Category: Employment Law

In general, employers are liable for any wrongful actions committed by their employees while the employees are carrying out their job duties — including vehicular accidents while on the job. Accident victims can sue not only the individuals at fault, but often their employers as well.

An exception to this rule exists for accidents that occur during an employee’s normal commute. Because employees are not engaged in work duties while traveling to and from work, employers are generally not liable for employees’ misdeeds during those travels.  This exception has been weakened over the years by certain Appellate Court Decisions.  The Courts have taken the position that if the employee’s use of his or her personal vehicle is required for the work, such use benefits the employer and the employer will be liable for vehicular accidents occurring during normal commute times.

A recent California Court of Appeal decision (Newland v. County of Los Angeles, 24 Cal.App.5th 676 (2018) has actually created an exception to the exception to the law imposing liability upon the employer for an accident during a commute. The Court held that if the accident occurs on a day in which the employer didn’t require the employee to use a personal vehicle, such as driving to visit clients, make deliveries, do errands, and thus didn’t obtain a benefit from having the car available that day, the employer wouldn’t be vicariously liable for a commute accident on such a day. (Newland v. County of Los Angeles, 24 Cal.App.5th 676 (2018)).

Contact our office today if you have questions about employer liability or if you need your employee manual updated.

By: Roy Schneider, Esq.

On July 26^th, 2018 the California Supreme Court ruled that employers must pay employees for routine and small amounts of time they spend working off-the-clock. The court found that the federal de minimis rule that allows employers not to pay for short amounts of time that are difficult to keep track of did not apply to Californian labor law.

This ruling arose from Starbucks employee, Douglas Troester, suing Starbucks for not paying him for time he spent after work locking up and doing other minimal tasks. Troester argued that Starbucks owed him pay for time he spent locking up the store, setting alarms, and walking employees to their cars; which took him between four to ten minutes each day. The federal District Court ruled in favor of Starbucks.  Troester appealed his case to the Ninth Circuit, which was then advanced the case to the California Supreme Court which accepted Troester’s position that the federal standard did not apply in California. This case affirms that, unlike federal labor laws, California employees must pay employees for all time spent off the clock, even if considered de minimis.  It is still an open question, however, as to what kind of work is too brief, fleeting or trivial to track. In a concurring opinion a Justice declared that employers may not have to consider every “fraction of a second.”  Despite uncertainty in some aspects of how this ruling could be enforced, California employers should ensure that employees are compensated for all time spent before or after clocking in – no matter how small the amount may seem.

If you have questions or need guidance as to how best to protect yourself, as an employer, from claims for unpaid wages, please contact the attorneys at Schneiders & Associates, LLP for a consultation.

In June, the California Court of Appeals in AHMC Healthcare, Inc. v. Superior Court of Los Angeles County found that the employer’s policy of rounding employee time records by 15 minutes is lawful.

The suit was brought by two employees who argued that the company’s policy of rounding to the nearest quarter-hour unfairly reduced wages and was a violation of California law that requires accurate time keeping. The employer, AHMC, argued that the policy was neutral in effect (AHMC rounded both up and down), and therefore not illegal.

A statistics and economics expert was called to analyze the data regarding time keeping at the company and found that the policy resulted in adding hours for 48% of employees at the location where the two plaintiffs worked, and deducted hours for 51% of the workers. The expert also found that one of the plaintiff’s lost 3.7 hours while the other lost 1.6 hours. However, across all of the employer’s locations, employees as a whole were significantly overcompensated due to the rounding practice. The employer’s rounding practice did not systematically undercompensate employees.

Despite the expert’s finding that the plaintiff employees lost hours due to the rounding, the court sided with the employer and found that the policy was valid. The court found that the plaintiffs failed to establish any bias in the rounding practice. The fact that a bare majority of employees at one location lost a minimal amount of time, on its own, was not enough for the court to find a triable issue of fact. In addition to upholding the policy, the court underlined the crucial aspect of neutrality required in all rounding policies. Rounding practices that unfairly target a particular class of employees could be illegal.

Despite this pro-employer ruling, we still recommend that you accurately track hours worked down to the minute. If you do decide to use a rounding policy to calculate hours, ensure that it is applied neutrally to all employees and that you carefully monitor hours and pay to ensure that you are not underpaying any classes of employees.

If you are an employer with questions about your policies and practices, please contact an employment law attorney at Schneiders & Associates, L.L.P.

By: Ted Schneider, Esq.

