Category Archives: Presentations and Programs

Employment Law Update Webinar

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!

Summer! Fun! Employment Law Update All Day Training June 27!

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Please join me as I moderate and present at the Employment Law Update in California training in San Jose on June 27, 2013. My partner Anne Stromberg and Marc Jacuzzi of Simpson, Garrity, Innes and Jacuzzi, P.C. will be talking about the following:
* Hiring, Counseling and Terminating Employees
* Wage and Hour Law Update
* FMLA, ADA, FEHA and Workers’ Compensation
* Sexual and Other Unlawful Harassment in the Workplace
* Harassment Investigations

The training will be at the San Jose Airport Garden Hotel (1740 North First Street in San Jose). 6.50 hours of HRCI credit are available – and there is also MCLE, CPE and CPP/FPC credit.

To sign up/ register, please click here.

NOT on your bucket list: being deposed

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If you’re in HR, you are an important member of your company’s management team. Your reward? To be deposed if your company gets sued for an employment decision.

What happens during a deposition? How will your verbal statements, memos and emails be used in litigation? Find out answers to these questions and more as we take a deep dive into the world of depositions.

On Tuesday, April 9 at 9:00 AM in San Jose, I’m going to present a 3 hour workshop for NCHRA on “Surviving an HR Deposition.”

If you’d like to register, click here.

I’ll be at The 16th Annual Employee Benefits Symposium — Join me!

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I’m excited to announce that on March 22, 2013 I will be presenting at The 16th Annual Employee Benefits Symposium at the DoubleTree in San Jose. This incredible all-day conference is the premier source of employee benefits information for Executives, HR and Benefit Professionals, and all plan fiduciaries. There are three education tracks – from “benefits 101” to a track geared to the high-level benefits professional. Addressing the unfolding Healthcare Reform law, there is an ACA track dedicated to unraveling the law and what it means to employers. The benefits speakers are some of the most knowledgeable in the industry.
I’ll be giving an employment law update during lunch, and then in the afternoon, I’ll be moderating a panel of HR experts – practitioners, lawyers and consultants—who will be discussing the Seven Mistakes That Employers Continue to Make in Employment Law. After the panel, there is a fun reception where participants can meet the speakers and their colleagues.
I highly recommend this conference! Here is the link:
http://www.BenefitSymposium.com

Love is in the air! Is that good?

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Happy Valentine’s Day!

Chances are that at least a few of the readers of this entry are having an office romance – or had one – or have employees “so involved.” I read in the Dallas Business Journal this week that 59% percent of respondents to a recent survey by Vault.com had participated in an on-the-job romance, and 63% of those who had been involved with a co-worker said they would be willing to do so again.

So, is this bad, or good? Anyone who has sat through California’s mandatory sexual harassment prevention training for supervisors knows that office romances can become very, very bad for the employer. It would seem then, that this article should admonish employers to prohibit office relationships, right? Classic lawyer response:  It depends.

It can be a good practice to prohibit relationships between people who have a reporting relationship to try to avoid the classic “if you sleep with me, great things will happen for you here at the company” claims. But some employees bristle at being told what they can or cannot do on their personal time. And some employers don’t want to take that position, either.

I also don’t often suggest a ban for peer relationships. Your employees spend a huge portion of their lives at work. Now that they’re no longer in high school or college, where are they supposed to meet potential partners? Often, it is at work. And having a policy that prohibits office romances doesn’t mean they won’t happen, it just means the parties will try to hide it. And it’s usually the hidden office romances that are the problem.

The key then, is to create and publicize policies that help everyone know what the rules are and how all employees are protected from harassment.

For example, when an employer learns of a relationship, I often recommend that the employees involved sign a “love contract.” The purpose of the document is for each employee to separately affirm that the relationship is consensual. The document also reminds employees what is expected of them in the workplace. Basically, this means clear instructions that no part of their relationship should be apparent in the workplace — good (touching) or bad (arguing). Finally, the employees are reminded, in writing, of the company’s anti-harassment policy.

While such a policy can’t guarantee that an employer won’t face a harassment lawsuit after an office romance goes sour, the process of having the employees sign the love contract may help reduce or minimize some risks.

This is one of those topics that can quickly become a long article, rather than a blog entry – each workplace is unique and the employer may have different views on how it wants to approach the office romance question. At a minimum, employers should create policies and train employees to follow the policies.

All of the employment law partners at McPharlin Sprinkles & Thomas LLP conduct effective, interactive and actually enjoyable harassment prevention training programs that satisfy California’s AB 1825/Govt Code § 12950.1. The training must be conducted every two years. Please contact us if you’d like to schedule one!