Five indispensable items employers must know about California's Wage Theft Protection Act's Notice to Employee

The Wage Theft Protection act of 2011 added Labor Code section 2810.5 requiring all private California employers to provide a written notice containing specific information to non-exempt employees upon hire. Below are five indispensable items employers should understand about the Notice to Employee (“Notice”) required under the law.

1. All private employers, regardless of size, must provide the Notice to employee with some limited exceptions.
The DLSE explains that the Notice is not required for employees “directly employed by the state or any political subdivision, including any city, county, city and county, or special district; an employee who is exempt from the payment of overtime wages by statute or the wage orders of the Industrial Welfare Commission; or for an employee who is covered by a valid collective bargaining agreement if it meets specified conditions.” So for private employers, no matter how small, must provide the Notice to an employee unless the employee is an exempt employee.

2. DLSE publishes a template Notice to Employee, but it is not required.
It is recommended that employers use the DLSE’s template to avoid any potential challenges (the most current template published as of January 2015 is embedded below). If the template is not used, the employer is still required to provide all of the information required by the law on one form to the employee. It is not compliant to provide the information piecemeal to the employee on various forms. As explained in number 4 below, the DLSE’s webpage regarding the Wage Theft Protection Act has not been updated to reflect the new template published by the DLSE to address the new paid sick leave requirement in 2015. The current Notices for 2015 can be found on the DLSE’s website at its Publications webpage (or embedded below). Hopefully the DLSE will update its website to avoid any potential employer confusion in this regard.

3. Electronic delivery is acceptable under certain conditions.
Electronic delivery of the Notice is fine as long as there is a process for the employee to acknowledge receipt of the Notice and print a copy of the Notice.

4. Notices must be in the language usually used to communicate employment policies with the employee.
The DLSE has published previous templates in various languages, such as Chinese, Spanish and Korean on its Wage Theft Protection Act page. However, the DLSE has not updated many of these translations since it has published the new Notice to Employee effective January 1, 2015 to address California’s paid sick leave requirement. In fact, the DLSE’s own page on the Wage Theft Protection Act still contains the old Notice to Employee. The current templates for 2015 are only found on the DLSE’s Publications page which contains the updated 2015 Notice in English, Spanish and Vietnamese.

5. If any information listed on the Notice changes, the notice does not have to be reissued as long as the information is listed on the employee’s next pay stub.
Employers must notify the employee in writing of any changes to the information set forth in the Notice within seven calendar days after the time of the changes, unless one of the following applies:

  1. All changes are reflected on a timely wage statement furnished in accordance with Labor Code section 226, or
  2. Notice of all changes is provided in another writing require by law within seven days of the changes.

LC_2810.5_Notice_(Revised-11_2014).pdf by anthonyzaller

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Five errors that make defending an employment lawsuit harder

In litigation, the following five issues make defending an employment lawsuit much more difficult.

1. No documentation.
No matter what type of employment litigation is at issue - wage and hour claims, leave issues, or harassment claims - the amount of documentation an employer has dramatically increases the odds of prevailing in litigation. I would even go as far as to say there is a relationship in place here (similar to Moore’s law in the computing industry) that the likelihood of avoiding a devastating judgment is proportionate to the amount of documentation the employer has regarding the particular employee or group of employees involved in the litigation.

What should employers document? Conversations with employees, reviews, days absent and the reason for the absence, performance issues (both good and bad – see below), etc…. With email and the ability to scan documents or take pictures of documents on a phone, there is almost no excuse not to have everything documented. The only issue preventing employers from documenting issues is not stressing the need to do document, and the press of business.

2. Inadequate time records.
Employers have the burden to record and maintain accurate time records under California law. If the employer knows employees are not properly recording their time, the employer needs to enforce a policy to have employees accurately record their time, even if it requires disciplinary action. Also, how can time records be “inadequate”?

