Click here to subscribe to our Bowles Law e-letter
Click here to subscribe to our Bowles Law e-letter
CaliforniaLabor Code section 515.6exempts certain licensed physicians and surgeons from overtime compensation if they receive set minimum hourly compensation. Effective January 1, 2019, theCalifornia Department of Industrial Relationsis increasing the minimum from $79.39 to$82.72per hour, up from $79.39, effective January 1, 2019.
California Labor Code section 515.6 exempts certain licensed physicians and surgeons from overtime compensation if they receive set minimum hourly compensation. Effective January 1, 2019, the California Department of Industrial Relations is increasing the minimum from $79.39 to $82.72 per hour, up from $79.39, effective January 1, 2019.
To avoid California’s requirements to pay overtime premium rates after eight hours worked in a day or 40 in a week, employers will need to pay eligible physicians or surgeons that minimum hourly rate, keeping accurate track of hours worked. Physicians and surgeons paid on a lump sum salary (whether weekly or otherwise) will not qualify for this exemption.
Under Labor Code section 515.6 a doctor is exempt-from-overtime only if he or she is a licensed physician or surgeon “primarily engaged” (more than 50% of the time) in duties that require that licensure. California Business & Professions Code section 2052 specifies such duties, requiring a medical license for anyone who “diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person.”
Employers relying on this exemption will of course need to implement this rate change by the January 1 deadline.
Licensed medical doctors may also qualify for the administrative, executive, or professional overtime exemptions. Each category possesses its own distinct criteria.
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
January 4, 2019
Two recentCal/OSHAcases underscore the need for effective safety measures, especially in hazardous conditions. Cal/OSHA cited two employers after an employee of each died as the result of a trench collapse.
Two recent Cal/OSHA cases underscore the need for effective safety measures, especially in hazardous conditions. Cal/OSHA cited two employers after an employee of each died as the result of a trench collapse.
In April 2018, Bay Construction Co. was installing underground pump equipment at a shoreline in Oakland. The company dismantled a trench box (steel safety/shielding device) while a worker was sill compacting dirt inside the trench. Another worker was removing 5,000-pound rails with an excavator containing inadequate hooks. One of the hooks failed, causing a rail to fall and kill the worker in the trench.
Cal/OSHA met that safety lapse with nine citations, totaling $141,075 in proposed penalties. Failure to ensure no worker was in the trench while it was being dismantled was a willful-serious accident-related offense, while failure to use adequate hooks was a serious accident-related offense. Cal/OSHA deemed the other offenses, including not conducting daily inspections for hazards and not following the company’s Illness and Injury Prevention Program, as serious violations.
Cal/OSHA Chief Juliann Sum stated: “Shield systems are designed to protect employees from cave-ins when working in an excavation. Employers must ensure that no one is inside of the excavation when the protective system is being installed or removed.”
Another trench accident prompted Cal/OSHA to issue citations for $66,000 worth of serious safety violations against Empire Equipment Services, Inc. of Riverside. In that case, a 30-foot wide section of a trench being used for a sewer pipe installation collapsed, fatally injuring one of two workers, while the other worker fortunately escaped.
Cal/OSHA’s investigation of that collapse concluded that the soil was unstable and did not adequately support the trench. The employer had not conducted adequate advance inspection by a trained professional knowledgeable in soils, trench hazards, and correct safety measures. This resulted in one general violation and two serious accident-related violations, one of which was exacerbated by a prior similar violation.
In this case, Chief Juliann Sum noted: “Because working in excavations is so dangerous, a competent person must conduct thorough visual and manual tests to properly classify the soil and adequately protect employees from cave-ins. Failing to carry out these requirements can be fatal.”
Safeguarding human life and avoiding injuries should be sufficient incentive for companies to take all needed measures for worker safety. Protecting the bottom line from expensive citations is another important reason to do so. Whether the work setting is a construction site or an office, the foundation for safety is having, implementing and enforcing an Illness and Injury Prevention Program (IIPP), to include such things as training, necessary safety practices, and use of correct equipment and appropriate experts when needed. Cal/OSHA has many resources to help employers with their IIPPs and safety planning.
See also:
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
December 28, 2018
The Internal Revenue Service (IRS) hasannouncedits 2019optional standard mileage reimbursementrate for employee business use of a personal vehicle, effective January 1, 2019, increasing from 54.5 cents to 58 cents.
The Internal Revenue Service (IRS) has announced its 2019 optional standard mileage reimbursement rate for employee business use of a personal vehicle, effective January 1, 2019, increasing from 54.5 cents to 58 cents.
The IRS calculates the rate annually based on a study of fixed and variable automotive operating costs, including insurance, repairs, maintenance, gas and oil.
Under California Labor Code section 2802, employers must reimburse employees for all actual work-related expenses necessarily incurred.
According to California’s Division of Labor Standards Enforcement, using the IRS mileage reimbursement rate will satisfy an employer’s reimbursement obligation unless the employee provides evidence demonstrating otherwise. For example, if the employee can show the IRS reimbursement rate does not cover all of his/her actual and necessary business-related vehicle expenses, the employer must pay the difference.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin for more information.
