March 2010 Sex Harassment Training Seminar

California law (AB 1825) requires California employers with 50 or more employees or independent contractors to provide mandatory sexual harassment prevention and investigation training to their supervisors every two years.  Newly hired supervisors who have not otherwise received this training during the preceding two year period or individuals who are promoted to supervisors must be trained within six months.

Without this mandatory training, you may be increasing your risk of incurring an expensive lawsuit.   As noted in an April 2009 presentation by California Department of Fair Employment and Housing (DFEH), of the 18,785 employment cases filed with DFEH in 2008, approximately 21% consisted of sexual harassment allegations.  Click here to view the presentation:  http://bit.ly/9s07oN.

Our harassment prevention seminar course includes a live lecture covering actual harassment cases, printed materials, PowerPoint presentation, anti harassment training video demonstrations of unlawful and lawful conduct and a session-ending investigatory scenario in which all participants can demonstrate their knowledge of the fundamental training topics in this critical field.

Our next sexual harassment workshop seminar will be held on

Thursday, March 11, 2010 – 1:00 to 3:30 p.m.

Seminar Location:      Western Justice Center Foundation

55 South Grand Avenue, Pasadena, California  91105

The fee is $55 per person.

Please click here for more seminar information and also for details on scheduling group seminars and training at your location within the Los Angeles and surrounding areas: http://www.tbowleslaw.com/knowledge/harassment-seminar-onsite-form.php

NEW California Civil Air Patrol Leave

FOR EMERGENCY MISSIONS

Effective January 1, 2010, the Civil Air Patrol Employment Protection Act (new Labor Code Sections 1500 through 1507) requires employers with 15 or more employees to provide ten days or more of unpaid leave per year for volunteer members of the California Civil Air Patrol Wing to respond to emergency missions.

To qualify for this leave, volunteer Civil Air Patrol members must be employed by their current employer for at least 90 days immediately preceding the commencement of the leave.  Employees are required to give the employer as much notice as possible of the intended dates of the leave.

At the conclusion of the leave, the employer must restore an employee to the position held when the leave began or to a position with equivalent seniority status, benefits, pay and other terms and conditions of employment.

If you have any questions on this or any other employment laws, please contact me or any of our other employment law attorneys.   Best, Bob Edwards

Are Off The Clock Lawsuits Heading Into Overtime?

We are noticing an increasing number of wage and hour lawsuits filed in the Los Angeles Superior Court, Central District (downtown Los Angeles).  Although such lawsuits often involve allegations of meal and rest break violations, several employment law firms are now predicting the focus will shift to overtime lawsuits involving claims for unpaid overtime for reviewing and sending business emails and texts after hours.

A September 2008 Pew Internet & American Life Project report surmised that 50 percent of U.S. employees with access to business email check their work e-mails on weekends away from the office and 34 percent do so while on vacation.  Click here to view the report:  http://www.pewinternet.org/Reports/2008/Networked-Workers.aspx?r=1.

This situation will most likely continue to increase as companies reduce their staff and continue to demand maximum productivity from their remaining workers.  Add to the mix the proliferation of BlackBerrys and other hand-held devices and a 24/7 work world mentality and such wage lawsuits are bound to follow.

Two ongoing high profile class action lawsuits have made the news for bringing such unpaid overtime claims for non-exempt hourly workers.  In John Rulli v. CB Richard Ellis, Inc., filed in March 2009 in federal court in the Eastern District of Washington, the plaintiff, on behalf of himself and all other similarly situated current and former hourly maintenance employees, claims he was forced to perform off the clock work without hourly or overtime pay.  Plaintiff’s complaint alleges he and the class were given personal data assistants (PDA’s) such as BlackBerrys, to access work-related emails, voicemails and work orders and were required to answer and/or respond to incoming messages and/or phone calls within fifteen minutes of receipt, regardless whether they occurred after regular work hours.  View the complaint here: http://www.texasemploymentlawupdate.com/uploads/file/Ruilli%20v_%20CBRichard%20Ellis%20Complaint%281%29.pdf

