CalNeva Law Podcast

Jared and Brett invite James Boretti and Johnny Hernandez on to the show to talk about the latest California workplace violence law - SB553. Both James and Johnny have over 60 years of combined experience in OSHA compliance and SH&E Management and have resources to share on what employers can do to reduce the instances of violence on their premises in this podcast episode. 

Highlights:

• A little bit about your guests James and Johnny. 

• There’s been an increase in workplace violence. 

• What is the SB553 law all about?

• What is considered ‘violence’? 

• What are some of the things an employer should be aware of? 

• What should a small employer with a limited budget focus on? 

• How should you best train your employees about workplace violence? 

• It’s important that everyone in the company can recognize the signs and symptoms of the stages of violence and to bring in professionals that can stop it before it becomes irreversible. 

• Remember, this is not a one and done. You will have to revisit these resources and keep it top of mind for everyone in the company.

• Jared and Brett have a mid-yearly update for California and Nevada employers on June 12 & 13 at 12pm Pacific. Sign up to be notified! 

Resources:

Suttonhague.com

Calnevalaw.com

Borettiinc.com

Jared and Brett talk about the latest legal updates in Nevada that are crucial for employers to understand. They discuss the specifics of Nevada law regarding gender expression discrimination, the implications of temporary furloughs on compensation, and important Nevada-specific minimum wage updates. The episode also talks about the updated definitions of independent contractors and the new legal protections for pregnant and nursing mothers in the workplace.

Highlights:

• Follow Sutton Hague on social media? You could be eligible for a Starbucks gift card!

• Employers must accommodate religious beliefs unless there is an “undue hardship.” How do you define this?

• You have to show a substantial burden. It’s much harder now to deny religious accommodation without documented proof.

• Do you need to accommodate a person with gender dysphoria under the ADA?

• Things to be aware of under Nevada law on how to best accommodate a person with gender dysphoria.

• What does the Nevada law say about discrimination against gender expression?

• Can someone have a valid claim for sexual harassment if they deem the music being played in the work environment as offensive and discriminatory?

• Some quick Nevada legislative updates. There are some new rules on how workers’ comp records need to be provided.

• What happens to a worker’s compensation when you put someone under “non-working status,” like a temporary furlough?

• Jared joins the conversation to talk about minimum wage updates.

• Let’s talk about the rolling 24 rule. What’s considered a “work day”?

• If an employee comes in 10 minutes early, employers could owe them overtime.

• Talk to your payroll provider to help you through this process. Many payroll providers do not know about this rule because it’s specific to Nevada law.

• This minimum wage law is part of Nevada’s constitution. They take it seriously!

• Daily overtime is owed to an employee making less than $15.375 per hour with exceptions and less than $16.875. Jared explains further.

• Nevada updated their independent contractor definitions. Jared talks about law NRS 608.0155.

• Employers can mistake who their employees are. Just because you say they’re an independent contractor doesn’t mean they are. They might be operating as a full-time employee under the eyes of the law.

• Temp employees from a temp agency could be considered independent contractors; now you could be liable for 20‒30 more employees than you thought you did despite hiring a temp agency.

• There are new laws for pregnant and/or nursing mothers. You can’t make mothers express breast milk in the bathroom, and employees can now file a lawsuit against this.

• Non-compete agreements now violate the NLRA. What does that mean for your agreements?

Resources:

Suttonhague.com

Calnevalaw.com

In this episode, Jared and Brett navigate the latest updates in religious accommodation, gender dysphoria under the ADA, and the evolving definitions of sexual harassment. They delve into the significant legislative changes in California, including 30 new pieces of legislation that impact employer policies. Key topics include the implications of SB 700 on cannabis use in the hiring process, the challenges of non-compete agreements under California law AB 1076, and the intricacies of PAGA claims. This episode is a must-listen for employers seeking to stay informed and compliant in an ever-changing legal landscape.

Highlights:

• There are new religious accommodation updates that employers need to be aware of.

• If you deny someone an accommodation, you have to get ready to justify why you couldn’t accommodate the employee’s religion. 

