Employment and Labor Lawyers | Rivera Carbone PC

New Form I-9 (March 8, 2013)

Rivera — Fri, 08 Mar 2013 23:45:52 +0000

From the Department of Homeland Security:

U.S. Citizenship and Immigration Services sent this bulletin at 03/08/2013 04:32 PM EST

Dear Stakeholder,

(The earlier version of this message had an incorrect phone number which has been deleted from this version. Please disregard the earlier version.)

U.S. Citizenship and Immigration Services (USCIS) today published a new Form I-9, Employment Eligibility Verification. The form is available for immediate use by employers. Employers who need to make necessary updates to their business processes to allow for use of the new Form I-9 may continue to use other previously accepted revisions (Rev.02/02/09)N and (Rev. 08/07/09)Y until May 7, 2013 date. After May 7, 2013, all employers must use the revised Form I-9 for each new employee hired in the United States.

The revised Form I-9 has several new features, including new fields and a new format to reduce errors. The instructions to the form also more clearly describe the information employees and employers must provide in each section.

English and Spanish versions of the new form are available online at www.uscis.gov and I-9 Central.

For more information, please call 888-464-4218 or visit I-9 Central online.

In addition, USCIS will be hosting a stakeholder teleconference on Monday, March 11, 2013, at 2 p.m. (Eastern) to discuss and answer questions about the form revisions.

To Join the Session

Please use the information below to join the teleconference. We recommend that you call in 20 minutes before its start.

Call-in Number: 1-888-469-1753

Passcode: I-9

Kind Regards,

Public Engagement Division

U.S. Citizenship and Immigration Services

www.uscis.gov/outreach

Form I-9 Teleconference Invite.pdf

What Is The Effect Of A Severance Payment On California Unemployment Benefits?

Rivera — Fri, 04 Jan 2013 22:57:14 +0000

If you receive a settlement after leaving your employment, will that payment affect your ability to receive unemployment benefits in California?

The answer is maybe. According to the California Employment Development Department (EDD), payments received from a former employer for damages or other payments are not considered to be “wages” and, as such, do not have a negative impact on the ability to receive unemployment benefits. The Total and Partial Unemployment (TPU) Division of the Benefit Determination Guide (BDG) of the EDD (http://www.edd.ca.gov/uibdg/) defines wages as compensation for personal services. Section TPU 460.3 explains that damage payments and other types of awards that are not paid in exchange for personal services do not fall with the definition of wages for unemployment purposes. “Only if the damage payments received are for personal services are they wages within the meaning of Section 1252 of the Code.” Wages are considered earned during the time which the claimant performed the services.
This means that the settlement payment is not considered wages when it is paid if you did not perform services after leaving their employ.

Also, liquidated damages are not “wages” because they are not paid as remuneration for personal services. ”Therefore, they would not render the claimants ineligible for unemployment insurance benefits. Those payments, in effect, are merely indemnification for losses.” For a detailed discussion, see: http://www.edd.ca.gov/uibdg/Total_and_Partial_Unemployment_TPU_4603.htm.

However, the EDD could take the position that a severance payment given to a former employee has a wage component and, for that reason, may partially or totally considered to be wages.

Cancellation of Health Benefit For Employee Failure to Pay Fair Share of Premium During FMLA Leave

Rivera — Sat, 22 Dec 2012 00:03:46 +0000

Under the applicable federal regulations, an employer is allowed to terminate the health insurance benefits of an employee who has failed to pay his or her fair share during an FMLA leave. However, the regulations require for such premium payments to be more than 30 days late, and the employer has to give the employee at least a 15-day prior notice of cancellation.

Should the employee return to work, however, the employer is required to restore the health insurance benefits. The employer may then try to collect any outstanding balance from the employee, but the employee would be entitled to continue as a member of the benefits plan.

Payment of “Bonus” Affects Overtime Rate of Pay

Rivera — Sun, 04 Nov 2012 18:28:28 +0000

In California, the “regular rate of pay” for overtime purposes must consider all forms of compensation given to the employee including, commissions and non-discretionary bonuses. A non-discretionary bonus means that neither the formula for calculating the bonus nor when the employee will earn the bonus is left at the discretion of the employer.

Because the bonus was “earned” during regular an overtime hours, the employer has to pay the employee more money for the overtime hours already worked. The calculation is made by dividing the amount of the bonus by the total hours worked (including overtime) during the bonus generating period.

For an interesting discussion of this subject, see the case of Marin v. Costco

Paid Time-Off To Vote

Rivera — Mon, 29 Oct 2012 23:20:15 +0000

California Election Code requires employers to give a Notice to employees advising them of a paid leave to vote during a statewide election. The paid-time-off to vote is available for employees who, because of their work schedule, do not have enough time to vote during the voting hours of 7 a.m. to 8 p.m. Employees are entitled to pay for up to two hours, but they can take as much time as they need to vote. Employers have the right to ask employees to give advance notice of the taking of such leave. The employer also has the right to ask the employee to take time-off at the beginning or end of his or her shift.

