“BRIDGE TO JUSTICE”-YOUR GOVERNMENT WORKING AGAINST YOUR INTERESTS

The US Department of Labor has combined forces with the American Bar Association to create “Bridge to Justice” to help employees connect with lawyers who will help them sue their employers for abuses of the FMLA, FLSA and other labor laws.  You can read the entire text from the Department of Labor website below.  I have highlighted a couple of very important passages for you to concentrate on.  I hope you find this useful.  Please leave your comments as we would like to have a lively discussion on this issue.  Here is the link to share….https://www.dol.gov/whd/resources/ABAReferralPolicy.htm

Wage and Hour Division (WHD)

BRIDGE TO JUSTICE: Wage and Hour  Connects Workers To New ABA-Approved Attorney Referral System

Many workers across the country still struggle to obtain basic employment protections under the nation’s minimum wage, overtime, and family medical leave laws.  When denied these protections, the workers are unable to fully contribute to their local communities and businesses.  Over the past two years, the U.S. Department of Labor’s Wage and Hour Division (Wage and Hour Division) has added 350 new investigators and stepped up its efforts to help these workers through both complaint-driven and targeted enforcement.  In a typical year, over 35,000 workers contact the Wage and Hour Division for help, including the 25,000 who need assistance with their minimum wage, overtime, or family medical leave claims – and this number does not even include many more workers who do not contact us after their rights have been violated.

Although the Wage and Hour Division is able to help the vast majority of these workers recover denied wages or lost jobs through conciliation, settlement, or, with the Solicitor of Labor, litigation, every year there are thousands of workers whose claims we cannot resolve because of limited capacity.  In recognition of the fact that the Wage and Hour Division cannot remedy every violation of the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA), Congress provided workers the right to pursue their own private litigation (private right of action) under these laws.

In the past, for those workers it did not have the capacity to assist, the Wage and Hour Division simply informed the workers that, even though they may have valid claims under the FLSA or the FMLA, the Wage and Hour was declining to pursue their claims further and that they have a private right of action under the applicable statute.  However, attempting to exercise rights on their own, or finding an attorney with the necessary experience and subject matter expertise to represent them, are significant and difficult obstacles to these workers obtaining justice.  When it is difficult for workers to pursue redress for denied rights, it makes it easier for those employers who exploit their workers to obtain an unfair competitive advantage, which denies law-abiding employers a level playing field.

Thanks to an unprecedented collaboration between the Wage and Hour Division and the American Bar Association Standing Committee on Lawyer Referral and Information Service (ABA LRIS), the Wage and Hour Division will now connect these workers to a local referral service that will, in turn, provide the workers with access to attorneys who may be able to help.  This collaboration will both provide workers a better opportunity to seek redress for FLSA and FMLA violations and help level the playing field for employers who want to do the right thing.

Beginning on December 13, 2010, when FLSA or FMLA complainants are informed that the Wage and Hour Division is declining to pursue their complaints, they will also be given a toll-free number to contact the newly created ABA-Approved Attorney Referral System.  If complainants choose to call the toll-free number, they will be advised of the ABA-approved LRIS providers in their area.  The complainant may then contact the provider and determine whether to retain a qualified private-sector lawyer.

In addition, when the Wage and Hour Division has conducted an investigation, the complainant will now be provided information about the Wage and Hour Division’s determination regarding violations at issue and back wages owed.  This information will be given to the complainants in the same letter informing them that the Wage and Hour Division will not be pursuing further action, and will be very useful for attorneys who may take the case.  The Wage and Hour Division has also developed a special process for complainants and representing attorneys to quickly obtain certain relevant case information and documents when available.

