Hill, Farrer & Burrill LLP

News & Updates

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Keep Your Company Up To Date

By: Thomas F. Reed & Whitney B. Kringel

Within the ever-changing employee benefits landscape, there have been several important employee benefit developments recently meriting special attention.

First, in January of 2013 new Regulations were published overhauling the HIPAA Privacy Rules. Among other things, the new rules apply certain parts of the privacy rules to business associates, expand individuals’ rights to access their protected information and requires revisions of business associates’ agreements, privacy notices and privacy policies.

Employers and health funds need to, at a minimum, (i) review their policies and procedures, (ii) re-document their business associate agreements and (iii) review and republish their privacy notices. More>>

New Minimum Wage Bill Signed Into Law

On September 25, 2013, Governor Jerry Brown signed the bill to increase California’s minimum wage (AB 10).  The bill was passed overwhelmingly on straight party-line votes by the California state senate and assembly.  The bill would increase the current $8 per hour minimum wage to $9 per hour effective July 1, 2014.  The minimum wage will automatically increase a second time to $10 per hour effective January 1, 2016. Employers with collective bargaining agreements in California should be certain to determine whether they will remain in compliance with overtime laws in light of the pending rate change.  Under most California Wage Orders, employers and unions are permitted to negotiate for overtime premiums that differ from the requirements of the Wage Orders provided that employees are covered by a valid collective bargaining agreement designating wages, hours of work, and working conditions, and the employees’ regular hourly rate is not less than 30 percent more than the state minimum wage.  More>>

Good News For Employers On Class Action Waivers

Recently, the United States Supreme Court gave employers a big boost on the enforceability of class action waivers in arbitration agreements. In American Express Co. v. Italian Colors, Justice Scalia wrote a forceful opinion holding that a class action waiver in an arbitration agreement is enforceable, even as to federal anti-trust claims, and even if the plaintiffs convince a trial court that the cost of proving their claims on an individual basis would deter such litigation. Justice Scalia’s opinion built on other recent decisions favoring arbitration, including: (1) AT&T Mobility v. Concepcion, in which the Court held that California state law invalidating class action waivers in the consumer arbitration agreements is preempted by the Federal Arbitration Act (“FAA”) and unenforceable; and (2) CompuCredit Corp. More>>

Piece-rate Employees Must Receive An Hourly Minimum Wage

Gonzalez v. Downtown LA Motors, LP, (CA2/2 B235292 filed 3/6/13, pub. ord. 4/2/13) In Gonzalez v. Downtown LA Motors the California Court of Appeal held that employers who compensate automotive service technicians on a “piece-rate” basis must also pay hourly minimum wage for time spent waiting for vehicles to repair or performing other non-repair tasks directed by the employer. In Gonzalez a class of 108 automotive service technicians who worked for Downtown LA Motors Mercedes Benz (“DTLA”) brought a wage and hour claim disputing their “piece-rate” compensation. Under this plan, DTLA pays technicians a flat rate for each hour spent working on repairs, but does not pay for the hours spent waiting at the site for work or doing non-repair tasks assigned by DTLA.  More>>

New Form I-9 Is Mandatory Starting May 7, 2013

On March 8, 2013, the U.S. Citizenship and Immigration Services (USCIS) released a new Form I-9 for verifying employment eligibility. All employers are required to complete a Form I-9 to verify the employee’s identity and eligibility to work in the United States. After an initial grace period during which employers could use either the new or old Form I-9, use of the new form will be mandatory as of May 7, 2013. It is important that employers use the new Form I-9 because it contains a number of important changes from the previous form. Continued use of the old form could subject employers to fines of $110 to $935 per instance depending on non-compliance rate, and repeated offenses could result in higher fines. More>>

Even If Motivated By Discrimination, Employer Not Liable For Damages If It Can Prove It Would Have Terminated Employee Anyway

What happens when an employer terminates an employee based on a “mix of discriminatory and legitimate reasons”? The California Supreme Court answered that question last week in Harris v. City of Santa Monica. It held that when unlawful discrimination is a substantial factor motivating the termination, the employer is not liable for damages if it can prove that it would have made the same decision absent such discrimination.

That doesn’t mean employers get off scot free, however. The Court still held that an employer is subject to declaratory or injunctive relief to stop its discriminatory practices. Also, a plaintiff-employee may recover attorney’s fees and costs as the prevailing party. More>>

New Employment Laws For 2013 – Are You Ready?

Each New Year brings more than resolutions; for employers, it means complying with a raft of new employment laws. Below is a brief synopsis of some important new laws taking effect on January 1, if not sooner. If you have any questions regarding any of these new laws, or others that may affect your Company, please contact us for advice or assistance. Personnel Files Employees have long had the right to inspect their personnel files, and they could obtain copies of certain records they had signed. But California Labor Code Section 1198.5 has been amended to impose new requirements on employers. More>>

California Supreme Court Clarifies Employers’ Meal And Rest Break Obligations In Long Awaited Brinker Decision

After three years, the California Supreme Court finally issued its much-anticipated decision on how employers must manage meal periods and rest breaks. The April 12, 2012 unanimous decision in Brinker Restaurant Corporation v. Superior Court clarifies California employers’ obligations to “provide” meal periods and “authorize or permit” rest periods. The decision highlights that all California employers need to have lawful meal and rest break policies to minimize the risk of expensive class litigation. Brinker is generally favorable for employers. The major take-aways are summarized below.

Meal Periods: No Duty to Ensure Employees Do No Work First, the California Supreme Court held that an employer’s duty to “provide” meal periods is a duty to relieve employees of all duty, empowering employees to decide how to use the meal period. More>>

Posting Notices of Employee Rights

The following is a communication forwarded from the National Labor Relations Board regarding the posting of employee rights: As you may know, as of January 31, 2012, most private sector employers must post a notice of employee rights under the National Labor Relations Act at their worksites.  Employers must also provide a link to the notice from their internal or external website if they routinely use the site to inform employees of personnel rules or policies. The 11-by-17-inch NLRB notice is free and can be downloaded and printed in multiple languages from the National Labor Relations Board’s website at http://www.nlrb.gov/poster or ordered by mail by filling out a form at the web address or by calling 202-273-0064. More>>

New Labor Commissioner Form to Comply with Labor Code Section 2810.5

Effective January 1, 2012, California employers will be required to provide specific wage-related and other information to all newly hired non-exempt employees.  This new requirement is the result of the Wage Theft Protection Action of 2011 (AB 469), which was signed into law by Governor Jerry Brown. Among other things, the new law creates Labor Code Section 2810.5 and requires employers to notify all non-exempt employees about their rate of pay and overtime, allowances claimed as part of minimum wage, the regular payday, the employer’s name(s) and contact information, and the employers’ workers’ compensation insurance carrier, among other information.  This information must be provided at the time of hire.  More>>