In the second overtime lawsuit, Agui v. T-Mobile, USA, filed in July 2009 in federal court in the Eastern District of New York, plaintiffs seek to recover wages on behalf of themselves and other similarly situated retail sales associates for unpaid hours worked when reviewing and responding to T-Mobile emails and text messages at random hours of the day.  Plaintiffs are T-Mobile sales representatives who receive an hourly wage plus monthly commissions.  Plaintiffs allege they were required to review and respond to T-Mobile related emails and texts at all hours of the day, frequently outside their normal forty hour work week and were not compensated for the additional 10-15 hours per week spent on such calls and text messages.  Plaintiffs also allege they were required to give their company business cards to customers, which listed their mobile phone numbers and email addresses.  Although plaintiffs allegedly received telephone calls from customers throughout the week, including while off the company time clock, their managers supposedly instructed them to resolve customer problems over the phone, even when off the clock, for which they claim they were never compensated.  View the complaint here: http://www.tbowleslaw.com/documents/Agui-et-al-v-T-Mobile-Complaint-10-jul-09.PDF

Both cases illustrate the need for companies to ensure their payroll practices meet the needs of today’s technology-oriented workforce.  At a minimum, employers should create and enforce written policies clearly requiring non-exempt workers to report all time spent reviewing and/or responding to emails or texts outside of regular work hours.  Employers should also instruct supervisors to refrain from ordering hourly employees to take and return business-related calls, emails and texts while off the clock.  Lastly, if the employer issues company-owned PDA’s, the recipients should sign a form acknowledging their responsibility to report all work time on and “off” the clock.

If you have any questions, please call, email or text me or any of our other employment law attorneys.   Best, Cindy Bamforth

AFRICAN HUMAN RIGHTS LEADERSHIP CAMPAIGN

AN INTRODUCTION

Stemming from my lifelong interest in international law and development, the African Human Rights Leadership Campaign is a pro bono project of Youth for Human Rights International to train young leaders in African countries for human rights advocacy and the eradication of human rights abuses in their lifetimes.

Along with Liberian Jay Yarsiah, Ghanaian Sammy Jacobs Abbey and numerous volunteers in Africa and the States, we have expanded the initiative to five African countries since its 2006 inception. We are intent to see this initiative not only help Africa address the violation of human rights but to contribute to making global human rights the reality.

We now have a separate blogsite for the Campaign, offering From the Ruins, a 12 minute introductory film directed by young filmmaker Ian Jay and with original music from his father Stephen.  For more on the Campaign’s human rights work, including its purposes, progress and promise, and to see the video, please see www.africanleadershipcampaign.org.

If you have any questions on this project, please contact me.  Best, Tim Bowles

Cal/OSHA Injury and Illness Summary

Must Be Posted February 1, 2010

Employers must provide a safe work environment for their employees.  The Occupational Safety and Health (OSH) Act of 1970 requires some employers to prepare and maintain logs of work-related injuries and illnesses.  The federal Occupational Safety and Health Administration (OSHA) is tasked with overseeing these workplace health and safety regulations.

California companies with more than ten employees throughout 2009 who are not otherwise exempt from the posting requirement must post the Cal/OSHA injury and illness summary record (Cal/OSHA Form 300A) from February 1, 2010 through April 30, 2010.  The form should be displayed in a visible area in the company so that all employees may view it.

Cal/OSHA Form 300A (Form 300A) contains a summary of significant work related accidents and illnesses.  If the company had no recordable occupational injuries or illnesses in 2009, it must post Form 300A with zeros in the total lines.  Please click here for a copy of Cal/OSHA Form 300A: http://www.dir.ca.gov/dosh/DoshReg/ApndxB300AFinal.pdf

In addition to completing and posting Form 300A, all eligible companies must also complete Cal/OSHA Form 300.  The Form 300 is used to record more detailed information about each injury and illness and thus is not to be posted due to employee privacy concerns.  Please click here for a copy of Cal/OSHA Form 300: http://www.dir.ca.gov/dosh/DoshReg/ApndxA300Final.pdf

Companies may also be exempt from this posting requirement if they are classified under certain Standard Industrial Classification (SIC) codes, unless otherwise asked to do so in writing by OSHA, the Bureau of Labor Statistics (BLS), or a state agency operating under the authority of OSHA or the BLS.  Some partially exempt industries in California include:  retail bakeries (SIC 546); new and used car dealers (SIC 551 and 552); eating and drinking places (SIC 58), dental offices (SIC 802), and real estate agents and managers (SIC 653).  Please click here for a table of industries exempt from the above posting requirement in California:

http://www.caloshareu.com/oshalog300/html/CaStandard/CA143002.htm?A=143002TAB1,143002BOT,143002TOP#143002TAB1

