Legislation Introduced In California To Exempt “Highly Compensated” Employees From Overtime

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Published on Thursday, 23 April 2015 Written by Bernadette M. O'Brien, ESQ., SPHR of Floyd, Skeren & Kelly LLP

Pursuant to federal law, specifically the Fair Labor Standards Act (FLSA) most employees working in the United States must be paid at least the federal minimum wage for all hours worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 in a workweek. However, there are exemptions from overtime for certain employees, including those working as bona fide executive, administrative, professional, and for certain computer employees. However, to qualify for exempt status, employees must meet certain tests regarding their job duties and be paid on a salary basis of not less than $455 per week. The FLSA also provides that “highly-compensated" workers are exempt from overtime. The FLSA defines highly-compensated workers as those who are paid a total annual compensation of $100,000 or more, which includes at least $455 per week paid on a salary basis. In addition, the employee’s primary duties must involve performing office or nonmanual work, and the employee must customarily and regularly perform at least one of the exempt duties or responsibilities of an exempt, administrative or professional employee. In California, legislation has been introduced, AB 1470, to create a similar exemption for highly-compensated employees in California.

Read more: Legislation Introduced In California To Exempt “Highly Compensated” Employees From Overtime

Kevin Kish Sworn In As New Director of FEHA

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Published on Wednesday, 22 April 2015 Written by Editor

Kevin Kish, a noted civil rights attorney, has been sworn in as director of California’s Department of Fair Employment and Housing (DFEH), the largest state civil rights agency in the nation. Kish was previously with Bet Tzedek Legal Services in Los Angeles, one of the nation’s premier public interest law firms. As director of the firm’s Employment Rights Project, Kish led the firm’s employment litigation, policy, and outreach initiatives. His cases focused on combatting violations of minimum labor standards in low-wage industries and human trafficking for forced labor. He led trial and appellate teams in employment and trafficking suits, including prevailing in the first civil case to reach a jury verdict under the California Trafficking Victims Protection Act. A graduate of Yale Law School, Kish developed and teaches an employment-law clinic at Loyola Law School and frequently speaks on issues related to poverty, employment, human trafficking and human rights. Read more here.

Employer To Pay $14.5 Million For Alleged Race/National Origin Discrimination

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Published on Wednesday, 22 April 2015 Written by Editor

Patterson-UTI Drilling Company LLC, a Snyder, Texas-based multistate oil drilling company, has agreed to pay $14.5 million and furnish other relief to settle a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) based on alleged race/national origin discrimination. The EEOC charged that the company committed race/national origin discrimination, harassment and retaliation at its facilities throughout the country. Specifically, the EEOC’s lawsuit alleged that the company engaged in discrimination based on race and national origin on its drilling rigs, including assigning minorities to the lowest level jobs, failing to train and promote minorities, and disciplining and demoting minority employees disproportionately. The EEOC also alleged that the company tolerated a hostile work environment on the rigs, in which employees endured racial and ethnic slurs, jokes, and comments, in addition to verbal and physical harassment of minority employees. In addition, according to the EEOC, the company retaliated against employees who complained about discriminatory practices. Read more here.

FS&K's 5th Annual Employment Law Conference

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Published on Monday, 20 April 2015 Written by Editor

On Friday, June 19, 2015, Floyd, Skeren & Kelly, LLP will hold its 5th Annual Employment Law Conference. The conference will take place at the Disneyland Hotel, located in Anaheim, CA. We invite you to join us for this full day conference that will offer education on both Employment Law and Workers' Compensation. Topics will include:

The Latest Information on California's New Paid Sick Law-Ensure Compliance Before July 1, 2015;

Mastering California Leave Laws Related to Disabled Employees;

Preventing Work Comp Fraud in the Workplace;

Understanding and Complying With the Amended California Family Rights Act Regulations-in Effect as of July 1, 2015;

Understanding, Preventing and Responding to Workplace Sexual Harassment Claims

Effectively Managing and Defending Work Comp Claims-Advanced Techniques From the Experts;

Performance, Discipline and Termination-Employer Best Practices

Work Comp Resignations and C&R's-What are the Legal Implications? and much more.

MCLE, CEU and HRCI Credits are approved for this conference.

For more information and to register, please visit FSK HR Training.

