Sonoma County EAC 2013

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1 Sonoma County EAC 2013 Employment Law Update

2 Agenda About the EAC Lessons Learned Employment Law Update Legislative Update Affordable Care Act Essentials

3 Questions? Fire away.

4 About Your Presenters Gregory J. Walsh & Jennifer D. Phillips

5 About the EAC

6 About the EAC - Membership Low Annual Fee Discounts on Seminars Commitment to Community Partnership Between Public & Private Sector Management Hotline Active Board

7 About the EAC Docket Hiring i and Firing i - Managing Risk Beginning i to End Wage & Hour Workplace Investigations Small Employer Workshop/Management Hotline/Compliance Issues/Panel Discussion Employment Law Update

8 Lessons Learned

9 Aggressive Enforcement

10 Bureau of Field Enforcement (BOFE) BOFE is responsible for investigation and enforcement of statutes covering workers' compensation insurance coverage, child labor, cash pay, unlicensed contractors, Industrial Welfare Commission orders, as well as group claims involving minimum wage and overtime claims.

11 Labor Enforcement Task Force The Labor Employment Task Force (LETF) is a partnership of state and federal agencies, each expert in their own field, collaborating for vigorous and targeted enforcement against unscrupulous businesses participating in the "underground economy" historically abusing the workforce in the garment manufacturing, auto body, agriculture, car wash, construction, pallets and restaurant industries. Department of Industrial Relations (DIR) Employment Development Department (EDD) Contractor s State Licensing Board (CSLB) California Department of Insurance (CDI) Board of Equalization (BOE) Bureau of Automotive Repair (BAR) State Attorney General (DOJ)

12 National Labor Relations Board

13 Mayor Bob Filner

14 Art v. Science

15 Employment Law Update

16 Moradi v. Marsh USA Employee uses car for work duties during the workday Workday ends, employee drives to yoga and fro yo Employee gets in accident Coming & Going Rule Required Vehicle Exception

17 Purton v. Marriott (Cal. Ct. App.) pp) Employee Home Employee Leaves Party With Co- Workers Employee Arrives Home Employee Drives To Party Employer Brings Out More Booze Employee Leaves Home To Drive Co- Worker Home Employee Uses Drink Party Employee Drinks from Flask Employee Causes Accident Driving 100 MPH. Employer on the Hook

18 Purton v. Marriott Policy prohibiting smuggled alcohol Enforcing drink ticket policy Serving drinks for a limited period of time then food; or Forbidding alcohol Real World

19 Happy Nails et. al v. Su EDD claimed nail salon workers were employees It lost The Labor Commissioner gave it a try It lost, because EDD had already lost The law [d]oes not require private parties to share the Commissioner's "once an employee, always an employee" mindset. Rather, private parties are free to change the nature of their business relationship in accordance with the "long-standing established public policy in California which respects and promotes the freedom of private parties to contract and which allows them the widest latitude in this regard"

20 Garvey v. Kmart 14. Seats. (A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats (B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties

21 Alamo v. Practice Mgmt. Corp. Poor-performing employee Pregnancy leave Terminated for performance Substantial motivating reason Mixed-motive defense Wi Wait for Jen

22 Acuna v. San Diego Gas & Electric DFEH I: 3/16/2006 Racial discrimination, harassment, retaliation (Right to sue) DFEH II: 2/23, 2007 Disability discrimination (Right to sue) Termination: 7/11/2008 DFEH III: 10/23/ Lawsuit: 11/5/2009

23 Estrada v. L.A. Volunteer police officer Received reimbursement and workers comp coverage Sued for discrimination under FEHA Not an employee, but Be very, very careful

24 American Express v. Italian Colors Rest. Class Action Waivers

25 Richards v. Ernst & Young, LLP Pre-trial participation in litigation Arbitration agreement in place; previously unenforceable AT&T v. Concepcion, 131 S. Ct (2011) No prejudice; arbitration okay

26 The State of Arbitration

27 Mendiola v. CPS Security Solutions, Inc. On-site security guards 16 & 24 hour shifts Mobile homes with beds, bathrooms etc. [T]he time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.