FAQs About the ABA-Approved Attorney Referral System 

Q: Why do the Wage and Hour Division and workers need the ABA-Approved Attorney Referral System? A:  Although the Wage and Hour Division resolves the vast majority of complaints it receives, it does not have the capacity to pursue them all.  For example, the Wage and Hour Division received over 35,000 complaints in FY 2009 and over 40,000 complaints in FY 2010.  In each of these years, the Wage and Hour Division informed approximately 10% of complainants that it was declining to pursue or resolve their FLSA or FMLA claims and that they have a private right of action.  The ABA-Approved Attorney Referral System will now provide these workers with a reliable way to seek qualified private legal representation.

Q: At what point might the Wage and Hour Division inform a complainant about the toll-free number to access the ABA-Approved Attorney Referral System? A: Typically, a complainant will be provided the toll-free number for the ABA-Approved Attorney Referral System at one of four stages:

    1. At the complaint intake stage, if workers decide not to file a complaint or say they would prefer to pursue her private right of action;
    2. At the complaint review stage, if the reviewing manager determines, based on the Wage and Hour Division’s national and regional priorities and the office’s current resources and workload, that giving the complainant the ABA’s toll-free number provides the worker with the quickest access to justice;
    3. After an attempt at conciliation, if the employer refuses to remedy a violation but, based on the same criteria used at the complaint review stage, the manager decides that giving the complainant the ABA’s toll-free number is a better option than further investigating or litigating the complaint, or;
    4. After an investigation, if the case is not resolved through settlement, the Wage and Hour Division may decide, often in consultation with the Department’s Office of the Solicitor, to leverage the resources of the private bar by providing the complainant the ABA’s toll-free number.

Q: What are the Wage and Hour Division’s priorities? A: Given the Wage and Hour Division’s resources limitations, it has to set enforcement priorities in a way that will make the biggest impact for the greatest number of workers.  Although specific initiatives will vary from year to year and from region to region, generally the Wage and Hour Division prioritizes cases involving minimum wage and overtime violations against low wage and vulnerable workers, child labor, recidivist employers, retaliation or discrimination, or criminal violations. In addition, as described in the Department’s Strategic Plan for Fiscal Years 2011-2016, the Wage and Hour Division is targeting “fissured” industries — those sectors that increasing rely on a wide variety of organizational methods that have redefined employment relationships: subcontracting; third-party management; franchising; independent contracting; and other contractual forms that alter who is the employer of record or make the worker-employer relationship tenuous and less transparent.  These industries include the agricultural, construction, janitorial, and hotel/motel industries.

Q: What information will a worker be provided from the Wage and Hour Division when the worker receives the referral information? A: How much information the Wage and Hour Division gives the worker will depend on at what stage the referral is given and whether there has been an investigation.  At all stages, the Wage and Hour Division will give the worker a toll-free number to call as well as instructions on using the ABA-Approved Attorney Referral System.  If this information is provided verbally at the complaint intake stage, no other information will be provided because the Wage and Hour Division will not have any further information about the complaint.  If the complaint is declined at the complaint review stage, the worker will be sent a letter that includes this information, along with a statement that the Wage and Hour Division did not investigate the worker’s complaint.  At the conciliation state, the complainant will be notified by letter that will include information about the complaint and the Wage and Hour Division’s attempt at conciliation.  The amount of information available at the conciliation stage will vary.

If the Wage and Hour Division has completed an investigation, it will send the complainant a letter with the Wage and Hour Division case number, the violations found, and the amount of back wages owed.  Complainants will also get a form that will allow them or an authorized attorney representative to quickly obtain certain items from the investigation case file.

Q: How does the ABA-Approved Attorney Referral Document Request process work? A: A complainant who has received the toll-free number to the ABA-Approved Attorney Referral System after a Wage and Hour Division investigation will also receive a form to request the most relevant documents from her case file.  These documents include the complainant’s own statement, the Wage and Hour Division’s back wage computations for the complainant, and copies of any documents the complainant provided to the Wage and Hour Investigator.  The Wage and Hour Division will provide these documents expeditiously.  The form also allows the worker or authorized attorney representative to request the case narrative from the file; however, it explains that requesting the narrative will delay the Wage and Hour Division’s response because it must be redacted.  The letter sent to the complainant with notification of the Wage and Hour Division’s decision to not pursue the case will also include information about the violations found and back wages owed to the complainant.

