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“Personal Attendant” May Be Exempt From Overtime

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Published on Thursday, 17 May 2012 01:38

When someone hires an employee to care for an elderly or disabled person in his or her home, the employee is usually not entitled to overtime pay depending on the type of work performed by the caretaker. Specifically, if the employee performs work of a "personal attendant," which refers to a person employed to supervise, feed, or dress a person who by reason of age, physical disability or mental deficiency needs supervision, the caretaker is exempt from overtime pay requirements. However, if the caretaker performs a "significant amount of work" (i.e. duties which constitute greater than 20% of the weekly work time) in addition to these tasks, such as housekeeping responsibilities, the caretaker is not exempt from overtime pay. Additionally, with certain exceptions, if the caretaker is a registered nurse employed to engage in the practice of nursing in the home, the nurse is not exempt from overtime pay requirements.  Read More.

CA Supreme Court Holds Prevailing Party is Not Entitled to Attorney’s Fees in Meal And Rest Period Cases

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Published on Tuesday, 08 May 2012 16:08

On April 30, 2012, the California Supreme Court issued a published decision addressing whether the prevailing party in meal and rest period cases may recover attorney’s fees. Specifically, the Court considered when, if ever, a prevailing party in a section 226.7 action for an alleged failure to provide meal and rest breaks may be awarded attorney's fees. The Count concluded that the labor code does not authorize an award of attorney's fees to a party that prevails on a section 226.7 claim.  

In reaching its decision, the Court noted that “the legislative history shows that the Legislature (a) considered including a one-way fee-shifting provision in favor of employees in section 226.7, (b) ultimately deleted the provision from the final version of section 226.7, and then (c) gave no indication that section 218.5's two-way fee-shifting rule should apply to section 226.7 claims, even as (d) it adopted amendments to section 218.5 as part of the very same legislation that created section 226.7. We believe the most plausible inference to be drawn from this history is that the Legislature intended section 226.7 claims to be governed by the default American rule that each side must cover its own attorney's fees.” Read More.

More on Brinker: What Happens if an Employee Works Through Lunch?

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Published on Tuesday, 08 May 2012 15:18

The bottom line is that if the employer knew or should reasonably have known that the employee worked through his or her meal period, the employer must pay the employee for the time worked. Thus, it is important that employers maintain records evidencing that an employee took a meal period because, according to a separate opinion issued by two of the seven California Supreme Court justices in Brinker: "If an employer's records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided." Although this is not a binding part of the Brinker decision, employers should note that if there is a dispute between an employee and employer over whether or not a meal period was provided, the employer will need employee records to establish that the meal period was provided. 

Even though the Brinker court held that a meal period penalty is not required in situations where the employer provides a meal period but the employee continues to work, if the employee continues to work, and the employer knows or should reasonably know that the employee worked through the meal period, the employer will owe the employee regular pay for the time worked. However, the employer is not required to monitor employees to ensure that they are taking their required meal periods. Employers must also still provide meal periods by the end of the fifth hour of work, although employees may take an early meal period.

NLRB Alleges Arbitration Agreement Used by “24 Hour Fitness” is Unlawful

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Published on Thursday, 03 May 2012 19:19

Employers continue to face legal challenges to workplace arbitration agreements. Recently, the National Labor Relations Board (NLRB) issued a complaint alleging that 24 Hour Fitness USA, Inc. violated federal labor law by insisting that all employment-related disputes be resolved by individual arbitration versus class action. The California-based corporation, requires employees to agree in writing, as a condition of employment, to forego any rights to collective or class action lawsuits or arbitrations. According to the NLRB, the requirement violates the National Labor Relations Act (NLRA).

The NLRB initiated an investigation following a charge filed by an employee from the 24 Hour Fitness center in San Ramon, California. The NLRB alleges that the company is attempting to enforce its no-class-action policy by asserting it in litigation brought by employees in numerous cases, seven of which are cited in the complaint. In each case, employees, who are not represented by a union, sought to bring workplace-related claims, such as wage and hour violations, on a class-wide basis. In response, 24 Hour Fitness sought to compel the employees to submit their claims to individual arbitrations, referencing the arbitration policy contained in its employee handbook. The complaint calls for a hearing before an Administrative Law Judge on June 11, and seeks an order requiring that the company stop maintaining and enforcing that portion of its employee policy that prohibits collective and class action. Read More.

DOL Recovers $4.83 Million in Back Wages From Wal-Mart for More Than 4,500 Workers

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Published on Tuesday, 01 May 2012 22:22

Wal-Mart Stores Inc., has agreed to pay $4,828,442 in back wages and damages to more than 4,500 employees nationwide following an investigation by the U.S. Department of Labor's Wage and Hour Division (DOL) that found violations of the federal Fair Labor Standards Act's overtime provisions. Wal-Mart has also agreed to pay $463,815 in civil money penalties. The alleged violations related to current and former vision center managers and asset protection coordinators at Wal-Mart Discount Stores, Wal-Mart Supercenters, Neighborhood Markets and Sam's Club warehouses. The DOL alleged that Wal-Mart failed to compensate these employees with overtime pay, considering them to be exempt from the FLSA's overtime requirements. However, the DOL’s investigation apparently determined that the employees were nonexempt and consequently Wal-Mart owed them for overtime pay for any hours worked beyond 40 in a week.