For more information on the Cal/OSHA Forms 300 and 300A, please visit: http://www.dir.ca.gov/dosh/dosh_publications/RecKeepOverview.pdf

If you have any questions, please contact me or any of our other employment law attorneys.   Best, Cindy Bamforth

New 2010 IRS Mileage Rate

On December 3, 2009, the IRS announced its 2010 standard deduction mileage rates (online at http://www.irs.gov/newsroom/article/0,,id=216048,00.html).  As of January 1, 2010, the IRS is decreasing the IRS standard employee mileage deduction for business use of a motor vehicle to 50 cents per mile.  (In 2009 the IRS mileage standard deduction was 55 cents per mile.)  Employers that use the IRS rate or lower may deduct that amount as a business expense.  However, employees who receive higher reimbursement may be required to pay taxes on the difference between their employer’s reimbursement rate and the IRS mileage deduction as “wages.”  Employers should notify their employees if they intend to change the reimbursement rate.

If you have any questions on this or any other employment laws, please contact me or any of our other employment law attorneys.    Best wishes, Bob Edwards

Flexibility Added to California Alternative Workweek Schedule

California law authorizes an alternative work week schedule (AWS) of workdays exceeding eight hours without overtime pay if certain criteria are met.  Classically, an alternative work schedule will be four 10-hour days, with three days off.  Health care offices are common candidates for an AWS.  Such flexible alternative work schedules require full advance disclosure to affected employees and the affirmative vote of at least two-thirds of those employees in a secret ballot election before performance of the work.

Effective May 21, 2009, California Assembly Bill No. 5 amended this law (Labor Code section 511) to permit an employee to opt-out of an AWS passed by the majority of his/her co-workers.  This allows such worker to retain a regular five 8-hour days per week schedule.  The bill also authorizes employees, with the consent of their employer, to move on a weekly basis from one work schedule to another on the adopted menu of work schedule options.

In addition, the California Division of Labor Standards Enforcement (DLSE) issued a March 23, 2009 opinion letter (online at http://www.dir.ca.gov/dlse/opinions/2009-03-23.pdf ) stating that under some circumstances, an alternative workweek schedule may be in place for only part of the year, for example rotating between a schedule of four 9-hour days and one 4-hour day during the summer months and five 8-hour days during the rest of the year.

Employers must still follow the detailed provisions of the California Industrial Welfare Commission (IWC) Wage Orders (online at http://www.dir.ca.gov/iwc/wageorderindustries.htm) when implementing or revising alternative workweek schedules and should consult with legal counsel about this and applicable California overtime laws before doing so.

If you have any questions on these or any other employment laws, please contact me or any of our other employment law attorneys.   Best wishes, Bob Edwards

EEOC Reports Workplace-Related Legal Charges Approach Record High

In a January 6, 2010 press release, the U.S. Equal Employment Opportunity Commission (EEOC) divulged the number of workplace discrimination charges filed nationwide during fiscal year 2009 (October 1, 2008 to September 30, 2009).  Cumulatively, the 93,277 charges filed in 2009 reached the second highest number in history, with monetary relief obtained for complainants totaling over $376 million.

Job bias charges, including those filed against state and local governments, reached record highs for charges alleging workplace discrimination based on disability, religion and/or national origin.  Age-based discrimination charges reached the second-highest level ever.

Workplace retaliation was the most frequently cited charge, totaling 33,613 charges.

The EEOC filed 281 new lawsuits against employers last year.

These trends will most likely continue to rise in the coming year.  In the 2010 Omnibus Appropriations Bill, Congress authorized the allocation of an extra $23 million to the EEOC.   The EEOC is now hiring approximately 200 new investigators to help reduce its 70,000 case backlog.

In addition to sexual harassment prevention training and well-worded anti-discrimination policy, employers should also receive training on other forms of discrimination, such as discrimination by age, religion or disability to better protect their organizations from such discrimination and retaliation charges and lawsuits.

If you have any questions regarding anti-harassment, discrimination or retaliation training or any other employment law issues, please contact me or any of our other employment law attorneys.

To obtain a copy of the EEOC’s January 6, 2010 press release, go to http://www.eeoc.gov/eeoc/newsroom/release/1-6-10.cfm.

To obtain a copy of the EEOC’s charge filing statistics, go to http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.

