Going Through Withdrawal – Strategies for Minimizing Your Multiemployer Pension Withdrawal Liability, Protecting Your Assets and Saving Your Business

Join Conn Maciel Carey Labor & Employment Practice Group partner, Mark Trapp, on November 14, 2018 when he presents an interactive workshop to help unionized employers understand and analyze what is often the most critical challenge facing their business – multiemployer pension withdrawal liability.  Attendees will learn innovative and aggressive techniques and strategies to address this issue and proactively secure the future of their company. Increasing Money Graph

This workshop will also discuss the current legislative environment for multiemployer pension plans and issues, particularly the work of the Joint Select Committee on Solvency of Multiemployer Pension Plans, charged with preparing a report and recommended legislative language by November 30 to “significantly improve the solvency” of multiemployer pension plans and the Pension Benefit Guaranty Corporation.

Workshop attendees will:

  • Gain a broad understanding of the challenges facing employers who participate in a multiemployer pension plan

  • Discover strategies for assessing and minimizing their withdrawal liability risks through collective bargaining and business planning

  • Examine the status and possibility of legislative relief from the Joint Select Committee on Solvency of Multiemployer Pension Plans

Click here to register.

[Webinar] A Business Primer on Disability Access Laws: Preventive Tools and Defense Strategies

On Thursday, October 25, 2018, at 1 pm EDT, join Kara M. Maciel and Andrew J. Sommer of Conn Maciel Carey’s national Labor & Employment Practice Group for a complimentary webinar:  “A Business Primer on Disability Access Laws:  Preventive Tools and Defense Strategies

Businesses continue to be plagued by litigation under the Americans with Disabilities, Title III (ADA) over alleged access barriers.  Lawsuits against hotels and retailers, among other public accommodations, appear to be on the rise with a disproportionate share in California.

Disability Webinar

This webinar will provide an overview of ADA, Title III standards as they apply to construction existing before the enactment of the ADA in 1992 as well as to subsequent new construction and alterations.  The webinar will also address Continue reading

Lasting Effects of the #MeToo Movement

It has been about a year since the #MeToo movement went viral, spreading greater awareness about sexual misconduct and harassment, and, more generally, the role of women, in the workplace.  So, where are we now, and has anything changed?  Was it just an awareness movement?  Or, have things actually started to shift in the legal landscape with respect to the way employers are required to handle sexual misconduct and harassment?  And what about with the way women are represented at work?  Even if #MeToo may have started out as an awareness movement, states like New York and California are implementing changes in the law that are now imposing, orshutterstock_me too will soon impose, new requirements on employers, in hopes of giving #MeToo a significant, lasting effect.  So, what should employers in New York and California do now?  And, given that these states are often at the forefront of labor and employment issues, how should employers outside New York and California prepare in case new laws are passed in their states?

New York’s New Anti-Sexual Harassment Laws

On April 12, 2018, New York Governor Andrew Cuomo signed into law the 2019 New York State Budget, updating the state’s sexual harassment laws.  Among other changes, there are two key components under these laws.  First, every employer in New York must establish a sexual harassment prevention policy.  These policies should have already been adopted and provided to all employees by October 9, 2018.  The New York Department of Labor and New York Division of Human Rights have established a model sexual harassment prevention policy for employers to adopt.  But employers are not required to use this model, so long as their policy meets or exceeds the minimum standards of the model and set forth in the laws.  Employers must distribute the policy to all employees in writing or electronically, and must ensure that all future employees receive the policy before they start work.  Additionally, employers are encouraged to post a copy where employees can easily access it.

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Court Finds that Employer Compensation Program Did Not Violate California Law Against Averaging Paid and Non-Paid Time to Meet Minimum Wage Requirements

California flag

Under a line of California cases, employees must be separately compensated at least minimum wage for all time worked.  These cases have stated that employers may not meet the requirement by showing employees are effectively paid at least minimum wage by averaging the amount an employee receives for paid and non-paid work hours.  For example, in Armenta v. Osmose, the court found an employer’s refusal to pay an hourly wage for workers’ time spent driving to job sites or processing paper work violated California minimum wage requirements even though the employer’s higher hourly rate averaged over all hours worked was above the minimum wage.  The court concluded the federal model of averaging all hours worked in a work week to calculate an employer’s minimum wage obligation was inappropriate under California law.

A recent decision out of the California Court of Appeal added some nuance to the analysis of minimum wage compliance in an established line of case law.  In Certified Tire and Service Centers Wage and Hour Cases, the California Court of Appeal for the Fourth District considered whether the defendant tire and service centers violated California law with its compensation program.

In Certified Tire, employees in a certified wage and hour class action argued the employer violated the applicable minimum wage and rest period requirements with its compensation program, which allowed technicians to earn a higher hourly wage for all hours worked during each pay period based on certain productivity measures.

