California Supreme Court to Consider Administrative Exemption

The California Supreme Court accepted review in Harris v. Superior court (discussed here). The Court may be doing this to clarify the extent to which California will follow federal guidance regarding exemptions from overtime. In the Harris case, the court took a narrow view of the "administrative" exemption, and expounded on who is a "production" employee (not entitled to the exemption). Stay tuned to this space (for a couple of years) and we'll find out.

IRS Standard Mileage Rate for 2008

The IRS announced the 2008 standard mileage rate: $0.505 per mile, which is $0.02 more than in 2007. The IRS is really feeling the pinch at the gas pump, eh? The IRS press release is here.

The California DLSE's enforcement position is that employers may reimburse employees' business use at the IRS standard mileage rate without running afoul of Labor Code section 2802. Remember, though, that the California Supreme Court in the Gattuso decision (discussed here) did not endorse the IRS standard mileage rate as conclusively adequate under section 2802. Therefore, if an employee wishes to track "actual" costs and seek a different reimbursement rate, that request at least must be evaluated under the statute.

Defective offer to compromise is expensive

In ENGLE v.COPENBARGER AND COPENBARGER, the Court of Appeal held that the defendant's offer to compromise under section 998 did not include the plaintiffs' attorneys' fees and costs. That is because the offer as expressed in the section 998 offer did not expressly provide fees and costs were included. So, the plaintiff was able to collect the settlement and then file for attorneys' fees and costs on top of that. They should have read my article (here)!*

DGV

* [Of course...the 998 was served a few years before I wrote the article. Don't mess with my premise. I'm marketing over here. You're also having a conversation with yourself. Can both of us bill then?]

Waiting time penalty statute of limitations

What if you settle up with an employee for all wages due, but the employee gets a lawyer to sue for waiting time penalties alone in court? Well, the court of appeal just saved you a bunch of money.

In McCoy v. Superior Court (Kimco Staffing), the employee sued for waiting time penalties after receiving all wages due. The defendant argued that the applicable limitations period for penalties was one year. The plaintiff argued that the statute of limitations is the same as the underlying wages.

The court of appeal agreed with the employer. It is important to remember, though, that if the employee had sued for unpaid wages AND waiting time, the limitations period for the penalties would have been the same as applicable to the unpaid wage claims.

So, this case is an incentive to settled undisputed wage claims. Doing so may save the employer a lot of potential penalties.

DGV

Recent Shaw Valenza Articles

I know you're asking yourselves, "What do those live wires at Shaw Valenza do when they're not practicing employment law?" We're writing! We write employment law columns bi-weekly in the Sacramento Daily Recorder, about every month in the San Francisco Daily Journal, and occasionally for other periodicals.
Some handy links to recent articles are below. Our California and U.S. Supreme Court roundups are included, as are articles about a new California leave, the continued assault on arbitration, and more! If you want these articles as they are published, rather than waiting for us to blog about them, sign up here.

CALIFORNIA’S NEW LEAVE FOR MILITARY SPOUSES
By Jennifer Brown Shaw and Carolyn G. Burnette
The Daily Recorder
20 November 2007

THE BREACH OF THE DUTY OF LOYALTY – WHAT EMPLOYERS CAN DO ABOUT IT
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
6 November 2007

USING THE STATUTORY “OFFER TO COMPROMISE” TO OBTAIN FAVORABLE SETTLEMENTS
By D. Gregory Valenza
The Daily Journal
2 November 2007

REST BREAK AND MEAL PERIOD CLAIMS AFTER MURPHY V. KENNETH COLE PRODUCTIONS
By Jennifer Brown Shaw and Matt Norfleet
The Daily Recorder
23 October 2007

OFFICE ROMANCES AND THE RISK OF LIABILITY
By Jennifer Brown Shaw
The Daily Recorder
9 October 2007

TITLE III OF THE ADA: COMPLIANCE AND LITIGATION STRATEGIES
By Jennifer Brown Shaw
The Daily Recorder
27 September 2007

UNDERMINING ARBITRATION
By D. Gregory Valenza
The Daily Journal
21 September 2007

CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS 2006-2007
By Jennifer Brown Shaw
The Daily Recorder
5 September 2007

EMPLOYER-SPONSORED WELLNESS PROGRAMS AND EMPLOYMENT LAW
By Jennifer Brown Shaw and Becki Graham
The Daily Recorder
14 August 2007

WAGE AND HOUR LAWS REDUX
By D. Gregory Valenza
The Daily Journal
10 August 2007

EMPLOYMENT LAWSUITS AGAINST INDIVIDUALS
By Jennifer Brown Shaw and Carolyn Burnette
The Daily Recorder
31 July 2007

AVOIDING WAGE-AND-HOUR RISKS
By D. Gregory Valenza
The Daily Journal
27 July 2007

UNITED STATES SUPREME COURT EMPLOYMENT LAW DECISIONS 2006-2007
By Jennifer Brown Shaw
The Daily Recorder
18 July 2007

FREE SPEECH AND ENGLISH-ONLY POLICIES IN THE WORKPLACE
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2 July 2007

DGV

Poetry for Entrepreneurs: Love My Startup More than You

Some of you may know that I moved to Silicon Valley recently.