28 Mendiola v. CPS Security Solutions, Inc. Seven-Part Test (1) whether there was an on-premises living requirement; (2) whether there were excessive geographical restrictions on [the] employee s movements; (3) whether the frequency of calls was unduly restrictive; (4) whether a fixed time limit for response was unduly restrictive; ti (5) whether the on-call employee could easily trade on-call responsibilities; (6) whether use of a pager could ease restrictions; and (7) whether the employee had actually engaged in personal activities during call-in time

29 MacDonald v. State of Cal. Employee fired after complaining that supervisor was "illegally and/or inappropriately smoking" near the office Sued for retaliation under Labor Code and retaliatory t and discriminatory i i discharge in violation of Labor Code 6310 Labor Code 98.7(a) provides in pertinent part that "Any person who believes that he or she has been discharged or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner may file a complaint with the division within six months after the occurrence of the violation." Administrative exhaustion requirement Wait for Jen

30 EEOC Background Checks April 12, 2012 Guidance Flurry of criticism i i and challenges August 29, 2013 Response Targeted Screen Individualized Assessment Limited Exceptions Conflicts with state law

31 McCoy v. Pacific Maritime Assoc. McCoy worked as a marine clerk Settled lawsuit against company Filed second action alleging harassment, retaliation, negligent supervision, hiring and IIED Summary judgment on harassment and IIED Although crude and offensive, these remarks were not so severe and pervasive as to alter the conditions of appellant's employment; the conduct did not create a work environment 'permeated' with sexual harassment. Retaliation Me-Too evidence should have been admitted

32 Hatai v. DOT Employee attempted to show discrimination against employees outside of his protected category The Court of Appeal said no dice The Me-Too Doctrine and its influence on plaintiff tactics

33 Heyen v. Safeway Assistant manager Mixed duties Supervising, hiring, and budget work Cash register Does multi-tasking count? Exempt or non-exempt?

34 Negri v. Koning & Associates Employee paid $29/hour Never paid less than 40 hours Employer claimed administrative exemption A salary is generally understood to be a fixed rate of pay as distinguished from an hourly wage. Thus, use of the word salary implies that an exempt employee's pay must be something other than an hourly wage. Since federal law requires that, in order to meet the salary basis test for exemption the employee would have to be paid a predetermined amount that is not subject to reduction based upon the number of hours worked, state law requirements must be at least as protective.

35 Molina v. Lexmark Various use it or lose it policies Vacation pay is not a gratuity or a gift, but it is, in effect, additional wages for services performed and, once vacation pay has vested, section precludes its forfeiture. Thus, a policy that forces employees to either use or forfeit already accrued vacation time violates section Statute of limitations issues

36 Carter v. Entercom Woman died after drinking too much water in radio contest Family sued radio station and employee, among others Radio station correctly offered to defend, and insurer selected attorney Employee chose his own attorney, and the insurer refused to pay Labor Code section 2802 requires indemnification, but not the attorney of his choice

37 Busk v. Integrity Staffing Solutions End of day security screenings took up to 5 minutes Sued under FLSA for offthe-clock work The court of appeals agreed that this could compensable work time But what about walking to the lunchroom?

38 Gonzalez v. Downtown LA Motors Automotive service technicians paid on a piece-rate basis Time also spent waiting for vehicles to repair or performing other non-repair tasks directed by the employer Employer used Flag Rate program Averaging piece-rate wages over total hours worked results in underpayment of employee wages required by contract under Labor Code section 223, as well as an improper collection of wages paid to an employee under Labor Code section 221.

39 Sanchez v. Swissport Employee placed on bedrest as a result of a high risk pregnancy After 19 weeks of leave employee had exhausted PDL, CFRA and accrued leave Employer termination Not so fast! FEHA requires more At the end or depletion of an employee s pregnancy disability leave, an employee who has a physical or mental disability (which may or may not be due to pregnancy, childbirth, or related medical conditions) may be entitled to reasonable accommodation under Government Code section

40 McGrory v. Applied Signal Technology Employee accused of discriminating against subordinate on the basis of her sex and sexual orientation Employee strongly believed investigator would rule against him Employee became truly belligerent Outside investigator concluded that, while Employee had not discriminated against a lesbian subordinate on the basis of her sex or sexual orientation, in other ways Employee had violated Employer's policies on sexual harassment and business and personal ethics and he had been uncooperative and deceptive during the investigation.

