ALERT!! NEW CALIFORNIA SUPREME COURT RULING ON OVERTIME–MUST READ!

Overtime pay in California is based on the employee’s “regular rate of pay,” which is not always an employee’s normal hourly wage and must include almost all forms of pay that the employee receives.

Yesterday, the California Supreme Court ruled that an employer must calculate the regular rate of pay by dividing the employee’s total compensation by the number of non-overtime hours an employee worked during the pay period, rather than the total number of hours the employee worked, including overtime hours (Alvarado v Dart Container Corporation of California).

Many of you may pay your employees a premium for working on a weekend or a night shift and you should be aware of this distinction in the law.   Others may pay a “make up amount” to compensate workers who have changed from a daily or weekly rate to an hourly rate and have a separate line to increase their pay to meet a minimum payment.  It may be subject to increased overtime rates as well.  This may eventually extend to housing or other items that are considered part of the regular compensation package.  It may all need to be included at some point as this ruling evolves.

In the case, Dart Container Corporation of California, allegedly maintained a policy of paying a flat “attendance bonus” of $15 per day to employees who worked Saturday and Sunday shifts, regardless of the number of hours worked on the weekend shift. An employee sued, claiming he was improperly paid overtime during the weeks that he earned the weekend attendance bonus.

The employee argued that overtime pay on any flat sum bonus should be divided only by the “regular” hours he worked that week (the method in the Division of Labor Standards Enforcement [DLSE] manual), not by the “total” hours worked during the week (regular hours plus overtime hours worked, the federal formula). For example, to determine the employee’s regular rate of pay, you would divide only by 40 regular hours instead of 48 total hours (regular hours plus overtime hours). This would result in a higher regular rate of pay and, thus, a higher overtime rate.

The California Supreme Court unanimously reversed the lower court and approved the DLSE method of calculating the regular rate of pay when a flat sum bonus is involved: Employers must divide the employee’s total compensation by the employee’s non-overtime hours worked (not by the total hours worked).

The Court reasoned that a flat sum bonus is not tied to the number of hours worked – the $15 will be paid when an employee picks up a weekend shift, regardless of how many hours the employee worked that week. Because the flat sum bonus was payable even if the employee didn’t work overtime, only the non-overtime hours should be considered when calculating the regular rate of pay.

The Court also based its ruling on two other policy factors:

  • California law requires premium overtime pay which is meant to discourage employers from imposing overtime work.
  • California labor laws are interpreted liberally in favor of worker protection.

The Court also decided that this ruling should apply retroactively, not just going forward.

This decision is limited to flat-sum bonuses, but we may see employees argue that it should apply to other types of extra compensation.

We strongly urge employers who want to give “extra pay” to hourly workers should consult legal counsel.

Job Killer Bill to Start 2018

Assembly Appropriations Committee to Hear Job Killer Bill

Cal-Chamber sent out the article below.  I am putting it here in hopes that all of you in California will take this very seriously and notify your assembly person.-Jeff Schanbacher, HR Mobile Services, Inc.

The Assembly Appropriations Committee today will consider a California Chamber of Commerce-opposed job killer bill that subjects employers to costly fines and multiple avenues of litigation for technical violations that do not actually result in any harm to the employee, is inconsistent with existing law and will limit job opportunities for unemployed workers.

In addition, AB 5 will limit employers’ ability to effectively manage their workforce to address both consumer and employee requests.

