1 california minority counsel program presents the dlse’s growing arsenal what every employer...

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1 California Minority Counsel Program Presents The DLSE’s Growing Arsenal What 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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Page 1: 1 California Minority Counsel Program Presents The DLSE’s Growing Arsenal What Every Employer Needs to Know About the Wage Theft Protection Act and the

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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!