Rounding is the practice of capturing time entries on a time clock and converting them to the closest five, ten, or fifteen minute equivalent. For example, both entries at 8:58 and 9:04 may be converted to 9:00 a.m. A recent California Court of Appeal decision, Camp v. Home Depot U.S.A., Inc., calls into question the continued viability of time-rounding policies in California. In 2012, the Court of Appeal held in See’s Candy Shops, Inc. v. Superior Court, 210 Cal. App. 4th 889 (2012), that an employer’s time rounding policy is lawful under California law when the policy is “fair and neutral on its face” and is used in a way that will not result, over a period of time, “in failure to compensate the employees properly for all the time they have actually worked.” As generally applied, the See’s Candy test permitted time clock rounding systems so long as the rounding was to the nearest set increment as opposed to always rounding against the employee. Multiple appellate decisions after See’s Candy cited it favorably in granting summary judgment to the employer.

Continue Reading California Court of Appeal Limits the Permissibility of Time Rounding

The Bill

The Expansion of California Family Rights Act, AB 1041, was signed into law by Governor Newsom on September 29, 2022. AB 1041 expands the class of people for whom an employee may take leave to care for under the California Family Rights Act (“CFRA”) to include a “designated person.” AB 1041 also expands the term “family member” under the Healthy Workplaces, Healthy Families Act (“HWHFA”), which governs paid sick day leave, to include “designated person.”

Continue Reading Who Is a “Designated Person”? Changes to California’s Medical Leave

The United States Supreme Court is currently considering two cases concerning whether race-conscious admissions programs are permissible under federal law. While these cases are limited to the relatively narrow universe of college admissions, the Court’s decision may be instructive to private employers and will likely have implications beyond the classroom.

Continue Reading Could the Supreme Court’s Decision in the Harvard and UNC Cases Indirectly Affect Corporate Diversity Initiatives?

President Joe Biden signed into law the Inflation Reduction Act of 2022 (“HR 5376”) (the “IRA” or the “Act”), on August 16, 2022.

There are numerous tax credits in the legislation that intend to facilitate access to clean energy. For the most part, these credits are available to energy producers or to support the construction or alteration of facilities to include energy efficient components. For example, the Act substantially changes and expands existing federal income tax benefits for renewable energy, including the existing Section 45 of the Internal Revenue Code production tax credit (“PTC”) and Section 48 of the Internal Revenue Code investment tax credit (“ITC”). Specifically, the Act replaced the renewable energy credit regime with a two-tiered system that would provide a “base” credit equal to 20% of the maximum credit and an “increased” credit equal to an additional 80% of the maximum credit that would be available only if certain prevailing wage and apprenticeship requirements are satisfied in connection with the relevant project.

Continue Reading Inflation Reduction Act: Wage and Apprenticeship Requirements

As economists argue whether a recession is on the horizon, some employers may begin to prepare to cut expenditures, including through a reduction in force. While not necessary under most state laws, many employers opt to provide severance to employees they choose to lay off. This severance is usually provided by way of a separation agreement in exchange for the employee’s agreement not to bring certain claims against the employer, among other things. As employers begin determining whether they will undergo a reduction in force, they should ensure their separation agreements adhere to applicable state laws.

Continue Reading Considering a Reduction in Force? Time to Revise Your Separation Agreement Template

On October 31, 2022, Jennifer Abruzzo, the NLRB’s General Counsel (GC), released a memorandum regarding employer use of electronic surveillance and automated management, and its potential interference with employees’ ability to confidentially engage in protected activity under Section 7 of the Act. Opining that “[a]n issue of particular concern to me is the potential for omnipresent surveillance and other algorithmic-management tools to interfere with the exercise of Section 7 rights by significantly impairing or negating employees’ ability to engage in protected activity and keep that activity confidential from their employer, if they so choose,” the GC signaled an increased scrutiny of certain surveillance methods utilized by employers and further urged the Board to protect employees from intrusive electronic monitoring “and automated management practices that would have a tendency to interfere with Section 7 rights” by “zealously” enforcing existing law and by proactively applying settled labor-law principles in a “new way.”

Continue Reading Caught on Video No More? NLRB General Counsel Releases Memo Urging Board to Curtail Employer Use of a Variety of Surveillance Technologies in Workplace

On October 24, 2022, the Ninth Circuit Court of Appeals issued a decision in Cadena v. Customer Connex LLC, concerning whether the time employees spend booting up and shutting down their computers is compensable under the Fair Labor Standards Act (“FLSA”). Although the case arose out of a call center in Las Vegas, Nevada, where the employees’ principal duties included answering customer phone calls, this case may affect all employers whose employees spend time turning on their computers to work.

Continue Reading Time Spent Booting Up Computers May Be Compensable Under the Fair Labor Standards Act

On October 13, 2022, the U.S. Department of Labor (“DOL”) published its proposed rule regarding the classification of employees and independent contractors under the Fair Labor Standards Act (“FLSA”) in an attempt to resolve inconsistent analyses amongst the Federal Courts of Appeals. The proposed rule would return to a totality-of-the-circumstances analysis of the “Economic Reality Test” (with a few modifications), which would have the effect of making it more difficult to classify workers as independent contractors.

Continue Reading The Haunting Return of the Economic Reality Test: U.S. Department of Labor Proposes Resurrecting the Pre-Trump Era Employee/Independent Contractor Test

In February 2022, California enacted Senate Bill (“SB”) 114, which created California Labor Code section 248.6 to provide COVID-19 Supplemental Paid Sick Leave (“CSPSL”) to covered employees. CSPSL was due to expire on September 30, 2022. On September 29, 2022, Governor Gavin Newsom signed Assembly Bill (“AB”) 152, which (1) extends CSPSL through December 31, 2022, (2) provides employers the ability to require an additional diagnostic test before employees use CSPSL in certain circumstances, and (3) creates a grant program to assist qualified small business and nonprofits with grants for costs incurred for CSPSL provided in 2022.

Continue Reading California Immediately Expands COVID-19 Supplemental Paid Sick Leave Through 2022

The Department of Homeland Security (“DHS”) announced on October 11 that employers should continue to use the current I-9 form after the October 31, 2022, expiration date.

Continue Reading DHS Announces That Employers Should Continue to Use the Current I-9 Form After the Oct 31, 2022, Expiration

The constant fluctuations in precedent at the National Labor Relations Board (“NLRB” or the “Board”) continue as the Board overrules another case decided under the Trump Administration. This time the NLRB has set its sights on the collection of union dues following the expiration of a collective bargaining agreement. On October 3, 2022, the Board issued its decision in Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center and Local Joint Executive Board of Las Vegas (available here) overruling the 2019 case of the same name.

Continue Reading NLRB Revisits Union Dues Checkoff Rule