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Browse below for news, legal insights, information on presentations and events, and other resources from the Weintraub Tobin legal team.

AAAB Seminar: Recent Changes in California Employment Law

Published: July 9, 2012

Topic:
The Moving Target – Recent Changes in California Employment Law

Summary:
Attorneys from Weintraub Genshlea Chediak Tobin & Tobin will provide a brief overview of the complexities of laws facing employers and discuss important case law developments. Topics include:

  • Why does the California Supreme Court decision in Brinker matter?
  • Who is entitled to what absence (PDL, FMLA,CFRA, USERRA)?
  • 1099 or W-2: Why should you care?

Date:
July 17, 2012

Time:
5:30 p.m. – 7:30 p.m.

Place:
America California Bank, 417 Montgomery Street, San Francisco, CA 94104

Speakers:
Paul E. Gaspari
Charles L. Post
Weintraub Tobin

Registration & Fees (beverages and light snacks are complimentary with registration):

a) Current AAAB members – FREE admission. Please send us an e-mail at “events@aaabankers.org” with your name and contact phone number to register for the event.

b) Non-Members – $15. Please follow this link to register and attend the event at a $15 non-member rate: Register & Pay Online

c) SPECIAL: Become a member of AAAB and receive 50% off $30 annual AAAB membership fee (valid through 12/31/2012) and attend the event for only $5 (attend all future event except Annual Dinner – FREE). Please follow this link to register and pay for a discounted membership/event fee of $20: Register & Pay Online

Upcoming Webinar: Independent Contractor v. Employee?

Published: July 5, 2012

Summary of Program

If it Walks Like a Duck, Quacks Like a Duck, It’s a Duck!

The risks involved in misclassifying a worker as an independent contractor rather than an employee have always been serious. A number of federal and state agencies regulate the proper classification of workers and have the authority to impose significant monetary and non-monetary sanctions against employers who get the classification wrong. However, due to a number of new laws and regulatory enforcement procedures that have gone into effect in the last year, it is now more important than ever that employers get the classification right.

This informative webinar will cover the legal landscape of independent contractor status. Topics will include:

  • A summary of the various tests applied by federal and state agencies to determine independent contractor status;
  • A summary of the enforcement authority of various federal and state agencies and the sanctions they may impose on employers;
  • The due diligence employers must engage in before classifying a worker as an independent contractor;
  • The federal Department of Labor’s new $25 million “Misclassification Initiative” designed to work closely with state agencies to investigate misclassifications and take enforcement action; and
  • California’s new law imposing monetary and non-monetary sanctions against employers (and certain individuals) who willfully misclassify workers as independent contractors.

If you or your company is currently using independent contractors, this is a webinar you cannot afford to miss.

Wednesday, July 18, 2012
9:30 a.m. – 11:00 a.m. – WEBINAR

This informative session will take place via webinar only. Login details will provided approximately one week prior to the webinar.

There is no charge for this webinar.

RSVP TO:

Ramona Carrillo
Email: rcarrillo@weintraub.com
Telephone: (916) 558.6046

SCOTUS Hands Employers Huge Health Care Obligations

Published: June 29, 2012

Yesterday, the Supreme Court of the United States ruled that the Patient Protection and Affordable Care Act of 2010 as amended by the Health Care and Education Reconciliation Act of 2010 is constitutional. The decision came down in the cases entitled, National Federation of Independent Business et al. v. Sebelius, No. 11-393 (June 28, 2012), Department of Health and Human Services et al. v. Florida et al., No. 11-398, and Florida et al. v. Department of Health and Human Services et al., No. 11-400). There, the 5 to 4 majority decided that the law is constitutional as an exercise of Congress’ power to tax, despite the congressional record stating it is not a tax. In California, where statutes that say “penalty” are later determined by courts to be “wages” these types of word games come as no surprise.

The overall effect of the Court’s decision: all existing provisions of the Act, such as the coverage of adult children up to age 26 and the prohibitions on lifetime benefit limits, remain in effect. More importantly, the penalties on larger employers for failing to provide minimum essential coverage and availability of coverage through government-sponsored exchanges will become effective as scheduled, on January 1, 2014.

What Should An Employer Do When an Employee on FMLA Leave Says They Will Not be Returning to Work?

Published: June 28, 2012

Question: An employee is out on FMLA leave to care for her newborn baby. Before her leave ends, she notifies her employer that she actually does not intend to return to work. Does the employee still have any restoration rights? Can the employer recover any health care premiums they paid during the employee’s FMLA leave?

Answer: While employees are generally entitled to be restored to the same or equivalent position following their return from FMLA leave, the Department of Labor regulations provide that in this situation, when an employee gives unequivocal notice of his or her intent not to return to work, the employer’s obligations under FMLA to maintain health benefits and restore the employee cease immediately. However, beware that unequivocal notice means that the employee leaves an employer with no doubt that they will not return.

