Category Archives: Legal Update

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California Labor Commissioner says an Uber driver is an employee, not a contractor

Shocking News! (Really? Actually, no, not really.) Last night, Uber filed an appeal in San Francisco Superior Court.  The appeal is to challenge a ruling of the California Labor Commissioner that an Uber driver should be classified as an employee, not an independent contractor. Uber claims that its drivers are not employees; instead, Uber facilitates logistics for contractors who sign on to its service.   Drivers and passengers use the app for “private transactions.”   But behind that app is, well, a fleet of drivers: earlier this month, Uber announced it has 26,000 drivers in New York City, 15,000 in London, 22,000 in San Francisco, 10,000 in Paris and 20,000 in Chengdu, China. Uber’s position is that does not exert any control over the hours its drivers worked and does not require drivers to complete a minimum number of trips. The Labor Commissioner reviewed the ways Uber does act more like an employer – providing drivers with phones and deactivating the driver app if the individual is inactive for a period of time.  And when it comes to determining whether a worker is an employee or a contractor, the Labor Commissioner, the IRS, the EDD, etc., see the default to be an employment relationship when work is performed. What does this mean for  you – even if you aren’t a facilitator of private transactions? You should take a close look at any contractors you use. It is critical to review what the contractor is actually doing on behalf of your business and what rights the business has retained in controlling that “contractor.”

On June 18, 2015 I presented a webinar on independent contractors and the Uber case. You can view it at the HR Options webinar archive site here.   You can read more about the webinar here. For more on the Uber matter, the New York Times has a short article here with a link to the underlying ruling.

Whoa! It is almost the end of February! Have you completed these 2015 action items?

Here’s a list of action items to make sure your 2015 is off to a fantastic, compliant start!

Paid Sick Leave

For most California employers, there has been a lot of focus, and some tough choices, in preparing for the July 1, 2015 “start date” for California’s Paid Sick Leave law. (AB 1522, the “Healthy Workplaces, Healthy Families Act of 2014”)

The legislation is confusing and difficult to implement and this short blog entry is just meant to provide a brief overview. Basically, every employee is eligible for paid sick leave that starts accruing the first day of employment. This means every full time, every part time, every temporary employee is entitled to the benefit.

The paid sick leave must accrue at the rate of no less than 1 hour for every 30 hours worked. For exempt employees, you can assume a 40-hour workweek to track this. But for non-exempt employees, the law reads that the accrual is for every hour worked.

The employer can delay use of the time until 90 days have elapsed. And there is also the rule that the employee is eligible only if they work 30 days in California. But this “30 day rule” does not trump the “accrue from the first day of employment” so you need to be mindful of how these rules work together.

If your company already has a sick leave policy, or “PTO” or something similar with a more creative name, it might comply with the rules, but you must carefully review the accrual rates, annual caps, etc., to make sure. And be mindful of any “attendance policy” that may punish an employee for taking paid sick leave – you don’t want to walk yourself into a violation of the rule due to in artful language.

Some collectively bargained situations are “exempt” from the rule if the agreement provides for specific benefits to all covered employees, such as paid time off, arbitration of certain disputes and a higher minimum wage. There are some other exceptions – for the construction industry and in-home supportive services, for example – that must be reviewed carefully before applying.

If you have any employees in San Francisco or Oakland, you must comply with the paid sick leave rules specific to those cities. For example, the annual cap for both cities is likely higher for your company than the 48 hours in the state law. And in Oakland, there is no option to grant three days with no accrual.

To do:
•   Notify employees of their rights to paid sick leave under state and local law (once you’ve decided how you’re going to implement the new rules)
•   Post notices in common areas of employees’ rights to paid sick leave
•   Begin tracking accrual for all employees July 1, 2015 (or earlier if in SF or Oakland)
•   Confirm that every employee will receive written notice of his or her current accrual/use every pay period. The pay stub is likely the simplest writing to convey this information.

Employer Policies

In addition to the paid sick leave changes, you should:

•  Confirm that any computer use policy explicitly states that it is not intended to restrict your employees’ rights to discuss the terms and conditions of his or her employment, as provided by law.

•  Update any language in your policies that describes protected time off for volunteer “emergency duty.” California law previously prohibited employers from terminating or discriminating against employees for taking time off due to their emergency duty as a volunteer firefighter, reserve peace officer or emergency rescue personnel. AB 2536 amended the definition of “emergency rescue personnel” to include an officer, employee, or member of a disaster medical response entity sponsored or requested by the state. This definition includes an officer, employee, or member of a political subdivision of the state, or of a sheriff’s department, police department, or a private fire department.

