Archives
Posted December 2017 by S. Ward Heinrichs
New California Labor Laws In 2018
Unless otherwise stated, the laws below will go into effect on January 1, 2018.
Minimum Wage Increase
Under the minimum wage law passed last year, minimum wage will increase again in California. For employers who have 26 or more employees, the state minimum wage will be $11.00. For employers who have 25 or fewer employees, the minimum wage will be $10.50 per hour. In the city of San Diego, California, the minimum wage for all employers will remain at $11.50 per hour, but will increase in 2019 by a cost of living adjustment yet to be determined. Many other cities in California have higher minimum wage rates than the state minimum wage.
Posted September 2017 by S. Ward Heinrichs
Unemployment Law
I have represented both employers and employees in unemployment hearings. Sometimes employers need help in a close case or with a former employee believed to be difficult. Sometimes employees need help presenting their cases in an effective manner to secure benefits that may last for an extended period of time. Over the years, I have heard many people say that they were surprised by the outcome of their hearings. I believe those people were surprised because they misunderstood the laws governing unemployment.
Posted August 16, 2017 by S. Ward Heinrichs
Class Actions
In the news, we hear about class action cases and the large settlements and verdicts that can result. What, exactly, is a class action, and why can the verdicts and settlements be so large? A class action is a procedure that allows one or more plaintiffs to bring an action on behalf of a larger group that has claims similar to those of the plaintiffs named on the lawsuit complaint. Even when the claims of the Named Plaintiffs are relatively small, if the group represented by the plaintiffs is large enough, the total damages can be very large after all the similar claims and damages are added together.
Posted on July 2017 by S. Ward Heinrichs
The Hospitality Industry And Employment Laws
People from all parts of the globe visit California in large numbers. San Diego California is one of the hot vacation destinations in California. As a consequence, many businesses in California and San Diego are hospitality businesses. What legal requirements and hurdles do those businesses face?
More hotels are using hospitality robots. Maid Bot has developed robotic cleaning services and Hilton uses Connie as a concierge robot. In addition, some places now use Chat Bots. A guest can text the robot, and it will provide information or a simple service, like delivery of food. Part of the allure of these high-tech robots is they replace humans and reduce wage expenses.
Posted on May 10, 2017 by S. Ward Heinrichs
Unpaid Sick Leave
Many state laws and the federal law require unpaid sick leave for qualifying employees who work for covered employers. The main federal sick leave law is The Family and Medical Leave Act (FMLA). It requires employers who have 50 or more employees within a 75-mile radius to provide employees with unpaid sick leave who have worked at least 1250 hours in the preceding 12 months and have worked for at least 12 months for the employer. The employer must also have 50 or more employees working each work day during 20 weeks in the present or preceding year. A qualifying employee may take up to 12 weeks of unpaid leave during a work year for a “serious health condition”, serious health condition of a family member, birth and bonding of/with a child, or placement of a foster child. Family member is defined as parent, spouse, or child.
Posted March 10, 2017 by S. Ward Heinrichs
Discrimination Update
Work place discrimination is a common theme in employment litigation. I wrote an article in 2014 about it. The basic law is still the same, but some interesting twists have arisen since.
Which Bathroom Do You Have a Right to Use?
The media has extensively covered bathroom cases. We first heard of the issue when North Caroline passed a law preventing its cities, towns, and other jurisdictions from having laws identifying the use of government building bathrooms and changing facilities that differed from the state law. The law is called the Public Facilities Privacy and Security Act and it covered public schools. In addition, it also required all persons to use bathrooms and changing facilities that corresponded to a person’s sex identified on a birth certificate.
Posted February 22, 2017 by S. Ward Heinrichs
Walmart Update
A couple of years ago, I wrote an article highlighting some of the major lawsuits involving Walmart. At that time, Walmart had won a United States Supreme Court case called Dukes v. Walmart. The Court ruled that a class of 1.5 million women could not sue on a class wide basis for discrimination. It said that no common policy and common facts linked the class together. The article also visited other discrimination cases and some wage and hour class action cases. In more recent times, the cases that have put Walmart in the news have been major wage and hour cases. Consequently, all but two case discussed below concern wage and hour class action.