Proposes Unnecessary Burdens on Small Employers

AB 5 mandates small employers with as few as 10 employees to offer all employees who have the skills and experience to perform additional hours of work that become available, prior to hiring a new employee, temporary employee or contractor.  This mandate creates a host of complications and concerns, including:

  1. If an employer has facilities in different parts of the state, AB 5 mandates the employer to offer additional hours of work to employees in facilities where the employee does not work.
  2. AB 5 mandates an employer to contact each employee who has the skills and responsibilities to perform the work required, even though that employee may have explicitly told the employer the employee is not interested in more hours of work, is unavailable at the time of the additional hours, or the additional hours will mean that employee works overtime, thus increasing the employer’s cost.
  3. AB 5 fails to indicate what an employer actually has to do to satisfy the “offer” requirement of additional hours.
  4. After contacting each employee whom the employer reasonably presumes can perform the work, AB 5 requires an employer to use a “transparent and nondiscriminatory process” to pick amongst numerous available employees who will ultimately receive the additional hours of work.  This requirement exposes an employer to threats of litigation, fines, and administrative complaints when one employee is given the additional time over the other.
  5. AB 5 also imposes an unreasonable document retention mandate on employers.  Under AB 5, an employer shall retain documentation regarding offers of additional hours of work, employee work schedules, and employee written statements.  There is no time limit on this document retention and, therefore, an employer essentially has to retain such documents indefinitely.

Imposes Multiple Layers of Enforcement and Lawsuits Against Small Employers

AB 5 additionally exposes small employers to multiple enforcement mechanisms for technical violations that do not even injure the employee. Under AB 5, an employee can either choose to file a complaint with the Division of Labor Standards Enforcement (DLSE) or civil litigation for any violation of the provisions in the bill.

AB 5 provides any employee with the right to sue for these paper violations, even if such document violations do not pertain to that specific employee or actually cause any harm or injury to an employee.

Moreover, due to the inclusion of this proposal under the Labor Code, an employee can also file a Labor Code Private Attorneys General Act (PAGA) lawsuit and receive $100 per employee, per pay period, for these violations, in addition to attorney’s fees.  Piling litigation costs on small employers for violations that do not actually harm or injure an employee is simply unnecessary and unfair, and it limits employers’ ability to expand and create jobs.

Creates a Conflict for Employers Between State and Federal Laws and Punishes Employers for Communicating Truthful Information

AB 5 also includes language regarding retaliation concerning the threat of reporting actual or suspected citizenship or immigration status to a federal, state or local agency that is already addressed in existing law.

Current law balances concern about retaliation against employees with employers’ concerns about complying with federal law. AB 5 does not have that same balance and will place employers in an unnecessary legal predicament between state and federal laws.

AB 5 further seeks to limit an employer’s freedom of speech by deeming any communication to another employer regarding an employee’s exercise of rights under this law as “retaliation.”  This expansive prohibition on the right to free speech is concerning given that it would limit an employer’s ability to communicate about public information such as civil litigation, as well as inform a successor employer of potential liabilities that the successor employer may assume.

It is unnecessary to penalize an employer for communicating truthful information.

Limits Opportunities for Other Workers

AB 5 mandates an employer to offer existing employees additional hours of work, rather than offering those hours to unemployed individuals, favoring one employee over another and potentially prolonging an individual’s unemployment status. Moreover, AB 5 may discourage employers from offering part-time employment opportunities at all due to this mandate and will encourage those employers to simply supplement a full-time workforce with contract employees when needed.

Similar Local Ordinances Are Significantly Narrower than AB 5

AB 5 appears to be modeled after San Jose and San Francisco ordinances requiring larger employers to provide part-time employees with additional hours of work. However, the San Francisco ordinance is applicable only to national employers with multiple locations and San Jose has a specific small employer exemption. Moreover, both ordinances require an employer to offer additional hours of work only to part-time employees, not full-time employees. AB 5 applies to all employers with only 10 employees, and does not limit the requirement to offer additional hours of work to only part-time employees, thereby exposing small employers throughout California to significant scheduling burdens and litigation that they are not capable of implementing or defending.

Action Needed

CalChamber is urging businesses to contact their Assembly representatives and ask them to oppose AB 5.

