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Mileage Reimbursement To Be Paid At Least Once Per Month

California Labor Code §2802(a) requires for employers to reimburse employees for all business related expenses incurred in performing their duties, such as driving for the benefit of the employer.  The Labor Code does not specify when the payment must be made to the employee, however, the California Code of Regulations requires for mileage reimbursement to be paid when wages are paid or at least one paid month.  Specifically, the regulations state that:

“[e]mployers shall compute and pay mileage reimbursement when wages are paid, or at least once per calendar month as determined by the employer.  All such payments must be made not later than the end of the calendar month following the calendar month in which the expenses were incurred, unless the employee fails to provide the employer with the records of the number of miles driven for the reimbursement period, in which case, the reimbursement must be made no later than the month following the month in which the employee provides the employer with the records for the mileage claimed.”  Title 8 of the California Code of Regulations, Section 13701(g).

NLRB Delays New Poster Requirement (To April 30, 2012)

The National Labor Relations Board announced on December 23, 2011, that it has postponed the implementation of the “employee rights notice-posting requirement” until April 30, 2012. The new poster is available from the Board’s website in English, Spanish, Albanian, Amharic, Arabic, Bengali, Bosnian, Portuguese, Chinese, Farsi, French, Creole, Hindi, Italian, Japanese, Korean, Lao, Pashto, Polish, Russian, Samoan, Somali, Thai, Urdu and Vietnamese, which looks like this:

Employee Rights

Under the National Labor Relations Act

The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their

employers, and to engage in other protected concerted activity or to refrain from engaging in any of the above activity. Employees

covered by the NLRA* are protected from certain types of employer and union misconduct. This Notice gives you general information

about your rights, and about the obligations of employers and unions under the NLRA. Contact the National Labor Relations Board

(NLRB), the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied

below, if you have any questions about specific rights that may apply in your particular workplace.

Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions

of employment.

• Form, join or assist a union.

• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages,

benefits, hours, and other working conditions.

• Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers

or a union.

• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related

complaints directly with your employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or the picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union.

Illegal conduct will not be permitted. If you believe your rights or the rights of others have been violated, you should contact the

NLRB promptly to protect your rights, generally within six months of the unlawful activity. You may inquire about possible violations

without your employer or anyone else being informed of the inquiry. Charges may be filed by any person and need not be filed by

the employee directly affected by the violation. The NLRB may order an employer to rehire a worker fired in violation of the law and

to pay lost wages and benefits, and may order an employer or union to cease violating the law. Employees should seek assistance

from the nearest regional NLRB office, which can be found on the Agency’s Web site: http://www.nlrb.gov.

You can also contact the NLRB by calling toll-free: 1-866-667-NLRB (6572) or (TTY) 1-866-315-NLRB (1-866-315-6572)

for hearing impaired.

If you do not speak or understand English well, you may obtain a translation of this notice from the NLRB’s Web site or by calling

the toll-free numbers listed above.

Under the NLRA, it is illegal for your employer to:

• Prohibit you from talking about or soliciting for a union

during non-work time, such as before or after work or

during break times; or from distributing union literature

during non-work time, in non-work areas, such as parking

lots or break rooms.

• Question you about your union support or activities in a

manner that discourages you from engaging in that activity.

• Fire, demote, or transfer you, or reduce your hours or

change your shift, or otherwise take adverse action against

you, or threaten to take any of these actions, because

you join or support a union, or because you engage

in concerted activity for mutual aid and protection, or

because you choose not to engage in any such activity.

• Threaten to close your workplace if workers choose a

union to represent them.

• Promise or grant promotions, pay raises, or other benefits

to discourage or encourage union support.

• Prohibit you from wearing union hats, buttons, t-shirts, and

pins in the workplace except under special circumstances.

• Spy on or videotape peaceful union activities and

gatherings or pretend to do so.

