Personal Attendant Exemption From Overtime Eliminated

California law regarding the employment of domestic workers has changed.  California Governor Jerry Brown has signed into law the Domestic Workers Bill of Rights, which creates California Labor Code sections 1450 to 1454.  These sections eliminate the “personal attendant” exemption from overtime pay in Industrial Welfare Commission (“IWC”) Wage Order 15. IWC Wage Order 15 applies to workers employed in household occupations.  Prior to the enactment of the Domestic Workers Bill of Rights (“DWBR”), IWC Wage Order 15 required that personal attendants be paid minimum wage for all hours worked, but exempted these employees from California’s overtime laws.  The DWBR eliminates this exemption and requires personal attendants to be paid overtime compensation at one and one-half times the employees’ regular rate of pay for all hours worked in excess of 9 hours per day or 45 hours per week.

A “personal attendant” is defined by the DWBR as:

[A]ny person employed by a private householder or by any third-party employer recognized in the health care industry to work in a private household, to supervise, feed, or dress a child, or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of personal attendant shall apply when no significant amount of work other than the foregoing is required. For purposes of this subdivision, “no significant amount of work” means work other than the foregoing did not exceed 20 percent of the total weekly hours worked.

Under the DWBR, a personal attendant is not entitled to overtime compensation if he or she is paid by State or county programs such as In-Home Supportive Services, or the person providing services is the “parent, grandparent, spouse, sibling, child, or legally adopted child of the domestic work employer.”

The DWBR is effective on January 1, 2014, and expires on January 1, 2017.  Pursuant to the DWBR, the Governor must convene a committee of “personal attendants or their representatives and the employers of personal attendants or their representatives” to “study and report to the Governor on the effects this part has on personal attendants and their employers.”

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Reporting Time Pay and split shift compensation – San Diego Employment Lawyer – 619.202.0264

1. Reporting Time Pay is Warranted only if the employee works less than half of his scheduled time.

Two members of a putative class claimed that AirTouch improperly failed to pay reporting time pay for days when employees were required to report to work just to attend work related meetings.

Under the IWC’s Wage Order 4-2001,  “reporting time pay” is defined in the following manner: each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee‘s usual or scheduled day‘s work, the employee shall be paid for half the usual or scheduled day‘s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee‘s regular rate of pay, which shall not be less than the minimum wage. (Cal. Code Regs., tit. 8, § 11040, subd. 5(A).)

Plaintiffs contended that in no event shall an employer pay an employee for less than two hours of work when the employee is required to report to work.

The court framed the issue as follows:  If an employee‘s only scheduled work for the day is a mandatory meeting of one and a half hours, and the employee works a total of one hour because the meeting ends a half hour early, is the employer required to pay reporting time pay pursuant to subdivision 5(A) of Wage Order 4 in addition to the one hour of wages?

The court found that Plaintiffs were not entitled to additional compensation for reporting time, because the employee was furnished work for more than half the scheduled time. The court explained that when an employee is scheduled to work, the minimum two-hour pay requirement applies only if the employee is furnished work for less than half the scheduled time.

2. No split shift compensation when the employee earns at least minimum wage for all hours worked plus one hour. 

Plaintiffs also contended they were owed split shift compensation for days on which they attended a meeting in the morning and worked another shift later the same day.

Subdivision 4(C) of Wage Order 4 defines split shift as  a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods.‖ (Cal. Code Regs., tit. 8, § 11040, subd. 2(Q).) When an employee works a split shift, one (1) hour‘s pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment. (Cal. Code Regs., tit. 8, § 11040, subd. 4(C).)

It was undisputed that there were five occasions during which one of the plaintiffs worked a short shift in the morning followed by a longer shift later the same day. Each of these occasions fell under Wage Order 4‘s definition of split shift. The court found that additional compensation was not owed because every time the plaintiff worked a split shift, he was paid a total amount greater than the minimum wage for all hours worked plus one additional hour.

It is interesting to note that in its analysis the Court referred to a well-respected treatise (Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2011)). The court noted that the treatise has embraced the same interpretation of subdivision 4(C), explaining that “[a]n employee earning the minimum wage who works eight hours on a split shift is entitled to receive nine times the minimum hourly wage.‖ (Id. at ¶ 11:682, p. 11-68.) This provision also applies to employees paid more than the minimum wage. However, such employees are only entitled to the difference between what they actually earned and what they would have earned had they been paid the minimum wage for their entire shift plus an extra hour.‖ (Id. at ¶ 11:683, p. 11-69.)

