Brinker's gone. But Brinkley's here! At least for now. In Brinkley v. Public Storage, Inc., the court of appeal issued a published opinion, in which it held that meal and rest periods merely must be provided, not forced. This holding tracks Brinker v. Superior Court (now on review).
The court in Brinkley relied on federal case law, the same cases on which the court of appeal in Brinker relied.
Given the similarity to Brinker, the Supreme Court may accept review of Brinkley under a "Grant and Hold" order. So, don't rely on Brinkley unless review is denied. We won't learn its fate for a couple of months.
The second key issue in Brinkley is the court's holding that the wage statement statute, Lab. Code section 226 requires proof of injury and some intent on behalf of the employer. That statute provides penalties of up to $4000 per employee for non-compliant wage statements....
Be careful out there!
DGV
WHAT'S NEW IN EMPLOYMENT LAW? Welcome to Shaw Law Group, PC's law blog. We will focus on employment law developments, particularly in California. Nothing in this forum should be construed as legal advice, 'cause it isn't. So, please consult your lawyer or hire us! (We typically represent employers, not employees). Also - this is a public website, so communications are not privileged. Copyright Shaw Law Group, PC © 2017. All rights reserved.
Tuesday, October 28, 2008
Monday, October 27, 2008
DLSE: Brinker is Dead. Long Live Brinker!
Earlier this year, the California Division of Labor Standards Enforcement adopted the meal period standards that the Court of Appeal announced in the famous Brinker decision. We covered that DLSE memo here.
So now that the California Supreme Court decided to review the Brinker case, what will the DLSE do?
Well DLSE just issued a NEW memo in which it rescinds its Brinker memorandum, here. In its new "rescission" memo, the DLSE strongly suggests it will continue to enforce meal period laws such that an employer need not force employees to take meal periods; it simply must offer them. (So, to DLSE, Brinker is gone, but not forgotten).
Good news for employers facing DLSE claims. But in court, this area of the law remains pretty muddy.
Hat tip to Storm and Wage Law.
So now that the California Supreme Court decided to review the Brinker case, what will the DLSE do?
Well DLSE just issued a NEW memo in which it rescinds its Brinker memorandum, here. In its new "rescission" memo, the DLSE strongly suggests it will continue to enforce meal period laws such that an employer need not force employees to take meal periods; it simply must offer them. (So, to DLSE, Brinker is gone, but not forgotten).
Good news for employers facing DLSE claims. But in court, this area of the law remains pretty muddy.
Hat tip to Storm and Wage Law.
Labels:
brinker,
meal periods,
Wage and Hour
California Supreme Court Expands "Equitable Tolling" of Limitations Period
When an employee pursues internal remedies rather than filing a charge or lawsuit, the statute of limitations is tolled, the California Supreme Court said today. (That means the statute does not count the time during which the internal remedy is pursued, expanding the limitations period accordingly).
The Antelope Valley school district had a detailed internal procedure for investigating discrimination / harassment complaints. Plaintiff McDonald and others pursued the internal remedies. By the time they filed a discrimination charge with the Department of Fair Employment and Housing, more than a year had passed since the last discriminatory act.
The limitations period is tolled for "continuing violations," for pursuing mandatory administrative agency remedies, and for other reasons. But the Court expanded that legal doctrine to the employer's internal processes. So, if you have an investigation procedure, grievance steps, internal peer review, or other informal, voluntary alternative dispute resolution procedure, the statute of limitations may be "tolled" while those proceedings continue. It will be important to send a letter telling employees when the internal remedies are no longer in effect to trigger the statute. It will also be important to secure witness information, documents, and the like, given that the employer may face litigation over stale issues down the road.
The opinion is McDonald v. Antelope Valley Community College District and the opinion is here.
The Antelope Valley school district had a detailed internal procedure for investigating discrimination / harassment complaints. Plaintiff McDonald and others pursued the internal remedies. By the time they filed a discrimination charge with the Department of Fair Employment and Housing, more than a year had passed since the last discriminatory act.
The limitations period is tolled for "continuing violations," for pursuing mandatory administrative agency remedies, and for other reasons. But the Court expanded that legal doctrine to the employer's internal processes. So, if you have an investigation procedure, grievance steps, internal peer review, or other informal, voluntary alternative dispute resolution procedure, the statute of limitations may be "tolled" while those proceedings continue. It will be important to send a letter telling employees when the internal remedies are no longer in effect to trigger the statute. It will also be important to secure witness information, documents, and the like, given that the employer may face litigation over stale issues down the road.
The opinion is McDonald v. Antelope Valley Community College District and the opinion is here.
Labels:
discrimination,
exhaustion,
feha,
limitations,
tolling
Wednesday, October 22, 2008
California Supremes Accept Review in Brinker
In a not-very-surprising development, the California Supreme Court accepted review of the Brinker v. Superior Court decision, discussed here and here. And here.
When the California Supreme Court accepts review, the opinion cannot be cited. So, the law now reverts to the pre-Brinker days. Which means you should read my old article, here.