41 McGrory v. Applied Signal Technology While refusing to participate in or cooperate with an employer's discriminatory action may be a protected activity when it amounts to opposition to a forbidden practice, refusing to participate in or cooperate with an investigation into a discrimination i i claim is not participation i or assistance and is not a protected activity Government Code section 12940, subdivision (h), does not shield an employee against termination i or lesser discipline i for either lying or withholding information during an employer's internal investigation of a discrimination claim. In other words, public policy does not protect deceptive activity during an internal investigation. Such conduct is a legitimate reason to terminate an at-will employee

42 Ignat v. Yum Brands Employee suffered from bi-polar disorder While on leave her supervisor verbally told others about her condition Employee sued for invasion of privacy California Constitution v. Common Law Claims

43 It s cool; I ve got a card

44 COMING UP NEXT Jennifer D. Phillips with Legislative Update & Affordable Care Act Essentials

45 Legislative Update

46 Agenda Issues from 2012 s New Laws 2013 Passed Legislation 2013 Pending Legislation Affordable Care Act Issues

47 Issues from 2012 s New Laws Personnel File requirements 30 days to provide a copy Must have personnel file request form See Appendix A for sample forms for current and former employees Commission Agreements In writing and signed by employee Exempt/Non-exempt exempt issues See Appendix B for sample please consult legal counsel before use

48 2013 Signed Legislation SB 292 Signed by Governor 8/12/13 Amends FEHA: Sexual Harassment does not have to be motivated by sexual desire SB 462 Signed by Governor 8/26/13 Amends Labor Code 218.5: Employers cannot get attorney s fees when they are prevailing party on wage claims unless court finds employee brought action in bad faith

49 AB 10 Minimum Wage Amends Labor Code Signed by Governor on 9/25/13 Increases minimum wage as follows: July 1, 2014 = $9.00 January 1, 2016 = $10.00 No allowance for increase after January 1, 2016

50 SB 770 Expands PFL Coverage Signed by Governor 9/24/13 Expands family members for which employees are allowed to seek up to 6 weeks paid family leave (PFL) benefits. Now includes grandparent, grandchild, sibling, and parentin-law Effective July 1, 2014 Currently available for child, spouse, parent, and domestic partner, or to bond with child within first year of birth or adoption/foster care placement. If PFL information is in your handbook, you should review to make sure it is updated

51 AB241- Overtime - Domestic Workers Adds Labor Code 1450 et eq. Signed by Governor on 9/26/13 Provides standard overtime for domestic workers after 8 hours in a day or 40 hours in a week Domestic Workers: Includes personal attendants, childcare providers, caregivers of people with disabilities, sick, convalescing or elderly persons, house cleaners, housekeepers, maids and other household occupations related to care in or maintenance of private homes Only in effect until January 1, 2017 unless extended by statute Personal Attendants: Provides overtime after 9 hours in a day or 45 hours in a week Codifies personal attendant work = Supervising, feeding, or dressing children, elderly, or disabled. Can spend no more than 20% of time doing non-personal attendant work.

52 2013 Pending Legislation Governor has until October 13, 2013 to sign or veto pending legislation This presentation was finalized September 30, 2013 Contact me at after October 13, 2013 for final new legislation information

53 AB 11- Leave for Training Amends Labor Code Employers with 50 or more employees currently must provide up to 14 days of unpaid leave to volunteer firefighters for training New law extends same benefit to reserve peace officers and emergency rescue personnel Would likely require a change to your personnel policies

54 AB 218 Ban the Box Adds Labor Code Prohibits governmental employers from asking about criminal background until after the employer has determined the applicant meets the minimum qualifications Exception for position otherwise requiring conviction history background check or in criminal justice agencies Part of nationwide movement to ban employers from asking about criminal background on applications Important trend to watch

