Youth for Human Rights International

& United for Human Rights present

Special Guests:

Rohida Khan, Victim Assistance Coordinator, Department of Homeland Security

Brad Dacus, Esq. President of Pacific Justice Institute

Church of Scientology of Pasadena Chapel

35 South Raymond Ave., Pasadena, California

Brunch with presentations and panels to follow

Saturday, December 11, 2010

9:30 to Noon

Please RSVP by email or by calling 626.583.6600 (Law Offices of Timothy Bowles)

Copyright © 2010 by United for Human Rights. All rights reserved.

Shorter Schedules Do Not Equal Shorter Legal Requirements

Whether your business is expanding or you are circling the wagons to weather an economic downturn, hiring part-time employees may be part of the game plan.

However, hiring for shortened hours or for fewer days does not absolve an employer from complying with the full range of workplace legal requirements applicable to the full-time workers. Indeed, management of part-time employees may take even greater attention to the wage and hour laws to avoid the pitfalls.

Question: For instance, under California’s labor law, would an employer have to provide one or more ten minute paid rest periods for an employee who only worked for three hours on a given day? How about a worker who put in four hours? Six? Six hours and five minutes?

Answer: It depends and it’s not necessarily simple. A California business must provide a rest period for “each four hours worked (or major portion thereof).” Thus:

• Three hours daily labor: no break required (did not work the minimum four hours)
• Four hours daily labor: one break required (since the worker reached the four hour minimum)
• Six hours daily labor: only one break required (since the worker reached the four hour minimum but not the major portion [more than half] of another four hour period); and
• Six hours and ten minutes daily labor: two breaks required (since the worker reached the four hour minimum and worked the major portion of another four hour period).

Your part-timers could also qualify for required unpaid meal periods, daily overtime, specific paycheck disclosures and other rules. Worker’s compensation and other standard employee requirements are givens, small business or large. Please give us a call with any questions.

For more information on California’s labor laws, visit the California Department of Industrial Relations website

November 19, 2010

All California employers must post a new workers’ compensation notice and must distribute a new workers’ compensation benefits pamphlet to new hires by October 8, 2010.

California’s Division of Workers’ Compensation (DWC) has recently enacted regulations that require employers within California to post a new poster entitled “Notice to Employees – Injuries Caused by Work.” This updated notice is available on the DWC website.

The new poster must be placed in a conspicuous location frequented by employees. Failure to post the notice by the October 8 deadline can result in up to $7,000 in civil penalties.

All California employers must also distribute a new pamphlet entitled “Your Rights to Workers’ Compensation Benefits” to all new employees who commence work on or after October 8, 2010. Such employees must receive this pamphlet either at time of hire or before the end of their first pay period. Please visit the California Chamber of Commerce Online Store to purchase a stack of these pamphlets.

All California employers within an existing Medical Provider Network (MPN) must create and post a special MPN Notice and distribute copies to any employee injured on the job on or after October 8, 2010. (A “Medical Provider Network” is comprised of doctors, hospitals or other medical providers who contract directly with the employer to treat its workers injured on the job).

DWC also updated the workers’ compensation claim form (DWC-1), effective as of October 8, 2010. Please use the updated form available at http://www.dir.ca.gov/dwc/forms/ClaimForm2010.pdf for all workers’ compensation claims on or after October 8, 2010.

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

As we kick off the new year, employers confront a slew of new laws and regulations that may affect operations and require revisions in workplace policy manuals and/or new notice postings. This is the first in a series of articles intended to help navigate key California and federal changes in employment legal standards.

California’s workers’ compensation laws were amended on October 8, 2010. Violations of the new rules can incur a fine of up to $7,000 per occurrence. Every California employer must:

• Post the new “Notice to Employees—Injuries Caused by Work” poster (DWC 7);
• Distribute the updated “Your Rights to Workers’ Compensation Benefits” pamphlets to any new employees; and
• Use the revised “Workers’ Compensation Claim Form (DWC 1) and Notice of Potential Eligibility” form.