If you have any questions on these or any other employment laws, please contact me or any of our other employment law attorneys.   Best wishes, Cindy Bamforth

New Employment Eligibility Verification Form I-9

All U.S. employers must complete and retain a Form I-9 for each individual hired for employment in the U.S., including citizens and noncitizens.  Revised August 7, 2009, the new Form I-9 includes an updated list of acceptable documents that employees must present upon hiring.  The new form includes a note that all documents presented to establish identity and/or ability to work in the U.S. must not be expired.  The new Form I-9 and new U.S. Citizenship and Immigration Services (USCIS) Handbook for Employers are available online at http://www.uscis.gov/i-9.

In addition, as of September 8, 2009, federal contractors and subcontractors must use the E-Verify system operated by the U.S. Department of Homeland Security in partnership with the Social Security Administration.  The E-Verify system compares Form I-9 document information against federal government databases to verify employment eligibility.  Other employers may also use this verification system.

For more on the E-Verify system please visit the USCIS website at http://www.uscis.gov/portal/site/uscis.

If you have any questions on these or any other employment laws, please contact me or any of our other employment law attorneys.   Best wishes, Bob Edwards

2010 Changes to Required Posters and Pamphlets

Required Postings: Per the California Chamber of Commerce’s informational web pages, California employers must conspicuously display required labor posters or notices where all employees may view them.  Several of the employer posters must also be displayed where job applicants can read them (e.g. polygraph protection and state and federal anti-discrimination posters).  Even if a company only has one employee, it must display these notices.   Companies must post a separate set of these notices in each company location.  Companies may be fined up to $17,000 for not posting all required notices.

The California labor posters contain the following topics:

• Equal Employment Opportunity Information
• Employment Development Department (EDD) Information
• Minimum Wage Requirements (California minimum wage poster and federal minimum wage)
• Military Leave Benefits
• Safety and Health Requirements
• Workers’ Compensation Information
• Discrimination and Harassment Information
• Family/Medical Leave and Pregnancy Leave
• Whistleblower Protection
• Time off for Voting
• Polygraph Protection
• Unemployment Insurance, Disability Insurance and Paid Family Leave Information
• Local Emergency and Cal/OSHA Contacts
• Company Payday Schedule

2010 Changes to Required Postings: The following are the changes to be made to the required notices:

1. Equal Employment Opportunity Commission Poster.  As mentioned in a previously posted blog article, this revised poster (revised in November 2009) contains 2008 amendments to the Americans with Disabilities Act (ADA Amendments Act of 2008) and the Genetic Information Nondiscrimination Act of 2008 (GINA).  It also contains U.S. Department of Labor updates.

1. Safety and Health Notice.  This poster contains updated contact information.

1. Federal Minimum Wage Notice. This revised poster (revised in July 2009) contains modified penalties for child labor law violations.

1. Family Medical Leave Act (FMLA). Revised January 2009, this poster reflects recent amendments to family and medical leave laws.

Required Pamphlets:

Employers must distribute seven pamphlets or notice sheets under the following conditions:

1. California’s Unemployment Insurance pamphlet:  Must be distributed whenever an employer terminates or places an employee on a leave of absence.
2. State Disability Insurance pamphlet:  Must be distributed to all new hires and again to employees on disability leave.
3. Workers’ Compensation Rights and Benefits pamphlet: Must be given to all new hires.
4. Sexual Harassment pamphlet: Must be given to employees and independent contractors (or alternatively, this information must be included in the company handbook)
5. Paid Family Leave pamphlet:  Must be given to new hires and again to employees requesting time off for a covered reason.
6. Earned Income Tax Credit Notification:  All employers must notify all employees of the federal Earned Income Tax Credit (EITC).
7. Notice to Employees (DE 35).  This notifies employees that the company is required to send copies of the W-4 form to the Franchise Tax Board if the form meets certain criteria.  The form is available on the Employment Development Department website.

Please note: the State Disability Insurance and the Unemployment Insurance pamphlets contain new updates for 2010.

Fortunately, an “all in one poster” for 2010 containing all California and federal law posters may be purchased from the California Chamber of Commerce along with the up-to-date required pamphlets and notices at

http://www.calbizcentral.com/store/category/pages/posters.aspx.

If you have any questions on these or any other employment laws, please contact me or any of our other employment law attorneys.  Best, Cindy Bamforth