California Wage & Hour Law ─ Avoiding
Common Pitfalls with a Distributed
Workforce
Featuring Seyfarth Shaw LLP

©2013 Seyf...
Welcome

Today’s Host
Michelle Lanter Smith

Chief Marketing Officer
EPAY Systems, Inc.
mlsmith@EPAYsystems.com
773-499-75...
EPAY Systems -- designed to meet the
needs of your complex,
distributed workforce

• Reduce your labor
costs by 5% or more...
Today’s Discussion
Federal court filings of wage and hour class and
collective actions have increased more than 500%
since...
Our Speakers

Brandon McKelvey
Partner, Seyfarth Shaw LLP
Labor & Employment
bmckelvey@seyfarth.com
(916) 498-7039

Ann Ma...
Ask Your Questions

To ask a question, simply type
your question in the “Question”
box on the right side of your
screen.

...
Polling Question
•

Have you struggled with or pulled your hair out over
a California wage-hour question in the last six
m...
Why California?
•
•
•

Federal wage-hour law stems from the Fair
Labor Standards Act (FLSA).
California has its own more e...
Sources of California Law
•
•
•
•

California Labor Code
California Industrial Welfare Commission
Wage Orders
Judicial Dec...
Compliance With California Wage & Hour
Law Is Not Easy

•
•
•
•
•
•

•
•
•
•
•
•

Meal and Rest Periods
Employment Classif...
Pitfall # 1
Failure to Comply with
California’s
Meal and Rest Period
Requirements

11 |

©2013 Seyfarth Shaw LLP
California Meal Periods:
Legal Requirements
Rules

•

•
•

Exceptions

Over 6 hrs and up to 10 hrs –
one 30-min unpaid/off...
California Rest Periods:
Legal Requirements

•

Less than 3.5 hours - not legally
entitled to rest period.

•

More than 3...
Meal and Rest Period Proposals
•
•
•
•
•
•

Compliant written meal and rest period policies
Written policy requiring accur...
Pitfall # 2
Misclassification of
Employees under California’s
More Narrow Overtime
Exemptions

15 |

©2013 Seyfarth Shaw L...
Employment Classification
Non-Exempt = Entitled to Overtime

Exempt = Not Entitled to Overtime

16 |

©2013 Seyfarth Shaw ...
Employment Classification ─
Three Tests for Exempt Status
•

Salary Level Test

•

Salary Basis Test

•

Duties Test

17 |...
Employment Classification ─
Salary Level Test
•
•

For most employees, the minimum salary level required is $640 per
week
...
Employment Classification ─
Salary Basis Test
•
•
•
•

Regularly receives a predetermined amount of compensation
each pay ...
Employment Classification ─
Duties Test

•

Primarily engaged in exempt work that requires the
exercise of discretion and ...
Pitfall # 3

Failure to Comply with
California’s More Stringent
Overtime Requirements

21 |

©2013 Seyfarth Shaw LLP
Payment of Overtime:
When Is It Owed?

•
•

Federal / FLSA
all hours worked over 40 in a
workweek

•
•
•
•

22 |

©2013 Se...
Payment of Overtime:
What Is the Rate of Pay?
Federal
1.5 times the regular rate
(Includes hourly pay, non-discretionary
b...
Payment of Overtime:
What Is the Rate of Pay?
California
1.5 times the regular rate for:

•
•
•

over 8 hrs. in a workday ...
Pitfall # 4

Employees Working

“Off the Clock”

25 |

©2013 Seyfarth Shaw LLP
“Off-the-Clock” Work
o
o
o
o
o
o

Pre or Post Shift Work
Working from Home
After-Hours Calls
After-Hours E-mails
After-Hou...
“Off-the-Clock” Work
•

The California Supreme Court endorsed Brinker’s off-the-clock
policy:
o It is your responsibility ...
Pitfall # 5
Failure to Comply with
California’s More Stringent
Travel Time Rules

28 |

©2013 Seyfarth Shaw LLP
Travel Time
.

o Commute time to and from work
generally is unpaid.
o Travel time is compensable if the
employee is subjec...
Overnight Travel Time
Federal
o Travel time during normal working
hours is “hours worked.”
California
o All travel time is...
Pitfall # 6
Failure to Comply with
California’s Expense
Reimbursement
Requirements