Under the NLRA, it is illegal for a union or for the

union that represents you in bargaining with your

employer to:

• Threaten or coerce you in order to gain your support

for the union.

• Refuse to process a grievance because you have

criticized union officials or because you are not a

member of the union.

• Use or maintain discriminatory standards or procedures

in making job referrals from a hiring hall.

• Cause or attempt to cause an employer to discriminate

against you because of your union-related activity.

• Take adverse action against you because you have not

joined or do not support the union.

If you and your co-workers select a union to act as your

collective bargaining representative, your employer

and the union are required to bargain in good faith in

a genuine effort to reach a written, binding agreement

setting your terms and conditions of employment. The

union is required to fairly represent you in bargaining

and enforcing the agreement.

* The National Labor Relations Act covers most private-sector employers. Excluded from coverage under the NLRA are public-sector employees, agricultural

and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor

Act, and supervisors (although supervisors that have been discriminated against for refusing to violate the NLRA may be covered).

This is an official Government Notice and must not be defaced by anyone.

September 2011

Discrimination in Employment

Employment discrimination has been typically defined as unequal treatment at work, without justification, and based on a prohibited reason.

In California, the Fair Employment and Housing Act (FEHA) prohibits discrimination on the basis of race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, marital status, sex, age and sexual orientation, and also discrimination on the basis that a person is perceived to have a protected characteristic, or on the basis that a person is associated with someone who has or is perceived to have a protected characteristic. Employers may not retaliate against employees for exercising their rights under the FEHA.

Protected Categories

  1. Age Discrimination (over age 40)
  2. Disability Discrimination (physical or mental)
  3. Race/Color Discrimination
  4. National Origin
  5. Ancestry
  6. Religious Discrimination
  7. Sex (Gender) Discrimination
  8. Pregnancy Discrimination
  9. Marital Status
  10. Sexual Orientation
  11. Medical Condition
  12. Genetic Information
  13. Military Status
  14. Whistleblower

Suspension of Salaried Employee Without Pay

 The Fair Labor Standards Act allows employers to suspend an exempt employee without pay as long as the employer has a written policy applicable to all employees.  An exempt employee may be subject to a good faith unpaid suspension for infraction of workplace conduct rules.  The disciplinary deduction may only be made in full day increments.  See:  USDoL.

 

Use Of Another Persons’ Social Security # May Prevent Right To Bring A Termination Claim Against The Employer

On August 9, 2011, a California Court of Appeals ruled that an employee, who during the hiring process provided his employer with the Social Security Number (SSN) of another person, lost the right to bring a lawsuit against the employer for alleged discrimination under California law. Salas v. Sierra Chemical Co., 198 Cal. App. 4th 29. Vicente Salas worked as a seasonal employee of Sierra Chemical Co. in San Diego for approximately three years before being injured at work. During the seasonal hiring process, Salas completed an Employment Eligibility Verification Form (Form I 9) and an Employee’s Withholding Allowance Certificate (W-4), which included the SSN of another person. In 2006 Salas suffered a work related injury and, in 2007, the Company allegedly refused to re-hire him because he was not “100% recovered” or “not completely healed.” Salas filed a lawsuit against Sierra Chemical alleging, among other things, that the Company discriminated against him under the Fair Employment and Housing Act (“FEHA”).

In litigation the Company discovered that the SSN used by Salas actually belonged to another man in North Carolina, who had not authorized Salas to use his SSN. Sierra Chemical asked the Court to dismiss Salas’ case under the theory of “after-acquired evidence” and “unclean hands.” Essentially, the Employer argued that it would not have hired Salas had it known that he was using a false SSN; and that Salas’ misrepresentation of his ability to work in the United States prevented him from having a termination based claim. The Court held that a plaintiff cannot have a claim for losing a job that he or she was not entitled to obtain in the first place. Misrepresentation of a job qualification imposed by the U.S. government, like having a valid SSN, legally disqualifies a person for a job and thus he or she are barred from obtaining compensation for losing the job.

