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Lawyers are in sales, they are not in management. They don’t sell widgets to consumers of course. Rather, competing attorneys each “sell” his/her client’s construction of events and actions to juries and judges, with the most plausible version of such occurrences the winner.
Lawyers are in sales, they are not in management. They don’t sell widgets to consumers of course. Rather, competing attorneys each “sell” his/her client’s construction of events and actions to juries and judges, with the most plausible version of such occurrences the winner.
This firm defends employers daily on lawsuits for, you name it, (alleged) discrimination, (purported) retaliation, (supposed) harassment, (asserted) unpaid wages or overtime, and just about every other workplace accusation imaginable. More common than not, management’s inappropriate or illegal behavior is not the source of such court battles. Rather, suits often generate and grow from company failures: i) to have and follow simple, written policy; and ii) to promptly and fairly document workplace misconduct and its resolution.
Pile on the clichés and maxims if you wish. “An ounce of prevention is worth a pound of cure” isn’t bad. “If it isn’t written, it isn’t true” is better.
An employer which does not structure workplace production, organization and procedure around sound, sensible, easy-to-understand written policies is prone to finding itself sooner or later in the midst of an expensive court controversy. If written policy does not exist or if it is not followed, if disruptive incidents and the fair addressing of them are not documented promptly and consistently, then that disgruntled, and perhaps disreputable, employee and his/her lawyer can easily invent practices and versions of events to fit their sales pitch.
Very few jurors are employers. Almost all of them have been former employees at one time or another. At the end of a trial over alleged employee mistreatment, it will be these sworn-to-be-neutral citizens who will gauge whether employer or worker is telling the more credible story. For a business, no written policy and no documentation in these circumstances are a recipe for very expensive disaster.
For the actions employers can take to avoid this nightmare scenario, including access to our workplace forms and model personnel handbooks, please visit us at our website.
A California worker recently asked how his employer should pay him for job-related travel time expended before and then after a full eight hours of labor at a remote location. He wrote: “If I drove 5-1/2 hours, then worked 8, then drove 5 more hours, wouldn’t my time and a half start on my 8thhour and then double time after my 12th hour? They can’t just pay me double time on my travel pay rate of 8.00 dollars an hour can they?”
A California worker recently asked how his employer should pay him for job-related travel time expended before and then after a full eight hours of labor at a remote location. He wrote: “If I drove 5-1/2 hours, then worked 8, then drove 5 more hours, wouldn’t my time and a half start on my 8th hour and then double time after my 12th hour? They can’t just pay me double time on my travel pay rate of 8.00 dollars an hour can they?”
The answers, both favoring the worker in this instance, are “yes, daily overtime starts in California after the first eight compensable hours, including travel time” and “no, the employer cannot just calculate overtime from the lower travel-time rate of pay.”
Calculating Overtime When Work-Related Travel Paid at a Lower Rate: Our blog article “Travel Pay in California” observes: “Hourly employees must be paid for all ‘hours worked.’ Depending on the circumstances, an employee can be considered experiencing a ‘working hour’ even when in deep unconsciousness or obnoxious intoxication in seat 36C, Flight 363 Los Angeles to New York. Where an employee is required to travel for work, near or far, the employer must compensate the worker for that time. Exceptions are normal commute time or road trip downtime, e.g., meals or entertainment. Thus, an hourly worker who boards that New York flight for business is earning pay for his or her hours on the plane except the time spent taking a meal.”
That article also points out that businesses can establish a lower hourly rate of pay for unproductive but compensable travel time. Thus, the hourly worker’s employer on the above New York flight could pay him/her minimum wage (currently $8.00/hour in California) for the transit time and that worker’s higher, normal rate (say, $20.00/hour) for time spent working at the destination that day. If that worker flew for five hours ($8.00/hour x 5 hours = $40.00) and then attended a conference for another three ($20.00/hr x 3 hours = $60.00), his total pay that day would be $100.00.
California is one of the few states that require premium pay for either weekly (“time-and-a-half” after 40 in a week) or daily overtime hours (“time-and-a-half” after eight hours in a day and “double time” after 12 daily hours).
As the above writer pointed out, the plot thickens considerably when a California worker works either daily or weekly overtime while earning separate hourly rates during a pay period. It is not true that the employer need only pay 1.5x or 2x of a $8.00/hour travel rate for overtime hours ($12.00/hr and $16.00/hr, respectively) just because those were “extra” or “in addition” to the productive working hours that day.
Instead, California employers must calculate those 1.5x and 2x premium rates from the so-called “regular rate of pay.” “Regular [hourly] rate” is reached by adding up all compensation for a week and dividing it by the total number of hours worked.