• Is gender dysphoria a protected disability under the ADA? What do employers need to know?

• What is considered “sexual harassment”? It’s not just unwelcome physical advances.

• There are 30 new pieces of legislature in the state of California.

• It’s important to revisit your handbooks and your policies.

• When an employee has exhausted all the different types of leave available to them, they can still come back. You are not able to fire them.

• Let’s talk about SB 700, which prohibits employers from requesting information from job applicants relating to their prior cannabis use.

• What tests can employers use now in the hiring process?

• When you’re crafting your policies, you need to have specific language around marijuana use.

• The law is going to protect off-duty lawful use of marijuana.

• Law SB 428, employers will have an easier time getting a restraining order against a former employee in 2025.

• What do employers need to be aware of if an employee makes a safety-related complaint?

• You are marching uphill if you want to craft a creative non-compete or non-solicitation agreement under California law AB 1076.

• Employees can bring a (Private Attorneys General Act) PAGA claim to an employer and they cannot force it into arbitration.

• Independent contractors’ classifications are very difficult to prove in California and if you get it wrong, the penalties are going up.

• If you’re relying on criminal background checks to make hiring decisions, you’re going to have to be more thorough and incorporate more documentation into that process. 

• The minimum wage will be going up in California. There will be no grace period.

• There are some new decisions happening in the National Labor Relations Act (NLRA), which allows employees to communicate with people about concerns about their workplace.

• Can employees sign a confidentiality agreement?

• Jared and Brett do Q&A. Can employers pay out sick leave balance at the end of the year?

• Every employer is going to have to learn about marijuana law and their legal implications more than they thought they would. 

• If an employee is absent but they don’t want to take sick leave, what should employers be aware of?

• It’s best not to combine PTO and PSO policies. Keep them as separate as possible. 

Resources:

Suttonhague.com

Calnevalaw.com

This episode is a deep dive into the complexities of state versus federal regulations, the nuances of the Private Attorneys General Act (PAGA), and the critical ABC test for employee classification. From joint employer rules to the intricacies of wage order postings and commission agreements, this discussion is packed with essential insights. Join Brett and Jared as they dissect the critical aspects of wage and hour law compliance, offering a wealth of knowledge to help you steer clear of legal pitfalls and maintain a compliant and efficient workplace. 

Highlights:

• Don’t forget to follow Sutton Hague on social media! 

• So many businesses don’t realize they’re in the red with wage and hour law compliance.

• Brett explains the difference between wage and hour California state law vs. federal law. 

• This subject can be a constant moving target for employers. It is hard to keep track if you do not have active legal counsel. 

• What do people need to know about the Private Attorneys General Act (PAGA)? 

• Under PAGA, employees can file on behalf of other employees who suffered from a different violation than they did. 

• What is the ABC test to determine if you have an employee vs. an independent contractor? 

• You need to know who your employees are and what they’re classified under. 

• What is the joint employer rule and how does that affect you conducting business with another business entity? 

• In labor code section 2810.3, if you have more than 25 employees and use more than 5 temporary workers from a staffing agency, you share liability over those people. 

• Are Vice Presidents with a six-figure salary exempt employees under California law? This is false! 

• Wage order posting requirement: What you need to know and how to determine which one to post based on your business. .

• You need to have written commission agreements for your employees. 

• There is a PAGA penalty for every single labor code violation. Even if you paid your employees correctly, but don’t have the correct agreements in place, you could be subjected to penalties. 

• You must have a paper trail. This includes payroll records. 

• By the way, rest periods are counted as hours worked. Should you track these ‘rest’ periods?

• If an employee asks you for a hard copy of their pay stub, you must give it to them. 

• It should be displayed very, very clearly an employee’s overtime wage rate. 

• Should employers mail out checks to terminated employees? 

• What does an employer do if an employee quits but they weren’t notified until a week after the fact? 

• How should employers handle expense/reimbursement issues? 

• What are the rules behind employee uniforms? 

• When does it make sense to reimburse employees for their cell phone usage? 