The new rules include a host of notice requirements for employers utilizing Medical Provider Networks (MPNs), healthcare providers providing treatment for work-related injuries. The changes include:

• Implementation Notices – Employers who offer a MPN plan must provide a written “implementation notice” to all employees covered;
• Written MPN Employee Notifications – Employers are required to provide a written “MPN Employee Notification” to a covered employee at the time of injury or at the outset of treatment for a work-related injury;
• Notices for MPN Coverage Change, Termination, or Cessation of Use – Employers are required to provide another written notice to any covered injured employee on the date of any change, termination or cessation of MPN coverage; and
• Independent Medical Review Notices – If at any time a physician is asked to provide a third opinion, employers must notify the injured employee about the independent medical review process.

If you have any questions about how to implement these workers’ compensation changes, please contact us.

October 8, 2010

The 1963 federal Equal Pay Act (EPA) requires employers to pay men and women equally for performing the same, or essentially the same, work. While the law is worded neutrally (it is just as unlawful to underpay either gender), Congress enacted the EPA to remedy the long-standing pay discrimination against women.

The National Committee on Pay Equity demonstrates the entrenched disparities present in 1963 are far from rectified. For example, the NCPE reports: “Census statistics released September 16, 2010 show that the women still earn 77 percent of what men earn, based on the median earnings of full-time, year-round workers in 2009. Both men’s and women’s earnings showed slight increases from 2008 to 2009, with men’s at $47,127 and women’s at $36,278, a difference of $10,849.” Also according to the NCPE: “Women who graduate from college earn only 72% as much as men with the same education.”

In addition to equal wages, women are also entitled to the same benefits, including vacation time, health insurance, profit sharing, retirement plans, and bonuses.

Perhaps the most challenging aspect of the EPA is its protection against wage discrimination for equivalent jobs, not only identical ones. Courts focus not on job titles but on job duties, skill, effort, and responsibility and whether work is performed under similar conditions. For example, it could be argued that a company paying its receptionists (made up largely of females) less than its customer service representatives (made up largely of male employees) may be in violation of the EPA if the jobs could be shown equivalent in skill, workload, etc.

For a suggested employer procedure to confirm or strengthen EPA compliance, see the NCPE’s “Ten Step Guide.” An experienced employment law attorney can assist with policies and other preventative measures.

September 16, 2010

The 1963 federal Equal Pay Act (EPA) requires employers to pay men and women equally for performing the same, or essentially the same, work. While the law is worded neutrally (it is just as unlawful to underpay either gender), Congress enacted the EPA to remedy the long-standing pay discrimination against women.

The National Committee on Pay Equity demonstrates the entrenched disparities present in 1963 are far from rectified. For example, the NCPE reports: “Census statistics released September 16, 2010 show that the women still earn 77 percent of what men earn, based on the median earnings of full-time, year-round workers in 2009. Both men’s and women’s earnings showed slight increases from 2008 to 2009, with men’s at $47,127 and women’s at $36,278, a difference of $10,849.” Also according to the NCPE: “Women who graduate from college earn only 72% as much as men with the same education.”

In addition to equal wages, women are also entitled to the same benefits, including vacation time, health insurance, profit sharing, retirement plans, and bonuses.

Perhaps the most challenging aspect of the EPA is its protection against wage discrimination for equivalent jobs, not only identical ones. Courts focus not on job titles but on job duties, skill, effort, and responsibility and whether work is performed under similar conditions. For example, it could be argued that a company paying its receptionists (made up largely of females) less than its customer service representatives (made up largely of male employees) may be in violation of the EPA if the jobs could be shown equivalent in skill, workload, etc.

For a suggested employer procedure to confirm or strengthen EPA compliance, see the NCPE’s “Ten Step Guide.” An experienced employment law attorney can assist with policies and other preventative measures.