Staff Contact: Laura Curtis

 

NEW 2018 MINIMUM WAGE RATES STATE BY STATE (includes counties and city specific)

Below is a list of all current minimum wage statutes.  Remember that some counties and cities have their own rate which may be higher than the state or Federal rate.  In all cases, the highest rate for your area is the minimum.  Also, all of these rates are based on information as of November 30, 2017 and could be subject to local changes before the start of the year.  This is a good time to remind everyone that  you are better off using a time clock or other daily recording device for all hours worked and that all employee should be paid based on the hours worked and not some other method.  Employers would be best served if they required even salaried employees to keep a record of their hours worked and in some states, the requirement extends to show that meal breaks are recorded for all employees.  As always, if you have any questions, please call HR Mobile Services, Inc. and we would be happy to help.

2018 MINIMUM WAGE

Federal $7.25

State City/County Amount

Alabama $7.25

Alaska*

$9.84 Arizona* — all cities/counties except …  $10.50 Flagstaff* $11.00

Arkansas $8.50

California* — all cities/counties except …  small employer (25 or less) $10.50 large employer (26 or more) $11.00

Berkeley $13.75

Cupertino* $13.50

El Cerrito* $13.60

Emeryville small employer (55 or less) $14.00 large employer (56 or more) $15.20

Los Altos* $13.50

Los Angeles small employer (25 or less) $10.50 large employer (26 or more) $12.00

Malibu small employer (25 or less) $10.50 large employer (26 or more) $12.00

Milpitas* $12.00

Mountain View* $15.00 Oakland $12.86

Palo Alto* $13.50

Pasadena small employer (25 or less) $10.50 large employer (26 or more) $12.00

Richmond* employer PAYS $1.50/hr towards medical benefits $11.91 employer does NOT pay               $1.50/hr towards medical benefits $13.41

Sacramento* small employer (100 or less) $10.50 large employer (101 or more) $11.00

San Diego $11.50

San Francisco $14.00

San Jose* $13.50

San Leandro $13.00

San Mateo* For-profit organizations $13.50 Non-profit organizations $12.00

Santa Clara* $13.00

Santa Monica small employer (25 or less) $10.50 large employer (26 or more) $12.00 Sunnyvale* $15.00

Los Angeles County small employer (25 or less) unincorporated areas large employer (26 or more) $10.50 $12.00

 

Colorado* $10.20

Connecticut $10.10

Delaware $8.25

Florida* $8.25

Georgia $7.25

Hawaii* $10.10

Idaho $7.25

Illinois — all cities/counties except … $8.25 Chicago $11.00 Cook County (except for the Village of Barrington) $10.00

Indiana $7.25

Iowa  $7.25

Kansas $7.25

Kentucky  $7.25

Louisiana $7.25

Maine* — all cities/counties except … $10.00 Portland $10.68

Maryland — all cities/counties except … $9.25 Montgomery County $11.50 Prince George’s County $11.50

Massachusetts $11.00 Michigan* $9.25

Minnesota* “small employers” (employers with an annual sales volume of less than $500,000) $7.87 “large employers” (employers with an annual sales volume of $500,000+) $9.65

Mississippi $7.25

Missouri $7.70

Montana* $8.30

Nebraska $9.00

Nevada $8.25

New Hampshire $7.25

New Jersey* $8.60

New Mexico — all cities/counties except … $7.50 Albuquerque* employer provides benefits $7.95 employer does NOT provide benefits $8.95 Las Cruces* $9.45 Santa Fe $11.09 Bernalillo County*  employer provides benefits $7.85 (unincorporated areas)  employer does NOT provide benefits $8.85 Santa Fe County (unincorporated areas) $11.09

New York**

“Upstate” employers (excluding fast food employees) $10.40 “Downstate” employers (excluding fast food employees) $11.00 “Small” NYC employers (excluding fast food employees $12.00 Fast food employees outside NYC $11.75 “Large” NYC employers (excluding fast food employees) $13.00 Fast food employees inside NYC $13.50 North Carolina $7.25 North Dakota $7.25 Ohio* $8.30

