California s s New Wage Notice & Commission Agreement Requirements

Transcription

1 California s s New Wage Notice & Commission Agreement Requirements April 19, 2012 Aaron Buckley Brenda Kasper

2 Wage Theft Prevention Act Notice Requires: The rate or rates of pay, including overtime rates An indication of whether the employee is to be paid by the hour, shift, day, week, salary, piece, commission, or otherwise Allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances The regular payday designated by the employer The name of the employer, including any "doing business as" names used by the employer

3 Wage Theft Prevention Act Notice The physical address of the employer's main office or principal place of business, and a mailing address, if different The telephone number of the employer The name, address, and telephone number of the employer's workers' compensation insurance carrier Any other information the Labor Commissioner deems material and necessary (which is reflected in the newlyissued template) Written notice of any changes must be given within 7 days of implementation

4 Wage Notice Facts Required as of January 1, 2012 Does not apply to exempt employees, public employees, or employees covered by valid collective bargaining agreements who earn at least 30 percent more than the state minimum wage Initial notice template published December 28, 2011 Revised notice template published April 12, 2012 Old form/template is still valid until substantive information on old form changes Notice template and FAQscan be downloaded at:

5 Must I use the DLSE form?

6 Can I incorporate the form into my offer letter?

7 Is electronic transmission to employees acceptable?

8 Is it OK to wait until the first day of work to provide the notice?

9 What about multiple rates of pay for split shift premiums, shift differential, piece rate and other forms of compensation?

10 Must I describe commission payments?

11 What about commission only employees?

12 Must I describe bonus eligibility?

13 How do I answer the written agreement question?

14 Do I have to provide a dollar-based overtime rate or can I state time and ½and double time as required by law?

15 How do I describe overtime for commission-based employees or employees who are eligible for a bonus?

16 Do I have to give the notice to temporary workers employed by a different entity?

17 Mandatory Commission Agreements Beginning January 1, 2013, when any employer enters into an employment contract with a California-based employee and the employee s compensation includes commissions, the contract must be in writing and state the method by which the employee s commissions will be calculated and paid

18 Commission Agreement Facts: A receipt of the agreement must be signed by the individual employee and retained by the employer The agreement remains in effect until a new commission plan supersedes it (requiring a new individual agreement) or the employment terminates Commissions are defined as compensation paid to any person in connection with the sale of the employers property or services based proportionally upon the amount or value thereof

19 Commission Agreement Facts Commissions do notinclude short-term productivity bonuses or bonus and profit-sharing plans, unless based on an employer s promise to pay a fixed percentage of sales or profits as compensation Failure to comply may subject an employer to liability for penalties of $100 per pay period, per affected employee, under the Labor Code Private Attorneys General Act

20 The Brinker Decision Main Issue: Employer s Obligation to Provide Meal Periods The Question: Must an employer ensure that an employee take a 30-minute, uninterrupted meal period for each shift that exceeds five hours? -OR Is an employer obligated only to make available these meal periods, but need not prohibit the employee from working?

21 Answer: An employer s meal period duty is satisfied if it: Relieves its employees of all duty Relinquishes control over their activities Permits them a reasonable opportunity to take an uninterrupted, 30- minute break Does not impede or discourage them from doing so Employer is not obligated to police meal periods Employee s voluntary choice to work during a meal period does not constitute a violation

22 Another Issue: Meal Period Timing An employer s obligation is simply to provide a first meal period after no more than five hours of work, and a second meal period after no more than 10 hours of work In other words, an employer is notobligated to provide a second meal period within five hours of the first meal period (no rolling five requirement)

23 Rest Periods: An employer must, insofar as practicable, authorize and permit a 10-minute rest break in the middle of each work period of four hours or major fraction thereof An employer may deviate from the preferred timing where it is not feasible due to practical considerations An employer is not required to always permit their employees a rest break before any meal period

24 How Can an Employer Prove it Authorized and Permitted a Meal Period? Always: Have correct written policies and make sure they are followed Optional: Make the meal period mandatory Optional: Have the employee periodically (once per pay period) certify that the employee was authorized and permitted to take all required meal and rest breaks

25 Be Careful If an employee chooses to work through a meal period, the employee must be paid and onthe clock Employees who are asked to certify that all breaks were made available must have the option to say they were not If the employee says that all breaks were not available, the employer must follow up by: Fixing the problem Paying any required penalty(ies) WARNING: Do not ask employees about breaks unless you are ready, willing and able to follow up

26 Questions? Aaron Buckley (619) Brenda Kasper (619)