Wage Law

AB 2675 has been signed into law, amending Labor Code § 2751 regarding written commission agreements.

Existing law requires that whenever an employer enters into a contract of employment with an employee for services to be rendered within California, and the contemplated method of payment of the employee involves commissions, the contract must be in writing and must set forth the method by which the commissions are to be computed and paid. This bill would exempt from this requirement temporary, variable incentive payments that increase, but do not decrease, payment under the written contract.

You can read the full text of the bill here in PDF.

AB 1855 has been signed into law, amending Labor Code § 2810.

Existing law prohibits a person or entity from entering into a contract or agreement for labor or services with specified types of contractors if the person or entity knows or should know that the contract or agreement does not include funds sufficient to allow the contractor to comply with all applicable local, state, and federal laws or regulations governing the labor or services to be provided. AB 1855 applies these provisions to warehouse contractors, as well.

Existing law provides for a rebuttable presumption affecting the burden of proof that there has been no violation of this requirement of sufficient funding if specified conditions are met, including that the contract or agreement be in writing. The California Public Records Act requires state and local agencies to make public records available for inspection, subject to specified criteria, and with specified exceptions. AB 1855 require sthat upon the request of the Labor Commissioner, the person entering into the written agreement or contract must provide to the Labor Commissioner a copy of the provisions of the contract or agreement, and any other documentation, as provided. The bill would exempt any documents received by the Labor Commissioner pursuant to this requirement from the California Public Records Act.

You can read the full text of the bill here in PDF.

AB 1744 has been signed into law. Current law under Labor Code § 226 requires every employer, semimonthly or at the time of each payment of wages, to furnish each employee with an accurate itemized statement in writing showing certain information including hours worked, pay rates, deductions and similar information. Current law provides that a knowing and intentional violation of this provision is a misdemeanor. AB 1744 adds a requirement for temporary services employers to include the rate of pay and the total hours worked for each assignment, with certain specified exceptions. Temporary services employers must also include the physical address of the main office, the mailing address if different from the physical address of the main office, and the telephone number of the legal entity for whom the employee will perform work.

The law becomes effective July 1, 2013. It will incorporate changes to Labor Code § 226 under SB 1255 and AB 2674, and shall be chaptered last among those three bills.

You can read the full text of the bill here in PDF.

AB 2674 has been signed into law, amending the recordkeeping and inspection provisions under Labor Code § 226 and reducing the violations of these provisions from a misdemeanor to an infraction.

Existing law requires that every employer, semimonthly or at the time of each payment of wages, furnish to each of his or her employees, either as a detachable part of the check, draft, or voucher paying the employee’s wages, or separately when wages are paid by personal check or cash, an accurate itemized statement in writing showing specified items. Existing law requires an employer to keep a copy of the statement and the record of deductions on file for at least 3 years at the place of employment or at a central location within the State of California. This bill would provide that the term “copy,” for purposes of these provisions, includes a duplicate of the itemized statement provided to an employee or a computer-generated record that accurately shows all of the information that existing law requires to be included in the itemized statement.

Under existing law, an employee has the right to inspect the personnel records that his or her employer maintains relating to the employee’s performance or to any grievance concerning the employee. This bill would require an employer to maintain personnel records for a specified period of time and to provide a current or former employee, or his or her representative, an opportunity to inspect and receive a copy of those records within a specified period of time, except during the pendency of a lawsuit filed by the employee or former employer relating to a personnel matter. The bill would provide that an employer is not required to comply with more than 50 requests for a copy of the above-described records filed by a representative or representatives of employees in one calendar month. The bill would provide that the above provisions shall not apply with respect to an employee covered by a valid collective bargaining agreement if the agreement provides, among other things, for a procedure for inspection and copying of personnel records. In the event an employer violates these provisions, the bill would permit a current or former employee or the Labor Commissioner to recover a penalty of $750 from the employer, and would further permit a current or former employee to obtain injunctive relief and attorney’s fees.

