California Employee Rights Advocate : California Labor Attorney & Lawyer : Southern CA Employment Law : Los Angeles, Orange County : United Employees Law Group

The U.S. Department of Labor’s (DOL) Wage and Hour Division, and California's Labor and Workforce Development Agency (LWDA) are operating together under a memorandum of understanding (MOU). This Mutual agreement to seek "to protect the rights of employees and level the playing field for responsible employers by reducing the practice conducted by some businesses of misclassifying employees."
 

Other states that are under similar MOU’s with the U.S. Department of Labor include Missouri, Montana, Maryland, Massachusetts, Colorado, Connecticut, Hawaii, Illinois, Montana, Utah and Washington. The hope is that by sharing information whenever possible they will be able to assist each other’s outreach and education efforts. Also this should increase taxed revenue for both the state and the federal government along with all penalties acquired as a result of any legal proceeding due to misclassification.
 

The MOU was announced the day following the decision in the Ruiz v. Affinity Logistics Corporation, vacating the court's ruling that the employees were correctly classified as independent contractors. In this case the court upheld a contractual provision that would apply Georgia law and in doing so gave status as an independent contractor. Georgia law is very different from California law in that California requires the burden of proof to be on the Employer not the employee and Georgia does not. The 9th Circuit opposed with the District Court's decision, finding that California law should apply notwithstanding the parties' contractual selection of Georgia law, because the Georgia law conflicts with what the 9th Circuit found was a fundamental California public policy. This decision was based on the fact the work preformed was done so in California. The 9th circuit did turn the case back to the district court to reexamine the independent contractors issue.
 

This issue of misclassification has been a hot topic since our country’s economic issues began; all of the various government agencies are working hard to protect employees from being misclassified as well as ensure that all taxes from these employees and employers are being paid out properly. The main thing to take away from this case is that usually where the work is being preformed dictates the law that can be applied to the situation and that it’s important to follow the guidelines for independent contractor set forth by that state.
 

Labor law is complex and if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or information on our blog, feel free to call us at:
 

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

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In 1938 the federal Fair Labor Standards Act (FLSA) was passed setting minimum wage requirements but it did not apply to workers providing “domestic services” such as, housekeepers, in home cooks, maids, nannies and gardeners. In 1974 FLSA was amended to include most of these domestic services with the exception of babysitters and companions for the elderly. However, the department of labor is proposing new regulations that would further restrict the requirements of exempt domestic employees specifically companionship services.
 

FLSA states that, "employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves" are exempt from overtime. The current law also characterize "companionship services" as "services for the care, fellowship, and protection of persons who," is unable to care for themselves. Often these services will include tasks such as vacuuming dusting washing dishes, but it’s important to note that these tasks should not exceed 20% of the caregiver/ companions time.
 

In 2007, Long Island Care at Home v. Coke, 551 U.S. 158, the United States Supreme Court acknowledged the DOL's authority to "work out the details" of the statute's broad language and upheld the companionship exemption's applicability to third-party employers, such as agencies. Thus, the DOL’s new proposed description of "companionship services” would be restricted to tasks "that are directly related to the provision of fellowship and protection . . . ." this proposed redefinition would still afford some time for services that are incidental to fellowship and protection but certainly not to exceed 20% of the companion’s time. This would greatly limit the amount of time the companion can spend on general house hold work or this could result in the loss of the caregiver’s exemption. Lastly the proposed regulation would limit the exemption to employees that are directly hired by the family or person using the service.
 

Should these new restrictions become approved agencies and families can expect to see increases in labor costs for in home care services. Families or households that employ caregivers directly will need to pay close attention to the tasks being performed in the home or risk running afoul of the FLSA's minimum wage and overtime requirements.
 

While federal law affects all states, it is common for individual states to have addition rules and regulation that further define exemptions. In Maine, for example, the exemption for individuals "employed in domestic service in or about a private home and engaged directly by the resident or owner of that private home . . ." was repealed in 2008. Thus, in Maine, as in many states, employers are already required to pay minimum wage and overtime to companions for elderly or infirm family members.
 

Labor law is complex and if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or information on our blog, feel free to call us at:
 

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

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In 2008 FMLA was amended by congress to include eligible employees with family members serving in the military with two types of leave

• Military caregivers leave gives employees up to 26 weeks of leave in a 12-month period to take care of a “seriously injured or ill” family member currently serving in the military.
• Qualified exigency leave allows employees (whose spouse, child, or parent is called into active duty) time off to respond to certain circumstances that arise because of a call to active duty.