The Court clarified, however, that a person “not lawfully qualified for the job” retains the right “right to bring a wide variety of claims against their employers as long as these claims are not tied to the wrongful discharge or failure to hire.” This means that an undocumented worker is “entitled to all the protections available under the law,” except a claim for illegal termination.


New NLRB Posting Requirement (Effective November 14, 2011)

The National Labor Relations Board issued a Final Rule requiring employers to notify employees of their rights to organize unions and engage in other concerted activities. Effective November 14, 2011, employers with a gross annual volume of business of more than $500,000 are required to publish a new poster. The poster, 11-by-17 inches in size, is similar to the notice of NLRA rights that must be posted by federal contractors as required by the Department of Labor.

 

The NLRB will provide copies of the notice on request at no cost to the employer on or before November 1, 2011. Employers may obtain the poster through the regional, sub-regional, or resident offices of the NLRB. The poster may also be downloaded through the NLRB’s website. Employers may also comply with this posting requirement by purchasing a set of workplace posters including the NLRB poster from a commercial supplier.

 

Employers must also post this notice on an intranet or internet site if they customarily post personnel rules and policies in such a manner. Employers must post translated versions of this poster if at least 20% of its workforce is not proficient in English.

 

An employer’s failure to post this notice will be treated as an “unfair labor practice” under the NLRA. The Final Rule was published on August 30, 2011.

 

SSN “NO-MATCH” LETTERS RETURN!

It has been reported, but we have been unable to confirm, that the Social Security Administration has resumed sending notices to employers known as “no-match letters.” The former administration rescinded the “no-match rule” after a lengthy court battle and the issue seemed to go away after the election. Now that employers may again face “no-match letter” issues, it would be wise to join the Social Security Number Verification Service. The SSNVS is an internet based “verification” option that allows employers to validate employees’ names and social security numbers. It is also a good time to ensure that the I-9 Forms of current employees have been re-verified for employer eligibility purposes (as work authorization documents and legal residence cards expire).

Volunteers are not covered by workers’ compensation in California.

Individuals who receive “no remuneration for [their] services other than meals, transportation, or reimbursement for incidental expenses” are generally excluded from the definition of employees, and as such not covered by Workers’ Compensation Insurance. California Labor Code §3352(i). However, public agencies may declare volunteers to be employees for purposes of workers’ compensation coverage. §3363.5

Does my employer have to reimburse me for auto mileage?

Yes. Labor Code § 2802(a) requires an employer to pay business related expenses their employees incur in performing their duties, such as driving for the benefit of the employer.

How can my employer pay me for my mileage? The California Supreme Court has recognized that your employer can reimburse you in at least these three ways;

First, by the IRS standard mileage rate. The Department of Labor Standards Enforcement (DLSE) recognizes that the mileage reimbursement used by the IRS is reasonable. If the employee believes they are entitled to more than the IRS mileage reimbursement, they are permitted to challenge the amount to prove their actual costs are more. If the employer want to pay less than the IRS rate, the employer has the burden of proving that the employees cost for operating a vehicle for work is actually less.

Second, by the actual expense method. The actual cost of mileage is calculated by adding the cost of fuel, depreciation, insurance, maintenance and all other operating costs. If the employer believes the actual cost is less that the IRS standard mileage rate, they can pay less if they can prove that.

Third, with a lump sum, such as a car allowance. This sum must provide full reimbursement for the actual costs incurred. The lump sum amount is subject to challenge by the employee. The employee can do so by comparing the lump sum to the actual expense method or the mileage reimbursement method. If the lump sum is not enough, the employer must make up the difference.

An employer can compensate their employee for their mileage expense with increased wages or commissions as long as they can prove, with an itemization, that the compensation is sufficient to cover the actual cost. If commission compensation, which tends to be variable, falls to a level where the actual driving expenses are not covered, the employer must make up the difference.