On July 1, 2018, new regulations will go into effect under California’s Fair Employment and Housing Act (FEHA) that are designed to prevent discrimination based on an employee’s national origin. National origin discrimination is already illegal in California, but these new regulations expand on those existing prohibitions, and protect both employees and applicants, including undocumented employees and applicants.

The new regulations define “national origin” broadly to include an individual’s actual or perceived

• Physical, cultural or linguistic characteristics associated with a national origin group;
• Marriage to or association with persons of a national origin group;
• Tribal affiliation;
• Membership in or association with an organization identified with or seeking to promote the interests of a national origin group;
• Attendance or participation in schools, churches, temples, mosques or other religious institutions generally used by persons of a national origin group; and
• Name that is associated with a national origin group.

Under the new regulations, language restriction policies (e.g., English-only policies) are illegal unless the employer can show that the language restriction is (1) based on a business necessity, (2) the language restriction is narrowly tailored, and (3) the employer has notified its employees of the circumstances and time when the language restriction is required to be observed. Language restrictions that are merely convenient or due to customer or co-worker preference are not considered to be based on a “business necessity.” Keep in mind that English-only policies are always prohibited during non-working times, such as when employees are on meal or rest breaks.

Similarly, an employer cannot require that an employee or applicant have a certain level of English proficiency unless the employer’s English proficiency requirement is justified by business necessity (i.e., the level of proficiency required by the employer is necessary to effectively fulfill the job duties of the position). The regulations clarify that it is not unlawful for an employer to ask an applicant or employee about his or her ability to speak, read, write or understand any language, including languages other than English, if doing so is justified by business necessity.

The new regulations provide that discrimination based on an applicant’s or employee’s accent is unlawful national origin discrimination.

The new regulations apply to undocumented applicants and employees to the same extent as any other applicant or employee. Immigration status is irrelevant when determining liability in any proceeding brought to enforce FEHA. Questions about an applicant’s or employee’s immigration status is prohibited unless there is clear and convincing evidence that the inquiry was necessary to comply with federal immigration law. It is also unlawful for an employer to discriminate against an applicant or employee because of his or her immigration status, unless there is clear and convincing evidence that the conduct was required to comply with federal immigration law.

If you have any questions about compliance with the new national origin discrimination prevention regulations, please do not hesitate to contact a labor and employment law attorney at Schneiders & Associates for assistance.

By: Ted Schneider, Esq.

With very few exceptions, all workers at your place of business must be paid at least minimum wage for all hours worked. But what about interns, who work at companies without pay as part of a training or educational program?

On January 5, 2018, the United States Department of Labor (DOL) issued a new standard for determining whether an individual could be classified as an unpaid intern. Prior to January, the DOL used a 6-part test for analyzing whether individuals could be treated as interns and denied compensation for their work. That 6-part test has given way to the “primary beneficiary” test, which is designed to examine whether the intern or the employer is the primary beneficiary of the relationship.

The DOL, and courts in several recent cases, now look at seven factors to scrutinize the “economic reality” of the intern-employer relationship.

1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee.
2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Courts describe the “primary beneficiary test” as a flexible test. No single factor is determinative, and whether an intern is an employee necessarily depends on the unique circumstances of each case. If analysis of these circumstances reveals that an intern is actually an employee, then he or she is entitled to minimum wage and overtime pay.

Employers considering the use of unpaid interns must carefully evaluate the relationship, taking into account the new 7-factor test outlined above to determine who will be the “primary beneficiary” of the intern-employer relationship. If the conclusion is that the employer benefits most from the arrangement – because, for example, the intern is doing routine work that the employer ordinarily would have had to pay an employee to do – then the individual should be treated as an employee and paid minimum wage and overtime.

The analysis discussed above is very fact-specific and can be tricky to implement. If you use interns, or are considering hiring interns, please contact an attorney at Schneiders & Associates for assistance in evaluating whether that individual is truly an intern, or rather should be classified as an employee.

Governor Brown signed 859 bills at the California Legislature’s 2017 session. California employers should be aware of several new laws that will materially affect their businesses. Here is a summary of some of the most significant new employment laws coming in 2018:

The New Parent Leave Act (SB 63)

Employers will be required to provide up to 12 workweeks of unpaid parental leave for an employee to bond with a child, and to continue the employee’s group health insurance coverage during this period. Businesses with 50 or more employees have already had this requirement under the California Family Rights Act. This new law will apply to businesses with as few as 20 employees.