9th Circuit Rules on “No-Rehire” Clause In Settlement Agreement

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Published on Monday, 20 April 2015 Written by Editor

Employers entering into settlement agreements with former employees often include a “no-rehire” clause in the agreement wherein the employee agrees not to seek reemployment with the former employer. In a recent case, Golden v. California Emergency Physicians Medical Group, et al., the Ninth Circuit questioned whether a “no-rehire” clause is an unlawful restraint of trade. California is protective of employees’ rights to compete. Specifically, Business & Professions Code section 1600, states that: “Except as provided is this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade or business of any kind is to that extent void.” In Golden, a physician refused to sign a settlement agreement containing a no-rehire clause on the basis that his former employer was a major medical group and planning to acquire other practices, which would inhibit his ability to obtain employment. The 9th Circuit concluded that the settlement agreement restrained the physician’s ability to engage in his profession and remanded the case to determine if the restraint was “substantial.” Read more here.

Don't Miss The Big Work Comp Fraud Fighting Conference at PALA

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Published on Monday, 20 April 2015 Written by Editor

Can you afford to gamble with your workers’ comp claims? Don’t miss this exciting event, packed with information and education. EXHIBITOR FAIR Included. Get the latest and greatest Tools, Solutions & Resources you need to increase your odds. Come, Learn, Stay and Play…Register TODAY using the form below, or print out the PDF and mail with a check.

Up to 9 Hours for CE Certificate for Adjusters

MCLE Credits 9 Hours

More Information is available here.

Obama Administration Seeks Public Comment On Proposed Rules To Implement The WIOA

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Published on Monday, 20 April 2015 Written by Editor

The Workforce Innovation and Opportunity Act (WIOA), signed by President Obama on July 22, 2014, is the first major reform to federal job training programs in more than 15 years. The purpose of WIOA is to “improve the coordination of employment and training services across federal agencies, strengthen collaboration with state and local partners, and provide Americans with increased access to training, education and other support to succeed in the job market and in their careers.” The Departments of Labor and Education announced five Notices of Proposed Rulemaking to implement WIOA and seek public comment. The proposed regulations are designed to: update and improve federal workforce programs that serve workers, job seekers, and employers; strengthen accountability and transparency; increase access to work-based learning tools, such as apprenticeships; improve relationships with employers, including through sector partnerships, and foster more cohesive planning within economic regions. Read more here.

Race and National Origin Discrimination Persist 50 Years After EEOC’s Founding, Experts Say

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Published on Monday, 20 April 2015 Written by Editor

Despite significant progress in the 50 years since the U.S. Equal Employment Opportunity Commission (EEOC) began operations in 1965, according to a panel of experts, discrimination against racial and ethnic minorities continues in 21st century America. At the meeting of experts, held in Miami, EEOC Chair Jenny R. Yang, commented that, "Over the past 50 years, the Commission has made great strides in promoting equal employment opportunity for America's workers…Never before in our nation's history has the American workplace been more diverse and inclusive than it is today. Yet, across the country, we continue to see persistent barriers to opportunity based on race, color and national origin. At the EEOC, we are working every day to remove these barriers to achieve broad and sustained compliance with our anti-discrimination laws." Read more here.

EEOC Issues Proposed Rule on ADA And Employer Wellness Programs

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Published on Thursday, 16 April 2015 Written by Editor

The U.S. Equal Employment Opportunity Commission (EEOC) has published a Notice of Proposed Rulemaking (NPRM) describing how Title I of the Americans with Disabilities Act (ADA) applies to employer wellness programs that are part of group health plans. The NPRM is available in the Public Inspection portion of the Federal Register, and will be officially published on Monday, April 20, 2015. Members of the public have 60 days from that date (or until Friday, June 19) to submit comments. The EEOC's proposed rule would provide guidance to both employers and employees about how wellness programs offered as part of an employer's group health plan can comply with the ADA. In addition, the EEOC is also publishing a Fact Sheet for Small Businesses and a Question and Answer document for the general public. The EEOC's proposed rule makes clear that wellness programs are permitted under the ADA, but that they may not be used to discriminate based on disability. The rule explains that under the ADA, companies may offer incentives of up to 30 percent of the total cost of employee-only coverage in connection with wellness programs. These programs can include medical examinations or questions about employees' health (such as questions on a health risk assessment).  Read more here.