31 |

©2013 Seyfarth Shaw LLP
Expense Reimbursement
•

Under California Labor Code section
2802, California employers must reimburse
employees for neces...
Pitfall # 7

Failure to Comply with
California’s Reporting Time
Pay Requirements

33 |

©2013 Seyfarth Shaw LLP
Reporting Time Pay
•

The Company must pay an employee for half of the
employee’s usual scheduled day’s work (no less than...
Reporting Time Pay for Meetings
•

•

In Aleman v. AirTouch Cellular (Cal. App. 2011), the
California Court of Appeal held...
Polling Question
•

Do you offer “personal days” or “floating holidays” that
may be used for any purpose (or almost any pu...
Pitfall # 8

Failure to Comply with
California’s “No Use It Or
Lose It” Vacation Rules

37 |

©2013 Seyfarth Shaw LLP
Vacation
•
•
•

•
•

No use it or lose it
Employers can place reasonable cap on
vacation accrual (1.5 times annual accrual...
Pitfall # 9
Failure to Comply with
California’s Final Paycheck
Requirements

39 |

©2013 Seyfarth Shaw LLP
Pay at Termination:
The Rules
o Voluntary
Resignation
o Involuntary
Termination
o Lay Off

40 |

©2013 Seyfarth Shaw LLP
Pay at Termination:
Waiting Time Penalties
•
•
•

•
41 |

Exiting employees not paid all wages owed at termination
can get...
Pitfall # 10

Failure to Comply with
California’s Itemized Wage
Statement Requirements

42 |

©2013 Seyfarth Shaw LLP
Itemized Wage Statements ─
Required Information
•
•
•

•
•

Gross wages earned

Total hours worked (not for
salaried exemp...
“Wage Theft” Notice
•

Law went into effect January 1, 2012, but many employers are not following
it. Must provide a writt...
Polling Question
•

Does your company round time entries for hourly
employees (e.g., to the nearest 5 minutes, 10 minutes,...
Wage Theft Notice: Template Released April 12, 2012
http://www.dir.ca.gov/dlse/Governor_signs_Wage_Theft_Protection_Act_of...
Pitfall # 11

Rounding Time Entries

47 |

©2013 Seyfarth Shaw LLP
Rockin Around the Clock
o Trial court judge in class action against See’s Candy Shops
said rounding of any kind violates C...
EPAY Systems

Michelle Lanter Smith
Chief Marketing Officer
EPAY Systems, Inc.

49
EPAY -- In Time with You

Complex pay rules?
Mobile workforce,
union contracts,
multiple job assignments?

No problem!

Un...
Reduce your labor costs

Eliminate erroneous
pay
calculations, time
rounding,
and management
inconsistencies

Eliminate bu...
Minimize Compliance Risk
•
•
•
•
•
•

Audit Trails
Overtime
Meal Breaks
Pay Differentials
Privacy and Security
Reduce Work...
Over 40,000 customer sites

53
Easy, Anywhere Time Tracking

Blueforce adapts
to how YOU
do business

54
Upcoming Education
Compliance Webinar Series with Seyfarth Shaw LLP

•
•
•

Understanding the Affordable Care Act: Should ...
Thank You!

Brandon McKelvey
Partner, Seyfarth Shaw LLP
Labor & Employment
bmckelvey@seyfarth.com
(916) 498-7039

Ann Mari...
Connect with us
Bonus! Seyfarth Shaw’s 2013 Cal-Peculiarities: How
California Employment Law Is Different
Connect with EPA...
Thank You!

58
©2013 Seyfarth Shaw LLP
Upcoming SlideShare
Loading in …5
×

California Wage and Hour Law: Avoiding Common Pitfalls With a Distributed Workforce

1,306 views

Published on

Throughout this century, California employment law has deviated from elsewhere in America, making it a difficult landscape for America’s employers to navigate without fear of litigation. Labor law attorneys from Seyfarth Shaw, LLP–the country’s top wage and hour litigator–share their best wage and hour advice for employers with a distributed workforce operating in California.

For more than 60 years, Seyfarth Shaw has been recognized as one of the “go-to” labor and employment firms for business by providing extraordinary, cost-effective results. EPAY Systems, Inc. has joined forces with Seyfarth Shaw to educate employers of distributed labor environments on how compliance risk can be minimized, especially in California.