The California Secretary of State has published the following form, which should be posted 10 days prior to the election, at: http://www.sos.ca.gov/elections/tov_final.pdf

Posting & Notice Requirements > California

Rivera — Fri, 19 Oct 2012 23:08:51 +0000

Under California and United States law, Employers are required to display several posters at the workplace in places easily accessible to employees and job applicants. Employers are also required by law to distribute certain notices or pamphlets to employees, either at the time of hiring or in connection with specific events during the employment relationship. Failure to comply with these requirements can expose employers to fines and/or investigations by the appropriate government agencies. The following is a summary of such requirements.

A. Employment “Poster”

There are several companies which offer a “poster” which consolidates most notice requirements into a single placard that is easy to read and has been recognized by governmental agencies to be in compliance with the applicable laws.

The following are the required postings:

Notice Required	Source of Requirement	Notes
Federal Minimum Wage	U.S. Dept. of Labor
Equal Employment Opportunity is the Law	EEOC
Safety and Health Protection on the Job	California Dept. of Industrial Relations/Division of Occupational Safety & Health
Notice to Employees on Employment Insurance	Employment Development Dept.
Notice to Employees on Supplemental Disability Insurance	Employment Development Dept.
Notice to Employees on Paid Family Leave	EDD/ California Minimum Wage Source Industrial Welfare Commission
Your Rights Under USERRA (Veterans Benefits)	United States Dept. of Labor
Notice to Employees Regarding Polygraph Protection Act	United States Dept. of Labor
Wage Order	EDD/DIR
	Dept. of Fair Employment and Housing	Form DFEH-162 Form DFEH-162S
Emergency Phone Numbers	Dept. of Industrial Relations, Division of Occupational Safety & Health
Pay Day Notice	Dept. of Industrial Relations,	Form DLSE8
Notice to Employees – Injuries Caused by Work	Division of Workers Compensation	DWC Form 7
Paid Disability Leave	Dept. of Fair Employment and Housing	Form DFEH100-20
Time Off for Voting	California Secretary of State
Protection for Employee Whistle Blowers	Office of the Attorney General

B. Required Posting Under Special Circumstances

Notice Required	Source of Requirement	Notes
Paid Family Leave	EDD	Provide to new employee and when an employee takes leave for a covered event, Form DE2511
State Disability Insurance	EDD	Provide to new employee and when non-work related disability leave, Form DE2515
Unemployment Insurance	EDD	Provide to any employee being terminated, laid off or given a leave of absence, Form DE2320
Notice Regarding Employee’s Withholding Allowance Certificate	EDD	Notice to Employee that your employer must send a copy of your W-4 (federal) or DE-4 (state) if: you claim more than 10 allowances OR you claim to be exempt from state or federal income tax and your weekly wages are over $200. Form DE35
Workers Compensation	Dept. of Industrial Relations	Provide to new employees the name of company, the company’s covered compensation carrier, location and telephone number of the nearest information assistance officer
Sexual Harassment	Dept. of Fair Employment and Housing	Provide to new employees, Form DFEH-185

C. Other Posting Requirements

1. Notice to Employee as to Change in Relationship

Unemployment Code Section 1089 requires for employers to give written notice to an employee of his or her discharge, layoff or leave of absence. Notice must contain at a minimum: a) name of employer, b) name of employee, c) the Social Security number of the employee, d) type of action: discharge, layoff, leave of absence or change in status from employee to independent contractor; and e) date of action.

2. Health Insurance

In addition to the notices required by the Consolidated Omnibus Budget Reconciliation Act (COBRA), California law requires to provide certain notices to terminated employees of their ability to continue health insurance coverage at the state’s expense under a Health Insurance Premium Payment (HIPP) Notice.

3. Hazardous Substances

If the Company uses hazardous substances in the workplace, an occupational safety and health notice must be read to employees regarding the contents of the material safety data sheets related to the hazardous substances.

4. Annual Summary

Employers are required to post an annual summary of occupational injuries and illnesses for each establishment known as CAL/OSHA form 300A.

5. Illness Prevention Program Code of Safe Practices

Employers are required to have a written illness and injury prevention program.

6. Fire Protection Plan

Every employer must have a fire prevention plan and is required to tell employees how to prevent fires and what to do in the event of a fire. A posting at least the location of exits and extinguishers is expected. The posting must be in the workplace and available for review by all employees.

7. Smoking Prohibition

Under the Labor Code, smoking is prohibited in most enclosed workplaces. Employees are required to post no smoking signs at each building entrance or smoking prohibited except in designated areas, when smoking is allowed in some areas.

8. Notice of Time and Place of Payment of Wages

This is required under Labor Code § 207

9. Notice of Employee’s Right to Take Time off to Vote

Not less than 10 days before a statewide election, post this Notice. See: Election Code §§ 14350, 14351.

D. Posting Requirements under Government Contracts

Please be mindful that, provided you deliver goods or perform services under a government contract, other specific posting requirements may apply. The types of postings will depend upon the rules established by the contracting government agency.

