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All employers with 100 or more employees must profile the gender, race and job category of their workers by September 30thon theEEO-1 Report, addressed to the U.S.Equal Employment Opportunity Commission (EEOC)and the Office of Federal Contract Compliance Programs (OFCCP). The requirement stems from the EEOC’s authority to enforce the workplace anti-discrimination provisions of the federalCivil Rights Act of 1964, commonly referred to as “Title VII.”
All employers with 100 or more employees must profile the gender, race and job category of their workers by September 30th on the EEO-1 Report, addressed to the U.S. Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP). The requirement stems from the EEOC’s authority to enforce the workplace anti-discrimination provisions of the federal Civil Rights Act of 1964, commonly referred to as “Title VII.”
The EEOC’s website specifies the employers affected:
“All private employers who are:
1. Subject to Title VII … with 100 or more employees EXCLUDING State and local governments, primary and secondary school systems, institutions of higher education, Indian tribes and tax-exempt private membership clubs other than labor organizations;
OR
2. Subject to Title VII who have fewer than 100 employees if the company is owned or affiliated with another company, or there is centralized ownership, control or management (such as central control of personnel policies and labor relations) so that the group legally constitutes a single enterprise, and the entire enterprise employs a total of 100 or more employees.”
The EEOC site explains the report’s purpose:
“Using EEO-1 data, EEOC documents the scope and intensity of discrimination and urges employers to take stronger action to overcome the historical exclusion of minorities and women in particular industries and jobs. Technical assistance is provided to employers.”
Covered employers may file the required form on-line.
For questions on this and other employment-related government deadlines or how to administer or enforce workplace anti-discrimination policies, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.
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.
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.
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.
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.
There are economic risks for an employer who misclassifies a worker who should be employed as an independent contractor. A wide range of California and federal agencies have the power to impose back taxes, interest and penalties upon companies who unsuccessfully attempt the tactic.
There are economic risks for an employer who misclassifies a worker who should be employed as an independent contractor. A wide range of California and federal agencies have the power to impose back taxes, interest and penalties upon companies who unsuccessfully attempt the tactic.
California placed greater deterrents on the practice in 2012. Labor Code sections 226.8 and 2753 permit certain officials or a court to impose civil penalties between $5,000 and $25,000 for each instance of willful misclassification against both employers and any individual adviser (other than a lawyer) who “knowingly advises an employer to treat an individual as an independent contractor to avoid employee status”.
The agency or court directing such payment must also direct the business or person to post a notice on its website for one year, specifying that the company has violated the law, has had to change its business practices in order to cease doing so, and that employees who believe they were also misclassified may contact the Labor and Workforce Development Agency. See also, “Personal Liability and Mandatory On-Line Flogging for Misclassifying Employees as Independent Contractors.”
Boiled down, employers can impose their oversight and control over an employee’s daily production while independent contractors are, well, independent, free to provide services to the hiring party by any means the contractor chooses. However, there are never any absolutes. Determination of “employed” or “contracted” status is an exercise in comparing and balancing many factors, sometimes conflicting, on the degree and manner of control. Two recent California appeals court decisions illustrate how this is always a case-by-case proposition.
In Bain v. Tax Reducers, Inc. (2013) 219 Cal.App.4th 110, the California Court of Appeal found that an accountant working for a tax preparation and bookkeeping firm was an employee and not an independent contractor as the company had classed him. The court noted the firm required the accountant to:
The court also pointed out that:
In contrast, in Beaumont-Jacques v. Farmers Group, Inc. (2013) 217 Cal.App.4th 1138, another California Court of Appeal panel found that a district manager for a group of related insurance companies was an independent contractor. The manager hired agents, who had to be approved by the company, and she trained and motivated the agents to sell the company’s products. Most importantly, the court found that even though she had to follow the company’s “‘normal business practice’ and ‘goals and objectives,’” the company did not control “to any meaningful degree the means by which [she] performed and accomplished her duties as a district manager.”
The court also observed that the manager:
The court found her properly classified as an independent contractor even though she was required to and did prepare reports and attend meetings of district managers.
As a relatively few pennies of prevention is clearly more sensible than the many thousands that it may cost to resolve a classification gone wrong, businesses should confirm any contractor relationship is soundly defined and justified as independent in practice. For assistance, please contact attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also, “Independent Contractors and Employees Avoiding Misclassification of Hired Workers in California.”
Despite staffing cuts, hiring freezes and sequestration woes, the U.S. Equal Employment Opportunity Commission (EEOC) recovered a record $372.1 million for its private sector workplace discrimination charges — $6.7 million more than it recovered the year prior.
Despite staffing cuts, hiring freezes and sequestration woes, the U.S. Equal Employment Opportunity Commission (EEOC) recovered a record $372.1 million for its private sector workplace discrimination charges — $6.7 million more than it recovered the year prior.
The EEOC enforces federal anti-discrimination in employment laws. According to the EEOC’s Fiscal Year 2013 Performance and Accountability Report (PAR), the EEOC received a 93,727 private sector discrimination charges. Although some 6,000 less than the prior three years, it still ranks among the agency’s top five.
The EEOC has continued to focus on systemic enforcement, targeting unlawful patterns, practices or policies which broadly impact an industry, profession, company or geographic area. Systemic practices include discriminatory barriers in recruitment and hiring; discriminatory restricted access to management training programs and to high level jobs; exclusion of qualified women from traditionally male dominated fields of work; unlawful pre-employment inquiries aimed at detecting disabilities; and age discrimination by reductions in a workforce.
The EEOC reports 300 systemic investigations in fiscal 2013 resulting in 63 settlements or conciliation agreements totaling some $40 million. Agency lawsuits filed for systemic enforcement represented over 20 percent of all active suits in that 2013, the largest proportion since tracking started in 2006. The EEOC also obtained more than $160.9 million in monetary benefits for complaining employees through mediation resolutions, the second highest level in the agency’s history.
If you as employer don’t wish to contribute to any further groundbreaking statistics, we can help. For more information concerning California or federal employment laws, contact one of our 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.