Category Archives: Wage and Hour

When we win, we’ll get our attorneys’ fees, right? Right!??!?

file0001422084804Well, if you are an employer defending a wage and hour claim, probably not. Earlier this week, Governor Jerry Brown signed SB 462. The new law severely restricts the award of attorneys’ fees to employer-defendants in wage claim issues. Effective January 2014, employers that prevail in litigation will have to show that workers sued “in bad faith” over nonpayment of wages, benefits or pension contributions to secure attorney fees and costs. The same restriction will not apply to winning worker-plaintiffs.
The law amends Labor Code section 218.5, which previously permitted either the employee or employer to seek attorney’s fees as the prevailing party. The revised statute authorizes attorney’s fees to employers (or any other party that is not the “employee”) only if the court determines the lawsuit was brought in “bad faith.” That’s a high standard –meaning it is unlikely that employers will be awarded their fees.

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.

Today’s the Day for San Jose’s New $10 Minimum Wage

Don’t forget – San Jose’s new Minimum Wage Ordinance requires employers to pay their employees a minimum wage of $10.00 per hour for work performed within the City of San José. The law takes effect today (March 11, 2013). You can read my prior post on this blog with this link:

San Jose’s $10 Minimum Wage Law Takes Effect March 11, 2013

You can check out the City’s site and print out the required notice to post at your worksite here.

San Jose’s $10 Minimum Wage Takes Effect March 11, 2013

As I mentioned in a previous post, San Jose voters approved a new minimum wage of $10.00 per hour for work performed within the City of San Jose. The election was certified yesterday by San Jose’s City Council and the new rule takes effect 90 days later.

The only exceptions to the minimum wage ordinance will be for employers who don’t have a facility within San José, or are not subject to the San José business tax. It also won’t apply to employees who work less than two hours a week within the city.

Covered employers will need to post a notice about the minimum wage alongside the other labor law postings you surely already have up. The city will provide the notices that will explain the wage rates and employee rights. Employers will also be required to maintain payroll records for a period of four years.

San Jose’s minimum wage will be enforced on a complaint basis, just as it is at the state level.

Here’s a link to the city’s minimum wage website: http://www.sanjoseca.gov/index.aspx?NID=3491

Attention Bay Area Employers — San Jose Voters Approve $10 Minimum Wage

San Jose joins four other cities –  the Bay Area’s own San Francisco, along with Washington D.C., and Santa Fe and Albuquerque, N.M. –that have set their own minimum wage.  San Jose voters raised the city’s hourly minimum wage to $10 — $2 above the statewide minimum (and $2.75 above the federal rate).   Employers must pay the highest of the local, state or federal wage.

Under the new rule, employers must pay their employees a minimum wage of $10.00 per hour for work performed within the City of San Jose. The new minimum wage rate will be effective 90 days after certification of the results of this election –I’ll update this entry when that date is certain.  The City must also adjust the wage each year beginning January 1, 2014 based on increases in a specified Consumer Price Index.

The new law will apply to most employers in San Jose.  The basic exceptions are employers that (1) do not “maintain a facility” in the City of San Jose and (2) are exempt from the Business License Tax  under the Municipal Code. The minimum wage requirement would not apply to a person who works less than two hours per week.  And if you employ workers under a Santa Clara County welfare-to-work program, other exceptions may apply.

Covered employers must post the minimum wage rates, notify employees of the minimum wage rates, and maintain certain payroll records.  The Code will prohibit retaliation or discrimination against any person seeking to enforce the rights provided by the ordinance. The City will administer and enforce the law including, investigating possible violations, issuing administrative citations and compliance orders, and filing a lawsuit in court. Remedies include back wages, penalties, equitable relief, and – the tail that wags the dog – payment of reasonable attorneys’ fees and costs. Any person harmed by a violation of the minimum wage requirement, or any member of the public, may sue in court to enforce the requirement.

Trick or Treat, Part 2 – More on California’s New Employment Laws

In my last post, I talked about the “noisier” new laws that California employers need to be prepared for at the start of the year.   Here are some others to keep in mind – and a few of the noisiest bills that didn’t make the cut:

Wage Statements.  Along with everything else you need to do to get ready for 2013, make sure that your payroll department or service is complying with California’s rules for wage statements.  Last year, a court found that if some information was missing from a wage statement, it wasn’t that big of a deal – the employee wasn’t really “injured” and a penalty wasn’t appropriate.  Under the new law, an employee is definitely injured if the wage statement is incorrect.  So, make sure that an employee can “promptly and easily” determine from the wage statement the gross wages earned during the pay period, the deductions taken, the employer’s name and address, and identifying information of the employee (name, last four digits of the SSN or other ID number).

Salaries for Nonexempt Workers.   If you have a contract with a nonexempt employee to pay her a salary or fixed amount for “all hours worked,” that amount will be used to determine the base or regular rate for overtime pay, no matter what the agreement says about an overtime rate.

Protected Status for Breastfeeding Employees.  The Fair Employment and Housing Act (FEHA)  now specifically states that employers can’t discriminate against employees based on their breastfeeding status.  This was already the law, but now FEHA states that  the term “sex” also includes breastfeeding or medical conditions related to breastfeeding.

Written Commission Agreements.  This is a reminder about a law signed last year with a delayed effective date.  By January 1, 2013, all employers who pay California employees on a commission basis must have written, signed commission agreements.  The agreement must set forth the method by which commissions are computed and paid and must be signed by both the employer and employee.  This is a great opportunity to define when a commission is actually “earned,” since when it is earned it becomes a wage that cannot be forfeited.

What bills got “stuck on Capitol hill” (or California’s version of that)? There are three big ones.

AB 1450 would have prohibited discrimination in hiring based on an applicant’s unemployed status – in other words, no “help wanted” ads that require the applicant be currently employed.   Governor Brown vetoed the bill, saying it would cause unnecessary confusion.

AB 889 would have required the state to create overtime, meal and rest break, and other working condition rules for domestic workers like nannies, elder care providers and maids.  The governor vetoed the bill, saying that the issue needs more study.

AB 2039 got stuck in Committee.   The Bill would have expanded the California Family Rights Act by  (1) permitting an employee to take protected leave to care for his independent adult child suffering from a serious health condition, (2) expanding the definition of parent to include a “parent-in-law”, and (3) permitting an employee to also take leave to care for a seriously ill grandparent, sibling, grandchild, or domestic partner.

There are a lot of other new laws.  California’s State Senate and Assembly introduced 1,899 bills this year. 996 bills were sent to Governor Brown, who signed 876 and vetoed 120. I’ve talked about less than 10.  If you were hoping to read about a new employment law that I didn’t talk about, let me know!  Email me at jdebacker@mstpartners.com