However, there is one wrinkle that remains to be ironed out. The DLSE, our labor standards agency, has adopted the Brinker opinion as its enforcement position. Will the DLSE leave its interpretation in effect while the high court considers the case? We shall see. The discussion of the DLSE memorandum regarding Brinker is here.
DGV
When the California Supreme Court accepts review, the opinion cannot be cited. So, the law now reverts to the pre-Brinker days. Which means you should read my old article, here.
However, there is one wrinkle that remains to be ironed out. The DLSE, our labor standards agency, has adopted the Brinker opinion as its enforcement position. Will the DLSE leave its interpretation in effect while the high court considers the case? We shall see. The discussion of the DLSE memorandum regarding Brinker is here.
DGV
Labels:
brinker,
meal periods,
Wage and Hour
Monday, October 06, 2008
Reminder to Post Voting Time Notice
So, I hear there's an election soon. There's a rumor it's November 4.
At least 10 days before the election, employers in California must post this notice. Employers also must give employees up to two hours off to vote if they are unable to vote outside of work hours. Here is information from the California Secretary of State about the law.
At least 10 days before the election, employers in California must post this notice. Employers also must give employees up to two hours off to vote if they are unable to vote outside of work hours. Here is information from the California Secretary of State about the law.
Labels:
voting
Friday, October 03, 2008
Ninth Circuit Upholds San Francisco's Health Care Ordinance
A panel of the Ninth Circuit upheld San Francisco's Healthcare Security Ordinance. The ordinance requires employers either to maintain a certain expenditure on health care for its employees or contribute the minimum to the city. The city operates a healthcare access plan, called Healthy San Francisco, funded by these taxes - er - contributions by the employers.
The Golden Gate Restaurant Association challenged SF's plan as preempted by ERISA.
Late in 2007, the district court held ERISA indeed preempted the ordinance. We posted on that here.
The district court's opinion lasted about a week. The Ninth Circuit stayed the district court's decision, foreshadowing its view that ERISA does not preempt the law. The Ninth Circuit panel decided the ordinance neither creates and ERISA plan nor "relates" to a plan. In its long opinion, the court rejected a series of arguments advanced by the Golden Gate Restaurant Association and a number of amici curiae, including the U.S. Department of Labor.
Unless or until the Supreme Court overrules this case, it will probably result in more local ordinances establishing mandatory health care systems. Employers will have to have different benefits coverage in different jurisdictions, pay the higher taxes, or increase coverage to the highest common denominator....
The case is Golden Gate Restaurant Association v. San Francisco, and the opinion is here.
The Golden Gate Restaurant Association challenged SF's plan as preempted by ERISA.
Late in 2007, the district court held ERISA indeed preempted the ordinance. We posted on that here.
The district court's opinion lasted about a week. The Ninth Circuit stayed the district court's decision, foreshadowing its view that ERISA does not preempt the law. The Ninth Circuit panel decided the ordinance neither creates and ERISA plan nor "relates" to a plan. In its long opinion, the court rejected a series of arguments advanced by the Golden Gate Restaurant Association and a number of amici curiae, including the U.S. Department of Labor.
Unless or until the Supreme Court overrules this case, it will probably result in more local ordinances establishing mandatory health care systems. Employers will have to have different benefits coverage in different jurisdictions, pay the higher taxes, or increase coverage to the highest common denominator....
The case is Golden Gate Restaurant Association v. San Francisco, and the opinion is here.
Labels:
erisa
Thursday, October 02, 2008
Governor Vetoes AB 437, AB 2279, AB 2918, AB 3062, AB 3063
Governor Schwarzenegger vetoed several employment law bills:
AB 437 - would have stated the Legislature's intent to reject the U.S. Supreme Court's decision in Ledbetter v. Goodyear, regarding the statute of limitations in discrimination cases.
AB 2279 - would have required employers to accommodate the use of medical marijuana.
AB 2918 - would have outlawed most credit checks except in narrow and specified circumstances.
AB 3062 - would have expanded the Labor Code's protection of employees whose wages are garnished.
AB 3063 - would have codified more limits on pre-employment inquiries regarding criminal convictions.
AB 437 - would have stated the Legislature's intent to reject the U.S. Supreme Court's decision in Ledbetter v. Goodyear, regarding the statute of limitations in discrimination cases.
AB 2279 - would have required employers to accommodate the use of medical marijuana.
AB 2918 - would have outlawed most credit checks except in narrow and specified circumstances.
AB 3062 - would have expanded the Labor Code's protection of employees whose wages are garnished.
AB 3063 - would have codified more limits on pre-employment inquiries regarding criminal convictions.
Labels:
Legislation
California's Computer Professional Exemption Tweaked
California computer professionals enjoy a special exemption from overtime that has a duties component and a minimum pay component. Last year the Legislature rolled back the minimum pay requirement from $49 / hour down to $36 / hour. Governor Schwarzenegger just signed AB 10, which provides that an employee may be eligible for the special computer exemption if s/he earns a salary of over $75,000 per year. The salary and hourly rate are adjusted each year. AB 10 is here. This is an "urgency" statute, which means it takes effect immediately.
Labels:
Legislation,
Wage and Hour
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