10 Ways to Get Your Company Sued in California

Transcription

1 Presented by Max Muller Staying Out of the Hot Seat: 10 Ways to Get Your Company Sued in California 2015 National Seminars Training. All rights reserved, including the right to reproduce this material or any part thereof in any manner.

2 California Laws 1. Correctly classify exempt and nonexempt employees. 2. New overtime classification rules 3. Avoid being sued for overtime miscalculations. 4. The ABC test for contractors 5. How employees can sue outside of workers compensation laws

3 California Laws 6. Revised sexual harassment and behavioral training 7. How lack of knowledge about the ADA and FMLA can lead to litigation 8. California Corporate Criminal Liability Act 9. How vacation pay must be paid out 10. Noncompete clauses

4 Exempt employees are paid on a true salary basis, have a minimum weekly salary, and pass a duties test. Exempt vs. Nonexempt

5 An employee must receive a salary for any week in which work was performed. There are almost no partial-day deductions allowed. Exempt vs. Nonexempt

6 Exempt vs. Nonexempt

7 True salary minimums are $455 per week or greater or $100,000 per year at the highly compensated salary threshold. Exempt vs. Nonexempt

8 1. Relative importance of managerial duties 2. Time spent doing exempt work 3. Relative freedom from supervision 4. Relationship of salary and wages paid to other employees 45% 5. Frequency of discretionary powers Executive, Administrative, and Professional Exemptions

9 Executive, Administrative, and Professional Exemptions

10 To meet the criteria for manager, the employee must be more than merely a supervisor of 2 or more employees. The employee must have the power of independent choice. Executive, Administrative, and Professional Exemptions

11 1. Responsibilities involve nonmanual work or administration of an educational establishment. 2. Regularly exercised discretion 3. Regularly assists a proprietor 4. Performs work along specialized or technical lines 5. Executes special assignments 6. Duties meet the test for exemption. 7. Monthly salary is no less than 2 times the state minimum wage. Executive, Administrative, and Professional Exemptions

12 Pay attention to actual duties, not the job description. Executive, Administrative, and Professional Exemptions

13 Executive, Administrative, and Professional Exemptions

14 1. The employee does intellectual or creative work. 2. Duties consist of systems analysis, design of systems, or modification of programs. 3. Proficiency in theoretical and practical application of specialized information 4. The hourly rate is no less than $41. Executive, Administrative, and Professional Exemptions

15 Overtime The DOL will increase the standard salary level. The highly compensated salary requirement will also increase.

16 Overtime Pay 1½ times the regular rate for all hours over 8. Double the regular rate for all hours worked over 12. You have to pay for overtime even if you didn t authorize it.

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18 The IRS can determine contractors should have been treated as employees for tax or benefits purposes. You could get sued in other states that use the ABC test. Employee vs. Contractor

19 . Is the worker engaged in a distinct trade or occupation? Does the worker make his or her services available to the general public? Does the worker perform work for more than one firm/ company at a time? Does the worker hire, supervise, or pay assistants? Does the worker have a substantial investment in equipment and facilities?. Is the work done without supervision? In the geographic area and in the occupation, is the type of work usually done under the direction of a principal without supervision?. Is the work highly skilled and specialized? Is the worker trained by the principal? Does the worker personally perform the services?. Does the principal furnish/provide the tools, equipment, materials, supplies, and place of work? Does the worker perform the services on the principal's business premises?. Are the services provided on a long-term or repetitive basis?. Method of payment - Is the worker paid based on time worked or on completion of the project?. Are the services an integral part of the principal's business?. What type of relationship do the parties believe they are creating? What is the extent of actual control by the principal? Does the worker have the right to terminate the relationship without liability? Does the principal provide instructions on how to do the work? Does the principal establish the work hours or the number of hours to be worked? Does the principal require the work to be done in a particular order or sequence? Does the principal require oral or written reports from the worker? 0. Is the work performed for the benefit of the principal's business? Employee vs. Contractor

20 Behavioral control Financial control Relationship of the parties Employee vs. Contractor

21 Nice, huh? The worker will be free from control or direction over the performance of his or her services. A B The service is outside the usual course of business for which service is performed. The worker customarily engages in an independently established trade. C Employee vs. Contractor

22 1. OSHA cites and fines for unsafe working conditions 2. When a worker is injured by employer s conduct 3. When the employee was injured by defective equipment 4. If there is no workers compensation insurance Exclusive Remedy Rule Prepare for Lawsuits

23 Supervisors and managers must have 2 hours of training every 2 years. Prepare for Lawsuits

24 1. The purpose 2. The state and federal definitions 3. Behavior that constitutes sexual harassment 4. Remedies for and prevention of sexual harassment 5. Concrete examples 6. The definition of limited confidentiality 7. Resources for victims 8. What an effect investigation is 9. Course of action if a supervisor is accused 10. Essential elements of an anti-harassment policy Prepare for Lawsuits

25 A noncompliance order can be issued against you. Prepare for Lawsuits

26 Hot Spot Areas

27 Hot Spot Areas

28 licy that provides for the forfeiture of vacation pay that is not used by a specified date - a "use it or lose i rnia law and won t be recognized by the Labor Commissioner. Use-it-or-lose-it policies are illegal. Hot Spot Areas

29 Noncompete clauses are illegal in California. An exception would be an agreement when disposing of ownership. Hot Spot Areas

30 2015 National Seminars Training. All rights reserved, including the right to reproduce this material or any part thereof in any manner.