Posted January 2017 by S. Ward Heinrichs
Minimum wage: it’s getting crazy!
Federal Minimum Wage Rules
The Federal Minimum Wage for most non-exempt workers is $7.25 per hour. That means that all workers in the United States, except for those who are not covered by the Fair Labor Standards Act, must make at least $7.25 per hour.
This year, federal law requires employees who work on federal contracts to receive at least $10.20 per hour. Also, tipped employees must make at least $6.80 per hour.
The Federal minimum salary for exempt employees is presently $23,660.00 per year. The Department of Labor had declared it would more than double it to $47,476.00 on December 1, 2016, but a Texas Court stopped that. That case is now on appeal.
Of course, the states, cities, and counties may have laws that require greater minimum wage rates. California and many of its cities require greater minimum wage rates.
Posted December 2016 by S. Ward Heinrichs
New California Labor Laws In 2017
Minimum Wage Increase
The Minimum Wage continues to increase. Depending on where you live, Federal, State, and Municipal laws may all require minimum wage increases. In California, for employers who have 26 or more employees, the state minimum wage will increase to $10.50 per hour on January 1, 2017. In San Diego, California, the minimum wage for all employers will increase to $11.50 per hour on January 1, 2017
Posted July 2016 by S. Ward Heinrichs
Uber Employment Law Issues
Uber is a company that provides consumer transportation and jobs. The founders developed the idea in Paris, France. One snowy evening in 2008, Travis Kalanick and Garrett Camp could not find a cab. They experienced how the market limited their ability to get a ride. They decided that they could fill a market void through a smart phone app. Uber and its technology have since made it far easier and, in many cases, cheaper to get transportation in hundreds of cities throughout the world.
Posted June 2016 by S. Ward Heinrichs
Work Place Security
Work place “security” can be a very broad topic. It often includes issues like: physical safety, protection of company confidential information, use of social media, and cyber security. Certainly before the internet boom, work place security was associated with keeping people safe and protecting company secrets. Since the internet boom, the definition of security has expanded and, in some cases, the internet has become another concern linked to both physical and confidential information security.
Posted on May 2016 by S. Ward Heinrichs
Managers Are Not Exempt Unless They Make $41,600!
Most employers know that California requires them to pay every employee at least $10 per hour. Did you realize that an increase in minimum wage requires an increase in salary for exempt managers? If not, listen up.
Exempt white collar employees must meet certain criteria to be considered exempt. Probably the most important is the minimum salary level. Exempt employees must make two times the minimum wage in a theoretical 40-hour work week. Forty hours per week equals 2080 hours per year (52 weeks x 40 hours). That means the minimum salary an exempt employee must make is $41,600 (2 x $10 x 2080 hours). Thus, California requires all managers to make at least $41,600 to be an exempt employee. Of course, that is also the minimum salary for all other white collar exemptions, unless a particular exemption has a different minimum wage requirement. For instance, an exempt computer professional must be paid at least $41.85 per hour or at least an $87,185.14 salary per year. Each year the computer professional wage rates increase according to the yearly percentage increase in the California Consumer Price Index.
Posted March 2016 by S. Ward Heinrichs
Employment Leave Laws
Mandatory employment leave laws are nothing new. However, recently, legislatures have passed new leave laws or expanded old ones. It’s a trend that will likely continue. Below is a list of mandatory employment leave laws under both California and Federal statutes. Many states have leave requirements that are similar to the ones in California.
Posted Feburary 2016 by S. Ward Heinrichs
Potential Liability Issues of Hiring Independent Contractors
Independent contractors are not employees. An employer need not pay for benefits or insurance to them and are not required to withhold taxes from them. Unfortunately, an independent contractor that should have been classified as an employee caries hidden costs in the form of unpaid wages and penalties. Even properly classified independent contractors can still create liability for a business.
Posted December 2015 by S. Ward Heinrichs
New California Labor Laws In 2016
Minimum wage increase
The minimum wage in California will increase to $10 per hour. The law that made that change was actually passed in 2013. It caused the minimum wage to rise from $8 per hour to $9 per hour on July 1, 2014. The final increase from that law will happen on January 1, 2016. A few cities in California have higher minimum wage rates, but, no matter where you live in California, as of January 1, 2016, all employees will make at least $10 per hour.