The Attorney Fees Award

In addition to interpreting the application of “split shift” and “reporting time” provisions of the IWC’s Wage Order No. 4, the court clarified the rules for recovering attorney’s fees under Labor Code sections 1194 and 218.5 in the context of “split shift” and “reporting time” litigation.

1. Plaintiff is entitled to receive attorneys’ fees in a claim for split shift compensation under label code 1194 (minimum wage) – 1194 allows only prevailing Plaintiff to recover attorneys’ fees.  

The court explained that a split shift claim is not the same as a claim for rest or meal period violations. Wage Order 4 explicitly excludes rest and meal periods from the definition of split shift. See Cal. Code Regs., tit. 8, § 11040, subd. 2(Q) (split shift is a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods.) Furthermore, unlike a claim for rest or meal period violations, a split shift claim is one brought to recover unpaid minimum wage compensation—one hour‘s pay ―at the minimum wage . . . in addition to the minimum wage for that workday. (The provision is located in the Minimum Wages‖ section of Wage Order 4. (See People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 728 chapter and section headings are entitled to considerable weight in interpreting statutory language].) 

2. A claim for unpaid reporting time is subject to Labor Code section 218.5.

After reconsideration in light of Kirby, the court found that it cannot be held that a claim for unpaid reporting time is subject to section 1194 because a reporting time claim is not designed to seek minimum or overtime wages; rather, reporting time compensation is at the employee‘s regular rate of pay.  Unlike a failure to provide a meal or rest break, it is not a legal violation to decline to put an employee to work or to furnish less than half the usual or scheduled day‘s work. It simply requires that the employer pay the employee for reporting time. An employee who brings suit to collect reporting time seeks to obtain unpaid wages. The claim is thus subject to section 218.5, which allows the prevailing party to recover attorney fees.

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HOW TO HANDLE SPLIT SHIFTS – San Diego Employment Lawyer – 619.202.0264

The Industrial Welfare Commission defines a split shift as a work schedule that is interrupted by a non-paid, non-working period established by the employer that is not a rest or meal period. (See IWC Wage Order No. 5, Section 2). If an employee initiates a break in his or her work schedule for personal reasons (for example, to accommodate childcare or personal business), that interruption is not considered a split shift since the break was not established by the employer.

When an employer requires an employee to work a split shift, the employer must pay the employee a split shift premium, which is one hour’s pay at minimum wage in addition to the employee’s regular earnings paid for that shift. If an employer pays the employee more than minimum wage, the employer is only required to pay the minimum wage rate, not the employee’s regular rate, for the split shift premium.

Additionally, if an employer pays the employee more than minimum wage, the excess will be credited toward the split shift premium. It should be noted that, while the Industrial Welfare Commission’s Wage Orders have not set a required minimum length of time between split shifts, the Department of Labor Standards and Enforcement (DLSE) has historically considered a break longer than one hour to require a split shift premium.

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Sexual Harassment – Environment Must be Hostile – Sexual Harassment Attorney – San Diego Employment Lawyer – 619.202.0264

In order to prove that an employer’s conduct creates a hostile work environment under Title VII, the employee must further show that her work environment could be perceived as “both objectively and subjectively offensive, [an environment] that a reasonable person would find hostile or abusive, and one that [she] in fact did perceive to be so.” This requirement is meant to separate truly hostile and harassing behavior from the more benign behavior that may occur in the workplace. Thus, a supervisor may make a sexually based comment that offends his female employee but does not create a hostile work environment. When an employer maintains a steady discourse of sexually based comments, coupled with offensive touching, the

employer’s behavior would most certainly be objectively and subjectively perceived as creating an abusive environment for an employee.

The Environment Must be Assessed under an Objective Reasonableness Standard courts also aim to distinguish between somewhat innocuous conduct and more dangerous harassment. The Supreme Court explained in Radtke that “[a]n objective reasonableness standard must be utilized to determine whether a hostile work environment exists under the Civil Rights Act.” This standard echoes the federal standard and functions in similar fashion to ensure that an employee is bringing a true hostile work environment claim.

Using this standard, infrequent rude comments or a few unwanted love letters do not create a hostile work environment. However, use of physical force or an attempt to kiss an employee certainly can create such an environment.

Numerous types of behavior can create a hostile work environment. Each sexual harassment case is extremely fact sensitive. However, as a general rule, an employer’s conduct creates a hostile work environment when it crosses the line of normal everyday interactions between males and females into the realm of a patterned or continuous behavior that can be clearly perceived by the victim or the reasonable observed.