  • The records that do not record the employee’s actual time working. For example, the employee records their start and stop time and the same time every day even though the employer knows it changes.
  • Not keeping time records long enough. The statute of limitations can reach back four year in wage and hour class actions, and these records will be the primary issues in most cases.
  • Not recording all required information. For example, employers are required to record employee’s meal periods under the IWC Wage Orders (see section 7 - Records).
  • Not keeping the time records in a manner that is usable. Maintaining records in a form that makes reviewing the records almost impossible is almost equivalent to not maintaining them in the first place. Some thought should be put into how an employer is keeping old time record information and how that data could efficiently be reviewed in the future if needed.

3. No institutional knowledge of policies and changes to policies.
Is there one person with full knowledge of the employment policies implemented by the company? Institutional knowledge about the various policies put into place by the company, when they were implemented and why they were implemented is critical knowledge. Also, this information should not reside with just one person in case that person leaves the company.

4. Not communicating goals and performance expectations to employees routinely.
This is pretty basic, but it helps to be reminded about conducting employee reviews routinely and accurately. The reviews will likely be the primary focus in a wrongful termination, discrimination or relation claim, and therefore the reviews should be accurate. It is hard to counsel employees on performance issues, but it is critical that these issues are addressed with employees in writing.

5. No written policies.
Sometimes employers operate with unwritten policies. It is important to have the policies clearly spelled out in an employee handbook or in some other manner. It is critical to have the policies in writing to prevent an employee from claiming that he or she is being arbitrarily singled out for discipline.

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Five New Year's resolutions for California employers in 2015

Happy New Year.  I started the Friday’s Five articles at the beginning of last summer, and the interest in the articles has been astounding, so I appreciate everyone who has read them and provided comments and feedback. If you have any topics you would like me to address, please let me know. With that said, here is a list of five resolutions for California employers in 2015:

1. Relax–make sure your employees are taking their meal and rest breaks.

2. Train – your supervisors to comply with California’s required sexual harassment prevention training for employers with 50 or more employees.

As of 2015 this training now must also discuss bullying in the workplace to be legally compliant.

3. Read – and update employment handbook policies on a yearly basis.

2015 has a few new laws that should be addressed the employee handbook and new hire packets.

4. Run. Sorry, no play on words with this one, you just need to get outside and run a bit.

5. Organize – and keep employment files, time records and wage information for at least the length of any applicable statute of limitations.

Employers should review their systems to ensure there is a process in place on how to organize and maintain employment information for the required time periods, it is required under the law and can help defend the company should litigation ensue.

Ok – one more bonus resolution:
Learn – more by attending my webinars on California employment laws to stay up to date.

In February, I will be presenting on what documents should be in new hire packets to employees. Date is still to be determined, but drop me an email if you are interested and I will forward you information as we set the date.

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Top five employment law class action claims for California employers in 2014

Let me start with the lawyer’s disclaimer up-front: this Friday's Five list has no scientific or statistical backing whatsoever, I generated it based on the cases I’ve been litigating in 2014. My experience may be (and probably is) skewed a bit, but nevertheless California employers should pay attention to the following areas of potential litigation.

1. Meal and rest break litigation.

Meal and rest break class action litigation is still very prevalent in California. While employers are becoming more sophisticated in ensuring compliance with their obligations, the litigation has turned to more nuanced issues, such as the employer’s failure to record meal breaks or provide a full 30 minutes for the meal break. Meal and rest break policies and procedures should always been under review by employers to ensure compliance.