Thus, if the above worker flying to New York also returned to California that same week, working a total of 50 hours, with ten of those hours at the $8.00/hour travel rate ($8.00/hr x 10 hrs. = $80.00) and the other 40 hours at the $20.00 rate ($20.00/hour x 40 hrs. = $800), his total earned compensation would of course be $880.00 for those 50 hours. Thus, the regular rate would be $17.60/hr ($880.00 ÷ 50 hrs = $17.60), making the 1.5x rate for each of the ten overtime hours $26.40.
The matter can be further complicated if, say, the worker had two very long work days that week, each exceeding 12 hours. As above, the employee would earn 1.5x the regular rate for the each of the 9th – 12th hours worked each day and then 2x the regular rate for each daily hour worked over 12.
For help to employers on how to structure, administer or enforce a travel policy, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth:
We are extremely pleased to announce that Helena Kobrin is now “of counsel” to our firm. Helena was admitted to The Florida Bar in 1978, first specializing in transactional and commercial matters, as well as governmental regulation and real estate and probate work.
We are extremely pleased to announce that Helena Kobrin is now “of counsel” to our firm. Helena was admitted to The Florida Bar in 1978, first specializing in transactional and commercial matters, as well as governmental regulation and real estate and probate work.
Helena was then in-house attorney for several years for a large non-profit organization in Florida. Moving to the Los Angeles area, joining the State Bar of California in 1991, and as partner in the Bowles & Moxon and then Moxon & Kobrin firms, Helena has since worked extensively on copyright, trademark and trade secret issues, contract review and drafting, bankruptcy, litigation, dispute resolutions, and much more.
Starting in the 1990s, Helena was instrumental in establishing protections for copyrights and trademarks from Internet abuse. This included representation of plaintiffs in the first-ever copyright infringement suit over unauthorized online postings. That case led to the passage of federal law that requires service providers to help copyright owners remove infringements from websites . The law in turn protects service providers proactive in removing such unauthorized uses of copyrighted material online.
Helena’s 35 years of experience is now available to assist us and our clients in all of her various areas of practice. We are of course very happy with this significant expansion of services now available to our clients.
The IRS issues annually its optional standard mileage reimbursement rates for an employee’s business use of his or her vehicle. The IRS has decreased the rate from 56.5 in 2013 to 56 cents per mile in 2014.
The IRS issues annually its optional standard mileage reimbursement rates for an employee’s business use of his or her vehicle. The IRS has decreased the rate from 56.5 in 2013 to 56 cents per mile in 2014.
The government calculates the mileage rate by an annual study of the fixed and variable costs of operating an automobile.
Under California Labor Code Section 2802, employers must fully reimburse employees for all work-related expenses actually and necessarily incurred. Many employers choose to use the IRS mileage reimbursement rate to satisfy their reimbursement obligation.
However, if the employee can show the IRS reimbursement rate does not cover all of his/her actual and reasonable business-related vehicle expenses, the employer must pay the difference.
For more details on required reimbursements to employees for business purposes, visit www.IRS.gov.
A worker recently asked whether his now-former employer should have included sick time and vacation time in his final paycheck. He wrote: “I’m no longer working for [the employer] and I thought I was going to get my paid time off with my last check such as … sick time and vacation time. What happened?”
A worker recently asked whether his now-former employer should have included sick time and vacation time in his final paycheck. He wrote: “I’m no longer working for [the employer] and I thought I was going to get my paid time off with my last check such as … sick time and vacation time. What happened?”
A qualified employment lawyer would have to look over that employer’s specific policies and have more information on the circumstances to provide a more complete answer for this particular incident. However, California’s laws on the general rules for the final paycheck are the starting point.
When an employer terminates a worker without advance notice, all wages and earned but unused paid vacation are due and payable immediately.
Earned Vacation Pay Must be Included in Final Check: California does not require an employer to provide paid vacation to any of its workers. However, when a business does offer this benefit, an important rule applies. Our article “California Vacation Pay” observes: “Under California law, whenever the employment relationship ends, for any reason whatsoever, and the employee has not used all of the employee’s earned and accrued vacation hours, the employer must pay the employee these hours.”
Sick Pay May Not Have to be Included, Depending on the Specific Company Policy: California also does not require an employer to provide paid sick time to any of its workers. However, when a business does offer this benefit, another rule generally applies. Our introduction article, “California Sick Leave and Sick Pay”, states: “If such an employer does provide paid sick time, a worker has the right to take it as long he or she complies with company rules on the subject. Unlike vacation pay benefits which accrue and are payable on termination if not previously used, business can specify a “use it or lose it” policy on paid sick time, e.g., any portion of entitled sick pay an employee does not utilize in a set period (usually a calendar year) lapses and is no longer available. Typically workplace policies specify new amounts of available paid sick time for each successive annual or other period. It is up to the California employer to decide how much benefit to offer each year or other period.”
