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DID YOU KNOW: THERE IS NO LEGAL OBLIGATION TO PAY A PREMIUM TO NON-EXEMPT EMPLOYEES FOR WORKING ON HOLIDAYS?

  • July 6, 2017

Labor Day is going to fall on a Monday this year. Are you required by law to pay your drivers and staff overtime, per diems or double-time, if you have them work on the holiday? State and federal laws recognize certain days as “holidays,” however, there is no law that requires private employers to provide a premium rate of pay for work on those days. These “holidays” are days that government offices are closed and do not provide the services that they normally would. As a result, the government provides the “holiday” designation to give people notice that services will not be available. This also allows employers an extra day to respond to official inquiries and/or to pay employees if a pay day falls on the holiday. Court due dates are extended as well. While there is no legal obligation to do so, many employers choose to offer premium pay for work on governmental holidays as a benefit to their employees. However, that would is a matter of contract between the employer and the employee. Outside of such contract obligations (eg. union agreements, etc.) you have no legal obligation to pay your employees any differently for work on a “holiday”.......

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Frequent Questions from Employers Regarding California’s Personnel File Law

  • May 22, 2017

We frequently receive phone calls from employers asking their responsibilities under the ever-expanding California laws regarding employee personnel files.  Below is a summary of the top five (5) most frequent questions we are asked by employers: Does an Employee or Former Employee Have Right to Inspect Their Personnel File? Yes, both current and former employees have the right to inspect their personnel file.  A current employee has the right to inspect their personnel file “at [a] reasonable time and intervals.”  There is no specific definition as to what constitutes “at [a] reasonable time and intervals.”  However, the California Division of Labor Standards Enforcement has interpreted this clause to mean once a year, unless there is reason to believe the file has been altered in an adverse manner or is pertinent to an ongoing investigation (in which case a more frequent review may be permitted). Likewise, a former employee has a right to inspect their personnel file. The request by both former and current employees should be made in writing. How Long After Someone Leaves Do I Have to Maintain Their Personnel File? The statute requires a three (3) year minimum to maintain records.  However, a more prudent practice would be.......

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THE SPLIT OF AUTHORITY BETWEEN STATE AND FEDERAL COURTS CONTINUES AS TO WHETHER ARBITRATION CLAUSES CAN PREVENT EMPLOYEES FROM FILING REPRESENTATIVE COURT ACTIONS UNDER THE PRIVATE ATTORNEY GENERAL’S ACT (PAGA)

  • April 6, 2017

Three recent state court decisions from the Fourth and Second Districts have come down in California, invalidating attempts by employers to enforce arbitration clauses as they relate to representative actions under PAGA.  These cases are Montano v. Wet Seal Retail, Inc. (2017) 7 Cal.App.5th 1248; Betancourt v. Prudential Overall Supply (2017) __ Cal.Rptr.3d __, 2017 W.L. 895834 and Hernandez v. Ross Stores (2016) 7 Cal.App.5th 171.    In all three of these decisions, the courts of appeal affirmed decisions of the trial court in which the trial court refused to compel arbitration of PAGA representative actions even though the employee had signed an arbitration agreement, agreeing to arbitrate such claims.  In so ruling, these courts of appeal considered the California Supreme Court case of Iskanian v. CLS Transportation Los Angeles LLC (2014) 59 Cal.4th 348, 381. In Iskanian, the California Supreme Court had determined that pre-dispute waivers of the right to bring class or representative actions were unenforceable.  However, the Iskanian case did not decide the issue of whether or not an employer could compel an employee to arbitrate representative PAGA claims.  Each of these recent appellate decisions relied upon the rationale of the Iskanian case to reach the conclusion that an.......

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Your Independent Contractors Can Get You in Trouble

  • April 6, 2017

While most California employers are aware of the risks of misclassifying employees as “independent contractors”, a new California appellate decision named “SECCI v. United Independent Taxi Drivers, Cal.Rptr.3d ___ 2017, W.L. 605487, creates new concern for companies that use independent contractors.   This concern is that even properly classified independent contractors may be deemed to be an agent of the employer which subjects the employer to vicarious liability for the acts of those contractors. The employer in SECCI was a taxicab cooperative.  The plaintiff, a motorcycle driver, sued the taxicab driver and cooperative after he was injured during a car accident with the taxicab.  The plaintiff claimed that the taxicab driver was both an employee of the cooperative, and its agent.  The jury found that the driver was the agent of the cooperative and held the cooperative liable for the acts of the driver. The trial court had granted the taxicab cooperative’s motion for judgment notwithstanding the verdict issue.  The Court of Appeal reversed the decision of the trial judge.  It determined that there was sufficient evidence of control to find an agency relationship, even though the jury found that there was insufficient evidence of control by the employer to satisfy.......

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