• There are different ways to reimburse mileage rates. You can do it via a fixed sum or variable sum, but if you vary from the standard IRS rate, the burden of proof is on you. 

• Vacation PTO: What should California employers be aware of? 

• What do you do if you have an employee on vacation but still answers emails and phone calls? 

• How long is an employer required to cover the medical premium of an employee while they’re out on family and medical leave? 

• Did you know under California law, employees can not work 7 days a week. However, you can waive this. 

• What do you need to know about wage order 4? 

• If an employee requests a direct deposit, what do employers need to do to accommodate this? 

• There is a salary threshold test for administrative, executive, and professional exemptions. Jared talks about a rule that will be going into effect soon that will push the salary exemption level higher. 

• Make sure your job descriptions are accurate and that they correctly describe what your employees are doing. 

• What do you do with an outside sales exempt employee that might no longer qualify? 

• Do you have to pay employees for travel time to job sites or client locations? 

• It’s important employers track the flow of when an employee clocks out vs. when they officially leave the building. The nuances can get you in a lawsuit. 

• Should you round up or down when it comes to time? Be careful when you do this. Small increments of time are important to employees. 

• California minimum wage is going up! What do employers need to know? 

• How do you calculate the regular rate of pay? Why is this so important to get right? 

• Longevity bonuses do not have to be included in the regular rate of pay. However, there are caveats. 

• How do you calculate the regular rate of pay when there’s a bonus involved? For example, per diem rates? 

• Under federal law, there is no required meal rest break, but this is not true in the state of California. 

• If an employer doesn’t provide a complaint meal period in a day, you could have two violations and owe one hour of pay for each day you didn’t provide a meal period. 

• If the employee doesn’t want to take a meal break, they don’t have to, but it would be best if they signed a waiver confirming this. 

• Why does Brett recommend offering employees 35 minute meal periods as opposed to 30 minute meal periods? 

• Rest breaks included relieving the employee of all duty; which means they need to refrain from checking email, phones, or even work radios. 

• It is very important for managers and supervisors to also understand the rules behind rest breaks and meal periods. Ideally, there should be regular training for this in your workplace. 

• Can a class action waiver apply to PAGA claims? The answer is no! 

• You should still have an arbitration agreement in place. You also have to pay for the cost of the arbitration in order for this to be enforceable. 

• Look out for Sutton Hague’s webinar schedule for next year! 

Resources:

Suttonhague.com

Calnevalaw.com

There’s a lot of fear in the air right now. Brett has never been so busy within his practice and he’s been doing this for 35 years. During times of perceived economic downturn, litigation and lawsuits end up spiking up. In this podcast episode, Brett explains how to reduce your risk as much as possible when you’re considering letting go of some of the workforce. How do you approach this? How do you avoid getting sued for unfair termination? Brett covers all of this and more.

Highlights:

• Brett and his office have been busy! There’s some economic disruption happening.

• What should employers be thinking about when it comes to reduction in workforce?

• What are some alternatives to reduction in force?

• There are a lot of nuances to reducing your workforce “without” notice.

• If you’re in California, you need to be careful with reducing someone’s hours. You need advance notice.

• Can employers do furloughs?

• After exhausting all the alternatives, what’s the next step to reducing the workforce?

• Are you going to let someone go due to their performance? Brett explains the best legal approach to doing this.

• From a legal perspective, really think through your layoffs. You need to have proof.

• Are you laying off anybody who recently filed a worker’s comp?

• People get scared and they start to think if they’re next, and then a ripple effect ensues.

• Be careful. People get angry or upset and might sabotage relationships with your clients and/or publish unflattering news about you on social media.

• When does it make sense to conduct a company-wide layoff?

• After a layoff, people do consult their lawyers and you might get dinged for something unrelated to the layoff itself.

• If you have a remote worker, are they still eligible for FMLA?

• If you go through a second or third round of layovers within a 90-day period, you need to be careful if it falls under the WARN act.

• Do your employees have a written employment agreement?

• Whatever you do, you need to have a qualified attorney helping you with this process.

• What do you want confidential? Your client list should be on there.