The situation may not be so clean-cut. Some workplace policies combine paid vacation days, personal days and sick days into a single “paid time off” policy. In this instance, all such days are an accruing benefit and the employer must pay the amount equal to the earned but unused days at termination. Again, it requires full review of an employer’s exact policies to give a fuller answer in specific circumstances.
For help to employers on how to structure and administer paid vacation, sick and personal day’s policies, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.
While employers are barred by federal law from knowingly employing unauthorized immigrants, companies are also barred from treating any immigrant unfairly, whether or not authorized to work in the U.S. New California laws for 2014 provide the strongest anti-retaliation protections for immigrant workers in the country. This legislation penalizes employers who threaten to report immigration status of an employee in retaliation for his/her exercising rights to complain over workplace conditions:
While employers are barred by federal law from knowingly employing unauthorized immigrants, companies are also barred from treating any immigrant unfairly, whether or not authorized to work in the U.S. New California laws for 2014 provide the strongest anti-retaliation protections for immigrant workers in the country. This legislation penalizes employers who threaten to report immigration status of an employee in retaliation for his/her exercising rights to complain over workplace conditions:
Employers should of course ensure their required I-9 procedures are in place. These new laws establish that businesses are prohibited from attempting to “leverage” any immigration or citizenship status to thwart a worker from complaining about wages or other workplace practices or conditions or to punish an employee for having done so. Worker complaints over such practices or conditions should be fielded and resolved thoroughly and professionally. Employers should ensure supervisors refrain from making any threats to use a worker’s immigration status against him or her.
For more information concerning an employer’s obligations under California or federal employment laws, contact one of our attorneys Tim Bowles or Cindy Bamforth.
The California legislature has amended the California Fair Employment and Housing Act (FEHA) to clarify that sexual harassment does not require proof of sexual desire.
The California legislature has amended the California Fair Employment and Housing Act (FEHA) to clarify that sexual harassment does not require proof of sexual desire.
The amendment overturns Kelley v. Conco Companies (2011) 196 California Appellate 4th series (Cal.App.4th) 191, a same-sex harassment decision covered in our sexual harassment training seminars. The case arose in part from a male supervisor losing his temper with Patrick Kelley, a male apprentice ironworker. The supervisor’s tirade included graphic, vulgar, and sexually explicit remarks. He told plaintiff he wanted to perform various sodomizing acts on him and that sexual intercourse with him would be better than with plaintiff’s wife. The supervisor also commented about plaintiff’s body and said he would look good wearing little girl’s clothes. Kelley later sued employer Conco and the supervisor for sexual harassment.
The Kelley appeals court held the defendant employer and supervisor not liable as plaintiff failed to prove “sexual intent,” i.e., there was no evidence that the heterosexual male supervisor sexually desired the male plaintiff. “The mere fact that words may have sexual content or connotations, or discuss sex is not sufficient to establish sexual harassment.” Id. at 205.
Singleton v. U.S. Gypsum Co. (2006) 140 Cal.App. 4th 1547, another California appeals court case we have covered in training seminars conflicted directly with this Kelley decision. In Singleton, the court found an employer could be liable for same-sex harassment as such conduct did not have to be motivated by sexual desire.
California Government Code section 12940(j)(4)(c) is now amended to resolve this split in legal authority, adding the sentence: “Sexually harassing conduct need not be motivated by sexual desire.”
This FEHA amendment underscores the need for employers to provide harassment prevention training and education to all California supervisors and to take all complaints of offensive behavior seriously, including same-gender harassment allegations.
To schedule an on-site training session with one of our firm’s attorneys Tim Bowles or Cindy Bamforth, or to seek our guidance on management’s handling or prevention of sexual harassment complaints, visit our website or contact the Law Offices of Timothy Bowles directly at (626) 583-6600.
On our article“Caring for Caregivers,”a recent visitor to ourwebsiteasked: “How much is housing and meal value [in my area] for a private household worker under California Wage Order 15?” As in every area of employment law, the answer of course depends on the circumstances.
On our article “Caring for Caregivers,” a recent visitor to our website asked: “How much is housing and meal value [in my area] for a private household worker under California Wage Order 15?” As in every area of employment law, the answer of course depends on the circumstances.
California regulates the wages and hours of workers through a series of 17 “Wage Orders,” published by the Industrial Welfare Commission (IWC). An employer must know which of these Wage Orders applies to its particular business or its particular types of employees. For instance, Wage Order 1 covers most manufacturing companies, Wage Order 2 covers “personal service” companies (e.g., beauty salons, health clubs), and Wage Order 4 covers most “white collar” office workers. An IWC pamphlet, available on-line and current to 2013, provides detailed descriptions of all such orders.
Wage Order 15 covers employees engaged in so-called “household occupations,” services related to the care of people or premises in a private household. These include housekeepers, cooks, and home caregivers.