Under the regulations, the employer may also recover health care premiums paid during a period of unpaid FMLA leave in this situation, unless the employee is not returning due to “circumstances beyond the employee’s control” – a phrase which the DOL advises should be broadly construed, but which does not include a situation where an employee simply chooses to stay home with her “well, newborn child” (rather than one with a serious health condition).

Word to the Wise: Employers who choose to recover health care premiums when permitted to do so should be cautious that they do this for all employees who indicate they will not return after an FMLA leave. An employer who only recovers health care premiums from a new mom, but not for a male employee who does not return to work after FMLA leave, may be faced with a claim of gender discrimination even if the different treatment is inadvertent.

Upcoming Seminar: Mandatory AB1825 Sexual Harassment Prevention Training

Published: May 29, 2012

Download: Seminar-Jun6_no-crop.pdf

Summary of Program

The regulations regarding California’s Mandatory Sexual Harassment Prevention Training for supervisors require that certain employers provide training to their supervisors every two years.

The Labor and Employment Group at Weintraub Genshlea Chediak Tobin & Tobin is offering a two hour in-person training session that will comply with all the requirements outlined in the regulations, including things like:

  • an overview of sexual harassment laws;
  • examples of conduct that constitute sexual harassment;
  • lawful supervisory responses to complaints of harassment in the workplace;
  • strategies to prevent harassment in the workplace; and
  • practical and inter-active hypotheticals and examples to help illustrate what sexual harassment, discrimination, and retaliation can look like.

If you are an employer with 50 or more employees, and have supervisors who have not yet been trained, this training is a must. We look forward to hearing from you and helping you comply with your continuing sexual harassment training obligations.

Wednesday, June 6, 2012

9:00 a.m. – Registration and Breakfast
9:30 a.m. – 11:30 a.m. – Training

Charge: $50 per supervisor

Location

Weintraub Genshlea Chediak Tobin & Tobin

400 Capitol Mall, 11th Floor, Sacramento, CA

Parking validation provided. Please park in the Wells Farego parking garage, entrances on 4th and 5th Streets

RSVP TO:

Ramona Carrillo
Email: rcarrillo@weintraub.com
Telephone: (916) 558-6046

Is Compliance with an Attendance Policy an Essential Function of the Job?

Published: May 9, 2012

Attendance at work seems like an obvious requirement to keep a job, right? The unfortunate answer often given by lawyers to that question is, “it depends.” In the employee-friendly state of California, permitting telecommuting or exemptions to an attendance policy may be a reasonable accommodation if a person has a disability. However, recently, the Ninth Circuit Court of Appeals confirmed that predictable attendance can be an essential function of certain jobs; in this case, the job of a neo-natal intensive care unit (“NICU”) nurse.

In Samper v. Providence St. Vincent Medical Center (9th Cir. 10-35811 4/11/12), Monica Samper was a part-time NICU nurse who sought an accommodation from her employer which would have exempted her from Providence’s attendance policy. Providence’s attendance policy quite generously permitted five unplanned absences of an unlimited duration during a rolling twelve-month period for full-time employees (“Policy”). In addition, absences related to family medical leave, jury duty, and bereavement leave were not counted under the Policy.

Although Samper was a part-time employee, Samper regularly exceeded the number of unplanned absences for full-time employees throughout her employment. Since at least 2005, Samper’s attendance problems were due to her fibromyalgia, a condition that limits her sleep and causes her chronic pain. Due to her disability, Providence provided multiple accommodations to Samper to assist her. In 2002, Samper was placed on work plans to manage her continued absences. However, her attendance problems continued. In 2005, Providence agreed to allow Samper to call in when she was having a bad day and move her shift to another day, and she did not have to find a replacement for her missed shift. This flexibility, however, yielded no results. In 2006, Providence met with Samper again and agreed to yet another accommodation – Samper’s two shifts-per-week would not be scheduled on consecutive days. Again, Samper’s attendance did not improve and she received another verbal warning. Samper then requested a complete exemption from the Policy, which was not granted. In 2008, Providence scheduled another meeting to discuss Samper’s attendance, but Samper was … wait for it … characteristically absent. After Samper essentially broke the last straw on the camel’s back, her employment was terminated for her repeated attendance problems.