Oklahoma $7.25

Oregon — all cities/counties except … $10.25 Portland $11.25 Nonurban Counties  (Baker, Coos, Crook, Curry, Douglas, Gilliam, Grant, Harney, Jefferson, Klamath, Lake, Malheur, Morrow, Sherman, Umatilla, Union, Wallowa Wheeler counties) $10.00

Pennsylvania $7.25

Rhode Island* $10.10

South Carolina $7.25

South Dakota* $8.85

Tennessee $7.25

Texas $7.25

Utah $7.25

Vermont* $10.50

Virginia $7.25

Washington* — all cities/counties except … $11.50 City of SeaTac* (hospitality and transportation workers) $15.64 Seattle* $14.00 small employer who does not pay towards medical benefits

(500 or less) small employer who does pay towards medical benefits  (500 or less) $11.50 large employer who does not pay towards medical benefits  (501 or more) $15.00 large employer who does pay towards medical benefits  (501 or more) $15.45 Tacoma* $12.00

Washington DC $12.50

West Virginia $8.75

Wisconsin $7.25

Wyoming $7.25  * = increase in minimum wage effective January 1, 2018 ** = increase in  minimum wage effective December 31, 2017

Second Article Printed in Progressive Dairyman Magazine – Marijuana Laws and You

We were again privileged to be asked to submit an article covering the new Marijuana Laws for Progressive Dairyman magazine.  You can read the article here: https://www.progressivedairy.com/topics/management/cutting-through-the-smoke-marijuana-and-the-workplace or  you can read the article in the October 18 issue.

Please feel free to leave a comment or ask questions regarding this or any HR issue.   You can always call our office at 559-625-2322 if you are a customer or would like more information.

 

IT’S A GOOD TIME TO REVIEW YOUR EMERGENCY ACTION PLAN

With all of the wild fires, shootings, hurricanes and earthquakes going on right now, we must remember that these events go on all of the time and it is not always in a cluster as it seems right now.  That being said, it is a great reminder that employers have a responsibility to their employees as well as to the business, to have a plan in place for such emergency situations.

Practice Your Emergency Plan

First on the list, do you have an emergency action plan.  If you are an employer in California,  you should have an IIPP (Injury Illness Prevention Program) and as a part of that program, you should have an Emergency Action Plan in place.  OSHA requires this and most states require a similar safety program.  It makes great sense and many insurance companies will ask for it as well.

But it is not enough to have an plan, you have to actually practice it.  When was the last time you had a fire drill?  Do your employees know how to give directions to your building?  How do you notify your neighbors if there is an emergency?  What happens if YOU are not there?  Where do your employees meet and who checks to make sure everyone is accounted for?  All of these questions and others should be addressed and practiced.

California employers must also have a Fire Prevention Plan (FPP) that details the fire hazards your employees may face and how to handle a fire should the situation arise.

Paying Employees

(these are California rules and may be different in your state)

Even in an emergency, employers must be mindful of obligations under state employment laws and consider pay issues for exempt and nonexempt employees related to office closures.

Employers must pay exempt employees a full weekly salary for any week in which any work is performed. If the business is closed for the whole week, however, employers don’t need to pay exempt employees.

In emergencies, special pay rules apply for nonexempt employees.

If your business shuts down for any of the following reasons, you must only pay nonexempt employees for the hours they worked prior to being sent home:

  • Operations can’t start or continue due to threats to you or property or when recommended by civil authority;
  • Public utilities such as water, gas, electricity or sewer fail; or
  • Work is interrupted by an “Act of God” or other causes not within the employer’s control.

However, if you shut down your business at your discretion (and not for one of the above reasons), reporting time pay may be owed. When a nonexempt employee shows up for work as scheduled and is not put to work or is given less than half of his/her scheduled hours, the employee would be eligible for reporting time pay: pay for one half of the scheduled shift, no less than two hours and no more than four hours.

Of course, employers are always free to pay employees or let them use vacation or other personal time. Many employers may choose to provide some paid time during emergency situations. Just remember to be consistent!