2. Rounding policies.

There have been a number of cases I’ve litigated this year involving time rounding policies. It is important for employers to simply no use the default settings provided by their time keeping software, but instead ensure that the rounding complies with California law.
The Division of Labor Standards Enforcement (DLSE) provides the following guidance for California employers in regard to time rounding:

…the federal regulations allow rounding of hours to five minute segments. There has been practice in industry for many years to follow this practice, recording the employees’ starting time and stopping time to the nearest 5 minute s, or to the nearest one-tenth or quarter of an hour. Presumably, this arrangement averages out so that the employees are fully compensated for all the time they actually work. For enforcement purposes this practice of computing working time will be accepted by DLSE, provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked. (See also, 29 CFR § 785.4 8(b))


3. Private Attorneys General Act claims.

In 2014, the California Supreme Court held that class action waivers in arbitration agreements are enforceable. Click here to read more about the holding, Iskanian v. CLS Transportation Los Angeles, LLC. This holding provided a tool for employers to reduce their class action liability by entering into arbitration agreements with their employees. However, Plaintiffs continually challenge class action waivers on numerous grounds, and it is critical employers’ arbitration agreements are properly drafted and up-to-date. In addition, while courts will uphold class action waivers, the California Supreme Court held that employee may still bring representative actions under the Private Attorneys General Act (PAGA). PAGA claims are limited to specific penalties under the law, and have a much shorter one year statute of limitations compared to potentially a four year statute of limitations for most class actions. Given that the California Supreme Court found that the arbitration agreements could not have employees waive their rights to bring “representative actions” under PAGA, the PAGA claims are more prevalent and being litigated harder by both plaintiffs and defendants.

Click here to read more about PAGA and what do to in response to receiving a Private Attorney Generals Act notice.

4. Required information on pay stubs/itemized wage statements.

Employers are cautioned to rely on their payroll companies for compliant itemized wage statements, as these companies often times do not understand the legal requirements. Ensuring the required information is properly listed on the itemized wage statements is an item that employers should review at least twice a year for compliance.

Labor Code Section 226(a) requires the following information to be listed on employees’ pay stubs:

1. Gross wages earned
2. Total hours worked (not required for salaried exempt employees)
3. The number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece rate basis
4. All deductions (all deductions made on written orders of the employee may be aggregated and shown as one item)
5. Net wages earned
6. The inclusive dates of the period for which the employee is paid
7. The name of the employee and the last four digits of his or her social security number or an employee identification number other than a social security number
8. The name and address of the legal entity that is the employer
9. All applicable hourly rates in effect during the pay period, and the corresponding number of hours worked at each hourly rate by the employee

Here is an example of an itemized wage statement published by the DLSE:

PayStub - California Example by anthonyzaller


Also, do not forget that with California’s paid sick leave law taking effect July 1, 2015, employers will have additional reporting information regarding employees’ accrued paid sick leave and usage. Employers must show how many days of sick leave an employee has available on the employee’s pay stub or a document issued the same day as a paycheck.

5. Off the clock claims.

Litigation alleging that employees were not paid for all time worked was continuing strong in 2014. This claim arises in various scenarios. The basic claim is that the employee clock out from work and was required to or voluntarily continued to work. This type of claim is usually very difficult to have certified as a class action because the employer’s liability for not paying for off the clock work is whether the employer knew or should have known that the work was being performed and that the employee was not compensated for the work. Anther common scenario given rise to an off the clock claim is when employees have to do some task before or after clocking or out for their work. While the U.S. Supreme Court recently held that security screenings of employees at the end of their shifts to ensure they were not stealing product was not compensable time, employers need to review their practices to avoid these types of situations in their workplace.

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Areas employers should review as part of their yearly audit - part two

In my last post, I wrote about what steps employers should talk to comply with the new employment laws for 2015. This post discusses more generally what employers should audit on a yearly basis. And with the year coming to a close, now is a great time to review these five items:

1. Expense reimbursement and mileage policies.
Employees must be reimbursed for all out of pocket expenses incurred while performing their jobs under Labor Code Section 2802. This includes reimbursing employees for their out of pocket expenses for driving their personal vehicles for business purposes. There are a number of different methods employers may utilize in calculating and paying expense reimbursement, as I have previously written here.