Posted November 2015 by S. Ward Heinrichs
Holiday Party Liability
Now that Halloween has passed, the true holiday season starts. That means, friends, family, and office parties! So, if you are an employer, do you have anything to worry about if you sponsor an office party? The answer is yes, but employers can do things that will limit their exposure to liability.
Posted September 11, 2015 by S. Ward Heinrichs
Food And Drink Industry Labor Laws
MEAL PERIODS:
Brinker Restaurant Corporation v. Superior Court, (2012) 53 Cal.4th 1004: Brinker was a case in which restaurant hourly employees filed a class action against their employer for violations of the California meal period regulations and other wage and hour violations. The Supreme Court said that employers have a duty to “provide” meal periods for its qualifying employees. However, employers need not “ensure” that employees get meal periods, as the plaintiffs argued. Rather, they only need to provide the opportunity to receive a meal period.
Posted August 7, 2015 by S. Ward Heinrichs
Historic California Employment Cases
CLASS ACTION WAIVERS:
Concepcion v. AT&T Mobility v. Concepcion: The United States Supreme Court ruled that Federal Arbitration Act (FAA) preempted state law. In other words, if the parties freely entered into an arbitration agreement under the FAA, then state laws that might otherwise invalidate the arbitration agreement could not invalidate the agreement. Typically, arbitration agreements require the consumer or employee to waive the right to take their cases to court. Further, they require the consumer and employee to waive their right to bring a class action in the arbitration proceedings. Thus, arbitration clauses can provide companies a way to avoid potential class action liability.
Posted July 15, 2015 by S. Ward Heinrichs
Employees Who Work Outside
NEW CALIFORNIA LAWS
Mandatory Paid Sick Leave is a new California law. It requires all employers to give each employee, who works for a minimum of 90 days, at least 3 days of paid sick leave per year. Presumably, this law will greatly benefit employees who work in agriculture, construction, landscaping, etc. because of the greater potential injury rate in those occupations. (Labor Code §§245-49.)
Posted on May 2015 by S. Ward Heinrichs
Paid Sick Leave
Last year was the year of the minimum wage. This year is the year of paid sick leave. Connecticut is the only state that has an active sick leave law presently, but both California and Massachusetts have passed sick leave laws that will be going into effect on July 1, 2015. Additionally, 18 cities and towns have paid sick leave laws that are either in effect now or soon will be. Those cities are: San Francisco, Washington D.C., Seattle, Portland, New York City, Jersey City, Newark, Passaic, East Orange, Paterson, Irvington, Trenton, Montclair, Bloomfield, Eugene, Oakland, Tacoma, and Philadelphia. The cities of Jersey City, Newark, Passaic, East Orange, Paterson, Irvington, Trenton, Montclair, and Bloomfield are all in New Jersey. The other nine cities are scattered on both the East and West coasts. California is the only state that has a sick leave law in which cities, San Francisco and Oakland, have more employee friendly laws. Additionally, San Diego has a city wide referendum slated for a vote in June of 2016 in which the voters will decide whether the city will have greater sick leave protections for its employees than California will begin to provide on July 1 of this year.
Posted April 2015 by S. Ward Heinrichs
Wage Law
MINIMUM WAGE
On July 1, 2014, the minimum wage in California was raised from $8 per hour to $9 per hour. Governor Jerry Brown signed that law in 2014. The second part of that law will raise the minimum wage in California to $10 per hour on January 1, 2016.
Posted March 2015 by S. Ward Heinrichs
Employees Who Drive
Respondeat Superior
When an employee drives a car during work, generally, the doctrine of Respondeat Superior requires the employer to be responsible for the negligence of its employees. The doctrine makes employers cover the business costs associated with their employee’s mistakes. Further, it places the burden of covering mistakes on the relatively deeper pockets of the employer to make the injured third party whole.