Of course, like any good terminated employee, Samper filed suit alleging, among other things, violation of the ADA due to failure to accommodate. The district court granted summary judgment in favor of Providence, reasoning that Samper was unable to adhere to Providence’s Policy, and, therefore, she was not qualified for her position. The district court also held that exempting Samper from the Policy was unreasonable. The Ninth Circuit Court of Appeals affirmed this decision stating that “[t]he common-sense notion that on-site regular attendance is an essential job function could hardly be more illustrative than in the context of a neo-natal nurse.” Further, Providence provided evidence to meet its burden of proof, including demonstrating “attendance” and “punctuality” as listed “standards of performance” in the written job description, and providing a declaration from Samper’s supervisor attesting to the problems unscheduled absences cause for patient care. Thus, it was not only commons-sense, but evidence from Providence, which led the Court to hold that Samper’s regular, predictable presence to perform specialized, life-saving work in a hospital context was an essential function of her job and that Samper’s accommodation that would allow her to miss work whenever she felt she needed to, and apparently for as long as she felt she needed to, was not reasonable, and could, quite literally, be fatal.

The Ninth’s Circuit’s ruling is a nice reminder that even in our high-tech world where telecommuting is possible for many employees, for some jobs, a person’s actual presence in the workplace is essential. For example, some jobs require employees to work as part of a team, interact with customers or clients, or work with equipment on-site. However, the usual caveat exists that this is not a free pass to require strict adherence to attendance policies and terminate employees whenever there is a violation. Employers still must be aware that exemptions to attendance policies may be a reasonable accommodation required under the ADA depending on the job at hand.

Closing The Gap Left By Brinker RE Meal-And-Rest-Period Class Actions

Published: April 26, 2012

by Brendan J. Begley
The Labor & Employment Law Blog

The California Court of Appeal this week provided a shield to employers against attacks left open by the state Supreme Court’s momentous decision earlier this month concerning meal and rest periods. The appellate court in Kinecta Alternative Financial Solutions Inc. v. Superior Court (Malone), No. B235491, decided that a trial court in Los Angeles should have dismissed class-action allegations in a meal-and-rest-period lawsuit.

In so doing, the Court of Appeal also relieved the employer from its obligation to produce confidential contact information of other employees who allegedly were not provided meal or rest periods. The appellate court reached those conclusions because the lead plaintiff and her employer had entered an enforceable arbitration agreement that did not contemplate class arbitration.

Of course, employers in the Golden State were relieved on April 12, 2012, when California’s highest court handed down its opinion in Brinker Restaurant Corp. v. Superior Court (Hohnbaum), No. S166350. That case confirmed that employers are not required to ensure their employees take legally mandated breaks; instead, employers only must provide such breaks to their workers. However, in that decision, the Supreme Court did not negate the ability of employees to file class-action lawsuits alleging meal-and-rest-period violations.

The Brinker decision is momentous because it is much easier for employers to show that they provided meal or rest periods than it is to prove that they ensured their workers actually took such breaks. Nonetheless, defending against any class action can be extremely costly and risky, even when an employer has strong evidence that it provided breaks. Avoiding class actions altogether is much more economical.

Accordingly, while the Supreme Court’s decision in Brinker generated much more fanfare, the Court of Appeal’s opinion in Kinecta may be of greater value to employers. Using an enforceable arbitration agreement to negate a class action at the outset can be a lot cheaper than defending a class action regardless of whether the employer has favorable evidence.

With that said, arbitration agreements may not be suitable for every employer. And when such agreements are desirable, care must be taken to ensure that their terms are enforceable. Thus, prudent employers who wish to explore implementing or updating arbitration agreements to reduce their exposure to meal-and-rest-period class actions should consult with legal counsel in light of the Kinecta decision.

CASE ALERT: California Supreme Court Hands Down Brinker Decision

Published: April 12, 2012

by Charles L. Post, James Kachmar
The Labor & Employment Law Blog

As many readers of this Blog know, we’ve been awaiting the California Supreme Court to issue its decision in the Brinker case. This morning it did so. As our attorneys continue to analyze the decision involving issues of employee rest periods and meal breaks, we will be publishing several blog updates in the coming days discussing the impact of the decision on California employers.

In the meantime, we wanted to give you three brief takeaways from today’s decision:

• Meal Period: The Court held that when an employee is entitled to a meal break, an employer’s obligation is to relieve the employee of all work duties during that time but that the employer does not have an obligation to ensure that the employee does no work during the meal period. However, as Justice Werdegar points out in her concurring opinion, the burden remains on the employer to prove that an employee was provided with a meal break. Practically speaking employers will want to have documents and practices in place that demonstrate: (1) a policy of relieving employees of all duty obligations during the meal period; (2) a policy prohibiting any supervisor from encouraging or coercing an employee from working during or through a meal period; and (3) to train supervisors on this standard. Employers may also wish to adopt a policy by which employees should report any meal period denial.

