Posts

OUR ARTICLE IN PROGRESSIVE DAIRYMAN (not just for Ag)

We were recently honored to be asked to contribute to one of the most widely circulated magazines in the dairy industry.  This is the first of 2 articles we have written for them.  This information is universal and not just for Agriculture employers.  We hope it is useful to you.

You may use this link to go to the article:

http://canada.progressivedairy.com/topics/management/new-osha-rules-emphasize-injury-reporting-discourage-retaliation

Please let us know what you think.  There is a comment section at the bottom of the article.

Thank you

 

 

Final Thoughts on 2016 and a Caution to Legislators and Employers for 2017

I will begin this by saying that some of this article is focused on California, while much can be applicable to the rest of the United States.  The San Joaquin Valley is a microcosm of what has taken place across this country.  The rural, farming and agriculture areas of this country are tired of being ignored.   And finally, they stood up in November and got the attention of the people that think that life is only lived in big cities.

California politicians are very good at double speak.  They say they are supportive of Agriculture, but none of them every actually come to the Valley to talk to business owners.  On the rare occasion they do come to the Valley it is to talk to the workers or to point at a High Speed Rail train that is not going to do anything for people here.

The fact is, California, and many State governments across the country, would prefer if Agriculture would just go away.  They would much rather we were all working in a state full of Silicone Valley businesses.  They are cleaner, there would be no fight over water, and we could just ignore it altogether.  In the past election, we did not get visits by Hillary (Trump dropped in quickly) and Kamala Harris (the new Senator) didn’t bother with and knows nothing about this side of California.  The Governor has only been to Fresno a few times in 6 years and that is never to learn about real issues (he knows it all I guess).

For the rest of the country, the story is similar.  President Obama flew over the rest of the US and only visited a few coastal states in 8 years in office.  He came to California almost monthly to San Francisco or Los Angeles to attend a fund raiser, but on the ONE occasion that he came to the valley to discuss the drought, he got off the plane, went to a dirt field for about 1 hour and then flew out because he had a golf date in Southern California (where they had water to make beautiful greens for his putting).  We never saw a thing done about the drought after that and still have not until last week when a bill (0pposed by outgoing Senator Barbara Boxer) was signed by the President to help us build dams.  This was not because of any work done by the President, but by the work of our Representatives from the Valley that finally got enough support from  enough people in both parties to get this to the President despite Barbara Boxer.

One of the most telling examples of how Legislators view business owners is how they write regulations.  Almost all regulations start with the assumption that most employers are bad.  In fact, many times it is actually written into the introduction and states that this bill must be passed to protect the workers, etc.  The reality is that most employers work very hard with their employees to create a family atmosphere.  The regulations get in the way of much of this.  Every time the government mandates a benefit that many people are already doing for their employees, they add cumbersome requirements, and many pages of fines and penalties if you do not do it exactly right.  In a more practical world, doing your best should count for something, but not according to our Legislators.  So, every time they add a benefit, many employers remove another benefit so they can afford the one the government wants.  There is only one pot of money, but Legislators think employers can just invent more money like Congress does and it just isn’t the case.

If there is one takeaway from the recent Presidential elections is that middle-America and rural areas are tired of being ignored or shoved aside by our representatives.  If you don’t visit and really listen to their issues, you run the chance of being replaced.  Not all issues affecting business and employees can be handled by looking out the window in Los Angeles or Sacramento or Washington, D.C.  I hope they pay attention or 2018 could be a very turbulent year as well.

BUT THERE IS A RESPONSIBILITY OF THE OWNER\EMPLOYER AS WELL:

In 1999, in California, Governor Gray Davis signed the labor bills establishing daily as well as weekly overtime rules.  It also established a 30 minute employee meal with stern regulations.  Here we are 17 years later and there are still a number of employers who ignore, or do not know of these laws, or simply choose to go their own way.  This affects all of us.  When an employer does not follow the simple laws and refuses to do things like installing a time clock and paying people for the hours they work, they give every employer a black eye and give every Legislator an easy excuse to add new laws and regulations.  In other words, a few stubborn bad employers are making business hard for everyone else.  Instead of just complaining about the State or the Federal government, if  you know an employer that is not following the law, talk to them and let them know they are a big part of the problem.

The easiest way to pay people with the least amount of work on your part is to pay people exactly what they work based on a time clock.  Anything else you are doing is why we keep getting more “wage theft” headlines.  Let’s all resolve in 2017 to pay people for what they work and hold them accountable for the job.  Spend your hard time enforcing your rules instead of working hard to explain a poor payroll practice.  With minimum wages going up and other regulations coming to many States, 2017 is a good year to get on board the right train.  HR Mobile Services, Inc. is there to help you do it, but you have to follow the program to make it successful.

Have a Happy and Prosperous New Year!!!

UPDATE TO FEDERAL SALARY RULES

Word reached us this morning that a Federal Judge has ruled against the recent changes to the Federal Overtime Exemption and Salary rules including the new minimum of $47,476 per  year for Federal Salary exempt employees .  This rule would have been higher than the California rule of twice the minimum wage, which, in a 40 hour workweek would come to around $42,000 per year.  Please read the article below, but understand that some states including California have rules over and above the Federal law.  When State law is more favorable to the employee than Federal law, the State law takes precedents and you must follow it.  Here is the article:

 Federal Overtime Rules on Hold
Tuesday afternoon, a federal judge for the U.S. District Court for the Eastern District of Texas issued a nationwide preliminary injunction on the Department of Labor’s new overtime rules, which were slated to go into effect in just over a week on December 1, 2016. The judge ruled that the Department of Labor (DOL) likely overstepped its rulemaking authority by raising the salary threshold as high as it did and by implementing the automatic increase every three years. What this means now:

  1. The effective date of the rules has been delayed indefinitely.
  2. Employers may choose not to implement the changes they had planned for Dec. 1 compliance.
  3. The new rules have not been thrown out or invalidated – at least not yet.

