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June Updates

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This Short List addresses the following topics:
  1. U.S. Supreme Court: Title VII Claims to the EEOC are Merely Procedural and Not Jurisdictional to Courts
  2. U.S. Supreme Court: State Wage and Hour Rules Don’t Apply to Workers on the Outer Continental Shelf
  3. DOL Issued Updated Poster for Federal Contractors and Subcontractors
  4. California: July 1st REMINDERS for Employers
  5. Emeryville, CA: July 1st Minimum Wage Increase Paused for Small Independent Restaurants
  6. Colorado: Wage Garnishment Reform on the Horizon
  7. Connecticut: Minimum Wage Increasing to $15 an Hour
  8. Minneapolis, MN: Sick and Safe Time Rule Is Still Up in the Air
  9. Kansas City, MO: Bans Pre-Employment Salary History Inquiries
  10. Nevada: Mandatory Safety Training Expanded to Trade Show and Convention Workers
  11. New Jersey: Required Workplace Postings Receive an Update
  12. Texas: Dallas and San Antonio Paid Sick Leave Set to Go into Effect August 1st

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California: “Other Persons” Can Be Personally Liable for Civil Penalties for Wage & Hour Violations

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September 28, 2018

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In Atempa v. Pedrazzani, a California Court of Appeal stated that individual owners and officers of a Company can be held personally liable for wage and hour violations. Specifically, Labor Code Section 558 and 1197.1 state both the employer and any “other person” who cause wage and hour violations are subject to civil penalties. The lawsuit dated back to 2013 when two former employees sued their employer and the business owner for a variety of wage and hour violations, including unpaid overtime and minimum wage violations.

The court ultimately stated the Company and owner were each liable for civil penalties based on those wage and hour violations. The court reasoned that there did not need to be an “allegation or finding of either an alter ego relationship between the individual officer or agent and the corporate employer or acts by the individual officer or agent outside the scope of the agency for the corporate employer.” “Neither of these statutes mentions the business structure of the employer, the benefits or protections of the corporate form, or any potential reason or basis for disregarding the corporate form.”  The owner’s participation in the payment of wages in violation of the overtime pay and minimum wage laws were enough to qualify him as any “other person.”

The most important lesson from this case is that wage and hour violations expose an employer to civil penalties while simultaneously exposing individuals such as owners, officers, directors, or managers to personal liability for mishandled wage and hour compliance. Moreover, the court stated that private plaintiffs may pursue and collect these penalties for “aggrieved employees” from such “other persons” on behalf of the state of California through the Private Attorneys’ General Act (PAGA).

Action Items

  1. Have your management team trained on wage and hour compliance.
  2. Have an audit performed of your internal wage and hour practices.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

November Updates

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This Short List addresses the following topics:
  1. Fourth Circuit: Back Pay Damages are Mandatory Under the ADEA
  2. California: Federal Department of Transportation Rules Preempts California Meal and Rest Period Requirements
  3. California: Announces Minimum Wage Rates for Certain Overtime Exemptions
  4. California: Cal/OSHA Revised Exposure for Citations and Issued Emergency Reporting Requirements
  5. California: PAGA May Not Apply to Construction Industry Employees Subject to Collective Bargaining Agreements
  6. New Jersey: Updates to Statewide Paid Sick Leave
  7. New York: Human Trafficking Informational Cards Required in Hotels
  8. New York: State Attorney General Releases FAQ on Non-Compete Agreements
  9. New York: Sexual Harassment Training Deadline Extended
  10. New York, NY: Revised FAQ for Paid Sick Leave Rules
  11. Pennsylvania: Illegal Sex Discrimination Interpreted to Include LGBT+ Components

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New Wage and Hour Opinion Letters from the U.S. Department of Labor

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August 28, 2018

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The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) recently issued six opinion letters related to compliance with the Fair Labor Standards Act (FLSA) and the Family Medical Leave Act (FMLA). The opinion letters are meant to provide clarity on employee rights and employer obligations as interpreted by the DOL.