• Rest Period Timing: The Brinker plaintiffs argued that an employer was required to provide at least one rest period before any meal period. Plaintiffs wanted to prevent employers from requiring employees to take an “early lunch”, i.e. requiring a meal break at the beginning of an employee’s shift. The Court rejected plaintiffs’ argument and held that there was no requirement regarding the timing of meal periods vs. rest periods.

• Uniform Policies and Class Actions: The Brinker employee-plaintiffs were subgrouped into three classes for certification: (1) those alleging rest break violations; (2) those alleging meal break violations; and (3) those alleging “off the clock work” violations. The Court held that the first group (rest breaks) should be class certified; the third group (“off the clock”) should not be class certified and that the lower court should reanalyze whether to certify the second group (meal breaks) in light of the Court’s meal break ruling described above. The Court’s ruling suggests that when employees are covered by a uniform policy of the employer, it is more likely that class certification will be granted. Given that there was no uniform policy regarding “off the clock work,” the Court held that it was improper to certify this class of employees since each case of “off the clock work” would have to be decided on a case-by-case basis.

Please follow this Blog for further updates regarding this landmark decision.

Upcoming Seminar – SF Edition: Developments in Wage and Hour Laws – the Good, the Bad & the Ugly

Published: April 4, 2012

Program Summary:

Join the Employment Law Group of Weintraub Genshlea Chediak Tobin & Tobin for an informative training session that will help employers and HR professionals gain a more thorough understanding of various wage and hour laws that often create liability when an employer gets them wrong.

Program Highlights:

  • Brinker Restaurant Corporation v. Superior Court
    • Yes it’s true — we really are going to have a decision from the California Supreme Court this April.
    • The meal and rest period nightmare may be over.
  • Are you classifying workers as independent contractors? If so, make sure you are right because the feds and California are hammering those who get it wrong.
  • New developments affecting compensation plans: Commissions, bonuses and mutual wage agreements.
  • What constitutes “hours worked”: It’s not always as simple as 9-5.
  • Calculating an employee’s “regular rate of pay” and “overtime premiums”: It’s not always as simple as the hourly rate x 1-1/2.
  • The technical “nitty gritty” of wage and hour record keeping requirements: timecards, paystubs, payroll records and more.

Thursday, April 12, 2012

8:30 a.m. – 9:00 a.m.

Registration and Breakfast

9:00 a.m. – 12:00 p.m.

Program

Location:

Le Meridien Hotel
333 Battery Street
San Francisco, CA 94111

*This program is also available via Webinar. Please indicate when you RSVP.

************

There is no charge for this seminar.
Approved for 3 hours MCLE Credit;

HRCI credits available upon request

RSVP:

Ramona Carrillo
Weintraub Genshlea Chediak Tobin & Tobin
400 Capitol Mall, 11th Floor
Sacramento, CA 95814
Phone: 916.558.6046
Fax: 916.446.1611
rcarrillo@weintraub.com

Upcoming Seminar: Developments in Wage and Hour Laws – the Good, the Bad & the Ugly

Published: April 4, 2012

Program Summary:

Join the Employment Law Group of Weintraub Genshlea Chediak Tobin & Tobin for an informative training session that will help employers and HR professionals gain a more thorough understanding of various wage and hour laws that often create liability when an employer gets them wrong.

Program Highlights:

  • Brinker Restaurant Corporation v. Superior Court
    • Yes it’s true — we really are going to have a decision from the California Supreme Court this April.
    • The meal and rest period nightmare may be over.
  • Are you classifying workers as independent contractors? If so, make sure you are right because the feds and California are hammering those who get it wrong.
  • New developments affecting compensation plans: Commissions, bonuses and mutual wage agreements.
  • What constitutes “hours worked”: It’s not always as simple as 9-5.
  • Calculating an employee’s “regular rate of pay” and “overtime premiums”: It’s not always as simple as the hourly rate x 1-1/2.
  • The technical “nitty gritty” of wage and hour record keeping requirements: timecards, paystubs, payroll records and more.

Thursday, April 12, 2012

8:30 a.m. – 9:00 a.m.

Registration and Breakfast

9:00 a.m. – 12:00 p.m.

Program

Location

400 Capitol Mall, 11th Floor
Sacramento, CA 95814

*This program is also available via Webinar. Please indicate when you RSVP.

************

There is no charge for this seminar.
Parking validation provided. Please park in the Wells Fargo parking garage.

Approved for 3 hours MCLE Credit;

HRCI credits available upon request

RSVP:

Ramona Carrillo
Weintraub Genshlea Chediak Tobin & Tobin
400 Capitol Mall, 11th Floor
Sacramento, CA 95814
Phone: 916.558.6046
Fax: 916.446.1611
rcarrillo@weintraub.com