Leave of Absence

You may be required to provide various leaves of absence for your employees after an emergency including sick leave, medical leave and leave due to closed schools, loss of housing, etc.  So, be ready to aid your employees with these measures as well.  The state requires the employer by statute to follow certain guidelines and imposes fines for failure to comply.  In all cases, error on the side of helping the employee during stressful situations.

As always, if you need any help or have questions, HR Mobile Services, Inc is here to help.  You may contact our office at (559) 625-2322 and direct your questions to the Loss Prevention Department or the Legal Department (depending on your situation).  We are here to help!

GOVERNOR BROWN SIGNS 15 NEW LAWS, 5 WITH PREVAILING WAGE REQUIREMENTS

This past week, Governor Brown signed 15 housing bills into law.  5 of them include a prevailing wage component that goes into effect January 1, 2018.

California has a definite housing problem.  Right now there is a need for 180,000 homes and only 88,000 homes are being built in an average year.

Existing law already requires that prevailing wage be paid to workers on State financed project (ever wonder why it costs so much for the State to do anything?).  This new legislation reaches over into the private sector to tell them how much they must pay everyone and extends the influence of Unions into non-union work-places.

Prevailing wages have been around since the 1930’s and were used to kick-start the economy with projects such as the Hoover Dam.  As an example, if you are a bricklayer in Sacramento, the prevailing wage is $70 per hour.  In San Francisco, that may be $90.  And, of course, there is the story of the person who was paid $46 per hour to vacuum at a construction site because that is the prevailing wage for clean-up work.  The Janitorial description would have been much less at around $12 per hour.

An analysis of the cost of prevailing wage on the average home in California reveals the following:

  1. Almost all employees will be paid a much higher wage.  The range is an increase of 39% for electricians to 116% for construction labor.
  2. The overall increase in labor cost for residential construction would be 89%
  3. Labor accounts for about 41% of the cost of an average home, so this would mean an increase in the total construction cost of 37%
  4. Put into monetary terms, if the average cost of home construction is $88 per square foot, the 37% increase would add another $32 per square foot for a total cost increase on the average home of $84,000!

Proponents of the bills say the cost will be mitigated by the fact you are hiring professionals who will work faster, more efficiently, with less errors in the construction process.  However, they have no significant evidence to back up this assumption.  Rather, I refer you to the Bay Bridge retrofit project in San Francisco built by Union workers and under prevailing wages that is crumbling and needs millions of dollars to be fixed.  I also refer you to our present high-speed rail project with it’s original cost going from $9 billion to $65 billion (or more) as costs continue to rise.  These projects do not support the idea that if you pay a person more, they will save you money.

So far, these bills only apply to projects that take advantage of certain State fast-track waivers for environmental reviews and permitting process.  However, based on past history, the next round of legislation may be to impose prevailing wage on all “trades” work.  And, it may reach over to regular private work that is not regulated by State laws.  It could move next to any work permitted by the county, city or municipality.  The cement slab you want for a patio may double in cost.

This is a long, slippery slope that has no factual standing.  At the end of the day, there may be no increase in building homes because the cost savings of fast-tracked government regulations may not off-set the increase labor costs.  In fact, it may not even off-set the increased worker’s compensation insurance costs associated with the significant increase in wages.  If labor costs increase 87%, then worker’s comp costs will almost double for the contractors.  Also, there is an a large increase in payroll taxes associated with the increased payroll.  The State likes that.

So, what we have here is another example of legislation written to make the Politicians look like they are doing something, and appeasing their select groups (unions).  But, there is very little evidence it will actually improve the housing problem in California and even less chance that those homes will reduce the cost of housing.  We will have to wait and see what comes next.

USCIS ISSUES UPDATE TO I-9

In March, we finally got the updated I-9 that was about 6 months late.  Now they have updated that I-9 which has a date of July 17, 2017.