All other documents in the case investigation file must be requested through the Freedom of Information Act.

Q: What other types of documents are available in the case investigation file? A: The contents of a Wage and Hour investigation file vary from case to case.  Please note, however, that certain information in the file is always redacted under the Freedom of Information Act, including the names, contact information, and identifying characteristics of any other complainants or witnesses, and information about the employer protected by the Trade Secrets Act.

Q: How does the ABA-Approved Attorney Referral System work? A: The ABA-Approved Attorney Referral System is built on a pre-existing network of local and state LRIS programs that are “ABA-LRIS approved,” meaning they have complied with the ABA model rules concerning the operation of public service lawyer referral programs.  There are nearly 70 ABA-approved LRIS programs throughout the country.  The majority of these are operated by state and local bar associations.  Building on this system, the ABA is creating a toll-free number for use by workers with FLSA and FMLA complaints nationwide that will connect them to the local and state LRIS programs.  This phone system will be available in both English and Spanish.

Q: How will the toll-free number help connect workers to an attorney? A: When workers call the toll-free number, they will enter their employer’s zip code or their own zip code, and will be given recorded information on the ABA-approved attorney referral provider in the appropriate geographic area.  The caller will then contact the referral provider for assistance in locating an attorney.

Q: Will the attorneys to whom the individual is referred be experienced in FLSA and FMLA matters? A: Yes, the participating ABA-approved referral providers have created subject matter panels in both FLSA and FMLA, and attorneys who wish to join those panels and accept referrals must demonstrate an objective measure of expertise in these areas of law, according to the standards established by the local referral provider and in accordance with the ABA’s Model Rules for Lawyer Referral Services.

Q: What are the ABA’s Model Rules for Lawyer Referral Services? A: Although the ABA is really the expert on this issue, the important components of the model rules, from the Department’s perspective, are the requirements that referral providers confirm that the attorney is licensed, has malpractice insurance, and has the proper experience to accept referrals in a particular area of law if they wish to be on a subject matter panel.

Q: Will the Department of Labor guarantee that individuals who are being turned away will be given legal assistance from a private attorney? A: No, the Department cannot guarantee that a complainant will be able to find an attorney interested in providing representation.  WHD is providing this telephone number to the ABA-Approved Attorney Referral System as a service to those who may be seeking assistance.  WHD does not guarantee the accuracy of the information provided through this telephone number or by any ABA-approved attorney referral provider, or that an attorney will accept any case.  In addition, WHD is not endorsing the services of any lawyer to whom a complainant may be referred, or guaranteeing the results of any services.  Providing this telephone number creates no liability on the part of the government.

Q: How will the Wage and Hour Division know if these referrals are being accepted or if the cases are being resolved by the private bar? A: The ABA will provide the Wage and Hour Division with aggregate information about the numbers of referrals accepted and the outcome of those cases.

Q: I’m an attorney and I would like these cases to be referred to me.  How do I participate in the ABA-Approved Attorney Referral System? A:  Participating state and local bar association lawyer referral programs are listed on  https://www.abanet.org/legalservices/lris/attorneyapprovproginfo.html   Please contact these state and local bar associations for membership information in the respective LRIS.  Membership in the respective bar association is not required, but there is a membership fee for participating in the lawyer referral program.

NEW HEAT BREAK RULES SIGNED INTO LAW

Governor Brown of California signed SB435 into law effective next year.  It states that workers exposed to extreme heat must be granted cool-down periods during the work day.  If the employer does not provide such a cool-down period, they must pay the employee for an additional hour of work for each day the rest period is not provided. 

We are still awaiting the regulations surrounding this law.  Questions that arise include the definition of “extreme heat” and how the employer is to document that the employees took a cool-down rest period.