Posted February 2015 by S. Ward Heinrichs
Independent Contractor: Stepped Up Enforcement
The IRS, Department of Labor, and many similar state agencies have embarked on a mission to audit more businesses to see if they are improperly classifying their workers as independent contractors. In fact, in 2013, the IRS estimated that millions of U.S. workers were misclassified as independent contractors. (Report of Treasury Inspector General for Tax Administration (June 14, 2013) Reference Number: 2013-30-058: “Employers Do Not Always Follow Internal Revenue Service Worker Determination Rulings”.)
Posted January 2015 by S. Ward Heinrichs
Trends and Cases in Workplace Harassment Law
Workplace harassment occurs when an employee is picked on or abused at work because he or she is in a protected class. Typically in the past, harassment cases have been male-on-female sexual harassment. As seen below, we are now seeing different types of harassment and increased legislative protection.
Posted December 2014 by S. Ward Heinrichs
Employment Laws 2015
Increase in the minimum wage.
The biggest news about new labor laws is the California minimum wage increase. This will affect most, if not all, employers and will raise the wages for many workers, even those who make more than minimum wage.
Posted on October 2014 by S. Ward Heinrichs
Employers, Don’t Mess with Minimum Wage!
Why do some employers cut corners with employee wages, reimbursement of costs to employees, and, especially, minimum wage? In a recent case, one employer appeared to do all three of those things and paid a big price on appeal. (Vasquez v. Franklin Management Real Estate Fund, Inc., (2013) 222 Cal.App.4th 819.)
Mr. Vasquez worked as a maintenance technician for his employer Franklin. Franklin required Vasquez to drive an average of thirty miles a day to pick up materials and go to various job locations during Vasquez’s work shift. Vasquez claimed that Franklin refused to reimburse him for his mileage. Vasquez only made $10 per hour. After subtracting the mileage reimbursement from his daily gross pay, Vasquez said that he only made about $7.94 per hour, less than minimum wage. Vasquez said that under those circumstances, he had to quit. In his lawsuit, Vasquez sued for the unreimbursed driving expenses and for wrongful discharge, among other things.
Posted on September 2014 by S. Ward Heinrichs
Telecommuting, Work-at-home
As a society, Americans are finding more opportunities to work from home. In fact, the work-at-home trend has been growing steadily over the past two decades. While this trend creates opportunities, it also creates problems for both employees and employers.
Have you seen emails claiming to offer work opportunities that provide thousands of dollars of monthly income in your spare time while working from home? Many of those emails are scams. Employees should watch out for offers that make unrealistic claims. Those offers may simply be trying to get personal information to use in identity theft. More likely, the email is simply a disguised sales pitch. Regardless, neither are offers most job hunters welcome.
Posted on August 2014 by S. Ward Heinrichs
Does America Love Walmart Or Not
Undoubtedly, some Americans love WalMart while others have a strong dislike for it. Many shoppers love the low prices WalMart offers. On the other hand, labor unions have attacked WalMart repeatedly for fighting efforts to unionize it. In fact, many employees have sued WalMart because of claimed unfair treatment. Some of those cases are described below.
Recently in the news, Saturday Night Live actor, Tracy Morgan, sued WalMart because one of its trucks had hit Morgan’s limousine. The crash killed fellow comedian James McNair. Morgan suffered serious bodily injury. Apparently, the WalMart driver, Kevin Roper, had been driving for more than 24 hours consecutively. Morgan claimed that driving for such a long period of time was negligent and that WalMart knew of that negligent behavior.
Posted on June 2014 by S. Ward Heinrichs
Unbelievable Sexual Harassment Cases!
Undoubtedly, some Americans love WalMart while others have a strong dislike for it. Many shoppers love the low prices WalMart offers. On the other hand, labor unions have attacked WalMart repeatedly for fighting efforts to unionize it. In fact, many employees have sued WalMart because of claimed unfair treatment. Some of those cases are described below.
Recently in the news, Saturday Night Live actor, Tracy Morgan, sued WalMart because one of its trucks had hit Morgan’s limousine. The crash killed fellow comedian James McNair. Morgan suffered serious bodily injury. Apparently, the WalMart driver, Kevin Roper, had been driving for more than 24 hours consecutively. Morgan claimed that driving for such a long period of time was negligent and that WalMart knew of that negligent behavior.