Published in: Technology, Career
0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total views
1,306
On SlideShare
0
From Embeds
0
Number of Embeds
6
Actions
Shares
0
Downloads
27
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide
  • Thanks John. Welcome to our webinar in our Compliance Series “How to Avoid Costly Wage & Hour Pitfalls for Construction, Engineering & Landscaping Employers” presented by EPAY Systems. My name is Michelle Lanter Smith. I am the Chief Marketing Officer here at EPAY Systems.I’d like to extend a warm welcome to all of you on the line with us today. We have over __ people joining us . . . From across the nation. As construction, engineering, and landscaping firms, all of you have a couple things in common –You all face a challenging, complex labor environment – one where you workers are distributed across many locations – making it difficult for consistent management policies and proceduresManaging compliance issues – such as Overtime pay, meal breaks, employee travel . . . is a real concern. And because of your distributed workforce, it’s even harder to manage.
  • Well, that’s where EPAY comes in. EPAY is in the time and labor management business. And we specialize in dealing with companies that have very complex and distributed labor environments. Our organization understands all of the challenges and limitations a company with employees scattered everywhere deals with as it relates to deploying new technology in the field, as well as managing and tracking it’s labor force.Distributed labor can present many challenges. Yet, labor is probably your largest cost.Complex pay rules, shift differentials, employees working one task in the morning and a different one in the afternoon. Employees working at customer sites or moving from job to job.These are tough for most time and attendance systems. But not for us. Our uniquely flexible pay rules engine can handle complex union rules and state regulations, not to mention your own complexities because of the nature of your business.Our web-based system, Blueforce, drives two main benefits for our clients:We help them reduce their total labor costs by more than 5%We help them lower their overall risk in facing compliancy issues – we have a built-in compliance orientated features . . . Right in our system
  • And speaking of compliance, it’s not something to be overlooked in today’s labor environment.Federal court filings of wage and hour class and collective actions have increased more than 500% since 2000.The Department of Labor (DOL) recently increased its investigative staff by 40% to crack down on non-compliant.Indeed, the vast majority of class and collective actions filed in state and federal courts continue to be wage-hour cases. And when they do coming knocking on your door, it’s expensive.The average reported settlement is $8.5 million per case, with a per plaintiff average of $5,600. Allegations run the gamut—unpaid overtime; off-the-clock-work; misclassification of exemption status; missed short or late meals and breaks; unpaid donning and doffing time; failure to pay minimum wage, and improper tip pooling. Could you be at RISK?Probably most of you on the line, would say “most definitely”That’s why today, I’m thrilled to introduce to you our guest speakers from Seyfarth Shaw for today’s webinar on compliance. They really do have the Best Tips for Staying out of Trouble.Seyfarth Shaw’s defense of employers in wage and hour litigation has become one of the hallmarks of the firm’s nationally recognized employment law practice. Its Wage & Hour litigation practice group consists of more than 80 attorneys in offices across the country. They have litigated hundreds of complex wage and hour cases in nearly every federal jurisdiction and in courts of almost every state, as well as before administrative agencies and on a multi-jurisdictional basis.Today we are fortunate to have two of the firms prominent partners in the California wage and hour space, Brandon McKelvey and Ann Marie Zaletel
  • Ann Marie:Ms. Zaletel is a partner in the Los Angeles office and a key member of the Workplace Compliance Solutions Group.  Her practice is focused on the delivery of proactive, pragmatic solutions that help clients avoid litigation and develop internal compliance initiatives. Ms. Zaletel has assisted numerous clients with business restructuring and workforce reductions; conducted large exempt status and pay practices assessments, under both federal and California law; helped clients develop and implement centralized leave of absence and disability accommodation management processes; and developed tools and systems for reviewing hiring and selection and termination processes.  She advises employers on the protection of their intellectual property and related matters, independent contractor relationships, drug and alcohol testing, and workplace violence issues.  Ms. Zaletel regularly counsels clients on compliance with California employment law peculiarities and is an expert on California wage-hour law as well as on the federal Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA), and the California Pregnancy Disability Leave Law (PDL) and the interplay of these three statutes. Ms. Zaletel has extensive, broad-based employment litigation experience in California and federal courts, including jury trial experience.  She has handled cases alleging wage-hour claims (including claims for unpaid overtime and California meal/rest period violations); failure to accommodate and disability discrimination claims; claims violation of the FMLA, CFRA, and PDL; and race, sex,, and age discrimination claims.  Brandon: Mr. McKelvey is a Partner in the Labor and Employment Department of Seyfarth Shaw LLP with significant litigation experience in large class-actions, collective actions, and complex multi-party litigation. He is a member of the Wage & Hour Litigation Practice Group and concentrates his practice on defending companies against wage-and-hour and employment class and collective actions and advising companies on how to avoid wage-and-hour litigation.Mr. McKelvey is a Co-Author of the Chapter "Defending Rule 23 State Law Wage and Hour Class Actions" in the “Wage & Hour Collective and Class Litigation (The Definitive treatise on wage and hour litigation.)," ALM Law Journal Press, Chapter 7 (2012). He is also Co-Founder and Editor of the California Peculiarities Employment Law Blog, and he regularly blogs on legal developments related to class actions and wage-and-hour law atwww.wagehourlitigation.com and www.calpecs.com .Mr. McKelvey has the unique experience that includes litigating class actions on both sides of the bar, participating in a class action trial, and arguing in front of the Ninth Circuit Court of Appeals and the California Court of Appeal in class action cases.  