55 AB Unfair Immigration-Related Practices Adds Labor Code 1019; Amends Labor Code 98.6 & 98.7 Tied to SB 666 and SB 496 Creates private right of action as well as retaliation action with the Labor Commissioner against employers who engage in Unfair Immigration-Related Practices in retaliation for an employee exercising rights under wage and hour laws Unfair Immigration-Related Practices include asking for special documentation of immigration status, refusing to honor specific documents, using E-Verify at a time or in a manner not required or authorized by government, threatening to file a false police report, threatening to contact or contacting immigration authorities

56 AB Unfair Immigration-Related Practices Amends Labor Code 98.7 Clarifies that there is no requirement to exhaust administrative remedies before suing for retaliation or whistleblower actions Any Unfair Immigration-Related Practice within 90 days of exercising rights is a rebuttable presumption of retaliation Guilty of misdemeanor, fine up to $10,000 and court can order suspension of licenses provided in SB 666

57 SB 666 Punishment for Reporting Immigration Status Tied to AB 263 and SB 496 If a lawyer reports suspected immigration status or threatens to report suspected immigration status of a witness or party to a civil or administrative action or his or her family member because the witness or party exercises or has exercised a right related to his or her employment the lawyer is subject to suspension or disbarment Allows suspension of all licenses under Department of Consumer Affairs held by the violating party (Employer) specific to the business location or locations where the act occurred. For a list of applicable licenses:

58 SB 496 Expanded Whistleblower Amends Labor Code Primarily addresses public sector whistleblower actions, but also includes a dramatic change to Labor Code Broadens scope to include private actions against employer when employer or anyone acting on behalf of the employer retaliates against employee for making an internal complaint or when action is taken when an employer believes the employee may have made a complaint Current law protects only employees who are retaliated against for actually complaining to governmental or law enforcement agencies Creates another private right of action with attorney s fees Tied to AB 263 and SB 666

59 AB Wage Penalties to Employees Amends Labor Code and Allows employees to directly sue to obtain liquidated damages and penalties from employers for failure to pay minimum wage or overtime Liquidated damages equals the wages unlawfully unpaid plus interest. Essentially twice the payment Penalty is $100 per employee per pay period Currently only the Labor Commissioner can obtain such recovery

60 AB Military and Veteran Status Amends FEHA Adds a new protected status under FEHA A person could not be discriminated or harassed on the basis of his or her Military or Veteran status Inquiry into military or veteran status would be allowed if hiring preference is being given based on that status If passes, employers should update their handbooks to reflect additional protected categories

61 AB Union Rep/Employee Privilege Amends Evidence Code 912 and 917 Creates an evidentiary privilege equivalent to attorney/client, doctor/patient and spousal privileges Protects all discussions between a union representative and a representative employee or former employee when the representative is acting in the capacity of a union representative Would not apply in criminal settings

62 SB 168 Farm Labor Contractor Adds Labor Code Successor Farm Labor Contractor (FLC) would be responsible for unpaid wages from previous FLC even if previous was unlicensed Will be a successor FLC if: Uses substantially the same facilities or workforce to offer substantially the same services (except in limited cases); or Shares in the ownership or management with previous FLC; or Employs as a manager a person who directly or indirectly controlled wages, hours, or working conditions of previous FLC employees; or Is an immediate family member of owner, partner or officer of previous FLC

63 SB 390 Crime for Failing to Submit Withholding Amends Labor Code 227 Makes it a crime for an employer to fail to remit withholdings from employee s wages that were made pursuant to state, local or federal law If failure to remit is more than $500 than it shall be punishable in county jail of no more than one year and/or a fine of not more than $1,000 All other violations are punishable as a misdemeanor

64 SB 400 Victims of Stalking Amends Labor Code 230 Adds victims of stalking to list of employees that employers cannot take adverse actions against for taking time off to testify or appear in court Adds requirement to provide reasonable accommodations for victims who request accommodation for their safety while at work. Duty to engage in interactive process. No duty to accommodate if status unknown With reasonable accommodation issues, employers may want to revise handbook to include a process

65 SB 400 Victims of Stalking Amends Labor Code Currently, employers with 25 or more employees must provide an unpaid leave of absence to victims of domestic violence and sexual assault in order to seek treatment This bill adds the same protection for employees who are victims of stalking Employee can sue employer for violation of either Labor Code 230 or (including failure to reasonably accommodate). If Labor Code 98.7 amended it will allow a private right of action without pursuing administrative remedies