Posted on May 14, 2014 by S. Ward Heinrichs
Negotiating Severance At The End Of Employment
In today’s very mobile economy, most employees work for several employers during their careers. As one job ends, often employers are open to paying a severance to the departing employee. The primary reason an employer will offer severance is to thank the departing employee for his or her dedicated service to the business. In some of those cases, the severance package will be offered at the beginning of employment. Those types of severance packages may be individual agreements or part of a company written policy. In other cases, the employer has neither a written nor an unwritten policy but is still willing to offer severance.
Posted on April 2014 by S. Ward Heinrichs
Discrimination In The Work Place
Work place discrimination is illegal under both federal and California law. Congress passed Title VII in 1964. About 20 years later, the California legislature passed the Fair Employment and Housing Act (FEHA). It actually combined previous California anti-discrimination laws that predated Title VII. They both make adverse employment actions (termination, demotion, failure to hire, etc.) illegal when an employer takes the adverse action because the employee is a member of a protected class. In most cases Title VII and FEHA work together. In fact, very often an employee can sue under either law.
Posted on April 2014 by S. Ward Heinrichs
Employer Required Tip Pools: Are they Legal? How are they taxed?
Are tip pools legal when required by an employer? The quick answer to that question is yes. But under both California law and federal law, the pool must meet certain legal requirements.
As a general rule tips are optional, freely given payments for service above and beyond the cost of the products being sold. The customer has the complete right to set the amount of the tip and may choose not to tip at all. The employer should have no say in the amount of the gratuity.
Posted March 2014 by S. Ward Heinrichs
Hospitality Industry Employment Law Concerns
San Diego California is a coveted vacation spot. It has great weather all year long and beautiful scenery. Our downtown is not a massive metropolis but boasts amazing architecture and the latest amenities. In short, San Diego is a destination for tourists, out of town guests, and for those who just want to get away from it all. Consequently, we have many businesses in the hospitality, tourist, and service industries.
Posted on March 2014 by S. Ward Heinrichs
What Employees Can Demand; What Employers Need to Keep
Three code sections deal with general employment document retention. They are: Labor Code §§ 226, 432, and 1198.5. Code section 1198.5 was most recently amended and those amendments give employees more access to documents and require employers to retain more documents.
Labor Code § 432 requires an employer to give to an employee any document about obtaining or holding employment signed by the employee whenever an employee asks for a copy. Most employers rather not worry about what documents concern “obtaining or holding employment”, and, consequently, they retain all signed documents. Because the code section does not set a retention time limit, most employers retain those documents indefinitely and turn them over when an employee request all the documents he or she has signed.
Posted on February 2014 by S. Ward Heinrichs
Motor Carriers do not Need to Provide Drivers with California Meal and Rest Periods, for Now
California meal and rest period laws do not apply to drivers who work for motor carriers, according to two Federal District Courts which found that the Federal Aviation Administration Authorization Act (FAAAA) exempts drivers from that type of regulation. (Dilts v. Penske Logistics, LLC, 2011 U.S. Dist. LEXIS 122421, *26 (S.D. Cal. Oct. 19, 2011); Esquivel et al. v. Vistar Corp. et al., Case No. 2:11-cv-07284 (C.D. Cal. Feb. 8, 2012).) That means, motor carries do not need to give their drivers breaks to eat or rest, other than what Department of Transportation regulations require. Essentially, California law cannot require employers to give drivers 30 minute, duty free meal periods or 10 minute, duty free breaks.
Posted on January 2014 by S. Ward Heinrichs
2014: “The Year of the Minimum Wage!”
For the past several months, my blog, emails, Big Blend Magazine articles, radio interviews, Facebook posts, and other modes of communication I use to discuss legal issues have been filled with news about minimum wage. Of all the hot Employment Law topics, I think minimum wage is the biggest topic now and will remain so throughout 2014.
The big news for Californians is that the state minimum wage will increase from $8 an hour to $9 an hour starting on July 1, 2014. After that, it will increase another dollar to $10 per hour on January 1, 2016.
