Essential Employment Law Practices: How to Avoid Getting Sued
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Breakout Presentation at the Nonprofit Human Resources Management Symposium in San Diego, June 16, 2010
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Essential Employment Law Practices: How to Avoid Getting Sued
- 1. Essential Employment Law Practices: How to Avoid Getting Sued Christopher W. Olmsted, Esq.
- 3. Who Is NOT Your Employee?
- 14. Exempt Employees
- 20. Wage and Hour Issues
- 51. Questions? Christopher W. Olmsted Barker Olmsted & Barnier, APLC [email_address]
Notes de l'éditeur
- Document Number: 77801
- Use DLSE opinion letters as examples
- Use DLSE opinion letters as examples
- Document Number: 77801
- As of January 1, 2008, $33,280 per year $2,773.33 per month
- Document Number: 77801
- Regulation Clearly Places Burden On Employer To Insure Meal Period. The language of Section 11(A) (patterned on Labor Code § 512) provides that “No employer shall employ any person fo r a work period of more than five (5) hours without a meal period of not less than thirty (30) minutes...” The clear intent of the IWC is that the burden of insuring that em ployees take a meal period within the specified time is on the emp loyer; it is the employer’s duty not to “employ any person for a work period o f more than...” It is the employer’s bu rden to compel the worker to cease work during the meal period. The burden is similar to that imposed upon the employer that he or she “shall pay to each employee wages not less than six dollars and seventy-five cents ($6.75) per hour...” The employer must pay the employee the minimum wage and may not defend his or her failure to do so on the fact that the employee chose to accept less than the minimum wage. As with the minimum wage obligation, the employer is not entitled to excuse the fact that he or she employed an employee for a period of more than five hours without a meal period on the failure of the employee to take the meal period. 45.2.9.1 Relationship Between Record-Keeping Requirement And Meal Period. Inasmuch as the employer has an obligation under the record-keeping requirements to track meal periods unless “all work ceases”, the em ployer should know whether or not its employees have tak en the req uired off-duty meal period . Therefore, it gen erally would not be a defense for an employer to assert that it had no knowledge that its employees were working during a meal period. MEAL PERIODS * same under both laws unpaid if relieved of all duties, 30 min * Must record the break for each employee, unless operations cease (e.g. manufacturing plant lunch hour), then can rely on a posted schedule and deduct time for the meal period. * DLSE says EE must be free to leave premises, case law differs * exception - on duty MP * More on meal periods in Part 2
- Same issues as meal periods – so could double the figures in previous slides Problem of accounting for rest periods b/c not recorded
- RECORDED INFO: * personal info * hour and day workweek starts * total daily hours worked * total daily or weekly straight time earnings * regularly hourly rate when OT * total OT paid * deductions/additions to wages * total wages per pay period * date paid and period covered * basis upon whcih wages are paid (salary, hrly, comsn) RETENTION * at least three years at the place of employment or at a central location within the state * payroll records with above info * employment agreements * sale and purchase records showing total volume * certificates for apprentices, students, minors All other records retained for only 2 years
- Unauthorized overtime--employer must pay but can discipline employee
- General rules: determine “work day” (presumed midnight to midnight) no pyramiding of hours pay OT pay for greater of daily maximum or weekly maximum each workday separate (e.g., 4 pm-8am=16 hour=no OT) HOLIDAYS, SATURDAYS, OR SUNDAYS treated like hours worked on any other day of the week Regular Rate of Pay issues * FLSA - divide weekly salary by number of hours worked - pay EE salary plus OT @ one-half regular rate - rate will vary based on hours * state - divide salary by fixed number of hours in week - pay EE OT rates (1.5 or 2x) - rate will not vary include all compensation in calculating rate * Exclusion of stock options: Wage and Hour Div. feels that include profits which would be the difference between value when bought and exercised. TOO HARD! therefore enacted Worker Economic Opportunity Act: which permits exclusion of options from computing regular rate under specified circumstances Requires: terms of plan disclosed minimum six months vesting period stock cost employee no more than 15% disc voluntary participation Non-monetary compensation board--include fair market value
- Document Number: 77801
- Document Number: 77801
- There are mandatory contents. See handout at page ___. Sample Notice is provided at Addendum __.