The federal courts closely follow the guidelines issued by the Equal Employment Opportunity Commission (E.E.O.C.) in order to define hostile work environment sexual harassment. In the early case of Henson v. City of Dundee. the court established the importance of the E.E.O.C. guidelines saying that in pertinent part they provide that Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment.

If you are sexually harassed while on the job in San Diego, contact our San Diego sexual harassment attorney today to set up a free consultation. Our San Diego employment law and sexual harassment Attorney will assist you when you encounter sexual harassment at work.

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Mixed Motive Defense – Employment Discrimination

Every now and then the California Supreme Court issues that long anticipated blockbuster decision broadly impacting the employment law landscape. Landmark Supreme Court decisions that immediately come to mind are: Foley v. Interactive Data Corp., 47 Cal. 3d 654 (1988); Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal. 4th 83 (2000); and Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004 (2012). Each of these decisions was a mixed bag for employers and employees, yet provided much-needed guidance for the lower courts and practitioners litigating employment law disputes.

It is arguable that the California Supreme Court’s recent rulings in Harris v. City of Santa Monica, 56 Cal. 4th 203 (2013) will be similarly far reaching.

In Harris, the Supreme Court addressed the “mixed-motive” defense against claims of discrimination brought under the California Fair Employment and Housing Act (FEHA). The essence of the mixed motive defense is although both legitimate and illegitimate factors motivated the adverse employment decision, the employer would have made the same decision absent the discriminatory intent.

The Supreme Court held that, under FEHA, a plaintiff must produce evidence sufficient to show by a preponderance of evidence that discrimination was a “substantial factor” motivating an employment decision. No longer will plaintiff’s counsel be able to obtain a jury instruction providing that the aggrieved employee only has to show unlawful discrimination was a “motivating reason” for the adverse action to prevail. The Court ruled that, even if a discriminatory motive was a substantial factor in the adverse employment decision the employer can cut off damages and reinstatement upon proving by a preponderance of evidence it would have made the same decision even absent any discriminatory motive. The Court cautioned that an employer may not prevail in a mixed-motive case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision.

However, that’s not all Harris says. The Court ruled that when the finder of fact determines the adverse employment decision would have been made absent any discriminatory motive, but the jury also finds the employer action was substantially motivated by unlawful discrimination, the employee may recover attorneys’ fees, and obtain declaratory and injunctive relief to bring a cessation to the employer’s discriminatory practices.

Although the upshot of Harris is employees will have greater difficulty prevailing in employment discrimination cases –as it increases the employee’s burden to prove discrimination under the FEHA—it has aspects of a “double-edged sword” for both employers and employees. On the one hand, when an employer proves it would have made the same decision absent discrimination, neither economic nor noneconomic damages may be awarded. On the other hand, the Harris decision does not provide employers a complete defense given that if plaintiff can show a discriminatory motive was a “substantial factor,” the employee will be entitled to recover attorneys’ fees (and injunctive/declaratory relief). Moreover, presenting an assuming arguendo mixed motive defense is risky. Jurors may view the employer’s position as a concession it engaged in unlawful discrimination.

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Sexual Harassment – Environment Must be both Objectively and Subjectively Perceived as Hostile – Sexual Harassment Attorney – San Diego Employment Lawyer – 619.202.0264

In order to prove that an employer’s conduct creates a hostile work environment under Title VII, the employee must further show that her work environment could be perceived as “both objectively and subjectively offensive, [an environment] that a reasonable person would find hostile or abusive, and one that [she] in fact did perceive to be so.” This requirement is meant to separate truly hostile and harassing behavior from the more benign behavior that may occur in the workplace. Thus, a supervisor may make a sexually based comment that offends his female employee but does not create a hostile work environment. When an employer maintains a steady discourse of sexually based comments, coupled with offensive touching, the

employer’s behavior would most certainly be objectively and subjectively perceived as creating an abusive environment for an employee.

The Environment Must be Assessed under an Objective Reasonableness Standard courts also aim to distinguish between somewhat innocuous conduct and more dangerous harassment. The Supreme Court explained in Radtke that “[a]n objective reasonableness standard must be utilized to determine whether a hostile work environment exists under the Civil Rights Act.” This standard echoes the federal standard and functions in similar fashion to ensure that an employee is bringing a true hostile work environment claim.

Using this standard, infrequent rude comments or a few unwanted love letters do not create a hostile work environment. However, use of physical force or an attempt to kiss an employee certainly can create such an environment.