While not required, the employer can utilize the IRS mileage rates established each year to pay employees for their vehicle expenses. The IRS mileage rate for 2015 has been set at 57.5 cents per mile (up from 56 cents in 2014).

2. Deductions from wages.
Generally, employer cannot make deductions from employees’ pay for ordinary business expenses or losses. For example, employers are not allowed to deduct the following items employee’s wages:

  • Ordinary damage or wear and tear to equipment
  • The outstanding balance owned on a loan to an employee in one “balloon payment” for the remaining balance of a loan owed to the employer
  • Deductions from employee’s current pay for past payroll errors
  • For returned items from customers
  • Lost equipment
  • Shipping fees to return items to the employer

3. Reporting time pay
California law requires an employer to pay “reporting time pay” under the applicable Wage Order, which states:

Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than the minimum wage.

This issue comes up often times when the employer requires employees to attend meetings during days the employees normally have off. It is important for employers to understand this requirement and schedule employees accordingly.

4. Handbook updates
With California’s new paid sick leave requirement, it may be a good time to review your company’s handbook policies to ensure they are compliant and add a policy for the new law. We are currently reviewing a number of our client’s handbooks. It is like going to the dentist, if you wait too long to update your handbook, it will end up costing you more than if the handbook is revised at least once a year.

5. Review employees who are paid on commissions.

A) Must have written agreements with commissioned employees.
As of January 1, 2013, when an employee is paid commissions, the employer must provide a written contract setting forth the method the commissions will be computed and paid. The written agreement must be signed by both the employer and employee. Commission wages are “compensation paid to any person for services rendered in the sale of such employer’s property or services and based proportionately upon the amount or value thereof.” Commissions do not include (1) short-term productivity bonuses, (2) temporary, variable incentive payment that increase, but do not decrease, payment under the written contract, and (3) bonus and profit-sharing plans, unless there has been an offer by the employer to pay a fixed percentage of sales or profits as compensation for work to be performed.

B) If the commissioned employee is non-exempt, ensure the proper overtime rate is being calculated.
If the employee is non-exempt and the employer is required to pay overtime for work longer than eight hours in one day or more than 40 hours in one week, ensure that the employee’s regular rate of pay is properly calculated for overtime purposes. The DLSE provides a good overview of how to calculate the appropriate regular rate of pay here.

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Steps California employers should take to comply with employment law changes in 2015 - part one

The laws passed in 2014 added some new posting requirements and resulted in the need to
revise some of the notices California employers are required to provide to employees. This Friday’s Five Best Practices article sets out five items California employers should review before the start of 2015:

1. Review newly published frequently asked questions about California’s new paid sick leave law (AB 1522).
The Division of Labor Standards Enforcement (DLSE) published a much awaited frequently asked questions on its website explaining how it interprets the new paid sick leave law taking effect in 2015 (click here to view the FAQ's). Employers should review the questions and answers to have a full understanding their expectations under the new law. As a reminder, this law applies to every employer in California, even if the employer only has one employee.

2. Post the new paid sick leave poster.
As previous written about, the DLSE published the required poster employers must post in a conspicuous place for employees to see. This should be posted by January 1, 2015. Here is a link to download a PDF version of the poster: http://elr.io/pdfsickleaveposter

3. Start using updated Notice to Employee by at least January 1, 2015.
Also written about previously, employers must start using the new Notice to Employee on January 1, 2015. See my previous post for a discussion about how the notice has been revised. Here is a link to download a PDF version of the revised Notice to Employee: http://elr.io/noticetoemployee12-2014

4. Obtain and provide updated sexual harassment pamphlet to new hires.
The DFEH will be releasing revised pamphlets (Sexual Harassment: The facts about sexual harassment DFEH-185) employers are required to provide to new hires. Ensure you company obtains the revised pamphlets and provides the updated pamphlets to new hires.