The Immigrant Worker Protection Act (AB 450)

Employers will be required to verify that federal immigration enforcement agents have a judicial warrant prior to entering the workplace. Employers are prohibited from allowing federal immigration enforcement agents to enter their business without a warrant. Employers must also provide notice to employees if there has been a request to review the employer’s Form I-9s.

Ban-the Box for Criminal History (AB 1008)

Employers with five or more employees will be prohibited from asking about criminal history information on job applications and from inquiring about, or considering, criminal history at any time before a conditional offer of employment has been made to the applicant. Further, the bill requires an employer who makes a preliminary decision to deny employment based on criminal history to provide the applicant written notification of the decision, and grant the applicant 5 business days to respond to that notification before the employer makes a final decision. Employers will need to carefully review and update their employment applications and hiring processes.

Prior Salary History Prohibition (AB 168)

Employers cannot ask about the salary history of an applicant or use an applicant’s prior salary history as a factor in determining whether to offer employment to an applicant, or in determining what salary to offer an applicant. In addition, employers are required to provide the pay scale for a position upon demand to any applicant applying.

Mandatory Sexual Harassment Training and Posting Requirement (SB 396)

Employers with 50 or more employees must expand the mandatory supervisor sexual harassment prevention training to also include training and education on harassment based on gender identity, gender expression and sexual orientation. Employers will be required to post a poster developed by the Department of Fair Employment and Housing regarding transgender rights in a prominent and accessible location in the workplace.

If you would like more information on new employment laws that will affect your business in 2018, contact Schneiders & Associates, L.L.P. and enroll in the 2018 Employment Law Update to be held in Ventura, California.  This important seminar will cover all the new employment laws that will take effect in 2018.

By: Ted Schneider, Esq.

Given the many high profile cases in the media, it is crucial for any business to understand its responsibility to prevent sexual harassment in the workplace. Generally, sexual harassment is deemed to be a form of sex discrimination under Title VII of the Civil Rights of 1964 (Title VII), and most states have far stricter laws in place designed to prevent harassment.

There are two types of sexual harassment: quid pro quo (“this for that”) and hostile work environment.

• Quid pro quo – This occurs when an employer, most often a person in a position of authority, demands sexual favors in exchange for a job or any other benefit of employment including promotions, bonuses and raises. An employee who is fired, disciplined, or given a poor performance evaluation, for refusing a sexual advance may be the victim of this form of harassment.
• Hostile work environment – This involves an employee being subjected to a pattern of unwelcome conduct, such as comments or visual displays, that is severe or pervasive enough to create a distressing work environment and alter the conditions of employment.

In order to have grounds for a claim, the employee must demonstrate that he or she believed the conduct was offensive or hostile. In California it is not necessary to show that a reasonable person in the same position would believe the conduct was hostile.  Further, in the case of a claim against a supervisor of the employee, the employee does not have to prove that he or she complained to management as a condition to initiating a claim for sexual harassment.  However, through proper employee handbooks and policies, training of employees and counseling of the employer, an employer may be able to substantially reduce the effects of a claim for sexual harassment by requiring reporting and thus creating the “avoidable consequences” defense.

All employees have a right to a workplace that is free from sexual harassment. It is crucial for any business to establish policies to prevent such conduct, and institute procedures to address any employee concerns. In California, it is now legally required that employers adopt a specific, written anti-harassment policy. Ultimately sexual harassment is bad for business because it can create a toxic work environment that adversely impacts employee morale. Moreover, a lawsuit can not only lead to a costly settlement, but also damage a company’s reputation.

The employment law attorneys at Schneiders & Associates, L.L.P. counsel employers on how best to prevent claims for sexual harassment, such as through adopting and distributing proper policies, and conducting proper training for the supervisors and staff.  In California, sexual harassment training is required when there are 50 or more employees and such training must include preventing abusive behavior in the workplace as well.  If you are the owner or human resources manager of a company with employees, contact Schneiders & Associates, L.L.P. to learn more about our sexual harassment prevention counseling and training.

By: Roy Schneider, Esq.

Big news in the world of wage orders! There has been some recent updates to include the most recent increases to the minimum wage. Wage Orders 1 through 12, 15 and 16 have been updated by the California Department of Industrial Relations (DIR). That leaves Wage Orders 14 and 17 untouched.

Now would be a great time for employers to review all seventeen wage orders to decide which order they need to post. Wage orders must be posted in the workplace where it is available for all employees to view. The posting must show employees which wage orders cover their industry or their occupations.

