agreements – January 1, 2013
All commission agreements must be in writingg gSigned copy must be given to the employeeEmployer must obtain a receipt indicating employee has copyIf employee continues to work under the terms of an expired contract, the contract will continue until a new agreement is signed or the employment is terminatedg p y
“Commission” Defined:
Commission wages are compensation paid to any Commission wages are compensation paid to any person for services rendered in the sale of such employer’s property or services and based p y p p yproportionately upon the amount or value thereof
“Commission” Does Not Include:AB 2675 L b C d §2751( )AB 2675 – Labor Code §2751(c)
Short term productivity bonuses such as are paid to retail Short term productivity bonuses such as are paid to retail clerksTemporary, variable incentive payments that increase, b t d t d t d th itt t tbut do not decrease, payment under the written contractBonus or profit-sharing plans unless there has been an offer by the employer to pay a fixed percentage of sales y p y p y p gor profits as compensation for work to be performedThe law is not intended to change California’s view on bonuses which is defined by DLSE as “Money promised to bonuses, which is defined by DLSE as Money promised to an employee in addition to the monthly salary, hourly wage, commission or piece rate usually due as
ti ”compensation”
Here Is What Should Be In Your C i i A tCommission Agreements
The object of the law is to make it crystal clear what the employee will be earning and when it will be paidAgreements should include:
The term of the agreement and expiration date, if anyHow base pay, if any, is calculated (annual salary, hourly wage, advance draw, etc.)The method of calculating the employee’s commissionWhen that commission is earned and when it is paid to the employeeWhat conditions must be met to earn the commission What happens to unpaid and/or unearned commissions when the What happens to unpaid and/or unearned commissions when the employment is terminatedWhat else?
You should review with your legal counsel before implementingYou should review with your legal counsel before implementing
Consequences For Not Having Written C i i A t?Commission Agreement?
There are no penalties for noncompliance, but p p ,employers could face potential claims under the following statutes:
PAGA (Private Attorney General Act)Unfair competition claims under Business and Professions C d §17200Code §17200
AB 2674 – Right To Inspect Employment RecordsLabor Code §226 (Amended)Labor Code §226 (Amended)
Wage StatementsWage Statements
Employers required to keep copies of itemized wage copies of itemized wage statements for 3 yearsCopy can be a duplicate or Copy can be a duplicate or computer-generated record that shows all of the information that existing law requires to be in the itemized statement
About The Firm
DICKENSON, PEATMAN & FOGARTY provides a level ofrepresentation ordinarily associated with legal practices in
j li O i l
About Your Presenter
GREGORY J. WALSH is the Co-Managing Director ofDickenson, Peatman & Fogarty and the lead Director in thefi ’ L b d E l G G ’ imajor metropolitan centers. Our attorneys are routinely
recognized in legal rankings and surveys as some of the bestin their fields, and the firm is involved regularly with mattersof local and national import. For over forty years DP&Flawyers have practiced law with the “get to know you” culturethat has engendered significant client loyalty.
firm’s Labor and Employment Group. Greg’s practiceencompasses all aspects of labor and employment law,including advising employers on how to prevent issues beforethey arise, and developing workable solutions to those thatdo. Greg is also a member of the firm’s Wine Law andLitigation groups, representing clients in administrative andg g y y
Rooted in the wine regions of Napa and Sonoma, DP&Fprovides full service legal representation to all manner ofbusinesses and individuals throughout California, the UnitedStates and abroad. The Firm’s major practice areas includealcohol beverage law business and corporate dealings land
g g p , p gcourt proceedings.
A native Californian, Greg began his legal career practicinglabor and general business law in Boston. He later returned tothe Bay Area, where he continued developing his practicewith one of the nation’s largest labor and employment firmsalcohol beverage law, business and corporate dealings, land
use matters, labor and employment, civil litigation, intellectualproperty, real property transactions, as well as estateplanning and probate. With offices in the major wine valleysof Napa and Sonoma, the Firm is intimately familiar with, andhas extensive experience, in both the wine and hospitalityindustries
with one of the nation s largest labor and employment firms,representing union and non-union employers. In 2004, Greg’slove of the wine country brought him north, where he now useshis range of experience to solve problems for North Bayemployers, businesses and individuals. The North Bay BusinessJournal named Greg as a "Forty Under 40" award recipient.
industries.
EMAIL MR. WALSH at: [email protected] received his B.S. while double-majoring in Journalismand Sociology at the University of Oregon. He earned his lawdegree from University of California, Hastings College of theLaw, where he served as Senior Executive Editor of theCommunications And Entertainment Law Journal. Greg is
fNAPA COUNTY SONOMA COUNTY admitted to practice in California, Massachusetts, and severalfederal jurisdictions.
Greg is an avid fan of the Rose Bowl Champion OregonDucks. He and his family live in Sebastopol.
NAPA COUNTY
1455 First Street, Suite 301
Napa, CA 94559T: 707.252.7122F 707 255 6876
SONOMA COUNTY
50 Old Courthouse Square, Suite 200
Santa Rosa, CA 95404T: 707.524.7000F 707 546 6800F: 707.255.6876 F: 707.546.6800
THANK YOU!THANK YOU!
PASCO 2012 Wage & Hour Update