66 SB 435 Recovery Period Amends Labor Code Adds penalty, similar to that for meal and rest periods, for making an employee work during a recovery period Recovery period is a cooldown period afforded to employees to prevent heat illness as mandated under applicable wage order, OSHA regulation, or any other similar regulation Penalty is one hour of pay at employee s regular rate of pay

67 SB 655 Available Damages in Mixed Motive Cases Adds Gov. Code and amends FEHA Meant to partially codify and partially correct February 2013 case, Harris v. Santa Monica Damages available in discrimination cases where employer shows a mixed motive, meaning that although there was some element of discrimination, employer would have taken same action (such as firing) for non-discriminatory reasons No reinstatement, back or front pay or emotional distress damages allowed, but imposes $25,000 penalty payable directly to employee, allows injunctive relief and provides for attorneys fees Harris allowed only attorneys fees and injunctive relief, no penalty

68 Affordable Care Act The basics Who is covered? What happened yesterday, October 1, 2013? What will happen in 2014? What will happen in 2015?

69 The Basics - Two Mandates Individual Mandate Everyone is required to have health insurance in 2014 or pay a penalty Exemptions include: Prisoners, Native Americans, Immigrants here illegally, religious objectors, individuals where premiums would exceed 8% of household income, and people p who do not make enough income to file taxes Penalty First year: $95 per adult/$47.50 per child, or 1% of household income, whichever is more. The penalty goes up each year with no coverage. By 2016, it will be as much as $695 per adult/$347 per child, or 2.5% of household income Employer Mandate - Reporting and Coverage. All reporting has been deferred for one year. Coverage has also been deferred, but only because the regulations have not been finalized and because without reports on the insurance coverage the government can t assess penalties

70 Employer Penalties Stem from Individuals Obtaining Subsidies What are the Subsidies? Individuals must obtain insurance either through their employer or through a Covered California Health Exchange or insurance broker If employer coverage is unavailable individuals whose incomes are below 4 times the national poverty level (2013: $45,960 for individual/$94,200 for family of 4) and who purchase through the Exchange will be eligible for a subsidy in the form of a tax credit In the same scenario as above if individuals incomes are below 2.5 times the national poverty level they will be eligible for an additional subsidy of cost-sharing reduction in premium All individuals whose employer provided coverage is not good enough (discussed later) and who purchase through the Exchange will also be eligible for a subsidy in the form of a tax credit

71 Employer Requirement Laws for Health Insurance Coverage Automatic Enrollment: Fair Labor Standards Act (FLSA) 18A directs employers with more than 200 full-time employees to automatically enroll new full-time employees in one of the employer s health benefit e plans, if it has them. Deferred ee ed until DOL completes regulations Employer Shared Responsibility: (a.k.a. Play or Pay) Internal Revenue Code 4980H provides that applicable large employers will be subject to an assessable payment if any full-time employee is certified to receive an applicable premium tax credit or cost-sharing reduction payment. Deferred one year until 2015 with reporting requirements

72 What is an Applicable Large Employer? Applicable large employer" means an employer who employed an average of at least 50 full-time employees on business days during the preceding calendar year

73 How are Full-Time Employees Calculated l Under ACA? Full Time employees work an average of 30 hours per week (or 130 hours/month) Must also count Full-Time Equivalent (FTE) employees FTE s are calculated as follows: Total of all part-time hours 120 (example: 400 p/t hours 120 = 3.33 = 3 FTE)

74 Exemptions from Large Employer Status An employer shall not be considered an applicable large employer if: (i) the employer's workforce exceeds 50 full-time employees for 120 days or fewer during the calendar year, and (ii) the employees in excess of 50 employed during such 120-day period were seasonal workers

75 Seasonal Worker Definition Labor is performed on a seasonal basis where, ordinarily, the employment pertains to or is of the kind exclusively performed at certain seasons or periods of the year and which, h from its nature, may not be continuous or carried on throughout the year. A worker who moves from one seasonal activity to another, while employed in agriculture or performing agricultural labor, is employed on a seasonal basis even though he may continue to be employed during a major portion of the year 29 CFR (s)(1)