5. Obtain and provide updated Discrimination and Harassment poster.
Like the sexual harassment pamphlet, the DFEH will be revising the poster entitled “California Law Prohibits Workplace Discrimination and Harassment” (DFEH -162). Employers are required to post this poster in the workplace. This revised noticed should be published by the DFEH within the next week or two, but as of December 5, 2014 the DFEH’s website does not contain the new poster. The poster will reflect the changes in California law that expanded protection against harassment to unpaid interns and volunteers. Click here for a list of the DFEH pamphlets and posters that are available for download. Presumably, once the revised materials are created by the DFEH they will be posted at the DFEH’s website as well.

Next week, I’ll discuss some other areas that employers should review as part of a yearly audit of their employment and wage and hour issues.

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Sick leave poster and revised Notice to Employee published by Division of Labor Standards Enforcement: All California employers must use starting January 1, 2015

The Division of Labor Standards Enforcement (DLSE) published a new poster employers are required to post regarding California’s new sick leave law. Under the new law (Labor Code Section 247) employers are required to display a poster in a conspicuous place requiring certain information about the new rights of employees to receive paid sick leave. The new law added Labor Code Sections 245 to 249 providing California employees with up to three days of paid sick leave beginning July 1, 2015. For more information about the sick leave law and employers’ obligations, a prior post can be read here.

The DLSE also published the revised Notice to Employee which now lists information required about employee’s paid sick leave. The new law amended Labor Code Section 2810.5 to require the Notice to Employee, a form required for all California nonexempt employees, to include information about the employee’s right to paid sick leave. This new Notice to Employee adds the following language under the heading of “Paid Sick Leave”:

Unless exempt, the employee identified on this notice is entitled to minimum requirements for paid sick leave under state law which provides that an employee:

a. May accrue paid sick leave and may request and use up to 3 days or 24 hours of accrued paid sick leave per year;
b. May not be terminated or retaliated against for using or requesting the use of accrued paid sick leave; and
c. Has the right to file a complaint against an employer who retaliates or discriminates against an employee for

1. requesting or using accrued sick days;
2. attempting to exercise the right to use accrued paid sick days;
3. filing a complaint or alleging a violation of Article 1.5 section 245 et seq. of the California Labor Code;
4. cooperating in an investigation or prosecution of an alleged violation of this Article or opposing any policy or practice or act that is prohibited by Article 1.5 section 245 et seq. of the California Labor Code.

The following applies to the employee identified on this notice: (Check one box)
□ 1. Accrues paid sick leave only pursuant to the minimum requirements stated in Labor Code §245 et seq. with no other employer policy providing additional or different terms for accrual and use of paid sick leave.
□ 2. Accrues paid sick leave pursuant to the employer’s policy which satisfies or exceeds the accrual, carryover, and
use requirements of Labor Code §246.
□ 3. Employer provides no less than 24 hours (or 3 days) of paid sick leave at the beginning of each 12-month period.
□ 4. The employee is exempt from paid sick leave protection by Labor Code §245.5. (State exemption and specific subsection for exemption):____________________________

Even though the requirement for employers to provide paid sick leave does not start until July 1, 2015, the revised Notice to Employee and the poster must be used by employers starting January 1, 2015. Therefore, the old Notice to Employee published by the DLSE will be effective until the end of 2014.

View the full DLSE required poster below:

Paid Sick Days Poster Template (11 2014) by anthonyzaller

 View the full DLSE revised Notice to Employee required under Labor Code Section 2810.5 below:

LC_2810.5_Notice_(Revised-11_2014).pdf by anthonyzaller


 

 

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Five things to know about time off for holidays and holiday pay under California law

Happy Holidays! With the holidays upon us, it is a good time for employers to review their holiday schedule and these five reminders about holidays and holiday pay under California law.

1. California employers are not required to provide employees time off for holidays.

There is no requirement that California employers provide time off (except for religious accommodations – see below) for holidays. California’s DLSE’s website states the following:

Hours worked on holidays, Saturdays, and Sundays are treated like hours worked on any other day of the week. California law does not require that an employer provide its employees with paid holidays, that it close its business on any holiday, or that employees be given the day off for any particular holiday.