President Obama took these guidelines a step further and proposed the following in his the National Defense Authorization Act for Fiscal Year 2010 ("NDAA"). In January of this year The Department of Labor, (DOL) released a notice of proposed rulemaking to implemented these rules as follows:

• Extends military caregiver leave to eligible employees whose family members are recent veterans that suffered a serious injury or illness (prior to the NDAA, military caregiver leave was available only to employees of current service members);
• Permits eligible employees to take military caregiver leave for up to five years after their family member was discharged from military service, and continue that leave during the twelve-month leave period, regardless of whether the leave extends beyond the five years since active service;
• Expands the definition of serious illness or injury to include pre-existing conditions that become aggravated during military service; Expands the number of eligible medical providers that can draft a medical certification to justify military caregiver leave by including medical providers that are not associated with the military;
• Expands the scope of qualified exigency leave by extending it to eligible employees whose spouse, parent, or child serves in the Regular Armed Forces (not just the National Guard or Reserves);
• Clarifies that the qualified exigency leave is permitted only if the service member is deployed in a foreign country; and
• Provides that eligible employees may take up to 15 days (rather than the current 5 days) to spend time with a family member on rest and recuperation leave from the military.

The DOL also proposed implement on regulations for Airline Flight Crews in the form of the “Airline Flight Crews Technical Corrections Act” ("AFCTCA"), which the President signed into law in December 2009. Because airline crews work such different schedules than most other industries the AFCTCA proposed rules to create special FMLA minimum hours of service eligibility requirements for airline flight crew employees and flight attendants to provide leave entitlement to such employees.

The Notice of Proposed Rulemaking is available here. Interested parties have until March 30, 2012 to submit comments on the proposed regulations. Comments may be submitted electronically at www.regulations.gov (identified by Regulatory Information Number 1235‐AA03) or by mail addressed to Mary Ziegler, Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S‐3510, 200 Constitution Avenue, N.W., Washington, D.C. 20210.

Labor law is complex and if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or information on our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

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California is one of the most employee friendly states to work in. Our labor laws are meant to protect the employee and keep the employers on the right track. Sometimes employees are over whelmed or worried that they won’t know how to prove that their employer is not following the rules. It’s important to not give up or continue to let your employer mistreat you. In California the burden of proof is on the employer. This means that it is the employer’s job to prove that they are following California labor law. The following issues are commonly accepted by employees because they are under the misconception that they would not have ample proof to show what their employer is doing to them.

Working Off the Clock

This violation is very common; employees often think they are “volunteering” to work off the clock because no one has specifically told them to do so. However upon further investigation, it is found that the employee is under a tremendous amount of pressure to perform and not enough time in the day to complete the work that has been assigned; this becomes equally evident that it is a corporate culture when we see that all the hourly employees in this position are doing the same thing for fear of losing their jobs. The unfortunate part is that the employees either think that this is just what they have to do to have a job or that even if they were willing to say something they wouldn’t know how to prove their time, since after all, they weren’t clocked in.

Misclassified as a Salaried Employee

Are you a manager or a supervisor? Do you believe that because you hold this title you are NOT entitled to overtime? Would you be surprised to learn that this isn’t always the case? Often time’s companies will give the employee the impression that their job title defines how they will be classified; as either salary (exempt) or hourly (non-exempt). This is not what California labor law had in mind. There are various exemptions defined by California labor law but all of them have something in common. The exemption are all defined by WHAT the employee is doing not the title the employee holds. Also Companies will sometimes give the employee a job description that would be classified as an exempt employee if that was actually what the employee was doing. More often than not the employee will spend his or her time doing a much different set of tasks than outlined on the company given job description. California law is only concerned with what is actually happening not what the company would like to pretend is happening.

Labor law is complex and if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or information on our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

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Pepsi Bottling Group recently paid out $3.13 million in racial discrimination case for its practice of criminal background checks. Pepsi was simply not hiring anyone with a criminal record, or anyone that currently had a criminal case pending, regardless of conviction. While having a criminal record is not a protected class and cannot be considered discrimination in and of its self. The EEOC did find that the incidence of African American applicants and some other minorities with criminal records was much higher than Caucasians, therefore finding this hiring policy to be racially disproportionate.

When the company applied across-the-board criminal background checks, the EEOC found that over 300 African-American people were adversely affected. "Under Pepsi's former policy, job applicants who had been arrested pending prosecution were not hired for a permanent job even if they had never been convicted of any offense," according to the EEOC. In a press release the EEOC reported that the policy violated Title VII of the Civil Rights Act of 1964.

Acting Director of the EEOC's Minneapolis Area Office, Julie Schmid said, “When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position. Such exclusions can create an adverse impact based on race in violation of Title VII." Schmid also stated, "We hope that employers with unnecessarily broad criminal background check policies take note of this agreement and reassess their policies to ensure compliance with Title VII."

Later a Pepsi spokesperson, announced a new policy that takes a more "individualized approach" in considering an applicant's criminal history relative to the job being sought in an effort to "...create a workplace that is as diverse and inclusive as possible." The Pepsi has also decided to provide the EEOC with regular reports on its hiring practices and to provide nondiscrimination training to its hiring personnel and managers.

Labor law is complex and if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or information on our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

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