According to Secretary of Labor Hilda L. Solis, "Misclassification of employees as exempt from FLSA coverage is a costly problem with adverse consequences for employees and corporations…Let this be a signal to other companies that when violations are found, the Labor Department will take appropriate action to ensure that workers receive the wages they have earned." The FLSA provides an exemption from both minimum wage and overtime pay requirements for individuals employed in executive, administrative, professional and outside sales positions, as well as certain computer professionals, provided the employees meet certain criteria regarding their job duties and are paid on a salary basis at not less than $455 per week (the federal standard). It is important for employers to recognize that job titles and job descriptions do not determine exempt status. In order for an exemption to apply, an employee's specific job duties and salary must meet all the requirements of the DOL’s regulations. Read More.

More Articles...

  1. Wage and Hour Lawsuits Have Become a Major Concern for Employers
  2. Free State Labor Law and Payroll Tax Seminar
  3. Fewer Employers Offering Unpaid Internships
  4. DOL Extends Comment Period on Proposed Rule to Provide Minimum Wage and Overtime Protections for In-Home Care Workers
  5. Tip of the Day: A Final Paycheck Must be Timely to Avoid Costly Waiting Time Penalties
  6. DOL Launches Equal Pay Application Development Contest
  7. Labor Commission Issues Updated FAQs on Wage Theft Prevention Act
  8. Court Rules Commissioned Employees Were Properly Classified As Exempt
  9. Employee Terminated for Working Through Lunch Wins U.I. Appeal
  10. OSHA Orders Company to Pay More Than $1 Million in Back Wages and Damages
  11. NLRB Holds Class Action Waiver in Mandatory Arbitration Agreement Violates the NLRA
  12. Labor Commissioner Issues Template For AB 469 Notice
  13. California Supreme Court Issues Decision in “Administrative Exemption” Case Involving Claims Adjusters
  14. DOL Proposes Amendments to Domestic Caregiver Regulations
  15. DOL Recovers Nearly $8 Million for Back Wages and Other Claims
  16. HR Practice Pointer: What is an Alternative Workweek Schedule?
  17. Proposed Bill Would Amend FLSA to Modify Computer Professional Exemption
  18. Employers Must Be Careful About Employees Performing Pre-Shift Work
  19. Bill Introduced to “End Misclassification of Employees as Independent Contractors”
  20. Governor Brown Signs Legislation Intended To Prevent “Wage-Theft”
  21. CA Labor Commissioner Issues $499,000 Citation For Alleged Failure To Provide Itemized Wage Statements
  22. Judge Rules Cascom Misclassified Employees As Independent Contractors; DOL Now Seeks Over $1.6 Million In Wages And Damages
  23. DOL Launches Economic And Employment Statistics Mobile Application
  24. California Supreme Court Schedules Oral Argument in Brinker
  25. IRS Offers New Voluntary Worker Reclassification Settlement Program
  26. Labor Commissioner Files $17 Million Lawsuit Against ZipRealty For Alleged Wage Violations
  27. DOL Considers Development Of Data Tool To Combat Pay Discrimination
  28. HR Practice Pointer: Holiday Pay
  29. HR Practice Pointer: An Overview of Meal Period Requirements
  30. HR Practice Pointer: Split-Shift Pay
  31. U.S. Supreme Court Holds California Overtime Laws Apply to Non-Residents
  32. DOL Launches Phone APP For Tracking Hours Worked
  33. Employers Continue to Face Difficult and Costly Litigation
  34. Class Certification Denied in Wage and Hour Case
  35. Wage and Hour Violations Are Often Costly For Employers
  36. Employer Must Pay $792,396 For Wage and Hour Violations
  37. Employers Must Follow Proper Wage and Hour Laws When Employing Minors
  38. Court Holds Starbucks Not Liable for Alleged Wage and Hour Violations
  39. DOL Releases Fiscal Year 2012 Budget Request
  40. Wage and Hour Violations Continue to Plague Employers
  41. Court Rules Truck Drivers May Be Employees Not Independent Contractors
  42. Employer Will Pay $1.3 Million For Back Wages
  43. Employer Must Pay $1.5 Million in Overtime Back Wages
  44. DOL and ABA Form Partnership to Pursue Wage and Hour Claims
  45. Tip Of The Day: Employers Must Pay For Unauthorized Overtime
  46. Walt Disney Must Pay More Than $433,000 in Back Wages
  47. Wal-Mart Appeals to U.S. Supreme Court in Gender-Discrimination Lawsuit