Work site enforcement and I-9 audits and inquiries by ICE will continue to increase.  An updated I-9 form has been issued.  Your Company needs to make sure that it is completing the new Form I-9 for every newly hired employee, auditing its I-9 forms, complying with the E-Verify requirements as applicable, and otherwise review and follow the immigration compliance strategies we have previously taught, including on how to respond to SSA and identity theft inquiries.  As part of your compliance, you should implement the new I-9 as soon as possible.

The link for the new form is here: https://www.uscis.gov/i-9  note: you cannot use the Spanish version except in Puerto Rico.

On July 17, 2017, USCIS issued a revised Form I-9.  All employers must use the new Form I-9 by September 18, 2017.  The newest version of the Form I-9 is dated 07/17/17 in the bottom left corner, with the expiration date of 08/31/2019 in the top left corner. You can use either the 11/14/2016 or the 07/17/17 Form I-9 through September 17, 2017.  On September 18, 2017, however, use only the 07/17/17 Form I-9 and make sure the I-9 is fully complete and section 1 must be completed on the first day an employee works for you.

There were changes made to both the Form I-9 instructions and the Form I-9 itself.  Make sure to post the new Form I-9 instructions on the wall where you have your required employment posters.  And, have the List A, B and C page available for employees when they complete the I-9 form.   Do not ask employees for specific types of documents to complete the I-9 form.  Always let the employee choose one document from List A or one document from List B and C.

The changes to the new Form I-9 are minimal.  One change is that the old sentence that read employee must complete the Form I-9 “no later than the end of the first day of employment” was changed to read that Section 1 must be completed “no later than the first day of employment.

Another change is that on the Form I-9 instructions, the DOJ Office of Special Counsel for Immigration-Related Unfair Employment Practices was changed to the Immigrant and Employee Rights Section to reflect the new name of the Office of Special Counsel (“OSC OF DOJ”)that was changed on January 18, 2017.  This is the government  agency that handles discrimination charges if a company is considered overzealous in asking for specific or additional documents, or is discriminatory in how it handles SSN mismatches, or if a company targets or singles our individuals with EAD authorizations or permanent resident cards differently than others.

And, another change is that on the Form I-9, List C on the List of Acceptable Documents, it was revised to add the Form FS-240 Report of Consular Birth Abroad and all the certifications or reports of birth issued by the Department of State were combined into one number on the List of Acceptable Documents.  The other List C documents (with the exception of List C) were then renumbered.

Please ensure that your Company implements the new Form I-9 before September 19, 2017.  It may also be a good time to conduct an internal I-9 audit and I-9 training to help ensure proper compliance with the immigration, employment verification, and E-Verify requirements, as applicable.  Let us know if you want us to complete any I-9s training with booklets and certificates or do any I-9 audits of I-9 forms etc.   Please stay vigilant on your internal I-9 audits and ensure your team is trained on completing I-9 forms, avoiding discrimination, know how to respond to government investigations, and are following protocols on responding to police, DES or other third party inquiries about identity issues.  Keep safe in the hot summer and take time now to audit your I-9 forms.

The fines have increased significantly.  Companies who previously had one audit are likely on the list for a second audit.  Those companies who already experienced a second I-9 audit and violations were noted, are likely to see a third audit so it pays to take the time to ensure your I-9’s are in compliance.  Please let us know if you have any questions or if there is anything we can do to assist you.  HR Mobile Services, Inc. will continue to monitor and update your current and future employee packets and forms to comply with State and Federal regulations.

UPDATE TO CALIFORNIA IRRIGATORS AND OVERTIME

Late last  year and early this year we discussed the new Agriculture Labor laws going into effect in California.  Mostly it was centered on the reduction of hours over time from a 10 hour work day to an 8 hour work day.

However, in the language of the bill was a very important phrase that said this bill affects “all Agricultural workers”.  This created quite a stir among lawyers and the split was about 50\50.  Some took this literally to mean that all workers in the agriculture profession, were now subject to the same rules and there would be no exceptions.  Others, pointing to the history going back the the 1930’s that exempted irrigators from the overtime regulations, that this would be cleaned up by the Labor Commissioner who is charged with rewriting the Wage Orders to comply with the legislation.