Which “Wage Order” Applies to My Business?

Rivera — Fri, 19 Oct 2012 22:59:05 +0000

The wages, hours and most working conditions of California employees are governed by the Wage Orders issued by the Industrial Welfare Commission (IWC). The Wage Orders can be found here. According to the Department of Industrial Relations, the terms and conditions of employment of California employees are regulated under an “industry order” or under an “occupational order.” A business is classified according to the “main purpose of the business,” and occupational orders only apply when a business is not covered by an industry order. The DIR has published a pamphlet on classification of employees which can be found here.

It is also important to be mindful that certain terms and conditions of employment of “exempt” employees may be regulated by the applicable Wage Order. For example, exempt employees may be entitled to other things regulated by the wage order such as adequate: a) change rooms and resting facilities, b) seats; and c) elevators. This means that, as a general rule, exempt employees are not entitled to the regulations about: 1) hours and days or work; 2) Minimum Wages; 3) Reporting Time Pay; 4) License for Disabled Workers; 5) Records; 6) Cash Shortages and Breakage; 7) Uniforms and Equipment; 8) Meals and Lodging; 9) Meal Periods and 10) Rest Periods.

NLRB Suspends Shortened Union Election Rules

Rivera — Tue, 15 May 2012 20:10:38 +0000

On May 15, 2012, the National Labor Relations Board suspended the new union representation election rules in response to an adverse Court order issued by a U.S. District Court for the D.C. Circuit. The Court issued its Order in response to a lawsuit filed by the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace.

Home » News & Media » News Releases

NLRB suspends implementation of representation case amendments based on court ruling

May 15, 2012

Contact:
Office of Public Affairs
202-273-1991
publicinfo@nlrb.gov
www.nlrb.gov

In response to a District Court decision issued late Monday, the National Labor Relations Board has temporarily suspended the implementation of changes to its representation case process, which had taken effect April 30.

Board Chairman Mark Gaston Pearce said the Board is reviewing the court decision and considering its response. “We continue to believe that the amendments represent a significant improvement in our process and serve the public interest by eliminating unnecessary litigation,” he said. “We are determined to move forward.”

Acting General Counsel Lafe Solomon today withdrew the guidance to regional offices he issued prior to the effective date and advised regional directors to revert to their previous practices for election petitions starting today.

About 150 election petitions were filed under the new procedures. Many of those petitions resulted in election agreements, while several have gone to hearing. All parties involved in the 150 cases will be contacted and given the opportunity to continue processing the case from its current posture rather than re-initiating the case under the prior procedure.

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NLRB Postpones Poster Rule, Again

Rivera — Wed, 18 Apr 2012 20:47:18 +0000

NLRB POSTPONES POSTER RULE, AGAIN

As we previously reported here, the National Labor Relations Board had postponed the implementation of the employee rights notice-posting requirement until April 20, 2012.

Yesterday, the NLRB decided not to implement the rule pending the resolution of conflicting federal court cases. Specifically, a District of Columbia Court of Appeals issued a temporary injunction to stop the implementation of the rule and a District Court in South Carolina had concluded that the NLRB did not have the authority to issue the poster rule.

As soon as a Court decision becomes final, and the NLRB decides to implement the new poster rule, we will let you know in advance so you can plan accordingly.

Should the NLRB’s decision is found to be a reasonable exercise of delegated executive power, employers would have to publish a 11 x 17 inches poster or two 8.5 by 11 inches poster to inform employees of their rights under the National Labor Relations Act. The official poster can be found here.

Brinker = Employer duty to provide meal period prior to end of 6th hour (or 10th hour) of work, no duty ensure that no work is performed during a meal period.

Rivera — Fri, 13 Apr 2012 23:06:59 +0000

On April 12, 2012, the California Supreme Court issued the long awaited decision in the case of Brinker Restaurant Corporation, et al. v. The Superior Court of San Diego County.

The main issue in the Brinker case was the question of whether an employer merely has to provide a meal period to employees or whether an employer had to ensure that employee took a meal period. The California Supreme Court essentially decided that an employer’s obligation is to provide a meal period but not to ensure that the meal period is actually enjoyed or taken by the employee.

The Meal Period Obligation

The Supreme Court concluded that ” … an employer’s obligation is to relieve its employees of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.” As further explained by the Court, “[a]n employer’s duty with respect to meal breaks … is an obligation to provide a meal period to its employees. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.” “… On the other hand, the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations …”

The Timing of the Meal Period

The Court also concluded that a meal period must begin before the end of the 6^th and 10^th hour of work, respectively. “We conclude that, absent a waiver, section 512 requires a first meal period no later than the end of an employee’s fifth hour of work, and a second meal period no later than the end of an employee’s 10^th hour of work.” The fact that the Court has “clarified” that a first meal period must start prior to the end of the 6^th hour of work may bring forth more litigation than the appealing employers hoped to avoid.