Under existing law, an employer who fails to permit an employee to inspect the employee’s personnel records is guilty of a misdemeanor punishable by a fine or imprisonment, as specified. This bill would, instead, provide that a violation of the above provisions requiring that personnel records be made available for inspection constitutes an infraction.

You can read the full text of the bill here in PDF.

ACI is hosting another International Labor and Employment Conference in New York City on October 29-30th, 2012.

With an increasing number of American-based companies becoming multinational, international labor and employment law has become more important than ever. American Conference Institute’s International Labor & Employment Law conference will provide attendees with advice and insights from leaders in the field. Topics to be covered include:

• Structuring global HR policies in compliance with local laws
• Extraterritorial application of US laws
• Cross border litigation and arbitration of employment matters
• Supply chain management, mergers and the transfer of undertaking
• Managing expatriates
• Compensation, benefits, social security, discipline, tax and immigration issues
• Unconventional employment relationships
• Internationally Independent contractor issues
• Working with EU unions and works councils
• Ensuring data transfer policies and breach notification comply with varying standards
• Conducting employee terminations abroad without increasing risks of litigation or sanctions
• Terminating employees with cause/no cause
• Issues relating to ‘garden leave’
• Analyzing emerging sexual harassment laws and discrimination laws in the EU and beyond
• Assessing the roles of regulatory and enforcement agencies in other countries
• Immigration issues - bringing foreign professionals to work in the U.S. and vice versa
• Best practices for risk management and training for foreign nationals working in the U.S.
• Payroll and taxation issues
• Negotiating and drafting employment agreements
• Understanding TUPE rights in mergers and acquisitions

AB 2103 has been signed into law, boosting California overtime laws that were weakened by the Court of Appeal in Arechiga v. Dolores Press, Inc. (2011) 192 Cal.App.4th 567. Arechiga disregarded the language of Labor Code § 515(d) to validate private agreements for a fixed salary, including regular and overtime pay, for non-exempt employees. AB 2103 clarifies that "payment of a fixed salary to a nonexempt employee shall be deemed to provide compensation only for the employee's regular, nonovertime hours, notwithstanding any private agreement to the contrary."

You can read the full text of the bill here in PDF.

You can read the Arechiga v. Dolores Press, Inc. opinion here.

We are currently investigating employment policies at Five Guys burger locations in California in connection with a potential class action lawsuit. If you worked at a Five Guys within the past four years in California, we would like to talk to you. All inquiries will be held in strictest confidence. If you are a current employee, we only want to speak to you if you are an hourly associate or a salaried assistant manager. If you are a former employee of Five Guys, we are interested in speaking to you even if your as manager or you worked at the corporate office. Our investigation concerns wage and hour law issues, including overtime, meal periods, rest periods and clothing purchase policies. We welcome your inquiries or assistance whether or not you are interested participating in any pending litigation or pursuing a lawsuit on your own behalf.

You can contact us at (714) 544-6609, or by email at [email protected].

Walsh & Walsh, P.C. wage and hour lawyers represent California employees in claims involving all kinds of wage and hour violations, including failure to pay wages, misclassification or miscalculation of overtime pay, meal period and rest period violations, unpaid commissions, retroactive pay rate restructuring, unauthorized payroll deductions, compelled patronage, uniform violations, unreimbursed employee expenses and similar claims.

SB 1255 has been signed into law. Labor Code § 226 has teeth again, as SB 1255 restores and clarifies the itemized wage statement requirements of the Labor Code after several court decisions weakened the statute's worker protections. This bill provides that an employee is deemed to suffer injury if the employer fails to provide accurate and complete information and the employee cannot promptly and easily determine from the wage statement alone all of the information required by the statute: the amount of the gross or net wages paid to the employee during the pay period, deductions made from the gross wages to determine the net wages paid to the employee during the pay period, the name and address of the employer or legal entity that secured the services of the employer, and the name of the employee and only the last 4 digits of the social security number or employee identification number.

You can read the full text of the bill here in PDF.