2. California employers are not required to pay for time off for holidays, nor are they required to pay additional wages if employees work on holidays.

Likewise, there is no requirement that employers pay employees extra pay or “holiday pay” for work performed on holidays. Employers can voluntarily agree to pay employees extra pay for work that is required during holidays, but these terms would be governed by policy set forth by the employer. Therefore, employers are urged to make sure their holiday pay policies are clearly set forth.

3. Employers have to provide reasonable accommodations for employees who cannot work on certain holidays due to religious observances.

Employers need to be aware, however, of any religious observances of their employees. Employers need to provide reasonable accommodations for employees due to their religions. The analysis of what is a reasonable accommodation will be a case by case analysis based on the company’s type of business and the accommodation requested by the employee. If the employer operates a company that requires employees to work during normally recognized holidays, such as a restaurant, then this should be communicated to employees in handbooks or other policies and set the expectation that an essential function of the job requires work during normal holidays.

4. If an employer does provide for paid holidays, the employer does not have to allow employees to accrue paid time off.

If an employee leaves employment before the holiday actually arrives, employers are not required to pay the employee for these days off.

5. If a pay day falls on certain holidays, and the employer is closed, the employer may pay the wages on the next business day.

If an employer is closed on holidays listed in the California Government Code, then the employer may pay wages on the next business days. The holidays listed in the Government Code are as follows:

  • January 1 — New Year’s Day
  • Third Monday in January — Martin Luther King Jr. Day
  • February 12 — Lincoln’s Birthday
  • Third Monday in February — Washington’s Birthday
  • Last Monday in May — Memorial Day
  • July 4 — Independence Day
  • First Monday in September — Labor Day
  • Second Monday in October — Columbus Day
  • November 11 — Veterans Day
  • Fourth Thursday in November — Thanksgiving Day
  • Day after Thanksgiving
  • December 25 — Christmas
  • Other days appointed by the governor for a public fast, thanksgiving or holiday

The DLSE’s website provides the definition of “holiday” here.

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Understanding immigration and labor reform laws on the federal and state level: President Obama's immigration proposal and California's change to immigration related laws in 2015

President Obama's announcement of his controversial plan to provide amnesty for illegal immigrants to remain in the country who meet certain requirements raises a few employment and immigration issues for employers. Putting the politics aside, it is a good time for employers to review their obligations under the law to confirm a worker’s eligibility to work, especially given the new laws taking effect in California in 2015. Below are five areas involving federal and state immigration laws and verification requirements California employers need to be aware of going into 2015.

1. The President’s proposal does not change employers’ current obligation to verify employees’ eligibility to work in the United States.

The President’s proposal will take time to implement, and given the change of power in the Senate in the last election, there is a lot of uncertainty about the effect of the President’s proposal. Even with the political uncertainty, the President’s proposal recognizes the need to create a “provisional legal status” for illegal immigrants that may be provided citizenship. The White House’s website states the following:

Undocumented immigrants must come forward and register, submit biometric data, pass criminal background and national security checks, and pay fees and penalties before they will be eligible for a provisional legal status. Agricultural workers and those who entered the United States as children would be eligible for the same program. Individuals must wait until the existing legal immigration backlogs are cleared before getting in line to apply for lawful permanent residency (i.e. a “green card”), and ultimately United States citizenship. Consistent with current law, people with provisional legal status will not be eligible for welfare or other federal benefits, including subsidies or tax credits under the new health care law.

The details of this system still need to be set out and a process put into place. So employers need to continue to follow the current requirements to verify employment eligibility, and it is not likely that any of the requirements under Federal law will change anytime soon.