HR Mobile services will continue to monitor this new law and provide advise to our customers on how to best protect themselves.  We invite your questions and comments on this legislation.

Governor Brown signs more Worker’s Rights bills

Beginning January 1, 2014, employers cannot fire an employee who is a victim or domestic violence, stalking or sexual assault. Employers are also directed to make a “reasonable” effort to protect victims at the workplace.

This also means you must allow them time off of work to attend court dates in these cases.

On another bill the governor signed, employers cannot retaliate against workers who protest unfair work conditions. However, you can protect yourself with proper policies in place and adhering to your policies. As long as you apply your policies consistently and fairly to all, you will be in good shape.

Governor Approves Driver License for Undocumented Workers

 

Today, Oct. 3, 2013, Governor Brown of California signed into law a bill that grants Drivers Licenses to Undocumented workers in Calfornia as long as they apply and pass the driver’s test we all have to pass.  The thinking is that this will make our roads safer because they will be able to purchase car insurance now and will better understand our driving laws.  We are not so sure that is going to be the results, but there is another issue that is very important to all employers. 

If an employee gets this type of driver’s license, it will be marked with the initials DP (driver’s privilege) rather than DL (driver’s license) followed by the numbers.  As of right now, this new document is not allowed for federal forms and a worker, who is not a US citizen, will still need to provide a copy  of their Permanent Resident card to be eligible to work and for the I-9 form. 

 

DISCLAIMER FOR THIS BLOG FORMAT

We work very hard to bring you the most up to date and correct information possible at all times. However, reinterpretation or delay of certain regulations and rulings from State and Federal courts and departments make things very fluid. This is especially true of large legislations such as the Affordable Care Act (ObamaCare).

The opinions expressed on these pages by HR Mobile Services, Inc., commenters, and quoted sources are only opinions and should not be taken as Legal Opinions or Statute. For legal or insurance advice, we encourage you to contact your own attorney or other licensed agents you trust as well as our advice. This will give you the information you need to form your own opinion on any subject.

We encourage people to leave a comment or opinion and as long as it is appropriate to the topic and not obscene. We monitor this blog and we reserve the right to allow or deny the posting of comments.

Thank you for your cooperation and understanding.

ObamaCare Scams Beginning

Here is a warning from the Better Business Bureau of Central California. You may want to let your employees know about this as well.

Better Business Bureau®
Start With Trust®
Serving Central California®

Obama Care Scams

Fresno, Ca- In less than a week, October 1st, the health insurance exchanges will open to consumers. Your BBB serving Central California would like to warn consumers of potential scams that might be going around or that eventually will be around over the Affordable Care Act. Unfortunately this brings in confusion for many consumers which helps scammers take advantage and want to scam you.
Typically when any new government program comes out it brings out a lot of confusion. Scammers will try to play on the fear and confusion consumers will have especially those who have absolutely no idea of what to do when the Affordable Care Act begins.

The most recent scam your BBB has been aware of is the “Affordable Care Card” The way the scam works is, a scammer calls a consumer and claims to be from the federal government. The caller will tell the potential victim that he or she needs an Obama Care insurance card. Then the con artist will tell the consumer that he or she must provide personal information such as a bank account or social security number in order to get the card.
Blair Looney, President & CEO of your Better Business serving Central California says, ” consumers should always be cautious when anyone calls you asking for personal information of any kind.” If you receive a call from someone claiming to be with the government, you should hang up the phone. Remember the government will never call you.
Follow these tips:
• Hang up the phone. If you get one of these calls, just hang up. You may be tempted to call back, but this will only give the scammer another oppurtunity to steal your information. Also, be sure not to press any buttons the scammer instructs.

• Never give out personal information. Never give out your bank account numbers, date of birth, credit cards or Social Security number.

• Don’t rely on called ID. Some scammers are able to display a company’s name or phone number on the caller ID screen. Don’t trust that the information you see is true.