He was a lead attorney on one of the largest wage-and-hour class-action cases in California history and a member of the trial team for one of the largest class-action trials in California. He has defended a variety of large wage-and-hour class and collective actions alleging unpaid wages, misclassification of salaried employees, off-the-clock work, meal and rest period violations, misclassification of independent contractors, unreimbursed expenses, breach of contract, forfeiture of commissions or incentive bonuses, unfair business practices, wage statement violations, and other federal and state wage claims.Mr. McKelvey has handled class and collective litigation in a wide number of industries, including mortgage, retail, health care, grocery, warehouse and supply chain, insurance, computer and information technology, financial and professional services, specialized and temporary staffing, manufacturing, shipping and trucking, agriculture, education, and construction.
  • Now I’m sure many of you are going to have questions for Brandon and Ann Marie today. If you have one, simply type it in the Question box in bottom right section of your screen. We’ll be monitoring the questions and Brandon and Ann Marie will attempt to answer your questions throughout their presentation.So let’s get started . . .
  • Wow – what a lot of great information you’ve given us in such a short time. Now if you have question for Brandon or Ann Marie, just let us know. We’ll see a short survey when you close out today’s session. Just let us know and we’ll try to help get your question answered.I’d like to wrap up our time together today with a few words on EPAY and how we address your compliance needs.
  • Since 2001, EPAY has delivered innovative, efficient and effective solutions to address our clients critical time and labor management issues.Our client base is very diverse – serving some of the largest in Janitorial,Building Maintenance – Healthcare –– Security –– Foodservice – and Hospitality. You’ll see our clocks in some of the largest retailers, public sporting venues, and airports in the nation.One of the central themes we hear from our clients is that we can mirror the operating environment. Specifically we can handle all the various payroll permutations to ensure accuracy and compliancy for their organization. The flexibility of Blueforce is built-in; we meet our customers’ business needs without upfront custom costs.
  • Upon the implementation of our system, EPAY’s clients see an immediate Return on Investment, through the reduction of the following exposures.Elimination of buddy of punchingEliminate erroneous pay calculations,human error, and time roundingReduce payroll administration and distribution time associated with pay checks and pay stubsBy utilizing our advanced functionality the 5% reduction in Labor can climb to 9%.An example of this would be our real time alerts which can reduce overtime exposure and keep you on budget
  • Time and Wage cases in 2012 have surpassed discrimination cases for the most litigated exposure facing corporations. EPAY provides many features and reports that help mitigate exposure and provides access to historical data to dispute labor audit claims.Audit Trails – Changing an employee’s timecard without his/her approval is a surprisingly common FLSA violation. Blueforce flags all unapproved changes, so managers can address them before they become issues.  Overtime - Calculating overtime properly is a huge litigation concern for employers. Blueforce tracks work time to the minute and automatically notes when an employee reaches overtime. Better yet, it can even alert managers before an employee hits the OT threshold. Meal Breaks – Improperly tracking or enforcing required meal breaks are another corporate Achilles’ heel. Blueforce asks employees if they’ve taken their proper meal breaks, advises you of deviations, and can even generate real-time alerts when a meal break is missed. Pay Differentials – When a single employee is paid varying hourly rates, depending on shift or task, it can create headaches for your payroll staff. Because we ‘configure’ your pay differentials into Blueforce at the outset, it accurately calculates employee pay effortlessly. Privacy and Security - Our time-tracking system keeps you in complete compliance with the Sarbanes-Oxley Act, which protects employees’ confidential information. We can even provide you with documented proof that your employees and managers only have access to what they should. Workplace Safety – We know on-the-job injuries are a real concern and that Workers’ Compensation claims are a very real expense. That’s why we’ve built a rather unique safeguard into our punch-out procedure. At the end of each shift, employees are asked if they had a “safe day.” The benefits are two-fold: 1) if an accident occurs, you’re instantly in the loop, and 2) if a questionable claim is made later, you have some documentation of your own.
  • EPAY has provided solutions to the most complex labor environments, encompassing hundreds of collective bargaining agreements.ABM Industries – 110,000, across 6500 sitesHealthcare Services Group 30,000 eeacroos 3,000 sitesCompass Group – 20,000 across 2500 sites Crothall - 16,000 eeUnicco - 16,000 eeKBS – 15,000 ee
  • In working with our clients EPAY has understood the importance of mirroring our clients environment and making our system as user friendly as possible.Upon the tabulation of punch data, EPAY’s pay rules engine allows our system to compute gross payroll regardless of the complexity of the clients pay rule. Our competitors struggle with this development and often time costs their clients hundreds of thousands of dollars in professional services fees.Understanding the challenges that end users face in remote environments, EPAY has developed various forms of data collections methods that ensure two things for our clients:There will always be a way for us to collect and transmit data (Wireless, LAN, WiFi, DialUp)NEXT SLIDE . . .
  • That’s all the time we have today. Thank you to all of you for joining us today. We’d like to be your time and labor management provider. At EPAY, we’re IN TIME WITH YOU.Until next time, then, have a wonderful rest of your day. Good-bye.
  • California Wage and Hour Law: Avoiding Common Pitfalls With a Distributed Workforce