76 Applicable Large Employer, Now What? Employers must provide all full-time employees with quality affordable coverage Quality = Minimum Essential Coverage and Minimum Value. There is a list of the minimum essential coverage and the plan must pay at least 60% of the total cost of medical services Affordable = Employee s share cannot be more than 9.5% of his or her household income

77 What Happens if Offer No Insurance? If the employer does not offer any insurance the employer will be assessed a penalty if just one employee obtains a subsidy and coverage on the Exchange Penalty is $2,000 annually per full-time employee (excluding the first 30 employees) For example: Employer with 100 FT employees, exclude the p p y p y, first 30, then multiply 70 x $2,000 = $140,000 penalty

78 What Happens When Coverage is Not Good Enough? If Employer s coverage is not quality and affordable the employer will be assessed a penalty, if any employee obtains a subsidy and coverage on the Exchange Penalty is $3,000 annually per full-time employee who receives a subsidy Penalties are determined on a month-to-month basis

79 ACA for Employers in a Nutshell If you employ more than 200 full-time employees, you must automatically enroll full-time employees in one of your policies i and continue enrollment of current employees If you employ less than 50 full-time employees, the law s employer shared responsibility policies i (Play or Pay) do not apply to you. Instead, you will gain access to the Small Business Health Options Program (SHOP) that gives you the purchasing power of large businesses. You may also be eligible for a tax credit that covers up to half the cost of insurance if you offer quality coverage to your employees If you employ more than 50 full-time employees and already offer full-time employees affordable, quality coverage, you are fine the Act is meant to provide resources to keep that coverage affordable If you employ more than 50 full-time employees but choose not to offer quality affordable coverage, the Act provides some flexibility and transition time for you to provide the coverage. If you do not, the Act will eventually penalize you (so called, Play or Pay Penalties)

80 October 1, Individuals Health Insurance Exchange/Marketplaces opened Individuals can shop and compare healthcare benefit plans and verify eligibility for a government subsidy to help cover the cost of the premiums Individuals have from October 1, 2013 March 31, 2014 to purchase Tax credits are available for individuals whose income is less than 4 times federal poverty level. Individuals = $45,960 Family of 4 = $94,200

81 October 1, Employers All employers covered by FLSA were required to provide notice of Marketplaces to all employees even if employer does not provide insurance DOL has model notice if the deadline slipped by (See Appendix C for copy of model notice for employers with health coverage and model notice for employers without) Government e has website e to help small employers shop for potential health care plans

82 What Happens in 2014? Uncertain, but Plan, Plan, Plan Play or Pay will not be enforced in No employer penalties. Individual penalties still apply 2014 will be the year during which your full-time employees will be measured. If you are on the cusp of the 50 full-time employee marker, or if you have part-time employees that you do not know whether they will be considered full-time (meaning averaging 30 hours a week) and eligible for coverage, now is the time to figure it out. Consult legal counsel to determine measurement methods for determining applicability of ACA provisions. There are safe harbors and important measurement periods to analyze During 2014 Automatic Enrollment may be implemented. Waiting for regulations from DOL Employers cannot require more than 90 days employment before eligible for health coverage

83 What Happens in 2015? Uncertain, but Plan, Plan, Plan 2015 Employer reporting and Play or Pay are supposed to start In 2015, Employers are supposed to offer coverage for dependents d as well as employees