Employing such workers involves special rules not present in most other industries, in part complicated by whether the worker is “live-in” or “non-live-in.” See the “Caring for Caregivers” article for more of the requirements.
When Live-In Household Workers Must be Paid Overtime, Special Rules: Wage Order 15 specifies household workers who reside on the employer’s premises for at least 120 hours per week or spend five consecutive days or nights per week residing on the employer’s premises are normally exempt from overtime requirements (but not minimum wage).
However, Wage Order 15 also requires employers provide live-in employees at least 12 hours free of duty each day, with an additional three or more hours free during each 12-hour work span. Live-in employees that work during such free hours are entitled to overtime at 1.5x times their regular rate of pay. (For calculating “regular rate,” see our blog “Working Overtime in California.”
Wage Order 15 also specifies that when a live-in employee works more than five days in any one workweek without a day off of not less than 24 consecutive hours (except in specially defined emergencies), the employer must pay overtime at 1.5x regular rate up through nine hours worked in the sixth and seventh days and 2.0x regular rate for any hours worked over nine in the sixth and seventh days.
Wage Order 15 specifies different overtime rules for non-live-in household workers, akin to the daily and weekly overtime rules for workers in many other industries. Again, see, “Working Overtime in California.”
Room and Board for Household Workers: An employer and household worker may agree in writing to satisfy at least a portion of the minimum wage requirement by crediting the value of meals and lodging the employer provides to that employee.
However, the employer may not set a “market value” for such credits but must follow the specific chart provided in Wage Order 15. For lodging, the credits may not be more than:
If the employer utilizes the “two-thirds ordinary rental value” measurement for the value of lodging, this could of course vary depending on where the live-in arrangement is located. Such employer would thus have to take care to document the basis of its calculations, including current consumer price index rates for comparable housing. Of course, just paying the $381.20/month or $563.90/month would be the safer avenue, even if those levels happened to exceed the applicable “two-thirds ordinary rental value.”
Under Wage Order 15, the meal credits may not be more than:
The definitions and rules for household workers in California have many other aspects.Our firm’s attorneys Tim Bowles or Cindy Bamforth can assist employers with such questions or issues.
United Parcel Service, Inc. (UPS) essentially “won” an age discrimination case when a California jury awarded an ex-employee only $27,280 in damages. That relative victory was short-lived, erased by the trial judge awarding the worker $700,000 for her attorney fees. The appeals court recently upheld this decision.Muniz v. United Parcel Service, Inc. (9th Cir. 2013) 738 F.3d 214.
United Parcel Service, Inc. (UPS) essentially “won” an age discrimination case when a California jury awarded an ex-employee only $27,280 in damages. That relative victory was short-lived, erased by the trial judge awarding the worker $700,000 for her attorney fees. The appeals court recently upheld this decision. Muniz v. United Parcel Service, Inc. (9th Cir. 2013) 738 F.3d 214.
Kim Muniz sued employer UPS alleging, in part, that supervisor Ron Meyer demoted her based on gender and age discrimination and retaliation in violation of California’s Fair Employment and Housing Act (FEHA), California Government Code 12900 and following sections. UPS argued it had promoted Muniz beyond her level of competence and Meyer was simply the first to recognize Muniz’s failings.
The jury found Muniz’s gender wrongfully motivated UPS to demote her and was a substantial factor in causing her harm. However, while Muniz requested damages totaling over $700,000, the jury only awarded her $27,280 — $9,990 for lost earnings, $7,300 for past medical expenses and $9,990 for past non-economic losses.
Both sides claimed victory and sought payment from the other for attorney fees under FEHA, Government Code section 12965(b). The court found Muniz the prevailing party, at which point she requested $2,000,000 in attorneys’ fees (some 73 times the damages award). The district court judge then awarded her some $700,000, or 26 times the jury’s damage award.
UPS appealed the $700,000 assessment, claiming Muniz didn’t deserve that much after her very limited success at trial. However, the appeals court was unsympathetic, ruling that “a trial court does not under California law abuse its discretion simply by awarding fees in an amount higher, even very much higher, than the damage awarded, where successful litigation causes conduct which the FEHA was enacted to deter [to be] exposed and corrected.’”
This case underscores that employers must consider the possibility of attorney fee awards to prevailing employees in FEHA discrimination cases even if the worker’s claims appear to be relatively weak. Of course, to reduce the potential for employee claims as much as possible, employers should take effective measures to prevent unlawful workplace conduct. Employers should also always promptly and thoroughly investigate all complaints of discrimination, harassment or retaliation and take effective remedial action as necessary. Company managers must always act as part of the solution to any such claim and, whether out of neglect or other ill-advised reaction, never place themselves in a position where they can be perceived as part of the problem.
For more information or assistance, please contact the Law Offices of Timothy Bowles, 626-583-6600 or visit our website at Law Offices of Timothy Bowles.