Although i've engaged in some startup activity here, alot of what i've been doing is watching and observing. Being a writer, this naturally made me want to put down a few words about what i'm seeing about the state of entrepreneurship in the valley. Oddly enough I found the best way to comment on life here is through poetry (don't ask me why - I've never written much poetry before).

This poem, "Love My Startup More Than You" is about love and hope and the life of an entrepreneur. It’s about relationships and how they’re put on hold sometimes in the early days of a startup.

It came from watching the way that my married friends were involved in starting companies. It’s not unusual here for someone to have a full time job, and be working nights and weekends for their own (or some friend’s) startup, which alas doesn’t leave a lot of time for romance.
This poem is based on an old army marching tune from World War I - a time when young men ere leaving their girlfriends behind to go to fight in Europe. The original started "Cindy Cindy Cindy Lou, Love My Rifle More Than You”.

I’ve changed Cindy Lou to be Cindy Lu, in honor of the large Asian population in Silicon Valley. And of course i've changed "Rifle" to "Startup". ere it is:


Love My Startup More Than You
by Rizwan Virk

Cindy Lu, Cindy Lu
You know that my heart is true

But my Idea is very new
And we’ll make a million dollars
If only I can prove
That the market is true!

Cindy Lu Cindy Lu
Soon I’ll be home
And put my arms around you
....
But first
I’m being shown
Design specs I must review!

The beta downloads are a jumping
But so are the bugs that need a thumping!

Please let me know
When the baby is asleep
Then I can show
You how we'll avoid feature creep!

Towards you my sweetheart I’ll always feel
A never ending attraction
But right now what I really need to show
Is more customer traction!

Cindy Lu, Cindy Lu
Don’t look at me that way,
You’ll worry yourself blue!

Once we raise our series A
Our mortgage will be easy to pay!

And if the company gets in a bind,
My investors will help me find
Some folks that are keen
To assemble a management team
And we’ll be on our way
To making lots of green!

So please don’t think that I’m mean
When I say:

Cindy Lu, Cindy Lu
You know my heart is true,
But just right now,
I love my startup
More than you!

Shaw Valenza's Annual Legal Update 12/3 and 4

Come see us in person at our annual employment law update. The presentations are on December 3 in Sacramento and December 4 in San Francisco. See the new statutes. Hear about recent case law developments. Touch and actually consume a continental breakfast.

You'll laugh. You'll cry. It's better than Cats! OK, it's more informative than Cats.

Sign up here.

Greg

New I-9 Form

The U.S. Department of Homeland Security has issued a new I-9 Form.
The form itself is largely unchanged. The main revision is to the list of acceptable employment authorization documents. The old form, which was issued in 1991, did not contain all of the acceptable documents.
Don't make too many copies. This form is set to expire in 2008, when the Department may issue an even newer version.

Greg

California Supreme Court on Reimbursement of Expenses under Labor Code section 2802

In California, employers must reimburse employees for "reasonably incurred" business expenses. Labor Code section 2802 so provides.

Typically, employers reimburse employees for actual expenses on a dollar for dollar basis: a business meal, a hotel stay, air fare, etc. When an expense is hard to measure (such as business use of an automobile), employers can approximate the expense by paying the employee an amount per mile driven on business. The IRS mileage reimbursement rate, currently $0.485, is one way of estimating the cost / mile. Of note, the DLSE likes the IRS rate, but no law requires employers to follow it. Conversely, employees may claim automobile expenses above the IRS rate if they can prove they are entitled to them.

Harte-Hanks Shopper, Inc. chose another method. Harte-Hanks would pay employees a higher rate of pay that was intended to "cover" expenses. Frank Gattuso brought a class action challenging that policy.

The Supreme Court decided that employers may pay extra wages to employees to cover reimbursable expenses, but they must be accounted for so the employee can determine whether he or she is receiving full reimbursement, and so that taxing authorities can distinguish between reimbursed expenses and wages.

Caution: This opinion is not a license to under pay employees a lump sum that does not fully compensate them for expenses. The employee may challenge the reimbursement amount as insufficient before the Labor Commissioner or in court. Instead, the opinion is helpful because it does not bind the employer to a specific method of reimbursement.

The case is Gattuso v. Harte-Hank Shopper, Inc. The opinion is here.