Posted on December 23, 2013 by S. Ward Heinrichs
Much Harder Now for Employers to Win Attorneys’ Fees in Wage Cases
Starting January 1, 2014, employers will have a much more difficult time convincing a Court to give them attorneys’ fees after winning a wage and hour lawsuit. Before the change in the law, when an employee sued the employer for not paying wages, other than for overtime and minimum wage, the employer could ask the Court to award it the cost of hiring an attorney to defend the case when the employee lost his or her wage claim. Now, even when an employer successfully defends an employee’s claim for unpaid wages, the employer can only win its attorneys’ fees if the employee brought the lawsuit in bad faith. Bad faith is a hard standard to prove.
Posted on December 6, 2013 by S. Ward Heinrichs
New 2014 Employment Laws
On December 4, I was a guest on the “Happy Hour” show of the Big Blend Radio program (www.BigBlendRadio.com). We discussed the topics posted below. The program directors will soon post on their website the live radio chat and the article I submitted. The following are the essentials discussed on the show and posted in the article.
Posted on November 22, 2013 by S. Ward Heinrichs
Can California Employees Who Work on Military Bases Sue Their Contractor Employers?
Can employees who work on military bases sue their contractor employers? The answer is probably yes, but problems arise if Congress still has “exclusive legislation” over the base, a type of Federal Enclave.
Article I, Section 8, Clause 17 of the United States Constitution creates Federal Enclaves and gives Congress “exclusive Legislation in all Cases whatsoever” over Washington D.C. and over “all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, doc-Yards and other needful Buildings.” Accordingly, when a State sells land to the United States so the federal government can build a military base, Congress has “exclusive legislation” over that property, assuming that the selling State has consented to grant such jurisdiction. (James v. Dravo Contracting, (1937) 302 U.S. 134; Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 531.)
Posted on November 13, 2013 by S. Ward Heinrichs
Independent Contractor or Employee?
Am I an independent contractor or an employee? How should my business classify its workers, as independent contractors or employees?
Both workers and businesses struggle with these questions at times. Most of the time, the answers are pretty clear. However, in a significant minority of employment relationships, the answers are not clear. Unfortunately for those who struggle with questions about their employment relationships, the tests used to answer these questions are often hard to apply.
Posted on October 31, 2013 by S. Ward Heinrichs
Labor Commissioner Wage Hearing Appeals are New (De Novo) Trials in Superior Court
Recently, our firm represented an employee in a trial de novo appeal of a Labor Commissioner wage hearing which had been held under the rules of Labor Code §98.[1] The hearing officer had awarded our client a sizable amount of unpaid wages. The employer decided to appeal the award. It properly sent notice as provided under Labor Code §98.2.
Posted on October 22, 2013 by S. Ward Heinrichs
Unemployment Hearings at the EDD
Recently, unemployment appeal hearings have become an increasingly large part of our litigation work load. One reason for that increase is Congress has extended the amount of time an unemployed person may receive unemployment benefits. As a result, the recently unemployed are more willing to pay a lawyer to appear at the Employment Development Department (EDD) appeal hearings. On the one hand, if the EDD initially denies the former employee unemployment, those former employees have an incentive to pay a lawyer to fight for their right to win unemployment benefits that may last for four years. On the other hand, if an employer appeals the EDD’s initial eligibility finding, the former employee may want the help of a lawyer to convince the EDD Administrative Law Judge to affirm the initial grant of eligibility.
Posted on October 9, 2013 by S. Ward Heinrichs
How will the California New Minimum Wage Effect Employees and Employers?
Governor Jerry Brown recently signed a new minimum wage law. It will increase minimum wage to $9 per hour on July 1, 2014 and to $10 per hour January 1, 2016. This will have both positive and negative effects.
The obvious positive effect is minimum wage earners will see an increase in their paychecks, assuming the employer continues to employ them for the same number of hours.
Posted on October 4, 2013 by S. Ward Heinrichs
AT&T Mobility v. Concepcion
AT&T Mobility v. Concepcion, (2011) 131 S.Ct. 1740 established that arbitration agreements may contain enforceable class action waiver provisions. More recently, the United States Supreme Court extended that doctrine. (American Express Co. v. Italian Colors Restaurant, (2013) 133 S.CT. 2304.)