The judge has not made a final ruling in the case, but the fact that he issued the injunction suggests that he is leaning in favor of the groups that want to stop the rule changes. It is also possible that his final decision will allow some parts of the rule to stand but not others. The DOL has indicated that in the meantime they are considering their legal options with respect to the preliminary injunction. Employers are obviously wondering whether they should move forward with the changes they have been planning. Unfortunately, this is a difficult question to answer and ultimately a business decision, which is much harder than a compliance decision. Although employers are not required to make changes, they may want to consider the following:

  • Will it hurt the bottom line to make the changes? If so, how much?
  • Will it be difficult to undo changes that have already been made?
  • How will employees feel about the decision? Did they like the changes? Hate the changes?
  • Is the new pay structure better than what is in place now?
  • If the changes aren’t implemented now, will it be possible to make them on short notice in the future?

At this point, we do not know how long the injunction will be in place or if the rules will be thrown out entirely. We will be keeping an extremely close eye on this case and will issue further e-Alerts when actionable information is made available.

 

US Dept of Labor Issuing new Rules for Salary Exemptions

Below is a release from the US Department of Labor.   Many states take their labor rules directly from the US  DOL but many others have their own rules under which employees are eligible for overtime pay.  For instance in California, a salaried person must be paid twice the minimum wage and be in a largely administrative position not doing the same work as the hourly employees.  They must exercise independent thought and actions and this is a pretty high standard to be exempt from overtime requirements.  Further, if you have salaried people, you better have a written agreement of what the salary covers as far as expected hours of work each day\week and if there is any overtime figured into the salary.  Otherwise, it is not considered as covering overtime due.  Check with your own state for their rules on overtime, but here is the statement from the US Department of Labor:

 Wage and Hour Division (WHD)

Notice of Proposed Rulemaking: Overtime

President Obama signing the memorandumToday the Department of Labor has announced a proposed rule that would extend overtime protections to nearly 5 million white collar workers within the first year of its implementation. Failure to update the overtime regulations has left an exception to overtime eligibility originally meant for highly-compensated executive, administrative, and professional employees now applying to workers earning as little as $23,660 a year. For example, a convenience store manager, fast food assistant manager, or some office workers may be expected to work 50 or 60 hours a week or more, making less than the poverty level for a family of four, and not receive a dime of overtime pay. Today’s proposed regulation is a critical first step toward ensuring that hard-working Americans are compensated fairly and have a chance to get ahead.

On March 13, 2014, President Obama signed a Presidential Memorandum directing the Department to update the regulations defining which white collar workers are protected by the FLSA’s minimum wage and overtime standards. Consistent with the President’s goal of ensuring workers are paid a fair day’s pay for a fair day’s work, the memorandum instructed the Department to look for ways to modernize and simplify the regulations while ensuring that the FLSA’s intended overtime protections are fully implemented.

Following issuance of the memorandum, the Department embarked on an extensive outreach program, conducting listening sessions in Washington, DC, and several other locations, as well as by conference call. The listening sessions were attended by a wide range of stakeholders: employees, employers, business associations, non-profit organizations, employee advocates, unions, state and local government representatives, tribal representatives, and small businesses. In these sessions the Department asked stakeholders to address, among other issues: (1) What is the appropriate salary level for exemption; (2) what, if any, changes should be made to the duties tests; and (3) how the regulations could be simplified. The Department’s extensive outreach helped in shaping a proposed rule that is intended to be responsive to concerns raised by the regulated community.

The Notice of Proposed Rulemaking (NPRM) was published on July 6, 2015, in the Federal Register (80 FR 38515) and invited interested parties to submit written comments on the proposed rule at www.regulations.gov by September 4, 2015. Only comments received during the comment period identified in the Federal Register published version of the NPRM will be considered part of the rulemaking record.

Written comments received during the comment period will be helpful in shaping any final rule. Based on past experience and extensive work with the regulated community on other FLSA-related matters, we believe a 60-day comment period provides sufficient time for interested parties to submit substantial comment. Equally important, a comment period of this length, coupled with the feedback already received during the initial outreach sessions, will meet the goal described above of ensuring the Department has the level of insight from the public needed to produce a quality regulation. For these reasons we will not be extending the comment period.

Additional Information

 

   

OBAMA EXECUTVE ORDERS AND YOUR BUSINESS

We have been fielding a number of calls lately regarding Executive Orders signed by President Obama.  You must first understand that an Executive Order only affects Federal Laws and the interpretation of regulations for Federal workers and those who have contracts with the Federal government.  Private businesses are, for the most part, exempt from these orders.  So, your minimum wage will not be affected by an Executive Order unless your state takes all of their labor law from the Federal Department of Labor.

The same applies to the order regarding overtime.  If your company is in California, for example, you already have a series of Wage Orders and Labor Regulations that further define exempt and non-exempt status of employees.  The Federal Law is not as defining of work status in regards to overtime law.  Many States follow Federal Labor law but institute their own standards for overtime and minimum wages. In general, the rule is the law that is more favorable to the employee is the prevailing law.  Sometimes, this can create a conflict.

For instance, is an employee better served by a law that allows them to work four 10 hour days instead of requiring only 8 hours in a day or they incur overtime.  Is the employee better off working 4 days vs 5 days for the same amount of hours?

The take-away from this message is that these Executive Orders do not affect most of you, but beware that States are following what is happening on a Federal level and often adjust in accordance.

“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.