Effective 4/12/12, the DLSE updated its templates and FAQs to help employers comply with the Wage Theft Prevention Act. You can find the page of forms here. I guess they couldn't wait until the Brinker hoopla died down a little?
There are clarifications such as related to who is responsible for the notice when an employer hires a temp from a staffing agency (the agency), etc. Fortunately, the DLSE also says that employers don't have to distribute new notices every time the DLSE issues an update. Whew!
DGV
Showing posts with label dlse. Show all posts
Showing posts with label dlse. Show all posts
More on AB 469 Notice "Template"
Per my previous post, the DLSE issued its "template" for compliant AB 469 disclosures. See the post re DLSE template here.
An impolitic or imprudent employment lawyer might say that the DLSE's waiting until December 29 to issue a template implementing AB 469 disclosures (to begin on 1/1/12) was arrogant, unconscionable, and all but a gift to plaintiff lawyers. But I've never been one of those rash people. :::whistling::::
What makes this all more galling is that the DLSE has imposed requirements over and above what the statute actually provides for. DLSE had the right to expand on the law's requirements becuase the statute says that the required disclosure must include "any other information the Labor Commissioner deems material and necessary."
That's all fine, but how about more than 2 work days' notice of what you think is necessary? Not to mention that 90% of management is on vacation. Employers likely planned the new notices would include only the items expressly identified in the law, given DLSE's failure to promptly issue its template. Now they have to re-tool, which may be easier to do in a mom & pop store, but not so easy when there are multiple outlets and hundreds of new hires to process.
Perhaps the DLSE didn't care because the notice provision does not apply to...the DLSE (!) or other government employers. Go figure.
Oh well, enough whining. The DLSE model includes a couple of itsems not specified in the actual statute: 1) the name and address of a PEO or other third party that administers the hiring process (but not a payroll processor or recruiting agency) 2) whether the employment agreement is oral or written... there may be more. I just got the thing today and all...
DGV
An impolitic or imprudent employment lawyer might say that the DLSE's waiting until December 29 to issue a template implementing AB 469 disclosures (to begin on 1/1/12) was arrogant, unconscionable, and all but a gift to plaintiff lawyers. But I've never been one of those rash people. :::whistling::::
What makes this all more galling is that the DLSE has imposed requirements over and above what the statute actually provides for. DLSE had the right to expand on the law's requirements becuase the statute says that the required disclosure must include "any other information the Labor Commissioner deems material and necessary."
That's all fine, but how about more than 2 work days' notice of what you think is necessary? Not to mention that 90% of management is on vacation. Employers likely planned the new notices would include only the items expressly identified in the law, given DLSE's failure to promptly issue its template. Now they have to re-tool, which may be easier to do in a mom & pop store, but not so easy when there are multiple outlets and hundreds of new hires to process.
Perhaps the DLSE didn't care because the notice provision does not apply to...the DLSE (!) or other government employers. Go figure.
Oh well, enough whining. The DLSE model includes a couple of itsems not specified in the actual statute: 1) the name and address of a PEO or other third party that administers the hiring process (but not a payroll processor or recruiting agency) 2) whether the employment agreement is oral or written... there may be more. I just got the thing today and all...
DGV
DLSE Opinion Letter re Reducing Salary and Workdays
The California Division of Labor Standards Enforcement agreed that temporarily reducing an exempt salaried employee's workweek to 4 days did not violate the salary basis test. The employer was free to proportionally reduce the employee's salary. This is consistent with a long line of federal authorities.
In a prior letter, 2002.03.12, the DLSE said that exempt employees would not be subject to salary reductions for a furlough. It appears DLSE has reversed that position. The new DLSE opinion is here.
Unfortunately, DLSE did not address another, separate, furlough question re exempt employees: can the employer "force" payout of vacation / PTO for furloughs / shutdowns of less than a full workweek? It's not a controversial proposition that the exempt employee is not entitled to any salary if the furlough is a full workweek. Therefore, there should not be any problem in paying out PTO/vacation for full workweek absences.
But what about partial week, ad hoc furloughs? Normally, the exempt employee is entitled to a full salary for any workweek in which s/he performs any work. There are exceptions, but involuntary absences of a day or more for lack of work are not one of them.
The new letter does not fully address this issue. I understand a prospective announcement reducing exempt employees' responsibilities to work with a concomitant reduction in salary. But if the employer says "we're going to shut down three days before Christmas," is that covered by this letter? If so, then it would be OK to pay required PTO for the three day furlough because the salary was reduced prospectively. If the opinion letter does not apply to this scenario, then it probably remains improper to force payout of PTO because the employee was already entitled to full salary. If you're confused, join the club.
This is a California-only issue, because the FLSA does not consider vacation / PTO to be vested. Also, there is an FLSA provision for public sector furloughs for economic reasons, so the question does not apply to the public sector.
Any wage-hour gurus who want to debate, send me an email / comment / wine.
In a prior letter, 2002.03.12, the DLSE said that exempt employees would not be subject to salary reductions for a furlough. It appears DLSE has reversed that position. The new DLSE opinion is here.
Unfortunately, DLSE did not address another, separate, furlough question re exempt employees: can the employer "force" payout of vacation / PTO for furloughs / shutdowns of less than a full workweek? It's not a controversial proposition that the exempt employee is not entitled to any salary if the furlough is a full workweek. Therefore, there should not be any problem in paying out PTO/vacation for full workweek absences.
But what about partial week, ad hoc furloughs? Normally, the exempt employee is entitled to a full salary for any workweek in which s/he performs any work. There are exceptions, but involuntary absences of a day or more for lack of work are not one of them.
The new letter does not fully address this issue. I understand a prospective announcement reducing exempt employees' responsibilities to work with a concomitant reduction in salary. But if the employer says "we're going to shut down three days before Christmas," is that covered by this letter? If so, then it would be OK to pay required PTO for the three day furlough because the salary was reduced prospectively. If the opinion letter does not apply to this scenario, then it probably remains improper to force payout of PTO because the employee was already entitled to full salary. If you're confused, join the club.
This is a California-only issue, because the FLSA does not consider vacation / PTO to be vested. Also, there is an FLSA provision for public sector furloughs for economic reasons, so the question does not apply to the public sector.
Any wage-hour gurus who want to debate, send me an email / comment / wine.
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