Numerous types of behavior can create a hostile work environment. Each sexual harassment case is extremely fact sensitive. However, as a general rule, an employer’s conduct creates a hostile work environment when it crosses the line of normal everyday interactions between males and females into the realm of a patterned or continuous behavior that can be clearly perceived by the victim or the reasonable observed.

The federal courts closely follow the guidelines issued by the Equal Employment Opportunity Commission (E.E.O.C.) in order to define hostile work environment sexual harassment. In the early case of Henson v. City of Dundee. the court established the importance of the E.E.O.C. guidelines saying that in pertinent part they provide that Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment.

If you are sexually harassed while on the job in San Diego, contact our San Diego sexual harassment attorney today to set up a free consultation. Our San Diego employment law and sexual harassment Attorney will assist you when you encounter sexual harassment at work.

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Sexual Harassment Must Create a Substantial Interference – Sexual Harassment Attorney – San Diego Employment Lawyer – 619.202.0264

Where the federal cases require a showing of severe or pervasive harassment, case law develops it’s own inquiry to satisfy a Civil Rights Act claim. Various cases do demonstrate reliance on the severe or pervasive inquiry; however, these cases have either been decided under Title VII or in reliance on the federal E.E.O.C. guidelines. The majority view employs an inquiry that directly reflects the State’s own Civil Rights Act.

The Elliot Larsen Civil Rights Act guides courts to consider whether “[t]he conduct or communication [had] the purpose or effect of substantially interfering with an individual’s employment.”

The Supreme Court relied on this portion of the statute in Radtke v. Everett, stating that a hostile work environment claim must be evaluated to determine “whether the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with plaintiff’s employment.”  It is with this inquiry of substantial interference that guided the court to decide that even a single act of sexual harassment could create a hostile work environment for the employee. In Radtke, the plaintiff’s employer held her down on a couch in the lounge of the workplace and “attempted to kiss her by grabbing her neck and pushing his face towards hers.” The court found this incident sufficient to satisfy the statute due to the particular environment of this workplace.

In Schemansky v. California Pizza Kitchen, Inc., the court followed the Radtke reasoning and required the plaintiff to establish that harassing comments made by her co-workers “had either the purpose or effect of substantially interfering with the plaintiff’s employment….” The plaintiff in this case did not establish substantial interference in her employment through her complaint of three incidents having to do with preparation of the plaintiff’s food and one incident of improper name-calling. The court found that these incidents were not sexual in nature and did not substantially interfere with her working environment.

Overall, while peppered with reliance on the federal statute, cases differentiate the Civil Rights Act and decide cases according to the clear intent of the legislation. The Supreme Court interprets this legislative intent to require a finding of substantial interference with a plaintiff’s work environment in order to satisfy a claim of hostile work environment sexual harassment.

If you are sexually harassed while on the job in San Diego, contact our San Diego sexual harassment attorney today to set up a free consultation. Our San Diego employment law and sexual harassment Attorney will assist you when you encounter sexual harassment at work.

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Sexual Harassment: Harassment must be Severe or Pervasive – Sexual Harassment Attorney – San Diego Employment Lawyer – 619.202.0264

Federal case law clearly establishes that for hostile work environment sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Case law on this subject does not delineate exactly what type of behavior must occur for an employer’s conduct to rise to the level of severe and pervasive. The courts do, however, place emphasis on certain criteria for examining an employer’s behavior.

In Harris v. Forklift Systems, Inc. the Supreme Court explains an employer’s behavior should be examined in light of frequency, severity, whether the behavior is physically threatening or humiliating, and whether the behavior unreasonably interferes with an employee’s work performance.

Using these criteria, the Court in Faragher v. City of Boca Raton, determined that an employer’s behavior was severe or pervasive and did rise to the level of hostile work environment sexual harassment. The employer in Faragher subjected his female employees to offensive touching, lewd remarks and the use of offensive language to talk about women. This same examination led the court in Lockard v. Pizza Hut,  to find that a Pizza Hut supervisor had created a hostile work environment by playing offensive music while at work with his female employee and by ignoring the employee’s requests for help when she was being physically harassed by male customers of the restaurant.

These two cases present a clear picture of the types of behavior that rise to the level of sexual harassment under Title VII. But, as Harris explains, no single factor is required” for a finding of hostile work environment sexual harassment. These cases merely present some especially egregious examples of harassment, but they do not mark the boundary of what is actionable.