When in doubt contact
your BBB at

800-675-8118

Visit cencal.bbb.org

STAY CONNECTED

Global Harmonization is on the Way

Over the next 2 years you will hear a lot about Global Harmonization. This is not a requirement that we all sit in a circle, hold hands and sing songs. No, this is an attempt to use the same rules for all countries when it comes to the labeling of chemicals around the globe. Actually, it makes some sense that the chemicals we sell all over the world would have the same labeling everywhere so no matter where you are, you understand the basics of that container. For instance, there will be 9 pictograms (click here: Pictograms ) which need to be trained to all employees so that they can identify the danger. You will be seeing these pictograms as they are rolled into use over the next 2 years. Training needs to take place this year, so if you want to get a head start, you can start showing these to your management and supervisors so they get used to identifying them. The transport pictograms will also be rolling out but are not a necessity to learn unless you transport hazardous substances.

The other action you will want to take now, is to contact your suppliers and make sure you have a Safety Data Sheet for ALL hazardous chemicals on your property. They should be 3 hole punched and put in your yellow SDS binder and available to all employees (Not locked up). They should be put in alphabetical order by name so it is easy to find the right one in case of an emergency. OSHA will look for this on any visit to your location and the fines can be very large. Having Safety Data Sheets has been a requirement for many years, so there is not much room to fight this violation.

This is just an overview and you can find much more on line. If you have questions, please let me know.

California to Raise Minimum Wage to $10 per hour

 

UPDATE:

On September 25, 2013 Governor Brown signed the minimum wage bill into law.  On July 1, 2014, the minimum wage will go to $9.00 per hour.  It will then go to $10 per hour on January 1, 2016.  Now is a good time to consider moving your payroll to an hourly wage if you do not do that now and installing time clocks.  Paying exactly what they work is the cleanest approach to keeping out of trouble.  With increased pay comes increased penalties and keeping good time records will pay off later.

Previous post:

If you have not heard yet, this week the California State Assembly approved a increase of the minimum wage in 2 stages. Minimum wage will go up to $9 per hour next July, 2014. Then, on January 2016 the minimum wage goes up to $10 per hour.

Our representatives, most of whom never ran a business, forget that when you raise the minimum wage, that is not the only cost. Besides the 25% raise in labor costs, there are matching taxes for Social Security, SDI, Unemployment that also go up. Since your Worker’s Compensation payments are based on your total payroll, a 25% increase in your payroll will also raise the amount you pay in Worker’s compensation premiums.

Beyond the obvious costs there are hidden ones as well. With wages going up, the reimbursement that must be paid to injured employees on Temporary Disability will rise as well. This will be another reason to raise rates on Worker’s Comp.

Governor Brown has already indicated that he will sign the bill so you need to start planning now for the impact on your business. Each business is unique and you all have different ways to deal with these rising costs. We encourage you to call us at the office if you have any questions before implementing a plan to handle the expense. Feel free to add your opinions here as well.

ObamaCare required Notification

On Friday, we mailed to all of our HR customers, a letter describing your responsibilities to notify your employees about insurance coverage. Basically, by October 1, you must notify all employees using a form we included in the mailing. There are 2 types of forms. One tells they that you do not provide approved health insurance and that they will need to go out on the market exchange to get their coverage. The other form tells them that you do offer insurance that is approved under the regulations. It requires a little more information.
Both forms are in Spanish or English and the easiest method of distribution is to attach a copy to each employee’s next paycheck.

Also required, if you offer health insurance, you should contact your insurance agent. They must supply you with a one page plan summary. This summary tells employees the basics of your insurance plan and meets the ERISA requirement of ObamaCare. We will also need a copy of this letter so we can add it to your employee packets for all new hired employees from now on.

Please open the envelope when it arrives in the next couple of days and read the material. If you have any questions, please contact us so we can help you through this process.