• In your severance agreement, there is often language that makes other agreements void once an employee signs this one. You have to make sure you’re referencing other agreements that employees have signed in the past like NDAs.

• You need to have a clear document stating the decisional markers as to why employees were fired.

• You have to also prove that you didn’t fire your older employees intentionally or else you could be sued for ageism.

• What should employers know about the “Silence No More” act?

• The more information you can give to your employees, the better. People tend to “fill in the blanks” when they don’t have the needed information and their imagination can take over.

• Have questions? Please feel to reach out to Brett and his team.

Resources:

Suttonhague.com

Calnevalaw.com

There’s a big development happening in California employment law that many employers have been waiting on. For a little while, California employers were in a bit of a limbo to understand whether mandatory arbitration agreements were enforceable or not. In this episode, Brett explains what an arbitration agreement is, what the AB51 is, and what does this new court ruling mean for employers with employees in the state of California. 

Highlights:

• What’s happening with legislation in California? 

• Let’s give context and talk about what AB51 is. 

• What is an arbitration agreement? 

• A properly drafted arbitration agreement makes it difficult for people to file a class action lawsuit against their employer. 

• The arbitration process is very expensive, however there is a trade off. 

• So what was the main reason for drafting AB51? 

• Is AB51 enforceable? 

• For a little bit, the courts were in limbo with this assembly bill.

• As of February, 2023, it means this bill is not enforceable. But what does this mean for employers? 

• What is Brett’s recommendation as of right now for California employers? 

Resources:

Suttonhague.com

Calnevalaw.com

Geralynn Patellaro has been practicing law for the last 20 years and is licensed in California and Nevada. During her time, she’s seen every conceivable workplace investigation and has experienced all facets of where it can go. In this webinar, Geralynn answers some frequently asked questions from employers, business owners, and HR. She covers everything from workplace sexual harassment lawsuits to how to conduct an investigation with international jurisdictions and witnesses.

Highlights:

• A little bit about Geralynn and her background in law.
• There are certain distinctions you need to be aware of on who can do outside workplace investigation in the state of California and Nevada.
• When you take the time to investigate an issue, it’s going to look like to the jury that you took this workplace issue seriously.
• Does investigation seem too serious of a word? Geralynn recommends calling it a “fact-finding” mission.
• Who should do the workplace investigation? What options do employers have?
• You have to do the best investigation you can, based on the information provided.
• Geralynn offers things she considers when she’s working with a client on an investigation case.
• You have to understand what you’re legally/required to turn over vs. what information you don’t have to turn over.
• If your investigation involves someone who is not a U.S. citizen, there are distinctions you need to be aware of, too.
• Sometimes an investigation boils down to a “he said, she said.” What do you do then?
• Geralynn shares the EEOC’s five credibility factors and DFEH’s nine factors.
• Quick shout out to Boys & Girls Club of Truckee Meadows. All proceeds from this webinar will be donated to them. Please consider donating.
• Does the employee need to inform you that they’re recording their investigation interview?
• What’s the best way to talk to the complainant?
• What do you do if both parties in dispute have to continue working with each other?
• After the investigation, check in with the complainant. This is where the hard work truly begins.
• How do you ask questions without alarming staff members?
• The manager often doesn’t want to escalate a situation to HR. Geralynn’s philosophy is that if a manager can handle it, let him or her do it, but at least document it with HR.
• Geralynn offers some final piece of wisdom: Just document what you can. No report is perfect, but there should be a paper trail for why things couldn’t get followed up on and more.
• What should you look for in an interpreter if an employee is not a native English speaker?

Resources:

Suttonhague.com

Calnevalaw.com

Babwp.com

Bgctm.org

Brett Sutton and Jared Hague talk about the recent Wage and Hour ruling in the Viking River Cruise case, and talk about what California employers need to be aware of when it comes to class-action cases. If you’re a California employer, then this is an episode you won’t want to miss as it has some new information about the recent court ruling that could affect California-state specific employers going forward. 

