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Orange County Lawyer Wendy Sugg Offers Comment on recent Supreme Court arbitration decision

The Supreme Court recently ruled 6-3 that a state appeals court erroneously upheld a lower court order refusing to enforce an arbitration agreement that included a class waiver. This decision reaffirmed the supremacy of the Federal Arbitration Act. Wendy Sugg, in Troutman Sanders’ Orange County office, spoke with Employment Law Daily to discuss the significance of the decision, particularly for California. Read the article here.

December 21, 2015   No Comments

Attention Landlords! 25 Years Later: How the ADA Affects YOU (and Not Just Your Tenants)

This year, we recognize 25 years of the coverage of the Americans with Disabilities Act (ADA) on workplaces and commercial establishments.  While you may be most familiar with how employment policies and practices have been subject to the ADA and its regulations for the past 25 years, that is not the only significant impact of the ADA.  Public entities and transportation providers have had obligations under the ADA too.  In fact, a large part of the ADA specifically applies to places of public accommodations and commercial facilities.  So, anyone who opens their doors for retail, service, office, or warehouse purposes is required to ensure full and equal enjoyment of all goods, services, facilities, and accommodations to those with disabilities.

What is required?

For existing facilities at the time the ADA became law, the Act requires that accommodations be made to bring those facilities into compliance, so long as removal of an access barrier or addition of an access improvement can be “easily accomplish[ed],” “without much difficulty or expense.”  Note that this is not an all-or-nothing test.  The ADA requires these modifications be made only to the “maximum extent feasible”, and alternative measures can be taken in their place.

For all new construction, including alterations to existing facilities, access for persons with disabilities is required to the “maximum extent feasible”, as well as auxiliary services such as interpreters or Braille print.

‘Don’t worry—all of this is in the lease!’

Here’s the catch.  Allocating ADA responsibility and liability from landlord to tenant in a lease does NOT get the Landlord off the hook.

While lease provisions to this effect may be convenient for private ordering allocation of duties or beneficial for future impleading of tenants or indemnification suits, the bottom line is that no contract language will have the effect of releasing the landlord from their ADA responsibilities.  All areas of the premises – common and exclusive – are subject to the ADA guidelines, and the landlord remains on the hook for all of it.

Cover your assets

As landlord, be sure to monitor your tenants’ premises – inside and out – for potential ADA violations.  Do not assume that if they aren’t up to snuff it’s only their problem.  Private individuals can — and quite frequently do — bring suit against tenants and landlords for injunctive relief (and attorney’s fees), and even the U.S. Attorney General can bring suit against landlords for hefty fines.  In fact, there has become something of a cottage industry in some regions and with some types of public accommodations (highway exit hotels, gas and service stations, restaurants) of disabled persons partnering with attorneys to file multiple lawsuits to require changes and recover attorneys fees. While it’s been 25 years and you’d think everything is set and staid, for landlords, the ADA is never old news.

 

December 14, 2015   No Comments

November 2015 Background Screening Blog Summary

The HR Law Matters blog is happy to provide you with an overview of recent Background Screening articles, from the firm’s Consumer Financial Services Law Monitor Blog. We know that as HR professionals issues related to Background Screening of employees is important to you, and we think this information will be of  great interest.

[Read more →]

December 3, 2015   No Comments

Ready or Not: CA Minimum Wage Increase starts Jan. 1 2016

Effective January 1, 2016, the California minimum wage will increase to $10.00 per hour. This increase requires that any employees with an hourly wage of less than $10.00 have their hourly wage increased as of January 1, 2016 for all time worked.

For any employee who receives an increased hourly wage rate, employers are required to provide that employee with a written notice of the change within seven (7) days of the effective date of the change. This notice may be given to each employee via a Labor Code 2810.5 form (available online at www.dir.ca.gov/dlse/LC_2810.5_Notice.pdf), through a written notice explaining the change, or through a wage statement reflecting the change provided within seven (7) days of the effective date. For employers who are not providing paychecks/wage statements by January 7, 2015, employees should receive a separate written notice informing them of the change.

The increase in minimum wage also affects the salary threshold for exempt employees under California’s minimum wage and overtime requirements under the “white collar” exemptions, which include the administrative, executive, and learned professional exemptions. To qualify as exempt under these exemptions, employees must be paid at least double minimum wage. Accordingly, beginning January 1, 2016, California exempt employees must receive an annual salary of at least $41,600 (and higher for computer professionals and highly compensated employees).  However, employers should keep in mind that recent proposed regulations from the federal Department of Labor call for an increase in the minimum salary threshold for these exemptions to approximately $970 per week (or $50,440 per year) for 2016, with increases each year to follow.  It is anticipated the DOL will issue final regulations in the coming months.

As always, in addition to the compensation requirement, to qualify as exempt, employees must also perform the duties set forth in the applicable Wage Orders and, for computer professional employees, in Labor Code section 515.5. The duties requirements for each of the exemptions are very fact and circumstance specific.

For more information on the increase in minimum wage and how it may affect both your non-exempt and exempt employees, please contact a member of Troutman Sanders’ employment practice.

November 12, 2015   No Comments

Keys to a Successful Workplace Investigation

7_Effective Workplace
Whether it’s allegations of favoritism, harassment, or unethical conduct, an efficient and impartial investigation can help employers root out actions that are harming the company and can provide evidence to support the company’s decision.  All too often investigations are conducted without a clear plan and assigned team, leading to conflicting results and a poor defense in litigation.  A bad investigation can often lead to sanctions or punitive damages later in litigation – a situation far worse than conducting no investigation at all. Lawyers at Troutman Sanders have handled numerous investigations of all different types of alleged workplace misconduct and can help guide employers around potential landmines in managing workplace investigations.