If you are sexually harassed while on the job in San Diego, contact our San Diego sexual harassment attorney today to set up a free consultation. Our San Diego employment law and sexual harassment Attorney will assist you when you encounter sexual harassment at work.

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Guidelines For Hostile Work Environment Sexual Harassment – San Diego Employment Lawyer – 619.202.0264

This article will address the guidelines Courts rely upon in their analysis of hostile work environment sexual harassment. To find that an employer’s conduct has created a hostile work environment under Title VII, Plaintiff must show that the complained of conduct was “severe or pervasive” and that the environment could be both “objectively and subjectively” perceived as abusive or hostile. Federal sexual harassment case law explores each of these requirements.

The Elliott-Larsen Civil Rights Act specifically defines hostile work environment sexual harassment as “conduct or communication [that] has the purpose or effect of substantially interfering with an individual’s employment.” After establishing the sexual nature of the complained of conduct, a plaintiff making a hostile work environment sexual harassment claim must meet certain elements in order to establish a prima facie case. In Radtke v. Everett, the Supreme Court stated:

“there are five necessary elements to establish a prima facie case of a hostile work environment: (1) the employee belonged to a protected group; (2) the employee was subjected to communication or conduct on the basis of sex; (3) the employee was subjected to unwelcome sexual conduct or communication; (4) the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment; and 5) respondeat superior.”

In reviewing each of these elements courts also rely on standard inquiries similar to those in federal law. Where federal case law requires a showing of “severe and pervasive” harassment, the law uses a query of “substantial interference”. Likewise, in judging a plaintiff’s perception of harassing conduct, courts have developed their own “objective reasonableness” standard.

The federal courts closely follow the guidelines issued by the Equal Employment Opportunity Commission (E.E.O.C.) in order to define hostile work environment sexual harassment. In the early case of Henson v. City of Dundee. the court established the importance of the E.E.O.C. guidelines saying that in pertinent part they provide that Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment.

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Quid Pro Quo Sexual Harassment – Sexual Harassment Creating Hostile Work Environment – San Diego Employment Lawyer – 619.202.0264

Civil Rights Act specifically defines quid pro quo and hostile work environment sexual harassment as two separate causes of action. The statute explains that quid pro quo sexual harassment occurs when “(i) [s]ubmission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment” or “(ii) [s]ubmission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual’s employment.”

When making a claim of quid pro quo sexual harassment under the Civil Rights Act, the plaintiff must show “(i) that she was subject to any of the types of sexual conduct or communication described in the statute, and (ii) that her employer or the employer’s agent used her submission to or rejection of the proscribed conduct as a factor in a decision affecting her employment.” The plaintiff in Champion v. Nationwide Sec., Inc. easily met the first requirement as she could show that she was a victim of rape by her employer’s agent. The court also decided that Ms. Champion’s case satisfied the second requirement in a rather unique way. The court noted that Ms. Champion’s refusal of her supervisor’s advances led to his decision to use violence. This violence, then, led to Ms. Champion’s constructive discharge.

The court said that the supervisor’s decision to rape Ms. Champion constituted the requisite decision affecting employment for a finding of quid pro quo sexual harassment. However, applying the same two requirements to the claim of Ms. Hartleip in Hartleip v. McNeilab, the court did not see a case of quid pro quo sexual harassment. Ms. Hartleip received unwanted romantic letters and attention of a sexual nature from a quasi-superior. Ms. Hartleip could not, however, establish a claim for quid pro quo sexual harassment because this quasi-superior was not in a position to affect her employment status and did not do so.

Whether under the broad interpretation of Title VII or the narrowly tailored requirements of the Elliott-Larsen Civil Rights Act, the quid pro quo sexual harassment claim is essentially the same. A plaintiff must demonstrate that her reaction to the complained of harassment concretely affected her employment. It is clear that both statutes intend to combat this blatant form of sexual harassment, each merely differing in its methods to meet this end.

Sexual Harassment Creating a Hostile Work Environment

Behavior that culminates in quid pro quo sexual harassment is rather obvious under both the federal and statutes. Sexual harassment that creates a hostile work environment is not as easily defined under Title VII. This type of sexual harassment can be more subtle and will not have the tangible results seen in quid pro quo sexual harassment cases. However, the courts again provide direction for detecting this type of sexual harassment.

The federal courts closely follow the guidelines issued by the Equal Employment Opportunity Commission (E.E.O.C.) in order to define hostile work environment sexual harassment. In the early case of Henson v. City of Dundee41 the court established the importance of the E.E.O.C. guidelines saying that in pertinent part they provide that Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment.

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