Cindy Bamforth
December 27, 2018
California Labor Code section 515.5exempts certain computer software professionals from overtime compensation if they receive specified minimum compensation.
California Labor Code section 515.5 exempts certain computer software professionals from overtime compensation if they receive specified minimum compensation.
California’s Department of Industrial Relations (DIR) has announced its rate increase for this minimum, effective January 1, 2019, to $45.41, up from $43.58. Alternatively, an otherwise qualified employee paid by salary is eligible on minimum annual compensation of $94,603.25, payable at least once monthly at no less than $7,883.62.
An exempt computer professional must also meet each of the high-level skills and duties criteria as laid out in Labor Code section 515.5. Among these, the employee must be “primarily engaged” (more than 50% of the time) in intellectual or creative work which requires “the exercise of discretion and independent judgment” applying systems analysis to determine “functional specifications” of hardware, software or systems; designing computer systems or programs; and/or documenting, testing, creating or modifying computer programs related to computer systems software or hardware design.
Although such qualified employees need not be paid overtime premium under California law, employers should further ensure such workers meet the overtime exemption for computer professionals under federal law.
It is also possible for computer professionals to qualify for the administrative, executive or “learned profession” exemptions from overtime. Each category possesses its own distinct qualification rules.
For more information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
December 19, 2018
California minimum wage will increase to $12.00 per hour on January 1, 2019 for employers with 26 or more employees and $11.00 for smaller employers with 25 employees or less. Those rates will continue to increase annually until reaching $15 per hour in 2022 for larger employers and in 2023 for those with 25 or fewer employees. SeeCalifornia’s Gradual Increases in Minimum Wage, to Reach $15.00 Per Hour by January 1, 2022(April, 2016).
California minimum wage will increase to $12.00 per hour on January 1, 2019 for employers with 26 or more employees and $11.00 for smaller employers with 25 employees or less. Those rates will continue to increase annually until reaching $15 per hour in 2022 for larger employers and in 2023 for those with 25 or fewer employees. See California’s Gradual Increases in Minimum Wage, to Reach $15.00 Per Hour by January 1, 2022 (April, 2016).
California cities (and two counties) have implemented their own minimum wage ordinances. See also the UC Berkeley Center for Labor Research and Education listing for regular updates. California employers need to examine the rules for every jurisdiction in which they operate, not just the one or more where they might have offices.
For example, as different municipalities have different definitions of “covered employer” and/or “covered employee,” a delivery company with drivers routinely working in multiple cities or counties each week may well have separate minimum wage compliance issues for each simultaneously.
Below is a comprehensive list of California municipalities requiring minimum wage levels greater than the state standard as of January 1, 2019:
Some cities have enacted separate minimum wage laws for hotels. For example, three Los Angeles County cities have their own hotel worker minimum wage. The current rate for each, effective July 1, 2018:
Long Beach ($14.64); and Santa Monica and City of Los Angeles (both $16.10).
Non-profit charitable organizations should check for possibly slower implementation requirements under applicable local ordinances.
A covered employer must also conspicuously post an updated wage notice/bulletin for each applicable jurisdiction. Click the above city/county link(s) to download the most current notice.
See also:
For more information, please contact one of our attorneys, Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
December 14, 2018
Some employers, particularly in the restaurant industry, schedule their employees to work a “split shift,” i.e., two distinct work periods in the same workday separated by more than aone-hour meal break. For example: a waiter who works the 10:00 a.m. to 1:00 p.m. breakfast/lunch shift and returns for the 4:00 p.m. to 7:00 p.m. dinner shift is on a “split shift” schedule.
Some employers, particularly in the restaurant industry, schedule their employees to work a “split shift,” i.e., two distinct work periods in the same workday separated by more than a one-hour meal break. For example: a waiter who works the 10:00 a.m. to 1:00 p.m. breakfast/lunch shift and returns for the 4:00 p.m. to 7:00 p.m. dinner shift is on a “split shift” schedule.
California law requires all employers to pay employees who work split shifts a premium of one-hour additional pay at minimum wage for that day. However, if an employee’s set hourly rate is higher than minimum wage, the employer may use all amounts above minimum wage to offset the split shift premium.
Also, if the employee voluntarily requests the split shift for his or her own convenience or to pick up an extra shift, then no extra pay is required.
Traditionally, the split shift premium was based on California statewide minimum wage. However, California Division of Labor Standards Enforcement (DLSE) recently updated its frequently-asked-questions to indicate the split shift standard is one hour at the state minimum wage or applicable local minimum wage, whichever is greater.
Employers in a city or county with a local minimum wage rate should proceed with particular care in reviewing their split shift pay calculations and protocols.
For example:
A Los Angeles city restaurant employs 25 or fewer employees. That company must pay at least the city’s current $12 minimum wage rate (effective July 1, 2018). In this example, the business chose to pay its waiters $13 per hour.
For a waiter’s six-hour split workday (say, serving breakfast in the morning, returning late afternoon to serve dinner), the restaurant must pay an additional $6 split shift premium.