The employer must carefully choose which wage orders to post. The DIR has issued guidelines and classifications of employees, but they are general in nature and the specific facts and circumstances at specific companies may require a different determination of proper classification than the general ones DIR provides. Industrial wage orders apply first, and only if there is no industrial wage order for your industry do you then look to the occupational wage orders.

Think about it: Wage Order 1 covers the manufacturing industry. Even an office assistant working for a manufacturing company would be covered by this wage order. But an office assistant working in a law firm is covered by an occupational order, No. 4, because law firms are not covered by any industrial wage order. Large companies that seem to be in various types of industries still usually have a main purpose. So those companies should confirm whether that main purpose has an industrial wage order. If not, then occupational orders apply.

Distinct operations in multi-purpose businesses may be covered by different industry orders if they are operated for different business purposes and the management is separately organized at all levels. If not, then the predominant purpose of the business will guide the determination of which wage order applies.

Employers should not avoid posting wage orders because they are not sure which wage order applies. It’s better to do a straightforward assessment of the principal purpose of the company. A person with a fresh set of eyes who is conversant in the seventeen wage orders and the cases applying them can navigate this universe to avoid missteps. Clearly informed employees who see the posted wage orders will not misunderstand their wage rights. This could avoid lawsuits in the future.

If you need assistance determining which wage order applies to your business, or with applying or interpreting wage order requirements, contact an employment law attorney at Schneiders & Associates.

By: Kathleen J. Smith, Esq.

Employers are aware of the risk of being sued by their employees for retaliation against an employee that is engaging in a protected activity, but what about the employer’s attorney?  According to a recent case brought to the Ninth Circuit Court of Appeals, an employer’s attorney may also be sued for retaliation under the federal Fair Labor Standards Act (FLSA) (Arias v. Raimondo, 860 F.3d 1185 (9th.Cir. 2017)).

The case involves an employee with an illegal immigration status.  The employee was hired to work for a dairy and, at the time of employment, he was not asked to complete a Form I-9, verifying his eligibility to work in the United States.  A few years after being hired, the employee expressed a desire to work for another dairy company.  His current employer claimed that if he accepted the new job, they would report the new employer for hiring undocumented workers.  The employee, as a result, did not accept the new position.

Instead, the employee filed a wage and hour violations suit against the dairy employer.  The employer’s attorney then contacted the U.S. Immigration and Customs Enforcement (ICE) to report the employee and “set in motion an underhanded plan to derail (the employee’s) lawsuit.”

The employee claimed that he was afraid of being deported and separated from his family which, in part, led him to settling his lawsuit against the employer.

The employee then sued the employer and the employer’s attorney for retaliation under the FLSA.  The attorney argued that because he was not the employer, he could not be sued for retaliation, and the trial court dismissed the case.  The employee appealed the case to the Ninth Circuit Court of Appeals and the panel reversed the district court’s dismissal of the retaliation claim under the FLSA.  The appeals court explained that the FLSA’s anti-retaliation provision applies to “any person” and does not require that a defendant be the plaintiff’s employer. The FLSA makes it unlawful for “any person” to retaliate against an employee who exercises his or her legal rights under the law. The FLSA gives individuals the right to sue their employer for retaliation and defines “employer” to include “any person acting directly or indirectly in the interest of an employer in relation to an employee.”

In addition to federal prohibitions, this case is an illustration of the types of unfair immigration-related practices prohibited under California law. Labor Code section 244 prohibits employers from retaliating against an employee by reporting or threatening to report the employee’s suspected immigration status to a government agency.

Form I-9 is required by U.S. Citizenship and Immigrations Services and is used for verifying the identity and employment authorization of individuals hired to work in the United States.  All U.S. employers must ensure completion of Form I-9 for all employees.  Although it is unlawful to work in the United States without legal authorization, once an employee is hired, he or she has all the rights offered by the state, regardless of the employee’s actual immigration status.  Employers are obligated to pay the employee for any and all time worked. Employers cannot threaten to report employees to ICE as a means of avoiding paying proper wages or complying with labor laws.

Employers, and now employers’ attorneys, who engage in unfair immigration-related practices will face penalties.  If you are an employer and have questions on Form I-9 or any immigration-related employment law related matter, please contact an employment law attorney at Schneiders & Associates for advice and assistance.

By: Theodore J. Schneider, Esq.