    1. 1. California Wage & Hour Law ─ Avoiding Common Pitfalls with a Distributed Workforce Featuring Seyfarth Shaw LLP ©2013 Seyfarth Shaw LLP
    2. 2. Welcome Today’s Host Michelle Lanter Smith Chief Marketing Officer EPAY Systems, Inc. mlsmith@EPAYsystems.com 773-499-7512 2 ©2012 Seyfarth Shaw LLP
    3. 3. EPAY Systems -- designed to meet the needs of your complex, distributed workforce • Reduce your labor costs by 5% or more • Keep you in control and in compliance 3
    4. 4. Today’s Discussion Federal court filings of wage and hour class and collective actions have increased more than 500% since 2000. Are you at risk? 4 ©2012 Seyfarth Shaw LLP
    5. 5. Our Speakers Brandon McKelvey Partner, Seyfarth Shaw LLP Labor & Employment bmckelvey@seyfarth.com (916) 498-7039 Ann Marie Zaletel Partner, Seyfarth Shaw LLP Labor & Employment azaletel@seyfarth.com (310) 201-1560 5
    6. 6. Ask Your Questions To ask a question, simply type your question in the “Question” box on the right side of your screen. 6
    7. 7. Polling Question • Have you struggled with or pulled your hair out over a California wage-hour question in the last six months? 7
    8. 8. Why California? • • • Federal wage-hour law stems from the Fair Labor Standards Act (FLSA). California has its own more extensive regulation of wages and working conditions. The FLSA does not preempt California law. 8| ©2013 Seyfarth Shaw LLP
    9. 9. Sources of California Law • • • • California Labor Code California Industrial Welfare Commission Wage Orders Judicial Decisions California Division of Labor Standards Enforcement (DLSE) Interpretations 9| ©2013 Seyfarth Shaw LLP
    10. 10. Compliance With California Wage & Hour Law Is Not Easy • • • • • • • • • • • • Meal and Rest Periods Employment Classification California Overtime “Off-the-Clock” Work Travel Time Expense Reimbursement 10 | ©2013 Seyfarth Shaw LLP Reporting Time Pay “Vacation Pay at Termination Itemized Wage Statements Wage Theft Notice Time Rounding
    11. 11. Pitfall # 1 Failure to Comply with California’s Meal and Rest Period Requirements 11 | ©2013 Seyfarth Shaw LLP
    12. 12. California Meal Periods: Legal Requirements Rules • • • Exceptions Over 6 hrs and up to 10 hrs – one 30-min unpaid/off duty/ uninterrupted meal period must be provided before the 6th hour • • More than 10 hrs – two 30min unpaid/off duty/uninterrupted meal periods must be provided. • What does “provide” mean? 12 | ©2013 Seyfarth Shaw LLP 5 hrs or less – no meal period A first meal period is waivable if the employee works 5 hrs but not more than 6 hrs The second meal period is waivable if the employee works less than 12 hours.
    13. 13. California Rest Periods: Legal Requirements • Less than 3.5 hours - not legally entitled to rest period. • More than 3.5 hours to 6 hours - one ten-minute rest period. 13 | ©2013 Seyfarth Shaw LLP • More than 6 hours to 10 hours - two ten-minute rest periods. • Over 10 hours – three tenminute rest periods.
    14. 14. Meal and Rest Period Proposals • • • • • • Compliant written meal and rest period policies Written policy requiring accurate recording of meal periods Written policy requiring reporting issues with meal and rest periods Training for managers and employees on policies Employee acknowledgments Electronic or paper attestations 14 | ©2013 Seyfarth Shaw LLP
    15. 15. Pitfall # 2 Misclassification of Employees under California’s More Narrow Overtime Exemptions 15 | ©2013 Seyfarth Shaw LLP
    16. 16. Employment Classification Non-Exempt = Entitled to Overtime Exempt = Not Entitled to Overtime 16 | ©2013 Seyfarth Shaw LLP