Under the compensation program, technicians were assigned an hourly wage upon hire that exceeded the legal minimum wage.  However, technicians had the opportunity to earn a higher hourly rate under a set formula that rewarded technicians for work billed to a customer as a separate labor charge.  The employer applied the formula to determine a technician’s “base hourly rate” for a given pay period.  If the base hourly rate exceeded the technician’s regular hourly rate, the technician was paid the higher rate for all time worked during the pay period.  If the base hourly rate was less than the technician’s regular rate, the technician was paid the regular rate for all time worked during the pay period.

The employees relied on Armenta and similar cases in arguing its employer secretly paid nothing for work that could not be billed to a customer and through averaging made it look like they were paying at least minimum wage for the “non-billed” time.  The employees further argued that since a technician could not increase his or her base hourly wage when working on activities not associated with “billed time” or during rest breaks, such non-billed time was essentially uncompensated.

The court rejected the employees’ argument that the compensation program ran afoul of California minimum wage requirements.  Unlike in cases violating the Armenta rule, the employer in Certified Tire did not have to average employee’s hourly rate to show compliance with minimum wage requirements.  It directly established such compliance by paying technicians an hourly rate that is above minimum wage for all hours on the clock, including rest breaks.  Technicians were required to be clocked in during all work hours, except for their lunch period, and were paid an hourly rate for all hours on the clock.  Technicians also took rest breaks as required by law and did not clock out during such breaks.

The court distinguished Armenta and three other cases on which Plaintiff relied because in each case employers failed to compensate employees for certain work time and/or rest breaks.  (In Armenta the employer failed to pay for workers’ time spent driving to job sites or processing paper work; in Gonzalez v. Downtown LA Motors, automobile service technicians paid under a piece-rate compensation system were not directly compensated for non-repair tasks; in Bluford v. Safeway Stores, Inc., truck drivers paid under a piece-rate compensation system were not separately compensated for rest periods; in Vaquero v. Stoneledge Furniture LLC, furniture employees paid under a commission-based system were not separately compensated for rest periods.)

Takeaways

Certified Tire is certainly a win for an employer providing an incentive to earn more than the regular hourly rate for all hours worked based on certain productivity measures.  The key was the Certified Tire system did not violate the rule against averaging non-paid and paid work hours to comply with minimum wage requirements.  Certified Tire is a good reminder to periodically review your company’s pay practices for compliance with California wage and hour law, including the applicable California wage order and the constantly changing body of case law.

Tips, Service Charges, and Automatic Gratuities Continue to Cause Problems for Employers

Hospitality employers nationwide continue to be hit with class action lawsuits alleging failure to properly pay/distribute tips, as well as failure to correctly characterize service charges and automatic gratuities.  These lawsuits have the potential to result in verdicts or settlement amounts more costly than virtually any other employment-related matter.  As a result, it is important to periodically review what is or is not permissible under the law is it relates to tips, service charges, and automatic gratuities.  shutterstock_waiter

Most employers are familiar with the basic premise that a tip is a voluntary amount a guest leaves for an employee over the amount due for the goods sold or services rendered, while a service charge is an amount agreed-upon in advance by a venue for services provided, often in connection with large pre-planned events.  However, service charges are treated differently than tips for tax and other purposes, and automatic gratuities add an extra complicated layer in this analysis. A brief synopsis of the differences of these terms from a legal perspective is set forth below:

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NLRB Seeks to Change Joint Employer Test by Rulemaking

By:  Mark Trapp

On September 14, 2018, the National Labor Relations Board (“NLRB” or “Board”) published a Notice of Proposed Rulemaking (“Notice”). In its Notice, the Board states its belief that the “rulemaking will foster predictability and consistency regarding determinations of joint-employer status in a variety of business relationships.” At base, the Notice is an attempt to return the Board to its pre-2015 standard, which the Obama-era NLRB overruled in the controversial Browning-Ferris decision issued that year.

If enacted, the rules would provide a stronger degree of clarity and predictability to business owners and tighten the standard for finding one business to be a joint employer of another employer’s employees. Moreover, by enacting the standard through rulemaking, rather than adjudication, the NLRB decreases the likelihood of the standard being overturned by a later Board. Continue reading

Hurricanes Headaches:  HR FAQs for Employers

It’s hurricane season again in the US! Be prepared!

The Employer Defense Report

Hurricane.jpgHurricane Florence is approaching the United States, and first and foremost, employers need to make sure their employees, customers, and guests are safe from the storm.

Natural disasters such as hurricanes, earthquakes and tornadoes have posed unique human resource (HR) challenges from wage-hour to FMLA leave and the WARN Act. The best protection is to have a plan in place in advance to ensure your employees are paid and well taken care of during a difficult time.

Although no one can ever be fully prepared for such natural disasters, it is important to be aware of the federal and state laws that address these situations. Our guidance can be used by employers in navigating through the legal and business implications created by events such as hurricanes.  In addition, the information may be applicable to other crises and disasters, such as fires, flu epidemics and workplace violence.

Frequently Asked Questions 

If…

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