Step 1. Calculate the required local minimum wage and split shift premium for the workday:
Step 2. Calculate the actual total hourly pay (including split shift premium):
Note: As waiter’s tips may not be credited towards minimum wage, they would have no effect on such calculations. (See Labor Code section 351).
Step 3. Pay the difference:
Do not include split shift premium pay in overtime calculations.
Best practices:
For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
December 12, 2018
A claim for sexual harassment exists under section51.9 of the Civil Codeagainst someone who is in a “business, service or professional relationship” with the harassment victim. This section enumerates various professions subject to such a claim including attorneys, persons with a master’s degree in social work, realtors, physicians, psychotherapists, dentists, accountants, certain financial industry professionals, building contractors, teachers, and landlords. The section includes a catchall for
A claim for sexual harassment exists under section 51.9 of the Civil Code against someone who is in a “business, service or professional relationship” with the harassment victim. This section enumerates various professions subject to such a claim including attorneys, persons with a master’s degree in social work, realtors, physicians, psychotherapists, dentists, accountants, certain financial industry professionals, building contractors, teachers, and landlords. The section includes a catchall for any “relationship that is substantially similar to any of the above.”
In its current form, the victim would have to show that he or she “cannot easily terminate the relationship” in order to bring such a claim. Effective January 1, 2019, SB 224 amends the statute to remove any requirement that a victim show an inability to terminate the relationship. In response to the #MeToo movement, the section 51.9 amendment adds directors or producers, investors, lobbyists, and elected officials to the specified list and also includes anyone “who holds himself or herself out as being able to help the [victim] establish a business, service, or professional relationship.”
The legislature and the governor have also approved enhanced protection for victims of sexual assault. AB 1619, which created new Civil Code section 340.16, expands the statute of limitations to bring a civil action for sexual assault on a person over 18 from two years to “10 years from the date of the last act, attempted act, or assault with the intent to commit an act of sexual assault” or three years from the date the victim discovers or reasonably should discover such an act caused an injury or illness.
For further information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
December 7, 2018
The #MeToo movement has spurred the California Legislature to significantly expand mandatory sexual harassment prevention training to all employers with five or more on payroll, including seasonal and temporary workers. Companies now must train supervisors and subordinate workers alike. Previously, only businesses with 50 or more employees have been obligated to provide such training and, then, only to their supervisors.
The #MeToo movement has spurred the California Legislature to significantly expand mandatory sexual harassment prevention training to all employers with five or more on payroll, including seasonal and temporary workers. Companies now must train supervisors and subordinate workers alike. Previously, only businesses with 50 or more employees have been obligated to provide such training and, then, only to their supervisors.
As revised, California Government Code section 12950.1 requires all five-plus employers to provide at least two hours of “classroom or other effective interactive training and education” to all supervisory employees and at least one hour of such classroom or other effective sexual harassment training to all non-supervisory employees. There are special rules for seasonal, temporary and agricultural employees. Section 12950.1 mandates the first such delivery by January 1, 2020, and once every two years after that.
The expanded law also directs the Department of Fair Employment and Housing to develop or obtain two online training courses, one for supervisors and the other for non-supervisory employees, on the prevention of sexual harassment in the workplace and to post the courses on the department’s internet website.
This section dictates only the minimum requirements and “should not discourage or relieve any employer from providing longer, more frequent, or more elaborate training and education … to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination.” Section 12950.1(g). Accordingly, the revisions specify that an employer is free to develop its own training module for compliance. Section 12950.1(j)
Please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin with any questions on these changes. Our office will continue to provide such California-mandated interactive anti-harassment, -discrimination, and -retaliation training, including on-site seminars for flat fees. Contact officemgr@tbowleslaw.com for more information and to schedule your seminar.
Tim Bowles
November 30, 2018
See also:
California employers must provide employees with accurate, itemized written wage statements semi-(twice)-monthly or at the time or each payment of wages. Those statements must contain exact, detailed pay-related information, such as the employee’s identity, hours worked, and gross and net wages earned. Labor Code 226(a). See,Ignore at Your Own Peril(February, 2018).
California employers must provide employees with accurate, itemized written wage statements semi-(twice)-monthly or at the time or each payment of wages. Those statements must contain exact, detailed pay-related information, such as the employee’s identity, hours worked, and gross and net wages earned. Labor Code 226(a). See, Ignore at Your Own Peril (February, 2018).
Existing law also permits current or former employees to “inspect or copy” such payroll records within 21 calendar days of the request. An employer’s failure to comply by the deadline may entitle the worker or the Labor Commissioner to recover a $750 penalty plus reasonable attorney’s fees (Labor Code 226(f) and (h)).
Effective January 1, 2019, amended Labor Code 226 clarifies a current or former employee’s right to “copy” his or her wage-related documents (e.g. pay stubs) means the right to actually receive a copy generated by the employer.
According to the California Rural Legal Assistance Foundation, the advocacy group which spearheaded this change, some employers interpreted “copy” to require a requesting employee to bring a copying device to the workplace to make the copies at his/her expense. The amendment confirms otherwise.
The employer may, however, charge the current or former employee for the actual cost of reproduction (Labor Code 226(b)).
For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
November 29, 2018