•   If you use unpaid interns, volunteers or apprenticeship trainees (and if you do, you should definitely talk to your employment counsel), be sure that they know that FEHA’s – and your company’s — harassment and discrimination protections extend to them.

•   If your employees use cell phones for work-related matters, including email, you should review all aspects of this use. For one, the company is likely obligated to reimburse at least a portion of your employees’ cell phone bills under Labor Code §2802. And there are a host of other issues you should regularly review: such as, are non-exempt employees using cell phones (or other remote access) after hours? Are employees able to nick confidential information with a simple email? What security is in place to prevent unwanted access to your system?

Having the above items under control is a great start. Since this is California, we’ll definitely have more to talk about soon. And my New Year’s resolution was to update my blog more. . . so. . . better late than never. Here we go!

Are you on board with the Bay Area Commuter Benefits Program? Today’s the Day!

Just a reminder that today is the day that Bay Area employers must get on board with the Commuter Benefits Program.

You probably already know that getting commuters out of single occupancy vehicles can significantly reduce carbon emissions. That’s the best reason for this blog entry.

September 30, 2014 is the day covered Bay Area employers are to register with the Bay Area Air Quality Management District. In essence, the rule is that employers with 50 or more full-time employees within the nine Bay Area counties (Alameda, Contra Costa, Napa, Solano, Sonoma, Marin, Santa Clara, San Mateo, and San Francisco) must offer certain commuter benefits to eligible employees.

A “covered employer” is: “Any public, private, or non-profit entity (person, corporation, partnership, business firm, government agency, special purpose agency, educational institution, health care facility, etc.) for which an average of 50 or more full-time employees per week perform work for monetary compensation within the geographic boundaries of the District. . . The term excludes seasonal/temporary employees.”

A “covered employee” is an employee “who performed an average of at least 20 hours of work per week within the previous calendar month within the geographic boundaries of the District, excluding a seasonal/temporary employee.”

A covered employer must:

1. Offer Commuter Benefit Options. The employer must offer one or more of the following commuter benefit options to eligible employees by September 30, 2014:

a. Pre-Tax Option. Under this option, an employer allows employees to elect to exclude commuting costs incurred for transit passes or vanpool charges from their taxable wages (this must also be consistent with IRC 132(f)). These are basically “commuter checks.” Vendors can provide these to you and help you manage the program – email me if you need suggestions!

b. Employer-Paid benefit. For this option, an employer offers employees a subsidy equal to the monthly cost of commuting via public transit or vanpool, or $75, whichever is lower. Employers may also choose to provide a subsidy for bicycle commuting costs.

c. Employer-Provided transit. You can have your own Google bus! For this option, the employer must give employees at no or low cost (as determined by the Air Pollution Control Officer) a vanpool, bus or similar multi-passenger vehicle operated by or for the employer.

d. Alternative commuter benefit. Finally, an employer can be creative and provide a pre-approved alternative employer-provided commute benefit that is as effective as getting employees out of single occupancy vehicles as the other options (AKA the wild card!).

2. Notify eligible employees of the options available and how to take advantage of them

3. Designate a Commuter Benefits Coordinator and register. The Coordinator (you, lucky reader?) must register with the Bay Area Air Quality Management District through the commuter benefits program website (I fixed the link!).

So. . .a reminder of your obligation to give your employees options to encourage commute alternatives, thus improving air quality, is my primary reason for this post.

The second best reason? It lets me link to an old Onion article: “Report: 98 Percent Of U.S. Commuters Favor Public Transportation For Others.” Makes me laugh every time.

“But we couldn’t make it without our volunteers!” — A very expensive trap for the unwary business owner (even if you don’t think of it as a “business”)

As you may gather from the very title of this blog, I focus on California employment law (!). This past week, a colleague whose practice has a focus on helping wineries and breweries with legal issues gave me a heads up on a confluence of our practice areas: the use of volunteers at wineries. While you, dear reader, may not operate a winery, you may use volunteers – read on!

For most people, getting to work for a small winery is that rare chance to do something you love. Some even perform the work for free because it is fun, or because volunteering is a great opportunity to get a foot in the door, or because it is a chance to help a friend. Many wineries rely upon volunteers to work in the tasting room, pour at festivals, and help with the bottling line. And while months, or years may go by where this creates a seemingly symbiotic system, with rewards for both the volunteer and the winery, the employment concerns are a ticking time bomb of penalties and unpaid wages.

In general, both California and federal laws that govern how people are to be paid prohibit most private sector, for-profit employers from using volunteers. For the most part, only public sector and non-profit organizations can use volunteers and only when the volunteer is performing civic, charitable, or humanitarian work.

