Wage and Hour Practices

January 2008: EIC

A. B. 650 – Notice of Earned Income Credit Rights – January 2008 – Download This Issue in .pdf Format • Employers must notify their employees that they may be eligible for the federal Earned Income Tax Credit. The notice must be hand delivered or mailed to employees within one week before or after, or at the same time, W-2 or 1099 forms are delivered. Note that employers cannot satisfy the new notice requirement simply by posting the notice on an employee bulletin board or delivering it through interoffice mail. • This notice must contain instructions on how to obtain any notices made available from the Internal Revenue Service for the purpose of obtaining the necessary forms to file for the EITC. • Every employer must process the Form W-5, at the request of the employee and in accordance with Federal law, for the advance payment of the Earned Income Tax Credit. ... Read More

Winter 2010: Topics of Interest for 2010 (Part 2 – Other Topics)

Download This Issue in .pdf Format Supreme Court CasesReverse Discrimination – The City of New Haven, Connecticut discarded the results of promotion examinations on which Caucasian and Hispanic candidates significantly out-performed African-American candidates, based on a potential adverse impact lawsuit by the African-Americans. The Caucasian and Hispanic firefighters then filed suit. The Supreme Court ruled in favor of the plaintiffs stating that employers can only take such actions when there is “strong evidence” (not found here) that unlawful discrimination would occur. Employers are thus advised to carefully examine policies and practices prior to implementation to avoid claims of discrimination (or reverse discrimination). Anti-Retaliation Provisions – The Supreme Court found that when an employee communicates to the employer a belief that the employer has engaged in discrimination the employee will almost always be found to constitute action opposing the activity and give the employee protection from retaliation for having done so. This continues ... Read More

Fall 2011-4: Independent Contractors Misclassification

Download This Issue in .pdf Format IRS Voluntary Compliance Settlement ProgramThe Internal Revenue Service (IRS) has implemented a new program to allow taxpayers who have misclassified workers as independent contractors to voluntarily reclassify the workers as employees with minimal tax liability. This is a voluntary program. To be eligible, a taxpayer must have consistently treated the workers as non-employees; have filed all required Forms 1099 for the past three years; cannot currently be subject to an audit by the IRS, the Department of Labor (DOL) or a state government agency; and, if previously audited by the IRS or DOL on this issue has complied with the results of that audit. To participate in the Voluntarily Compliance Settlement Program (VCSP), the taxpayer must complete an application which will be reviewed by the IRS for verification of eligibility. The taxpayer must agree to prospectively treat the workers as employees for future tax ... Read More

Winter 2012: New Year Reminders; NLRB Actions; and Reporting Time Pay

Download This Issue in .pdf Format • New Year Requirements (Reminder)Employers are reminded that several new laws become effective on January 1, 2012. These include: payment of health insurance premiums for employees on a pregnancy disability leave; restrictions on the use of credit reports by employers; and a written notice to all new hires stating rates of pay, payday, and other employer and workers’ compensation carrier information. The Labor Commissioner’s office has issued a template for this written notice. It can be found athttp://www.dir.ca.gov/dlse/LC_2810.5_Notice.pdf (PDF version) orhttp://www.dir.ca.gov/dlse/LC_2810.5_Notice.doc (Word version). See Fall 2011-2 and 2011-3 Employer’s Legal Advisories for additional information on these new requirements. • NLRA Poster/Election ProceduresIMPORTANT: The NLRB has again extended the beginning date for posting the NLRA poster. The new compliance date is April 30, 2012. This new date is also the effective date for the NLRB’s final rule which amends its election procedures. These amendments will generally result in elections ... Read More

January 2012: Clarification on Written Notice to Employees

Download This Issue in .pdf Format As noted in the Employer’s Legal Advisory (Winter 2012 and Fall 2011-3), as of January 1, 2012 all employers are required to provide newly-hired employees with a written notice that includes certain payroll information and other information about the employer (both the worksite employer and any entity that directly employs the employees) and the employer’s workers’ compensation carrier. [Additionally, if the employer is a farm labor contractor, this notice must also include the name and address of the entity that secured the services of the farm labor contractor and this information must be included in the itemized wage statement (paycheck stub).] The employer is also required to notify employees in writing of any changes in the information included in the notice, unless the change is included in a timely wage statement (paycheck stub) or in another legally-required written notice within seven (7) days of ... Read More

Spring 2012: The Brinker Decision: Rest and Meal Breaks

Download This Issue in .pdf Format On April 12, 2012 the California Supreme Court issued its long-awaited decision in Brinker Restaurant v. Superior Court. Although the case was primarily brought to determine whether class certification was appropriate for the various causes of action, the court specifically answered threshold questions raised in the case on meal and rest breaks in California. The Court first considered how to determine the appropriate number of rest breaks. The IWC Order at issue in the case states the following: Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily ... Read More

April 2012-1: More on the Brinker Decision

Download This Issue in .pdf Format A number of clients have asked for additional information or clarification of the Brinker decision (see Employer’s Legal Advisory Spring 2012). For the benefit of all, please note the following: 1. Is an employee’s meal period waiver still valid? In Brinker the court specifically upheld the validity of meal period waivers that are in conformance with the applicable IWC Order. Thus, an employee and employer can mutually consent to a waiver of the meal period if the total hours worked in the day are six (6) hours or less. Additionally, most of the IWC Orders also contain language that allow wavier of the second meal period by mutual consent in those instances in which the total hours worked in the day are more than ten (10) but not more than twelve (12). Notably, IWC Order 4 does not include this second meal period waiver, but employees in the health care ... Read More

April 2012-2: DLSE Issues New Template – Written Notice to Employees

Download This Issue in .pdf Format As noted in prior Employer’s Legal Advisories, as of January 1, 2012 all employers are required to provide newly-hired non-exempt employees with a written notice that includes certain payroll information and other information about the employer (both the worksite employer and any entity that directly employs the employees) and the employer’s workers’ compensation carrier.The Labor Commissioner has now provided a new template (as of 4/12/12) in English at: http://www.dir.ca.gov/dlse/Governor_signs_Wage_Theft_Protection_Act_of_2011.html The template in other languages is forthcoming. The new template is significantly easier to complete – particularly for staffing agencies and the entities who procure workers through these agencies. As before, a recruiting agency or payroll processing service is not the employer for purposes of this notice. Information regarding the type of entity (corporation, etc.) has been deleted.For most employees there may not be a specific written agreement with regard to wages, with some exceptions, ... Read More