U.S. DOL Announces New Payroll Audit Pilot Program

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On March 6, 2018, the U.S. Department of Labor (“DOL”) announced a new pilot program: the Payroll Audit Independent Determination (“PAID”) program.  The PAID program’s primary objectives are to expedite resolution of wage and hour claims, improve employer FLSA compliance, and facilitate payment of back wages owed to employees. The PAID program will be administered by the DOL’s Wage and Hour Division (“WHD”) and will be implemented for a trial period of six months.  At the end of the trial period, the WHD will evaluate the effectiveness of the program and determine if modifications are needed. The WHD has not yet announced when the program will start.

All FLSA-covered employers may voluntarily participate in the program, except those who are currently under investigation or engaged in litigation, acting in bad faith, or have committed repeat violations.  The PAID program is intended to help employers self-identify and correct non-compliant federal pay practices, such as misclassification issues, off-the-clock work, and failure to pay minimum wage or overtime. The PAID program may not resolve wage and hour violations of state law. If compensation issues are identified and employees voluntarily agree to resolve and release the specific wage and hour claims, employers must pay 100% of back pay owed, and may avoid liquidated damages, civil monetary damages, attorney’s fees, and other costs associated with litigation.

Employers interested in the PAID program can learn about how the program works and sign up for e-mail updates by visiting the WHD’s webpage.

Action Items

  1. Visit the DOL’s wage page on the PAID program here.
  2. Consult with legal counsel on how the PAID program may affect wage and hour violations.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

October Updates

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This Short List addresses the following topics:
  1. U.S Federal Contractor Updates
  2. Alabama: City of Birmingham Approves Nondiscrimination Ordinance
  3. California: Cal/OSHA Says Federal OSHA Reporting Requirements do not Apply to CA Employers
  4. Illinois: Amendments to the Illinois Human Rights Act Codify Religious Garb Protections
  5. Kentucky: Supreme Court Permits Wage and Hour Class Actions
  6. New York: 24-Hour Non-Residential Home Care Attendants Must be Paid for Sleep and Meal Periods
  7. Texas: New Leave Protection for Foster Parents and Preference for Veterans in Employment
  8. Wisconsin: Court of Appeals Upholds “Right to Work” Law

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California: Arbitration May be Enforced For Certain Wage and Hour Claims

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August 3 and 21, 2017

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Two recent state Court of Appeal cases permit arbitration of certain wage and hour claims, including representative actions under the Private Attorney Generals Act (“PAGA”) and an administrative wage claim filed before the Department of Labor Standards Enforcement (“DLSE”), under certain circumstances.

New York City: “Fair Work Week” Legislation Piles on New Employer Obligations for Scheduling

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in Fast Food or Retail Industries

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November 26, 2017

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On May 30, 2017, Mayor de Blasio signed into law the “Fair Work Week” legislative package, which includes five bills affecting workplace practices for fast food and retail workers operating in New York City. This legislative package is similar in many ways to Seattle’s Secure Scheduling Ordinance, though NYC’s bills are even more stringent in requirements.  This may signal the beginning of a shift in the development of fast food and retail employee rights.

California: Supreme Court Spells Out “Day of Rest” Rules

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May 18, 2017

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In Mendoza v. Nordstrom, the California Supreme Court clarified the application of the “day of rest” rule as set forth by the California Labor Code.  Generally, employers cannot require employees to work more than six days in a seven-day workweek, unless the employee’s working hours do not exceed 30 hours in one workweek or six hours in any one day.  The California Supreme Court provided guidance on the finer operational points of this “day of rest” rule, summarized below.

California: Commissioned Employees Must be Specifically Paid for Rest Breaks

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February 28, 2017

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Current California wage order regulations provide non-exempt employees a minimum 10-minute rest break for every four hours worked, or major fraction thereof.  These breaks must be counted as hours worked, must be paid at the employee’s hourly rate and cannot be deducted from employee wages.  A