    17. 17. Employment Classification ─ Three Tests for Exempt Status • Salary Level Test • Salary Basis Test • Duties Test 17 | ©2013 Seyfarth Shaw LLP
    18. 18. Employment Classification ─ Salary Level Test • • For most employees, the minimum salary level required is $640 per week The $640 per week may be paid in equivalent amounts for periods longer than one week: o o o o • Biweekly $1,280 Semimonthly $1,386.67 Monthly $2,773.33 Annually $33,280 The minimum salary level under the federal FLSA is $455 per week, $1,971.66 per month, or $23,660 per year 18 | ©2013 Seyfarth Shaw LLP
    19. 19. Employment Classification ─ Salary Basis Test • • • • Regularly receives a predetermined amount of compensation each pay period (on a weekly or less frequent basis) The compensation cannot be reduced because of variations in the quality or quantity of the work performed Must be paid the full salary for any week in which the employee performs any work (subject to certain limited exceptions) Need not be paid for any workweek when no work is performed 19 | ©2013 Seyfarth Shaw LLP
    20. 20. Employment Classification ─ Duties Test • Primarily engaged in exempt work that requires the exercise of discretion and independent judgment • “Primarily” means more than 50% of work time • California law is more stringent than federal law 20 | ©2013 Seyfarth Shaw LLP
    21. 21. Pitfall # 3 Failure to Comply with California’s More Stringent Overtime Requirements 21 | ©2013 Seyfarth Shaw LLP
    22. 22. Payment of Overtime: When Is It Owed? • • Federal / FLSA all hours worked over 40 in a workweek • • • • 22 | ©2013 Seyfarth Shaw LLP California all hours worked over 40 in a workweek all hours worked over 8 in a workday all hours worked on the 7th consecutive day of work in a single workweek
    23. 23. Payment of Overtime: What Is the Rate of Pay? Federal 1.5 times the regular rate (Includes hourly pay, non-discretionary bonuses, and shift differentials) 23 | ©2013 Seyfarth Shaw LLP
    24. 24. Payment of Overtime: What Is the Rate of Pay? California 1.5 times the regular rate for: • • • over 8 hrs. in a workday (up to 12 hrs.) over 40 hrs. in a workweek first 8 hours on 7th consecutive workday in a workweek 2 times the regular rate for: • • over 12 hrs. in a workday any hours over 8 on the 7th consecutive day worked in a workweek 24 | ©2013 Seyfarth Shaw LLP
    25. 25. Pitfall # 4 Employees Working “Off the Clock” 25 | ©2013 Seyfarth Shaw LLP
    26. 26. “Off-the-Clock” Work o o o o o o Pre or Post Shift Work Working from Home After-Hours Calls After-Hours E-mails After-Hours Computer Entry Overachiever – under reporter o Underachiever – under reporter 26 | ©2013 Seyfarth Shaw LLP
    27. 27. “Off-the-Clock” Work • The California Supreme Court endorsed Brinker’s off-the-clock policy: o It is your responsibility to clock in and clock out for every shift you work. ... [Y]ou may not begin working until you have clocked in. Working 'off the clock' for any reason is considered a violation of Company policy. If you forget to clock in or out, or if you believe your time records are not recorded accurately, you must notify a Manager immediately, so the time can be accurately recorded for payroll purposes. • Review timekeeping policies to ensure they are legally compliant 27 |
    28. 28. Pitfall # 5 Failure to Comply with California’s More Stringent Travel Time Rules 28 | ©2013 Seyfarth Shaw LLP
    29. 29. Travel Time . o Commute time to and from work generally is unpaid. o Travel time is compensable if the employee is subject to the control of the employer, even if the employee is not working. 29 | ©2013 Seyfarth Shaw LLP