2. Expect increased enforcement by federal agencies of immigration and labor laws.

President Obama’s proposal also calls for increasing the monitoring and audit of employers to ensure they are complying with the immigration laws. The President’s proposal seeks a new “labor law enforcement fund” to “ensure that industries that employ significant numbers of immigrant workers comply with labor laws.” The White House’s website touts the fact that ICE has increased his audits of employers since January 2009, and has fined more companies than the Bush administration.

Employers need to review their policies to ensure that they comply with federal and California labor laws. In my practice, I have seen an uptick in DOL audits of employers over the last two years. It is important for California employers to understand the different employment law requirements between federal law and California law, and to ensure that they are complying with the law that applies to their particular workforce.

3. In California, employers need to recognize the new California drivers’ licenses being issued on January 1, 2015 to undocumented workers.

Illegal immigrants will be able to obtain a California driver’s license beginning January 1, 2015. AB 60 was passed in 2013 allowing people who cannot prove their eligibility to be in the United States legally the ability to obtain a driver’s license. The California DMV will begin issuing these drivers’ licenses in the beginning of next year. The licenses will be marked with the phrase “federal limits apply” on the front of the license in the same size and color of text as the other text. This statement will be located in the top right corner above the Class designation on the licenses. On the back of the license, it will have the statement that the license is “not valid for official federal purposes.”

The California drivers’ licenses issued under AB 60 are not valid documentation to prove eligibility to work in the United States. It is important for employers to train their personnel who are responsible for verifying documents when completing the Form I-9 to ensure that the documents presented by the worker are valid for I-9 purposes. In addition, it would be a good time for employers to audit their Form I-9 process and document retention policies.

4. It is illegal for employers to discriminate against workers who present licenses obtained through AB60.

A new law passed in 2014, AB 1660, makes it a violation of California’s Fair Employment and Housing Act (“FEHA”) to discriminate against a worker who presents a driver’s license which was issued to them under AB60 and the individual does not have the legal right to work in the United States. Read this last sentence again and it is not hard to see the rock (federal I-9 obligations) and the hard place (California law) that employers find themselves between. AB 1660 amends FEHA to specify that discrimination on the basis of national origin includes, but is not limited to, discrimination on the basis of possessing a driver’s license issued under this new law. California employers need to be clear on what their obligations are under federal law and carefully navigate these obligations to ensure they do not run afoul of AB 1660 and Vehicle Code section 12801.9.

5. California employers need to treat driver’s license information as confidential employee information.

AB 1660, which amends Vehicle Code section 12801.9, provides that employees’ drivers’ license information obtained by the employer is confidential:

Driver’s license information obtained by an employer shall be treated as private and confidential, is exempt from disclosure under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code), and shall not be disclosed to any unauthorized person or used for any purpose other than to establish identity and authorization to drive.

Therefore, employers need to review their record keeping procedures to ensure that any driver’s license information for their employees is keep in a secure manner and limit other employees’ access to the data.

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Five lessons for employers from new meal break decision: In re Walgreen Co. Cases

An appellate court upheld a trial court’s denial of class certification in a case brought against Walgreens. The appellate court’s decision provides a few good lessons for employers defending class action allegations.

1. Meal break cases are harder to certify as class actions after the Brinker decision.
The California Supreme Court held in Brinker Restaurant Corp. v. Superior Court that employers had to make meal breaks available to employees, and had no obligation to ensure that employees took the meal break. The court in Walgreens acknowledged this, and explained by the make available standard set forth in Brinker makes it hard to certify meal break claims as a class action:

One important difference between the make available standard and the ensure standard has to do with ease of proof. The ensure standard can make it easier for plaintiffs to prove employer meal break violations, while the make available standard can make it harder. Here is why. Employers generally require employees to record hours worked by clocking in and clocking out, a process that typically generates centralized and computerized time records. It is simple to use computer records to determine if each employee checked out on time for a full 30-minute meal break. Meal break classes thus are relatively easy to certify under the ensure test: each missed break automatically equals an employer violation. Meal break classes are harder to certify under a make available test because the fact of a missed break does not dictate the conclusion of a violation (and thus employer liability). Rather, under the make available standard you additionally must ask why the worker missed the break before you can determine whether the employer is liable. If the worker was free to take the break and simply chose to skip or delay it, there is no violation and no employer liability. This make available test thus can make analysis of break violations more complex than under the ensure standard.

