Labor and Employment

Often times, when a company acquires another company, it does not wish to retain all of the other company’s employees.  The employees who do not get brought on board often end up out of work.  Under these circumstances, issues arise over how to handle the laid off employees.  Federal law requires employers to provide at least 60-days’ written notice prior to terminating employees affected by such a merger.  So who is required to provide the notice, the employees’ current employer or the new company that does not wish to retain them? Under federal law, if the employees remain employed as of the day of the sale, the purchasing company assumes responsibility for providing the required notice.  According to the 8^th Circuit, this remains true even where the purchasing company never intended to employ the laid off workers and expressly contracted away the notice obligation when completing the purchase agreement.

Read more about it here: http://blog.hrusa.com/blog/trucking-company-found-in-violation-of-warn-act/

In July 2016, the federal Department of Labor (DOL) updated two posters that employers are required to post in the workplace.

1. The “Employee Rights under the Fair Labor Standards Act” poster; and
2. The “Employee Rights – Employee Polygraph Protection Act” poster.

According to the DOL, every employer subject to the federal Fair Labor Standards Act (FLSA) and the Employee Polygraph Protection Act (EPPA) must post and keep posted on its premises the amended posters after August 1, 2016.  The posters must be posted in a prominent and conspicuous place in every establishment of the employer where it can readily be observed by employees and applicants for employment.

Copies of the posters can be obtained on the DOL website at: https://www.dol.gov/whd/resources/posters.htm

Employers whose workers earn most of their compensation through tips, such as restaurant employees, know that they walk a fine line to ensure compliance with the Fair Labor Standards Act (“FLSA”) and numerous other laws.  Last month the Fifth Circuit rejected a program instituted by a restaurant operator in Texas that deducted certain fees before paying tips to its restaurant workers that were earned by customers using credit cards. While the ruling does not close the door on such arrangements, employers who utilize such programs will be under scrutiny to ensure strict compliance with the FLSA.

Read more on it here: http://blog.hrusa.com/blog/restaurants-fee-deduction-program-violates-flsa/

The New Jersey Supreme Court says no, or rather not so short. The Court unanimously held that employers cannot contractually shorten the two-year statute of limitations period for private claims under the New Jersey Law Against Discrimination (“LAD”).

Read about it here.

In a long-awaited decision, the Florida Supreme Court ruled in Marvin Castellanos v. Next Door Company, et al. that the limitations on attorneys’ fees awarded under Florida’s workers’ Compensation statute violates the due process clause of both the Florida and United States Constitutions. As a result of this holding, attorneys are no longer limited to fees based exclusively on a percentage of the benefits actually secured.  They may now be awarded an hourly fee for time and effort reasonably expended on litigating workers’ compensation benefits.

To read the full blog, please visit:  http://blog.hrusa.com/blog/fee-limits-ruled-unlawful-in-florida-workers-comp-cases/ 

Conventional wisdom notwithstanding, employers are people or, if they are not, they are staffed by people. People often take short cuts. HR workers are no different from anybody else.  They are prone to take the shortest distance between two points.  It may be for that reason that I am increasingly seeing employers make a common error in responding to employee requests for “payroll records”. Labor Code section 226, among other things, requires an employer who receives a written or oral request (from a current or former employee) to inspect or copy records to comply with the request “as soon as practicable,” but no later than 21 calendar days of the request.

Let me back up a second; Labor Code section 226 requires employers to produce to employees at the time of payment of wages, a statement that contains nine specific categories of information, including the “legal” name of the employer (more on that in another blog); a description of deductions and all time worked, wages earned and paid, and all hourly rates of pay.  Failure to comply with this section can cause an employer no end of grief.

The same section requires employers to retain a copy of wage statements and a record of deductions for at least three years. In my experience not a lot of employers retain hard copies of wage statements. As an alternative to hard copy or “.pdf” storage, section 226 permits employers to produce a computer generated record that accurately shows all of the required information. Fairly read, this section requires employers to produce duplicates of wage statements provided to employees.  Even if that is not what is intended by this section, it is fair to say that many employees and their attorneys expect employers who receive a request for payroll records under Labor Code section 226 to produce a duplicate wage statement that contains all nine categories of information required by this section.

Yet, when responding to such a demand, many employers produce “payroll inquiries,” payroll summary documents or screen shots of electronic payroll system data, rather than produce a duplicate wage statement or summary that contains all of the information required by section 226.  This can be a costly and time consuming mistake.  Employers have been known to spend tens of thousands of dollars trying fix that mistake.  When an employer produces a “payroll inquiry” or other summary of wages (rather than the wage statement required by section 226), the attorney for the worker will examine the record produced in response to that demand for sufficiency under section 226.  If it fails that examination because of missing information (employer identity, hourly rates, etc.), the employer then has to explain why, when asked for “payroll records” it produced something other than the wage statement required by section 226.

I know, this is unfair.  But here is the take away as I see it: When asked by an employee (or an attorney for an employee) to produce wage statements issued to the worker pursuant to Labor Code section 226 or “payroll records required to be maintained pursuant to Labor Code section 226,” either provide duplicates of the wage statements provided to the employee or a computer generated record that contains all of the information required by Labor Code section 226.

As I say above, failure to do this, can be an expensive mistake to fix.

In November 2015, Congress enacted legislation requiring federal agencies to adjust their civil penalties to account for inflation. The Department of Labor (DOL) adjusted penalties for its agencies, including the Occupational Safety and Health Administration (OSHA).

OSHA’s maximum penalties, which were last adjusted in 1990, will increase by 78%. Going forward, the agency will continue to adjust its penalties for inflation each year based on the Consumer Price Index.

The new penalties will take effect after August 1, 2016.  Any citations issued by OSHA after that date will be subject to the new penalties if the related violations occurred after November 2, 2015.  Below is a table of the current and new penalty amounts depending on the type of violation.

While these are federal penalties that will be imposed by OSHA, states that operate their own OSHA plans are required to also adopt maximum penalty levels that are at least as effective as Federal OSHA’s.  This means that in California, employers found to be in violation of CalOSHA’s health and safety standards are also at risk of increased penalties.

Takeaway:  Employers should take this opportunity to review the effectiveness of their Injury and Illness Prevention Plan (IIPP), including, but not limited to, evaluating whether they are meeting certain safety training and safety equipment standards. IIPPs should be living, breathing documents that are regularly reviewed and updated as circumstances change in the workplace that could impact employee health and safety.  Failure to do so can result in significant penalties from CalOSHA.  If you find yourself being investigated by CalOSHA, contact the attorneys in Weintraub Tobin’s Labor and Employment Department.  They have years of experience representing employers during CalOSHA investigations and in appealing CalOSHA citations.