5/15/2009

Already set to decide the troublesome meal period issue (whether employers must "ensure" or "provide" employee meal periods) in Brinker Restaurant Corp. v. Superior Court and Brinkley v. Public Storage, Inc., the California Supreme Court has just agreed to review two other cases involving wage and hour issues.

In Pineda v. Bank of America, the court will decide whether California employees have one year, three years, or four years to file a claim for waiting time penalties. Under current California law, employees who are terminated must be paid all wages and benefits on the last day they work, and quitting employees must be paid within 72 hours of their last day. For each day that the employee must wait for a final paycheck, a waiting time penalty (the equivalent of 8 hours of pay) is imposed, up to a cap of 30 days.

The court will also review Lu v. Hawaiian Gardens Casino, deciding whether or not the California Labor Code gives employees the right to sue for "tip-pooling" violations. Tips can be shared ("pooled") among all employees who are in the direct chain of service to the customer leaving a tip (for example, among waiters, buspersons, and bartenders). However, California law prohibits owners, supervisors or managers from receiving any part of a gratuity left by a customer. The court will determine whether employees themselves can file a lawsuit for violations, or instead must go through the Labor Commissioner to recover illegally pooled tips.

We will tell you what the court decides in all of these cases in future issues of the California Employer Advisor.

Are Employees Who Work From Home Putting You at Risk?

Millions of workers enjoy the benefit of working from home. Employers also reap many rewards from engaging employees who work remotely. After all, telecommuting arrangements may help you cut down on operational costs and ensure a worker's longevity and continued loyalty. But, with the benefits come significant legal risks:

• If you or your telecommuters aren't properly keeping track of their hours, you could be on the hook for costly state and federal wage and hour violations.



• If you treat telecommuters less favorably than in-house workers—even if you don't mean to—you could be sued for disparate treatment



• If a telecommuter gets hurt in his or her home office, workers' comp could kick in, even though the worker was never under your direct supervision

Join us on May 21 for an in-depth 90-minute audio conference all about these and the other risks and responsibilities that come with managing telecommuters. Our expert—an experienced California employment law attorney—will cover proven strategies for executing an effective telecommuting policy, as well as how to avoid common wage/hour pitfalls and other thorny legal areas.

Specifically, you'll learn:

• How to draft a legally sound telecommuting policy, establish solid procedures for policy adherence, and identify weak areas of your existing policy



• The best way to properly document and update telecommuting arrangements so you can insulate yourself from liability as much as possible



• How to monitor telecommuters' work-related activities so you can protect your organization's confidential and proprietary data



• The essentials of tracking telecommuters' hours so you're not liable for overtime violations or unpaid travel time



• Whether the U.S. Department of Labor's "homeworker's exception" might apply to your workforce



• How to use objective criteria when evaluating telecommuters' performance and avoid disparate treatment claims



• Why it's important to analyze whether a telecommuter is an independent contractor under state and federal law



• How to recognize whether the remote workplace poses workers' compensation risks



• How to handle telecommuters' requests for accommodation under the ADA and FEHA

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