Don’t Pay That Waiting Time Penalty!

California strongly favors the prompt payment of wages due to an employee.  The California Labor Code codifies this principle in Section 202, which provides in pertinent part that an employee who “quits his or her employment, his or her wages become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of her or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting.”  If an employer willfully fails to pay the employee’s wages who is discharged or who quits, the wages of the employee continue to run as a penalty from the due date at the same rate until paid but not for more than 30 days.  This penalty is commonly referred to as a “waiting time penalty.”

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August 2014 EEOC Verdicts and Settlements

A summary of recent EEOC verdicts and settlements.

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August 2014 Recent Jury Verdicts and Settlements

A summary of recent jury verdicts and settlements.

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Texas Suit Against EEOC Dismissed; Texas Will Appeal

U.S. District Judge Sam R. Cummings axed Texas’ suit against the EEOC on August 20, 2014, issuing an Order holding that there was no subject-matter jurisdiction for the suit.  On August 25, 2014, Texas filed a Notice of Appeal, indicating its intent to turn to the 5th Circuit.

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Can You Fire An Employee for A Facebook “Like”?

TexasBarToday_TopTen_Badge_SmallOn August 22, a three-member panel of the National Labor Relations Board (NLRB) concluded that the Triple Play Sports Bar and Grille violated Section 8(a)(1) of the National Labor Relations Act (the Act) when two employees were terminated for participating in a Facebook discussion about the additional state income taxes the employees owed because of the employer’s withholding mistakes.  The NLRB panel also concluded that Triple Play’s Internet/Blogging policy violated Section 8(a)(1) by prohibiting “inappropriate” discussions about the company.

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Being Cantankerous And Having Trouble Getting Along With Co-Workers Not An ADA Disability, Even In California

In Weaving v. City of Hillsboro, the U.S. Court of Appeals for the Ninth Circuit found that an employer’s termination of an employee who had recurring interpersonal problems with his co-workers, that were purportedly attributable to attention deficit hyperactivity disorder (“ADHD”), did not violate the Americans with Disabilities Act (“ADA”).

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Hey Employers!—Reimburse That Phone Bill

California Labor Code § 2802 requires employers to indemnify its employees for all necessary expenses incurred in direct consequences of the discharge of their duties.  In recent times, this statute and some employers’ decisions to not reimburse certain employee expenses has become a hotbed for class action litigation in California.  Now, the California Court of Appeal, in Cochran v. Schwan’s Home Service, Inc. (Cal. Ct. App., Aug. 12, 2014, B247160) 2014 WL 3965240, *4, confirmed California’s strong stance on this matter, at least as to cell phone use:

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New Jersey Passes Law Restricting Employers’ Ability to Request Applicants’ Criminal History Information

On August 11, 2014, New Jersey Governor Chris Christie signed the Opportunity to Compete Act, New Jersey’s “ban the box” law prohibiting certain employers from excluding applicants based on their criminal records during the initial application process.

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San Diego is Next to Enact Paid Sick Leave Ordinance

On July 14, 2014, the San Diego City Council approved an ordinance requiring employers to grant up to 40 hours of paid sick leave per year to each San Diego employee beginning in 2015.

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Employer Cannot Attribute Commission Wages Paid in One Pay Period to Cure Shortfalls in Other Pay Periods

On July 14, 2014, in Peabody v. Time Warner Cable, Inc. (Cal., July 14, 2014) —-P.3d—-, 2014 WL 3397770, the California Supreme Court held that an employer cannot attribute commission wages paid in one pay period to cure shortfalls in other pay periods.  In that case, Time Warner paid its account executive on a biweekly basis, which included hourly wages in every pay period and commission wages approximately every other pay period.  The employee was paid $769.23 in hourly wages, the equivalent of $9.61 per hour.  About every other pay period, Time Warner paid her commission wages.

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NLRB Changes Scope Of Unit In Retail Setting

In a recent decision, the National Labor Relations Board (“NLRB”) found that a department within a retail store could be considered a single collective bargaining unit.  In a Board-level review, the National Labor Relations Board considered an appeal of an administrative judge’s ruling that the fragrances and cosmetics department within the Saugus, Massachusetts Macy’s could be considered a bargaining unit for collective bargaining purposes without requiring the assent of the remaining store employees.

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July 2014 EEOC Verdicts and Settlements

Here is our monthly summary of recent EEOC verdicts and settlements.

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EPA Proposed Wage Garnishing Rule Meets Heavy Resistance

On July 2, 2014, the EPA published a Federal Register notice titled “Administrative Wage Garnishment” claiming it has the authority to bypass the courts and unilaterally garnish wages of individuals owing debts to the Agency.  We mentioned it here.

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California Supreme Court Finds an Employee’s Misrepresentation About His Immigration Status May Limit His Recovery in Lawsuit Against Employer

In Salas v. Sierra Chemical, the California Supreme Court recently held that federal immigration law and the affirmative defenses of unclean hands and after-acquired evidence may limit the lost wage claim of an employee to the extent the lost wage claim arises after the employer’s discovery that the employee misrepresented his status as authorized to work in the United States.

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5th Circuit Says Franchisor’s Advice Does Not Create An Employment Relationship

In a recent decision, the U.S. Court of Appeals for the Fifth Circuit provided franchisors with some ammunition in employment suits raised by a franchisee’s employees.  In a Fair Labor Standards Act claim raised by a franchisee’s employee in Texas, the Fifth Circuit reversed a jury verdict finding that the franchisor was liable for the franchisee’s FLSA violations.

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