San Francisco’s Minimum Wage to Increase May 1, 2015

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Published on Monday, 13 April 2015 Written by Editor

On November 4, 2014, San Francisco voters passed Proposition J raising the city’s minimum wage to $15.00 by 2018. Effective May 1, 2015, the minimum wage will increase to $12.25. On July 1, 2016, it will increase to $13.00; On July 1, 2017, it will increase to $14.00, and on July 1, 2018, it will reach $15.00. More information is available here, including a minimum wage poster for San Francisco employers.

Employer Will Pay $150,000 to Resolve Transgender / Sex Discrimination Lawsuit

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Published on Monday, 13 April 2015 Written by Editor

Lakeland Eye Clinic, a Lakeland, Fla.-based organization of health care professionals, will pay $150,000 to settle one of the first two lawsuits ever filed by the U.S. Equal Employment Opportunity Commission (EEOC) alleging sex discrimination against a transgender individual. Lakeland has also agreed to implement a new gender discrimination policy and to provide training to its management and employees regarding transgender/gender stereotype discrimination. According to David Lopez, EEOC General Counsel, "This historic settlement is significant…It not only is one of the first two lawsuits ever filed by the Commission alleging sex discrimination against a transgender individual, but it also solidifies the EEOC's commitment to enforcing the rights of transgender employees secured by Title VII." The EEOC had charged that Lakeland Eye Clinic terminated its Director of Hearing Services after she began to present as a woman and informed the company that she was transgender, despite the fact that the employee had performed her duties satisfactorily throughout her employment. Read more here. 

CalChamber Releases Preliminary List of “Job Killer” Bills

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Published on Friday, 10 April 2015 Written by Editor

The California Chamber of Commerce released a preliminary list of “job killer” bills yesterday to call attention to the negative impact that the 16 proposed measures would have on California’s job climate and economic recovery if they were to become law. The list is preliminary because CalChamber expects to add more bills to the list in the coming weeks as legislation is amended. CalChamber will periodically release “job killer” watch updates as legislation changes. Read more here. 

Seattle Raises Its Minimum Wage

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Published on Friday, 10 April 2015 Written by Editor

On April 1, 2015, the City of Seattle began to phase-in its new $15-an-hour minimum wage. The $15 minimum wage will be phased in over the next several years. Approximately 40,000 received raises in Seattle when the new minimum wage ordinance took effect. The ordinance provides that effective April 1, 2015, large businesses and national chains must raise their minimum pay to at least $11 an hour. Smaller businesses must pay at least $10 an hour. Seattle’s prior minimum wage was $9.47, the same as the Washington state minimum wage. Read more here.

Court Denies Motion to Dismiss EEOC Race Discrimination Claim

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Published on Friday, 10 April 2015 Written by Editor

A federal judge has denied a motion to dismiss a race discrimination claim filed by the Equal Employment Opportunity Commission (EEOC) against Rosebud Restaurants. In its complaint, the EEOC charged that the Chicago-area Italian restaurant chain refused to hire African-Americans because of their race.  The company's motion to dismiss argued that the EEOC's complaint should be dismissed because it did not identify the victims of the alleged hiring discrimination. The court rejected that argument, concluding that the EEOC's "allegations of intentional discrimination are sufficient to state a claim for Title VII relief  . . . even in the absence of the identification of an individual job applicant who was rejected because of his race." Read more here. 

HR Practice Pointer: When Should Interns Be Paid?

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Published on Thursday, 09 April 2015 Written by Bernadette M. O'Brien, ESQ., SPHR, Floyd, Skeren & Kelly LLP

As summer approaches, many employers will be offering internships to high school and college students. Employers must understand, however, that there is no state or federal law that expressly exempts interns from minimum wage and overtime requirements. However, California’s Division of Labor Standards Enforcement (DLSE) has historically followed federal standards recognizing the special status of interns who perform work as part of education or vocational programs. Thus, if the intern is enrolled in a bona fide internship or training program, the intern is not covered by the State’s minimum wage requirements.

Read more: HR Practice Pointer: When Should Interns Be Paid?