84 QUESTIONS?

85 GREGORY J. WALSH is the Co-Managing Director of Dickenson, Peatman&FogartyandtheleadDirectorinthefirm'sLaborand Employment Group. Greg s practice encompasses all aspects of labor and employment law, including advising employers on how to prevent issues before they arise, and developing workable solutions to those that do. Greg is also a member of the firm s Wine Law and Litigation groups, representing clients in administrative and court proceedings. A native Californian, Greg began his legal career practicing labor and general business law in Boston. He later returned to the Bay Area, where he continued developing his practice with one of the nation's largest labor and employment firms, representing union and non-union employers. In 2004, Greg s love of the wine country brought him north, where he now uses his range of experience to solve problems for North Bay employers, businesses and individuals. The North Bay Business Journal recently named Greg as a "Forty Under 40" award recipient. Greg received his B.S. while double-majoring in Journalism and Sociology at the University of Oregon. He earned his law degree from University of California, Hastings College of the Law, where he served as Senior Executive Editor of the Communications And About Your Presenters JENNIFER D. PHILLIPS is a senior associate primarily in the firm's Labor and Employment Group. She has been a lawyer for over 15 years. During this time she has worked for both large and small firms gaining valuable experience in both litigation and counseling. She has extensive experience in all manner of employment issues including wage and hour, discrimination, reasonable accommodation, leaves of absence, and implementing state and federal regulations. She often analyzes legal risks associated with hiring, disciplining and firing in order to counsel clients with these employment decisions. Although counseling is the key to the firm s employment practice, Jennifer is a trained and experienced litigator who protects her clients' interests when litigation becomes necessary. Jennifer is an extensive world traveler and native Californian. She enjoys all that Sonoma County has to offer and resides in Santa Rosa with her husband and two young children. Greg at Entertainment Law Journal. Greg is admitted to practice in Jennifer at law.com California, Massachusetts, and several federal jurisdictions. Greg is an avid fan of the Rose Bowl Champion Oregon Ducks. He and his family live in Sebastopol.

86 About The Firm Dickenson, Peatman & Fogarty provides a level of representation ordinarily associated with legal practices in major metropolitan centers. Our attorneys are routinely recognized in legal rankings and surveys as some of the best in their fields, and the firm is involved regularly with matters of local and national import. For over forty years DP&F lawyers have practiced law with the get to know you culture that has engendered significant client loyalty. Rooted in the wine regions of Napa and Sonoma, DP&F provides full service legal representation to all manner of businesses and individuals throughout California, the United States and abroad. The Firm s major practice areas include alcohol beverage law, business and corporate dealings, land use matters, labor and employment, civil litigation, intellectual property, real property transactions, as well as estate planning and probate. With offices in the major wine valleys of Napa and Sonoma, the firm is intimately familiar with, and has extensive e experience, in both the wine and hospitality industries. Napa County 1455 First Street Suite 301 Napa, CA T: (707) F: (707) Sonoma County 50 Old Courthouse Sq. Suite 200 Santa Rosa, CA T: (707) F: (707)

87 THANK YOU! Sonoma County EAC 2013 Employment Law Update

88 Appendix A Former Employee Request for Review and/or Copy of Personnel File We are happy to make the personnel files of former employees available for review. Please complete this form and return it to Human Resources. We will coordinate a date for the review or copy of your file within 30 calendar days of the date this completed form is received. Please note that only one request per year is granted to former employees. Certain documents are not included in the personnel file. These documents include: records relating to the investigation of any possible criminal offense, letters of reference, documents obtained before you were hired and documents obtained in connection with any promotional examination, if any. In order to protect the privacy rights of other employees we may redact or omit the name of any nonsupervisory employee who may appear in your personnel file before it is provided to you for review. Please note that if you were terminated for a violation of law, or an employment related policy involving harassment or workplace violence, you will not be allowed to review the records at our facility. We will mail you a copy to the address you have indicated below. Please initial one of the options below: I would like to review my personnel file only. I would like a copy of my personnel file only. I would like to review my personnel file and obtain a copy. Former Employee Name Date Former Employee Signature Mailing Address: Optional Representative: I authorize to review and/or receive a copy of my personnel file. I understand that the Company may take reasonable steps to verify the identity of this representative before making my records available or providing a copy of my records. For Administrative Purposes Only: Date Form Received From Employee: Date of Record Inspection: Date Copy of Records provided:

89 Appendix A Request for Review and/or Copy of Personnel File We are happy to make your personnel file available to you. Please complete this form and return it to Human Resources. We will coordinate a date for the review or copy of your file within 30 calendar days of the date this completed form is received. Certain documents are not included in the personnel file. These documents include: records relating to the investigation of any possible criminal offense, letters of reference, documents obtained before you were hired and documents obtained in connection with any promotional examination, if any. Please note that in order to protect the privacy rights of other employees we may redact or omit the name of any nonsupervisory employee who may appear in your personnel file before it is provided to you for review. Please initial one of the options below: I would like to review my personnel file only. I would like a copy of my personnel file only. I would like to review my personnel file and obtain a copy. Employee Name Date Employee Signature Optional Representative: I authorize to review and/or receive a copy of my personnel file. I understand that the Company may take reasonable steps to verify the identity of this representative before making my records available to this person or providing a copy of my records to the person. For Administrative Purposes Only: Date Form Received From Employee: Date of Record Inspection: Date Copy of Records provided:

90 Appendix B SAMPLE COMMISSION AGREEMENT This Sample is meant as a guide only. You should consult with legal counsel to make sure the agreement is consistent with your practice and compliant with the law. [Insert Name of Company] ( Company ) and [Insert Employee s Name] ( Employee ), memorialize the following agreement concerning Employee s commission compensation. 1. Compensation Compensation Structure. Employee s compensation shall consist of [a monthly salary if exempt or an hourly rate of pay if non-exempt], plus a commission on qualified sales. A qualified sale [define the type of sales upon which employee will earn commission.] Commission Rate. The commission rate is [Insert rate] When Commissions Are Earned. Commissions are considered earned upon completion of the qualified sale. The sale is complete when the purchase is paid in-full by the buyer. [This is a typical definition of earned commission, but depending on your business it could be different.] 1.4. Commissions Paid. Commissions are calculated on [weekly, bi-weekly or monthly] basis. The commission is paid in the pay period immediately following the calculation Commissions Post Termination. All commissions earned as of the date of termination will be paid in accordance with the law. Employee will be paid for any commission earned as soon as the commission is reasonably calculable Rate Changes and Adjustments. The compensation structure and commission rate may be subject to change, at the Company s discretion. Any such change shall not apply to any commissions already earned when the change is announced. Company has discretion to make reasonable adjustments to invoices to customers before and after billing. 2. Offer Letter and Company Policies. Employee s employment shall be subject to the terms of the Employee s offer letter, if any, and the Company policies and procedures that may be issued during Employee s employment. 3. At-Will Employment This Agreement does not alter Employee s at-will employment status, nor does this Agreement create an employment contract between Company and Employee. Employee understands and agrees that his/her relationship with the Company is at-will, which means that his/her employment is for no definite period and may be terminated by the employee or the Company at any time and for any reason with or without cause or advance notice. DP&F Commission Agreement Page 1 of 2

91 Appendix B Employee also understands and agrees that Company retains the right in its sole discretion to change any of the terms of employment, including, but not limited to, compensation, commission pay structures, job duties, and any other terms of employment. Date: [Employee s Name] Date: [Employer s Name] By: [Person Authorized to sign for Employer and title] Acknowledgement of Receipt I hereby acknowledge that I was given a signed copy of this Commission Agreement in its entirety. Date: [Employee s Name] DP&F Commission Agreement Page 2 of 2

92 Appendix C New Health Insurance Marketplace Coverage Options and Your Health Coverage Form Approved OMB No. PART A: General Information What is the Health Insurance Marketplace? Can I Save Money on my Health Insurance Premiums in the Marketplace? Does Employer Health Coverage Affect Eligibility for Premium Savings through the Marketplace? How Can I Get More Information?

93 Appendix C PART B: Information About Health Coverage Offered by Your Employer 3. Employer name 4. Employer Identification Number (EIN) 5. Employer address 6. Employer phone number 7. City 8. State 9. ZIP code 10. Who can we contact at this job? 11. Phone number (if different from above) 12. address

94 Appendix C New Health Insurance Marketplace Coverage Options and Your Health Coverage Form Approved OMB No. PART A: General Information What is the Health Insurance Marketplace? Can I Save Money on my Health Insurance Premiums in the Marketplace? Does Employer Health Coverage Affect Eligibility for Premium Savings through the Marketplace? How Can I Get More Information?

95 Appendix C PART B: Information About Health Coverage Offered by Your Employer 3. Employer name 4. Employer Identification Number (EIN) 5. Employer address 6. Employer phone number 7. City 8. State 9. ZIP code 10. Who can we contact at this job? 11. Phone number (if different from above) 12. address