2. There is not a presumption against the employer if the employer’s records show no meal period was taken.
Plaintiff argued that because Walgreens's records did not show that meal breaks were being taken, or taken on a timely basis, that there was a rebuttable presumption created against Walgreens that the breaks had not been taken. Plaintiff argued that Justice Werdegar’s concurring opinion in Brinker supported this analysis. However, in this case, the court did not find this was binding analysis, as a majority of the justices did not agree with this rebuttable presumption and because “concurring opinions are not binding precedent.”

3. After Brinker, an expert witness’ job becomes much more difficult.
The plaintiff utilized an expert witness in the case to attempt to prove that the case was suitable for class certification. However, Plaintiff’s expert witness “incorrectly assumed there was a Labor Code violation every time a worker did not take a timely break. [The expert] thus incorrectly assumed Walgreens must ensure employees took their breaks. This assumption is legally unsound under Brinker’s holding….”

4. It is a good idea to test the truthfulness of the declarations submitted by Plaintiff’s counsel of current or former employees.
In this case, it does not appear that the employees made up facts about their breaks, but instead the plaintiff’s counsel took some liberties with the facts. Usually, plaintiff's counsel will submit written declarations from current and former employees to support their theories for class certification.  In this case, it appears that the declarations were all very similar, and when the employees who signed the declarations were deposed by the defendant, the employees recanted their declarations and stated that the declaration drafted by plaintiff's counsel included statements that they never made during the interview by plaintiff's counsel.  The appellate court noted:

The trial judge repeatedly said these declarations “appalled” him, and he told [plaintiff’s] counsel, “You know better.”
The trial court was “especially troubled” that, once deposed, so many witnesses recanted their declarations.
Form declarations present a problem. When witnesses speak exactly the same words, one wonders who put those words there, and how accurate and reliable those words are.
There is nothing attractive about submitting form declarations contrary to the witnesses’ actual testimony. This practice corrupts the pursuit of truth.
It was not error for the trial court to give these unreliable declarations no weight.

Defendants should take the opportunity to depose the individuals who submitted declarations drafted by plaintiff's counsel.  You never know what may turn up. 

5. Emails and other documentation reminding managers to provide meal breaks will help the company’s defense against class certification.

In the Walgreens case, plaintiff counsel argued that the following email (and apparently similar emails) by Walgreens to its managers established meal break violations:

Just an FYI . . . if anyone is on this list, they did not receive a lunch. Please, you must talk to the assistant managers and find out why. . . . please make a big deal about this . . . remind employees that it is their job to ask for a break or lunch if they did not receive it, but also remind the Managers on duty that they must have a break schedule created for every shift . . . there is no negotiation about this . . . there is no excuse not to give a break or lunch . . . look at your schedule and make sure you have the right people at the right time. Two of the people received a lunch, but it was after the 5 hour mark and both did not take a 30 minute lunch. Please. . . Please address in every store. . . . This is one day in the district . . . but this is occur[r]ing in every store! Thank you for your complete follow through on this. If you have any questions, please let me know. I will be sending out some guidelines to help you succeed on making sure everyone gets a 30 minute break within 5 hours of their shift. Thank you.

Contrary to plaintiff’s argument however, the court found that this email instead showed Walgreens’s efforts to provide its employees with meal breaks. The emails showed the company pressuring store managers to ensure that employees took meal breaks. Takeaway for employers: document the emphasis on the company’s actions to make meal breaks available for employees and routinely remind managers of the obligations to make breaks available.

The decision, In re Walgreen Co. Overtime Cases and be read here

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