1 california minority counsel program presents the dlse’s growing arsenal what every employer...
TRANSCRIPT
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California Minority Counsel Program Presents
The DLSE’s Growing ArsenalWhat Every Employer Needs to Know About the Wage Theft Protection Act
and the DLSE’s Criminal Investigation Unit
PANELISTS:
Elliot S. Beckelman
Attorney and Member of Criminal Investigation Unit
California DLSE
Jeffrey D. Polsky
Partner
Fox Rothschild LLP
Shannon Walpole
Corporate Counsel, Director Employment Law
Ross Stores, Inc.
Moderated by Cristina Armstrong,
Associate, Fox Rothschild LLP
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Panelist Elliot Beckelman,DLSE
Elliot S. Beckelman currently advises DLSE’s newly formed Criminal Investigation Unit, and litigates a full range of civil actions. Previously, he was a San Francisco Assistant District Attorney from 1995 to 2010. As an Assistant DA, he tried numerous felony jury trials including homicide, gangs, narcotics, elder abuse, and general felonies (which included all crimes of theft), served as Managing Attorney of the Sex Crimes and Career Criminal units, headed the task force on the investigation of child sexual abuse allegations within the S.F. Archdiocese, and was co-counsel of a year-long DNA admissibility hearing which led to the acceptance of DNA technology in San Francisco courts. He is co-author of two chapters in the CEB publication (2012), Scientific Evidence in California Criminal Case. In 1995, he partnered with the law firm of Leonard Carder in a class action against The Mitchell Brothers Theatre for misclassifying their exotic dancers as independent contractors. He also served as in-house counsel for San Francisco’s largest private union, Hotel Employees & Restaurant Employee’s Union, Local 2.
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Panelist Jeffrey Polsky, Fox Rothschild
Jeff focuses his practice on business and employment litigation and counseling. He represents clients in disputes relating to claims of discrimination and harassment, trade secret violations, wage and hour compliance, wrongful discharge, and breach of contract. Recognizing the risk and expense inherent in litigation, Jeff has extensive experience in alternative methods of resolving disputes, including mediation. In addition to his litigation practice, Jeff advises and counsels employers on a wide range of employment law issues, including reorganizations, terminations, corrective actions, developing policies, investigating misconduct and accommodating disabilities. Jeff also represents employers in collective bargaining, arbitrations, and National Labor Relations Board proceedings. Prior to joining the firm, Jeff was a partner with Kauff McClain & McGuire LLP in San Francisco, CA, where he practiced for nearly 20 years. Jeff earned an A.B. at the University of California, Berkeley, and a J.D. from the University of California, Hastings College of the Law.
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Panelist Shannon Walpole, Ross Stores, Inc.
Shannon Walpole has been the Director of Employment Law at Ross Stores, Inc., based in Pleasanton, California, since 2010. In her position, among other things, Shannon has been responsible for helping Ross comply with the California Wage Theft Protection Act requirements in California. Prior to joining Ross, Shannon was General Counsel for the Golden Rain Foundation of Walnut Creek. She began her legal career as an associate at Littler Mendelson, P.C. Shannon earned her B.A. in Political Science from the University of California at Santa Barbara and her J.D. from Santa Clara University School of Law.
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What Will We Cover?
Wage Theft Protection Act’s Wage & Hour Notice to New Employees
DLSE’s Criminal Investigation Unit
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1. At the time of hiring, an employer shall provide each employee a written notice, in the language the employer normally uses to communicate employment-related information to the employee, basic employment information
2. Labor Commissioner must have a template
3. Employer shall notify employees in writing of any changes to the information within 7 calendar days of the changes
Written Wage & Hour Notice: Labor Code § 2810.5 (1/1/12)
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1. All rates & basis (hourly, shift, daily, weekly, salary, commission, etc.) of pay, including OT rates
2. Minimum wage allowances, if any, including meal and lodging allowances
3. Regular payday
4. Employer’s Legal Name, incl. “dba” names
Wage Notice: What Must I Include?
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5. Physical and mailing address of employer’s main office/principal place of business
6. Employer’s phone number
7. Contact info of employer’s W/C insurance carrier
8. Any other info Labor Commissioner deems material or necessary
Wage Notice: What Must I Include?
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Information re staffing agency Information re written agreements to
providing the rate- No longer have to try to respond to
whether Employment Agreement is Oral or Written
What does the DLSE Require as “Material & Necessary?”
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All employers who “engage another . . . to do something for the benefit of the employer or a third person” in California. Best Practices:
- Any employer that has employees in California should provide notice to California employees
- Any employer in California should provide notice to all employees
Including:- Private employers- Private schools- Non-profit corporations (CMCP)- Private sub-contractors
Who Must Provide Wage Notices?
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Exceptions: Public employees Exempt employees Most employees covered by collective
bargaining agreements
Who Must Provide Wage Notices?
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At the time of hiring- Hiring date vs. start date- No later than the start date
Best Practice: Give the Notice to existing employees if you haven’t already.
When Must the Notice be Given?
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Employers must notify employees in writing of any changes to the info in the Notice within 7 calendar days of the change
Unless: - All changes are reflected in timely wage
statement- Employer provides notice of changes in
another writing required by law w/in 7 days
Do I have to Update the Notice?
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Notice must be given in language normally used to communicate employment-related information
Labor Commissioner has templates in six languages:
What if my Employees Speak Different Languages?
1. English
2. Vietnamese
3. Chinese
4. Korean
5. Tagalog
6. Spanish
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What Wage Notice Records Must I Maintain?
Record of Notices provided- Can be electronic
Best Practices: - Acknowledgement of Receipt
But cannot require employees to sign Acknowledgement
- Maintain Acknowledgement for 4 years after termination
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DLSE templates and FAQs: http://www.dir.ca.gov/dlse/FAQs-NoticeToEmployee.html
Not necessary to use template, but Notice must contain all info in DLSE’s template
If you prepare your own Notice form,
it must be a free standing form
Wage Notice:What Else do I Need to Know?
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Established Feb. 27, 2012
Designed to investigate employers who perpetrate wage theft and other criminal activities against workers
Labor Commissioner designates peace officers who have power to arrest and serve processes and notices.
Labor Code § 95(a):“enforce all labor laws of state … not specifically vested in any other agency”
No civil liability for false arrest or false imprisonment if acting within scope
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Flagrant mistreatment of workers- Not innocent violators
Workers Compensation violations Wage theft Payment of wages with bounced
checks Unlicensed farm labor contractors/
Garment mfr’s Public works projects kickbacks Minor worker violations
What is CIU’s Focus?
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How does the CIU work?
1. Identify violations
2. Investigate cases
3. Prosecutable• Present package to District Attorney• Be available as an expert• Testify – proper 115 qualified• Victim support – e.g. immigration
issues, partner non-profits
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Increased enforcement efforts- August 7, 2012: Joint DLSE/DOL Inspection of
Garment Manufacturing Businesses, Downtown Los Angeles
- L.C. Julie Su is 1st L.C. recognized as Top Labor & Employment Attorney in California
Increased efforts to enforce citations Most common violations:
1. Failure to carry workers’ compensation2. Failure to pay overtime compensation
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For any questions, please contact:
Jeffrey Polsky, [email protected] Armstrong, [email protected]
Tyreen Torner, [email protected]
Thank you!