    30. 30. Overnight Travel Time Federal o Travel time during normal working hours is “hours worked.” California o All travel time is “hours worked” – before, during or after normal working hours 30 | ©2013 Seyfarth Shaw LLP
    31. 31. Pitfall # 6 Failure to Comply with California’s Expense Reimbursement Requirements 31 | ©2013 Seyfarth Shaw LLP
    32. 32. Expense Reimbursement • Under California Labor Code section 2802, California employers must reimburse employees for necessary employee business expenses. o Auto Expenses (Other than For Commuting) o Cell Phone Charges o Client Entertainment 32 | ©2013 Seyfarth Shaw LLP
    33. 33. Pitfall # 7 Failure to Comply with California’s Reporting Time Pay Requirements 33 | ©2013 Seyfarth Shaw LLP
    34. 34. Reporting Time Pay • The Company must pay an employee for half of the employee’s usual scheduled day’s work (no less than 2 hrs and no more than 4 hrs) when the employee: o is required to report to work, and o reports to work, and o is not put to work OR is furnished less than half of the usual scheduled day’s work. 34 | ©2013 Seyfarth Shaw LLP
    35. 35. Reporting Time Pay for Meetings • • In Aleman v. AirTouch Cellular (Cal. App. 2011), the California Court of Appeal held that no reporting time pay is due for training meetings that were scheduled in advance, even though the meetings were scheduled for less than half the amount of time an employee typically worked. Reporting time pay only would apply if the employee is furnished work for less than half the scheduled meeting time. 35 | ©2013 Seyfarth Shaw LLP
    36. 36. Polling Question • Do you offer “personal days” or “floating holidays” that may be used for any purpose (or almost any purpose)? If yes, do you pay out California employees for their unused days? 36
    37. 37. Pitfall # 8 Failure to Comply with California’s “No Use It Or Lose It” Vacation Rules 37 | ©2013 Seyfarth Shaw LLP
    38. 38. Vacation • • • • • No use it or lose it Employers can place reasonable cap on vacation accrual (1.5 times annual accrual is minimum) Employers can “cash out” accrued vacation time each year Must pay out accrued, unused at termination Floating Holidays 38 | ©2013 Seyfarth Shaw LLP
    39. 39. Pitfall # 9 Failure to Comply with California’s Final Paycheck Requirements 39 | ©2013 Seyfarth Shaw LLP
    40. 40. Pay at Termination: The Rules o Voluntary Resignation o Involuntary Termination o Lay Off 40 | ©2013 Seyfarth Shaw LLP
    41. 41. Pay at Termination: Waiting Time Penalties • • • • 41 | Exiting employees not paid all wages owed at termination can get “waiting time penalties.” Requires “willful” failure to pay, but that is a broad concept under California law . Unless you have reasonable defense to paying the wages, you generally owe the penalties. Ignorance of the law is no excuse! ©2013 Seyfarth Shaw LLP
    42. 42. Pitfall # 10 Failure to Comply with California’s Itemized Wage Statement Requirements 42 | ©2013 Seyfarth Shaw LLP
    43. 43. Itemized Wage Statements ─ Required Information • • • • • Gross wages earned Total hours worked (not for salaried exempt employees) Number of piece-rate units earned and any applicable piece rate • • • All deductions Net wages earned 43 | © 2010 Seyfarth Shaw LLP • Dates of the pay period Employee name and last four digits of SSN or other employee ID. Name and address of the employer All applicable hourly rates for the pay period with number of hours worked at each rate