New OSHA Heat Regulations in Effect as of May 1, 2015

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Published on Wednesday, 08 April 2015 Written by Editor

The Office of Administrative Law approved the Occupational Safety & Health Standards Board's proposed amendments to the current heat illness regulation.  The amended regulations will go into effect on May 1, 2015. More information is available here: Cal/OSHA guidance on the new requirements, as well as a Heat Illness Prevention Enforcement Q&A, updated on April 6, 2015

UBER Sued For Allegedly Failing to Protect Employee Data

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Published on Wednesday, 08 April 2015 Written by Editor

On March 12, 2015, Sasha Antman, on behalf of himself and other similarly situated Uber drivers, filed a lawsuit alleging that Uber failed to properly secure and protect drivers’ personal information, including names, driver’s license numbers and other personal information, and further failed to warn drivers that their personal information had been stolen. According to the lawsuit, beginning in May 2014, someone accessed and downloaded Uber files containing drivers’ information. Uber allegedly did not warn drivers about the breach until February 27, 2015, despite allegedly knowing about the breach “as early as September 17, 2014.” When it finally warned about the data breach, Uber advised that approximately 50,000 drivers across the U.S. could have been affected by the data breach. Read more here.

OSHA Updates Guidance For Protecting Healthcare 
And Social Service Workers From Workplace Violence

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Published on Wednesday, 08 April 2015 Written by Editor

In 2013, the Bureau of Labor Statistics reported more than 23,000 significant injuries due to assaults at work. More than 70 percent of these assaults were in healthcare and social service settings. Health care and social service workers are almost four times as likely to be injured as a result of violence than the average private sector worker. To reduce the risk, the Occupational Safety and Health Administration (OSHA) released an update to its Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers. The publication includes industry best practices and highlights the most effective ways to reduce the risk of violence in various healthcare and social service settings. The guidelines also stress the importance of developing a written workplace violence prevention program. The program should include management commitment and employee participation, worksite analysis, hazard prevention and control, safety and health training, and recordkeeping and program evaluation. More information on violence prevention in all workplace settings is available on OSHA's Workplace Violence Web page. Read more here.

Jury Awards More Than $1.3M in Back Wages And Damages

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Published on Wednesday, 08 April 2015 Written by Editor

A Washington State jury has awarded more than $1.3M to 101 former employees at defunct businesses J&J Mongolian Grill and Spa Therapy workers. The decision is the result of a U.S. Department of Labor (DOL) investigation. A unanimous verdict found that the workers were allegedly denied minimum wage and overtime pay under the Fair Labor Standards Act. The lawsuit was filed in 2013 against the two owners and their companies, Pacific Coast Foods, Inc., doing business as J&J Mongolian Grill, and J&J Comfort Zone, Inc., doing business as Spa Therapy. The jury also found that the defendants interfered with and retaliated against workers, most of whom spoke little to no English. Read more here.

FS&K's 5th Annual Employment Law Conference

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Published on Monday, 06 April 2015 Written by Editor

On Friday, June 19, 2015, Floyd, Skeren & Kelly, LLP will hold its 5th Annual Employment Law Conference. The conference will take place at the Disneyland Hotel, located in Anaheim, CA. We invite you to join us for this full day conference that will offer education on both Employment Law and Workers' Compensation. Topics will include:

The Latest Information on California's New Paid Sick Law-Ensure Compliance Before July 1, 2015;

Mastering California Leave Laws Related to Disabled Employees;

Preventing Work Comp Fraud in the Workplace;

Understanding and Complying With the Amended California Family Rights Act Regulations-in Effect as of July 1, 2015;

Understanding, Preventing and Responding to Workplace Sexual Harassment Claims

Effectively Managing and Defending Work Comp Claims-Advanced Techniques From the Experts;

Performance, Discipline and Termination-Employer Best Practices

Work Comp Resignations and C&R's-What are the Legal Implications? and much more.

MCLE, CEU and HRCI Credits are approved for this conference.

For more information and to register, please visit FSK HR Training.

Employer Will Pay $50k to Resolve Disability Discrimination Lawsuit

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Published on Monday, 06 April 2015 Written by Editor

A Minneapolis-based distributor will pay $50,000 to resolve a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC, Baldwin Supply Company violated the Americans with Disabilities Act (ADA) when it allegedly refused to allow an employee to return to work after he had a heart attack, and instead terminated the employee. The employee worked as a laborer, installing conveyor belts.  He suffered a heart attack and was subsequently released by his doctor to return to work with no restrictions. However, when he contacted the company to let it know he was available to work, the employer did not allow him to return to work except for two days.  The EEOC's lawsuit further alleged that the employee contacted the company's managers on several occasions about returning to work, but the company did not contact him any further regarding returning to work. Read more here.

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