Be sure to join us at our annual Labor & Employment and Benefits seminar October 29 to learn how to avoid the pitfalls and conduct effective and efficient workplace investigations.

October 27, 2015   No Comments

Crisis Management a “Wheel of Fortune” for Employers

4_Workplace Crisis
Crisis concerns have occurred from the time of the pharaohs up through the Enron or Tylenol episodes of the last decade, and as recently as the VW manipulation of emission data.  What may be a small concern for one company could be a huge liability for another.  For employers, when a crisis erupts, the consequences can be a game of “Wheel of Fortune” – a misfortune, if handled improperly, or good fortune, for the employer’s reputation, to come out unscathed. A crisis management plan is no “one size fits all”.

Our featured presenter, veteran PR strategist Carol Cookerly, has given some wise breakthrough advice on managing these crisis issues when they arise: “The best strategy is not to think about how to diffuse the problem, but how to think long-term and make your organization stronger.  If you think that way, the problem will diffuse itself because you will be doing things that will take you to the next level.”

Join us on October 29 during our annual Labor & Employment and Benefits seminar as we walk through a crisis management exercise designed to help HR practitioners and legal staff examine the health, safety and workforce management concerns as well as analyze communication practices arising from a crisis event. We’ll see you then.

October 26, 2015   No Comments

Independent Contractors vs. Temporary Employees vs. Leased Employees? And the Winner Is…

5_Legal Issues
More than ever before, companies are turning to contingent workers to meet their staffing needs.  Indeed, according to a recent SAP and Oxford Economics report, 83% of executives state that their companies are increasing their use of contingent workers.  But which type of contingent worker is best for your company? Leased employees? Temporary employees? Independent contractors? Companies often find themselves internally debating this issue. But with the penalties and liability associated with misclassification and handling of contingent workers so steep, there is no need to have this debate alone.

Join us on October 29 for our annual Labor & Employment and Benefits seminar and participate in the debate on the pros and cons of using leased employees, temporary employees, and independent contractors.  Among other topics, we will discuss which type of contingent worker is best for your company based on cost, flexibility, administrative hassles, control, employment compliance, and risk and costs of misclassification.   We will also discuss how to determine whether a worker is misclassified and best practices for using each type of contingent worker.

October 22, 2015   No Comments

Wage & Hour Law Changes: What Does It All REALLY Mean?

1_DOL
Earlier this year, the U.S. Department of Labor (DOL) issued new proposed regulations under the Fair Labor Standards Act (FLSA) to dramatically increase the minimum salary required for most exempt employees to remain exempt going forward.  The DOL regulations generated a huge number of comments, but now the DOL is getting ready to issue their final regulations and put the new requirements in place.

Do you understand the proposed changes to the FLSA salary threshold for exempt classifications?  You need to, and, if you come to our our annual Labor & Employment and Benefits seminar starting at 8 a.m. on October 29, you will!  We will clear up any confusion about the regulations and discuss important topics such as:

  •  What changes employers need to make to their compensation practices to prepare for the proposed changes — and when to make them.
  •  What liabilities employers are exposed to for failing to adapt their compensation practices to the higher salary thresholds.
  • How to know — and what to do — if the changes will have a significant cost or business impact on your workforce.

The DOL and other government agencies are cracking down on improper exemptions under the FLSA and other ways to address what the current Administration views as unfair pay or treatment of employees.  Getting caught unprepared for a wage and hour audit or employee lawsuit is painful, disruptive, and very expensive.  Don’t let it happen to you!

Make sure you join us on October 29 at 8 a.m. for our annual Labor & Employment and Benefits seminar. We’ll help you understand all the changes and what to do to be prepared as these changes come into effect soon.  To RSVP for this program, please click here.

October 21, 2015   No Comments

Is Your Company’s Confidential Information Leaving at 5 p.m.?

8_BYOD
A Gartner Inc. Executive Program survey predicts that 50% of companies will require employees to provide their own devices for their jobs by 2017. If your employees use their own mobile phones to do work, it’s quite possible your company’s confidential information walks out the door every night. This raises cybersecurity concerns for a company’s intellectual property and confidential trade secrets. The need to secure a company’s protected information must also be balanced with an employee’s right to privacy. However, technology continues to push the expectation of worker productivity to wearable technologies (Apple Watch, anyone?). Does your company employ a BYOD policy? Are you confident that your company’s information is secure?

Make sure you join us on October 29 for our annual Labor & Employment and Benefits seminar starting at 8 a.m. We’ll help you understand the elements of a successful BYOD policy and how to balance employee privacy risks against the need to safeguard your company’s confidential information.

October 19, 2015   No Comments

You’re invited to attend Troutman Sanders’ 2015 Labor & Employment and Benefits Seminar

CIRCLE PUZZLE.v3

Troutman Sanders invites in-house counsel, HR professionals and other executives and managers charged with labor and human resources responsibilities to attend a half-day labor & employment seminar to learn the latest news on recent employment cases, hear best practices in HR strategies and understand how to remain compliant with key HR laws.

Seminar topics include:

  • Impacts of DOL’s New FLSA Regulations
  • Implications of Supreme Court DOMA Decision
  • Expanded Job Flexibility for Foreign Nationals
  • Avoiding Pitfalls in Background Screening
  • Conducting Successful Workplace Investigations
  • Legal Issues Involved in Using Independent Contractors and Temporary Employees
  • Bring Your Own Device (B.Y.O.D.) Policies and Employer Privacy Issues
  • Effective Workplace Crisis Management Tips

To RSVP for this program, please click here.

CLE and SHRM credits pending.

October 7, 2015   No Comments