    44. 44. “Wage Theft” Notice • Law went into effect January 1, 2012, but many employers are not following it. Must provide a written notice to new non-exempt employees, which states: o Pay rate(s) and basis, whether by the hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime o Allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances o The regular payday designated by the employer o The name of the employer, including any formal or informal "doing business as" names used by the employer o The physical address of the employer's main office or principal place of business, a mailing address (if different) and the telephone # of the employer o Name, address, and telephone number of the employer's workers' compensation insurance carrier o Any other information the Labor Commissioner deems material and necessary 44 | ©2013 Seyfarth Shaw LLP
    45. 45. Polling Question • Does your company round time entries for hourly employees (e.g., to the nearest 5 minutes, 10 minutes, or 15 minutes)? 45
    46. 46. Wage Theft Notice: Template Released April 12, 2012 http://www.dir.ca.gov/dlse/Governor_signs_Wage_Theft_Protection_Act_of_2011.html 46 | ©2012 Seyfarth Shaw LLP
    47. 47. Pitfall # 11 Rounding Time Entries 47 | ©2013 Seyfarth Shaw LLP
    48. 48. Rockin Around the Clock o Trial court judge in class action against See’s Candy Shops said rounding of any kind violates California law o Good News for Employers: The Cal Court of Appeal adopts the DOL and DLSE position: unbiased rounding is ok as long as it does not works to the disadvantage of the employee over a period of time o But Beware: Do you know how your rounding policy works over a period of time? 48 | ©2013 Seyfarth Shaw LLP
    49. 49. EPAY Systems Michelle Lanter Smith Chief Marketing Officer EPAY Systems, Inc. 49
    50. 50. EPAY -- In Time with You Complex pay rules? Mobile workforce, union contracts, multiple job assignments? No problem! Uniquely flexible 50
    51. 51. Reduce your labor costs Eliminate erroneous pay calculations, time rounding, and management inconsistencies Eliminate buddy punching Reduce costs associated with paper checks. Save an average of $2.87 per pay period/per employee. or more! Biometric time clocks with camera and finger print reader 51
    52. 52. Minimize Compliance Risk • • • • • • Audit Trails Overtime Meal Breaks Pay Differentials Privacy and Security Reduce Workers Comp Claims • Did you have an accident free day? 52
    53. 53. Over 40,000 customer sites 53
    54. 54. Easy, Anywhere Time Tracking Blueforce adapts to how YOU do business 54
    55. 55. Upcoming Education Compliance Webinar Series with Seyfarth Shaw LLP • • • Understanding the Affordable Care Act: Should You Pay or Play? Sept 10: 12:00 cst How to Avoid Costly Wage & Hour Pitfalls for Healthcare Employers with a Distributed Workforce. Sept 25: 12:00 cst How to Avoid Costly Wage & Hour Pitfalls for Employers in the Hospitality Industry. Nov 6: 12:00 cst Register at www.EPAYsystems.com 55
    56. 56. Thank You! Brandon McKelvey Partner, Seyfarth Shaw LLP Labor & Employment bmckelvey@seyfarth.com (916) 498-7039 Ann Marie Zaletel Partner, Seyfarth Shaw LLP Labor & Employment azaletel@seyfarth.com (310) 201-1560 56 ©2013 Seyfarth Shaw LLP
    57. 57. Connect with us Bonus! Seyfarth Shaw’s 2013 Cal-Peculiarities: How California Employment Law Is Different Connect with EPAY on: o LinkedIn – follow our company page at EPAY Systems o Twitter -- @EPAYsystems o Sign up for our e- newsletter at EPAYsystems.com Connect with Seyfarth Shaw LLP: o Wage & Hour Litigation Blog http://www.wagehourlitigation.com/ o California Peculiarities Blog http://www.calpeculiarities.com o Twitter - @SeyfarthShawLLP 57 ©2013 Seyfarth Shaw LLP
    58. 58. Thank You! 58 ©2013 Seyfarth Shaw LLP

    ×