An important thing to remember about California’s employment laws is that, for the most part, they apply to every employer — from every “new economy” tech company with the latest killer app to every small business started 40 years ago. Needless to say, there is no exception for small, medium or large wineries.

In California, an individual is an employee if he or she works in the service of another person (the employer) and that employer has the right to control the details of the employee’s work performance. There are a few, very limited exceptions to the rule that California expects workers to be paid as employees. These exceptions include bona fide independent contractors (bona fide being a key phrase!), educational internship programs and immediate family members of the employer (spouse, parent, child). There are also limited exceptions for certain types of jobs. Except for those limited exemptions to the general rule, California requires that an employee be paid at least minimum wage for all hours worked, be paid overtime for all hours worked over eight in a day (and 40 in a workweek), and to be provided the opportunity to take meal and rest periods of a minimum length. This means that, at a minimum, a winery or any other employer must make the appropriate arrangements to properly hire, pay and employ workers.

Before someone can begin working, the employer must require the individual to show that he or she is legally authorized to work in the United States. The employee must complete a Form W4 to determine withholdings for income tax purposes. The employer must track the hours worked by the employee on a daily basis to ensure overtime is paid. The employer must issue paychecks at least every two weeks, and the paystubs must include specific information such as the hours worked, the overtime earned, and the rate of pay, among many other pieces of information. A written offer letter and/or a letter setting forth certain terms and conditions of employment can be invaluable – and sometimes required. This is just a short summary of the requirements for being an employer, but it is a good starting point.

After my colleague told me about this issue for local wineries, I did the heavy research of looking up the matter on the internet. I found some commentators suggesting that wineries simply pay the (former) volunteers as “1099 workers” or as contractors. This decision could get the winery into different, and expensive trouble with the workers and government agencies. It is the rare winery worker who is properly classified as an independent contractor because a critical factor in assessing that status is the degree of control over the worker. For example, the individuals who work in the tasting room pouring your wine the way you want it poured, talking about your wines, and selling them, is an employee. The workers who come every two weeks to maintain the landscaping are contractors.

In the end, many wineries—and other types of companies! – have used volunteers to supplement their paid work force. They have done this without any evil intent. The law, however, is set up to protect workers from, well, “other” companies – the ones that force workers to volunteer for a period before they may consider being hired, the ones that don’t pay at least minimum wage, etc. In any event, no matter how generous you are with your volunteers in ways other than wages, it could be a very detrimental decision to continue using them in this manner. Volunteers can seek back wages for four years’ time, along with substantial penalties, interest and attorneys fees. It is not uncommon for the penalties and fees to exceed the underlying wages owed. And these situations are ripe for the dreaded, financially crippling class action.

If you think you may need to take a close look at how you pay (or don’t pay) people who work at your company, give any of the attorneys at McPharlin Sprinkles & Thomas LLP a call!

(And for a link to my colleague who can help with your winery, brewery and distillery legal issues, click here.)
Whew. I need a drink!

Interested in Applicants Criminal History? Steer Clear. . . and “Ban the Box”

I finally decided on a great, interesting blog topic – and one that I get questions about often: Asking about applicants’ criminal history. And then I remembered why I thought it was such a great, interesting blog topic: because one of my favorite employment lawyers already wrote about it. So, I am turning my attention to a new topic and in the meantime, here is a link to Mary L. Topliff’s very informative article on the “Ban the Box” movement.

For leaves of absence, be open minded!

LOA Chart

Employers can get into trouble in a lot of ways. An easy way to mess up is to “hide the ball” and not let employees know that they might be entitled to a protected leave of absence. It is important to remember that a protected leave of absence is usually just the right to take unpaid time off and then come back to work. It is generally not paid time off, and is generally not meant to be used for a trip to Aruba. Employers should be mindful of all the different types of protected leaves an employee could be eligible to take –and provide information about the protections. Do not wait until an employee uses magic words to ask for the time off (like, “I note that we have more than 50 employees, and I’ve worked here for over 1,250 hours this year, and over 12 months for you in total. . . I’d like to take protected time off under the federal Family and Medical Leave Act and the California Family Rights Act…”).
I have a short chart I use to remind myself of the leaves of absence that can come into play here in California. It is, of course, not intended to replace looking at the actual statute, or talking to your legal counsel! It is just meant to remind you that “there [may be] a protected leave for that!” So. . .click the link at the top of this post, print it out, scribble on it, keep it close at hand, train your managers to look out for situations where leave may be appropriate – in other words, Enjoy!