Highlights:

• California has one of the strictest wage and hour rules in the entire country.
• There are frequent class action cases filed in California and it really hurts employers. 
• There are two types of penalties employers can fall under with the wage and hour law. 
• Can employees sign an arbitration agreement to help mitigate the risk on the employer? 
• What is an arbitration agreement in a nutshell? 
• What can be covered in an arbitration agreement between employer and employee?
• If you don’t have these certain key bullet points within your arbitration agreement that doesn’t include all these features, then it might not be enforceable.
• Employers can not require employees to enter into an arbitration agreement as a condition of their employment. 
• What do you need to know about the AB51 law? 
• Employers can include a class action waiver in their arbitration agreement. 
• Let’s talk about the Viking River Cruise case. 
• Every California employer should take arbitration agreements seriously. 
• California law requires you to pay for the arbitration. That’s not a small amount, especially if a group of employees bring a class-action arbitration against you. 
• An arbitration agreement with a class action waiver is as close as you can get to being protected. 
• A very minor infraction in the California laws can just snowball into a big monster for an employer. 
• The best thing you can do is make sure you’re in compliance with California Wage and Hour laws.

Resources:

Suttonhague.com

Calnevalaw.com

Brett Sutton and Jared Hague talk about the latest update to California meal and rest period employment laws and what California employers need to know about this recent change. There are little nuances to this law that you need to be aware of and in this episode, Brett and Jared help make suggestions (not legal advice) on how to best navigate this within your company. 

Highlights:

• A bit of background around meal and rest period laws. 
• There are significant financial consequences if you don’t properly provide meal and rest time to your California employees. 
• Meal periods are unpaid and rest periods are paid.
• What penalties should the employer be aware of if they do not accurately do this? 
• Brett reminds employees what their pay stub needs to say. 
• Your employees might be taking all the necessary rest breaks, but if you are unable to prove this, you’re on the hook. 
• Jared brings up the recent case that got brought up in regards to accurate meal and rest period times.
• With the recent decision, the stakes have increased dramatically. 
• You really have to revisit what you’re doing and make sure your company is fully compliant. The first starting point is your policy. 
• Jared recommends doing a quarterly spot check within your company. 
• Supervisors need employee training to help them understand employment laws and to keep track of meal and rest period breaks. 
• It is part of a manager’s job to make sure the company complies with meal and rest periods. 
• It’s hard enough to be in business. Don’t make it harder for yourself. 

Resources:

Suttonhague.com

Calnevalaw.com

Today’s special guest is Ryan Lyle from IRI Consultants. Ryan has extensive experience in union representation and they have invited him today to talk about current developments for employers on the National Labor Relations Board. Jared shares his own experience and key takeaways from a recent successful union election. Ryan also discusses topics that will help employers better understand the latest trends happening within the union and shares how he believes workforces will be unionized in the future.

Highlights:

• What is the National Labor Relations Board (NLRB)?
• The NLRB has two main areas of responsibility: run union representation elections and administer unfair labor practice charges.
• Ryan provides an overview of how a union election works in the U.S.
• He shares what happens in a worst-case scenario when an employer gets surprised by a petition for an election.
• Ryan also talks about the mandatory meetings that cover the educational aspects of having a union.
• Jared shares the process they went through and some of the lessons they learned from the recent union election they had in Nevada.
• To persuade the employees to vote against the union, Jared talks about captive audience meetings and explains why they were critical in their communications.
• In August 2021, then newly-appointed general counsel of the board, Jennifer Russo released a public memo. Ryan continues to share what it was.
• Ryan disagrees that captive audience meetings are implicit or implied threats. He explains why.
• He shares there is now an emphasis on the NLRB making rule changes based on case law and administration. Ryan provides some examples.
• One of the ways that a union can organize in a workplace is to get authorization cards signed. Ryan shares what the changes will be if the new law passes.
• Brett and Jared share their thoughts on the potential, significant changes explained by Ryan.
• Brett summarizes the key takeaways from today’s discussion: assess the risk early, don’t make assumptions, and be proactive in your communications.

Resources:

Suttonhague.com

Calnevalaw.com

Iriconsultants.com