So far, we have not seen a new Wage order 14 so the one that is on the books is all we have to direct our work for now.

At the beginning of the year, we advised people, based on legal opinions, to continue treating irrigators as exempt employees until we heard from the Labor Commissioner.  At that time, we figured we would see something in writing by March and since it was raining, most employers were not working irrigators over 10 hours a day.  However, now we are into July with no definitive answer.  So, at this point, we are changing our recommendations, and it is our opinion that you SHOULD pay irrigators for overtime if they work over 10 hours in a day or over 60 hours in a week, just as you do other workers.

We base this opinion on the following:

  1. Previously, if the decision came down that you would have to pay overtime to irrigators going back to January 1, 2017, we were most likely not talking about a lot of hours and the employer can pay it out in one check and would most likely avoid any penalty fines.
  2. Now that we are in the heat of the year and irrigators are working full time, there is more possibility of them working overtime and the bill to pay back-wages is increasing.  At this time, it would be better to pay overtime incurred since July 1 and if we hear later that you must pay overtime from January 1, you can still pay that smaller amount in one check and avoid penalties.
  3. We don’t want to create a situation where you have many employees who have moved on to other employers and they come back to you and accuse you of not paying overtime.  This becomes more of an issue as time goes by.

The decision to pay overtime is still your at this writing, but we feel it is the better position to pay it now and avoid more trouble potentially in the future.  Even if the Labor Commissioner ultimately corrects the wording or interpretation and exempts irrigators from overtime, it is a small price to pay for avoiding litigation later.

WORK WEEKS UPHELD BY CALIFORNIA SUPREME COURT

Monday, the California Supreme court voted 7-0 in favor of the seven days in the same  work week interpretation.  This means that, if you define your work week, as long as an employee has one day off in that workweek, they are not eligible for premium ovcr-time payments.  They rejected the interpretation that employees should only work 6 days and affirmed the wording that employees may only work 6 days in the same work week.

Here is how it works.  If your work week is Monday through Sunday, and the employee works every day in the week, the hours they work on Sunday would be subject to the 7th day penalty where the first 8 hours are at time and a half and all hours after the 8th hour are double time.  However, if an employee worked Wednesday to the following Wednesday, there is no violation of the seven day rule because they had at least one day off in each work week as defined.

This is why it is so important to establish and notify your employees of your work week in your employee handbook and other documents.  It does not have to align with paydays, but it is preferable.  Remember, if you pay twice a month, it is possible that a payday falls in the middle of a pay period and you may miss an employee working through the seven day rule because part falls in 2 different pay periods.  You are still responsible for paying the penalty overtime if this happens.  You would apply it in the pay period where the seventh day was worked.

Overall, this is a victory for employers who have been following these rules as written for many years.  To change them now would have been a huge hit to employers across California.  Having one day off a work week is good for employer and employee, but a new law of 1 day off in any seven days could be hard to adjust.  This is especially true of businesses such as restaurants where you have high turnover, people calling in sick and then you have to ask another employee to come in to cover a shift.

So, rejoice, the courts did the right thing.  The best way to keep the government out of these things is to pay properly, follow the law and make sure your competition is doing the same.

UFW GUILTY OF FAILING TO PAY ITS EMPLOYEES FOR HOURS WORKED!!

Yes, you are reading this correctly.  The Union that made its name on protecting the rights of Agricultural workers will have to pay out over $885,000 in back pay and another $235,000 in penalties.  The Union is going to appeal, but many of you will find this gratifying.  There is not much more to report on this right now, but this could be a turning point for politician who fall over themselves to align with this organization that only represents about 3% of the agriculture workers in California.  Perhaps we will see our politicians using a little more common sense.  Or, maybe we are hoping for too much.  Still, the irony of this story is not lost on agricultural employers everywhere.