September 16, 2010

Susan is the supervisor for “Tony the Trouble-Maker.” Although Tony used to be the top producer in the division, lately he has been rude to Susan, fights with his coworkers, and refuses to take responsibility when something goes wrong under his watch. Susan is struggling to keep her unit in the black and this guy is weighing down the whole area. She is now ready to terminate Tony’s employment. However, Susan seems to recall Tony once boasted about how he successfully sued his former employer for “tons of dough.” Susan is concerned if she terminates Tony, he will file a lawsuit for wrongful termination, and Susan doesn’t exactly relish the unnecessary cost or distraction. How can Susan reduce the likelihood of post-employment litigation?

Susan should offer Tony an additional severance pay amount in exchange for a signed release and waiver. In theory, this is a simple transaction. Tony will receive additional money beyond his final wages so long as he signs a document in which he agrees not to sue the company for claims including wrongful termination, discrimination, harassment, retaliation, or breach of contract.

However, there are several pitfalls to this arrangement of which Susan must be aware in order to ensure the applicable state agency (such as the California Department of Fair Employment and Housing) or federal agency (Equal Employment Opportunity Commission) will honor such a waiver. For example, if Susan’s company has at least twenty employees and Tony is age 40 or over, Susan must notify Tony that (1) he has up to 21 days to consider and sign the waiver after which time the company will withdraw the severance pay offer; and (2) he has another seven days to change his mind and rescind the agreement.

Handled correctly, we have found the great majority of departing workers will agree to such a severance package. Indeed, most don’t bother waiting for any part of the 21 day offer period to expire, instead signing and taking the severance check upon receiving and promptly reviewing the papers.

Our severance pay forms package includes a five-page overview of exact steps to take, two separate types of severance agreements and two corresponding checklists for the departing employee to initial and sign. By ensuring all these forms are properly understood and implemented, a company can take effective steps to prevent frivolous wrongful termination suits where the company judges it best to promote a worker’s smooth transition to other employment.

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

June 30, 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:

https://www.osha.gov/recordkeeping/

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

Hiring students for temporary unpaid internships, while feasible, is laden with potential legal pitfalls for the unwary and uninformed. See, e.g., “The Unpaid Intern, Legal or Not,” The New York Times, April 2, 2010.

Employers must pay at least minimum wage to any worker who provides any labor and services to that enterprise. An employee cannot agree to waive his or her right to minimum wage. Such an agreement is void and unenforceable.

California Division of Labor Standards and Enforcement (DLSE) and the US Department of Labor (DOL) each have detailed guidelines for qualifying unpaid interns as exempt from the wage requirement.

Our article “An Employer’s Guide to New 2011 Laws” covers the six stringent California DLSE criteria:

• The intern’s training actions must be similar to those a student would carry out in a vocational school;
• The training is for the benefit of the trainee;
• The trainee does not displace regular employees, but works under close observation;
• The company derives no immediate advantage from the trainee’s actions and on occasion may have its operations actually impeded;
• The trainee is not necessarily entitled to a job at the completion of the training period; and
• The employer and the trainee understand that the trainee is not entitled to wages for the training time.

The federal DOL’s fact sheet lists six similar requirements:

• The internship, even though included in the actual operation of the facilities of the employer, is similar to training in an educational environment;
• The internship experience is for the benefit of the intern;
• The intern does not displace regular employees, but works under close supervision of existing staff;
• The employer derives no immediate advantage from the training activities of the intern and, on occasion may have its operations impeded;
• The intern is not necessarily entitled to a job at the conclusion of the internship; and
• The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

In essence, the DOL and DLSE each maintain that for an internship to be unpaid, it must be educational and predominantly for the benefit of the intern and not the employer.

The distinction between employees and interns is of course important for many issues besides minimum wage. Among other things, a business is obligated to provide employees with meal breaks and rest periods. While it’s a very good idea to include interns on meal break and rest period routines, it is not technically a violation of the law if a company does not provide them in the same manner as for employees.

It’s also a good idea to check with the company’s carrier to see if the business can add interns to the workers’ compensation coverage and, if not, to confirm other insurance coverage for on-premises injuries.

An experienced attorney can help you sort out this sometimes tricky area.

April 2, 2010