Hill, Farrer & Burrill LLP

Employment Updates

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>>

U.S. Supreme Court Rejects California Law, Holds Class Action Waivers in Arbitration Agreements to be Enforceable

California employers may have been given a significant legal victory recently as the United States Supreme Court ended California’s judicial prohibition of class action waivers in arbitration agreements. California’s Supreme Court had previously conditioned enforceability of arbitration agreements on the availability of class action procedures in arbitration, and California’s trial and appellate courts had generally refused to enforce arbitration agreements that expressly disallowed class action procedures in arbitration. In AT&T Mobility LLC v. Concepcion, however, the Supreme Court determined that the Federal Arbitration Act (“FAA”) prohibits such conditional enforceability and instead requires all courts to enforce arbitration agreements according to their terms, even if those terms prohibit class proceedings in arbitration. More>>

U.S. Supreme Court Gives Employers A Big Boost In Fighting Class Actions

June 20, 2011. Besieged by class-action litigation in recent years, employers received a major victory in the long anticipated decision in Wal-Mart Stores, Inc. v. Dukes. In a tight 5-4 decision, the United States Supreme Court ruled in favor of Wal-Mart in its efforts to defeat certification of a nationwide class of female employees. The putative class of 1.5 million women sought billions of dollars in back pay and other relief, arising from the alleged discriminatory actions of store managers. In what Justice Scalia described as “one of the most expansive class actions ever,” current and former employees of Wal-Mart alleged systemic discrimination against women in violation of Title VII of the Civil Rights Act of 1964.  More>>

Court Finds Neutral Rounding Is Lawful

California employers that utilize neutral rounding practices to calculate time for non-exempt employees have received some very welcome news.

In Silva v. See’s Candy Shops, Inc., the Court of Appeal overturned a trial court decision, which previously found that rounding violates California law.  The appellate court held that employers may round employee time to the nearest tenth of an hour, provided that such rounding is fair and neutral on its face, and it will not result, over a period of time, in a failure to properly compensate employees for all hours worked.

A contrary decision could have wreaked havoc to longstanding employer practices.  More>>

NLRB Proposes New Rule Requiring Employers to Notify Employees of Right to Unionize

December 21, 2010. The National Labor Relations Board (NLRB) today submitted a Notice of Proposed Rule-making which, if enacted, would require most private employers to display posters informing workers of their rights to organize, bargain collectively, and engage in other union activities without retaliation from the employer. The proposed rule is similar to the notice posting requirement finalized by the U.S. Department of Labor (DOL) earlier this year, which applied only to federal contractors. The NLRB seeks to expand the scope of the DOL’s efforts to include all private-sector employers covered by the National Labor Relations Act (NLRA). The proposed rule-making is now subject to a required 60-day comment period, after which it is anticipated to be enacted in full. More>>