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Jonathan A. Siegel Partner, Orange County Office Jackson Lewis LLP (949) 885-1360 siegelj@jacksonlewis.com JONATHAN A. SIEGEL is a Partner in the Orange County, California office of Jackson Lewis LLP. In 2009, Mr. Siegel was selected as one of the Top 100 Labor Attorneys in America. In 2010, 2011, and 2012 the Society of Human Resource Management (SHRM) selected Jonathan to review and update the California SHRM certification course for California law. Mr. Siegel practices before the Equal Employment Opportunity Commission, National Labor Relations Board, state and federal agencies and courts. He also provides advice and counsel regarding labor and employment law with respect to various issues ranging from wage and hour law, reduction in force, WARN Act, discipline, leave management and harassment and discrimination issues. Mr. Siegel defends employers regarding different varieties of wrongful termination and discrimination claims. Mr. Siegel has represented management in union organizing drives and regularly defends employers in unfair labor practice proceedings as well as in collective bargaining and arbitrations. He also has extensive experience conducting wage and hour preventive audits. He conducts single location and multi-location audits for employers. The scope of such audits can range from examining specific issues, i.e., exempt status under federal law and California, to comprehensive FLSA and California Labor Code audits. Mr. Siegel has conducted audits for a wide range of industries including, but not limited to manufacturing, retail, transportation, various service industries, defense contractors and healthcare. Mr. Siegel regularly speaks on a variety of topics including wage and hour, harassment/discrimination, national and California employment trends, Workers Compensation, EEO, managing leaves of absence under FMLA and state leave laws and union avoidance. He has moderated numerous programs and is featured as a keynote speaker for several different organizations. Mr. Siegel received his Bachelor of Arts from the University of Vermont in 1992. He received his Juris Doctor degree from Hofstra University Law School in 1996. He is admitted to the California Bar and is a member of the Labor and Employment Law Section of the State Bar of California. Mr. Siegel has been recognized as a 2009 and 2010 Rising Star by Southern California Super Lawyers and currently serves on the Board of Directors for the Crystal Cove Alliance.
Andrew J. Jaramillo Of Counsel, Orange County Jackson Lewis LLP (949) 885-1360 Andrew.Jaramillo@jacksonlewis.com ANDREW J. JARAMILLO is Of Counsel in the Orange County, California office of Jackson Lewis LLP. Mr. Jaramillo represents employers in state and federal courts and in administrative agency matters. Mr. Jaramillo has extensive experience in all areas of employment litigation, including wage and hour, wrongful termination, discrimination, harassment, breach of contract and trade secret disputes. He also counsels clients on family and medical leave, disability accommodation, employee privacy and other labor and employment matters. Mr. Jaramillo is a member of the California and Orange County Bar Associations. He lectures on employment law and has authored published articles on employment law-related matters. While in law school, Mr. Jaramillo served as an Articles Editor for the Stanford Journal of Law, Business and Finance. Prior to joining Jackson Lewis LLP, Mr. Jaramillo served as Corporate Counsel for The Home Depot, where he managed employment litigation, including several complex class action suits, and various employment matters spanning thirteen states. He received a J.D. from Stanford Law School and a B.A., magna cum laude, from the University of California at Irvine. Published Works "9th Circuit: Social Workers Not Covered by FLSA s Learned Professionals Exemption", SHRM.org (5 October 2011) "NASA s Constitutional Background Checks", Law 360 24 (January 2011) "Post-War Reconstruction: Dealing With Employees Returning From Military Leave", California Labor & Employment Review, Vol. 17 Issue: 6 (December 2003)
David S. Allen Partner, Los Angeles Office Jackson Lewis LLP (213) 689-0404 allend@jacksonlewis.com DAVID S. ALLEN is a Partner in the Los Angeles, California of Jackson Lewis LLP. employment issues. Mr. Allen practices in all areas of employment-relations law and labor law, with special emphasis in mining and construction law. He has represented employers in various industries, including hospitality, health care, mining, manufacturing, and transportation; and he has extensive experience in labor contract negotiations and arbitration, and providing advice and counsel to employers on the full range of labor and Mr. Allen formerly served as the Southern California Labor Counsel for the Associated General Contractors of California. He also provides labor and employment advice and counsel for various non-profit organizations and is a member of the Board of Directors of McKinley Children's Foster Care Center. Mr. Allen is a member of the State Bar of California, and its Labor and Employment Section and is admitted to practice before the United States District Court for the Central and Northern Districts of California, and also practices before the various state and federal administrative agencies, including the NLRB, EEOC, DFEH, NLRB and state and federal OSHA. Mr. Allen has written various articles in the labor and employment area, including "Less Stress, Less Litigation," on the topic of job stress claims under workers' compensation, published in Personnel Magazine, January 1990. Mr. Allen is a frequent speaker before employer groups and associations on a variety of topics including union organizing, workplace safety, and the avoidance of management liability. Mr. Allen has appeared as a featured speaker in programs sponsored by the California Chamber of Commerce and served as a speaker for the State Bar of California and the University of California for their 1995 CEB program "Strategies for Preventing Workplace Violence and Harassment." At the 2005 Annual Meeting of the Labor and Employment Law Section of the State Bar of California, Mr. Allen was the featured speaker, presenting Do's and Don'ts and Practical Tips for Managing Employees who Use Controlled Substances" with publication of an accompanying article. Mr. Allen is listed as leading labor and employment attorney in 2010 Chambers USA Legal Guide. Mr. Allen is a graduate of the University of California, Davis, where he earned his A.B. in 1977, with Honors, and his Juris Doctor in 1981.
Jay Adams Knight Partner, Los Angeles Office Jackson Lewis LLP (213) 689-0404 knightj@jacksonlewis.com JAY ADAMS KNIGHT is a Partner in the Los Angeles, California office of Jackson Lewis LLP. Mr. Knight maintains a practice advising benefit plan sponsors, administrators, investment advisors and trustees on the creation, administration and operation of qualified and non-qualified employee benefit plans. Mr. Knight deals with defined benefit, defined contribution and welfare plans, including both tax exempt and deferred compensation arrangements under IRC 409A. He also has considerable experience with benefit issues in mergers, acquisitions and plan terminations. Advising clients and benefit plan administrators with respect to IRS and DOL audits, ERISA litigation, fiduciary obligations and benefit plan administration problems in debt restructuring is also part of his practice. Mr. Knight s clients have not only included for profit business of all sizes, but also tax exempt entities such as governmental agencies, foundations, and a number of colleges and universities. Mr. Knight has been a writer and frequent speaker on employee benefit issues and has been selected as a Best Lawyer in America by U.S. News. He is a member of the Western Pension Conference and he has also served as an Adjunct Professor at Loyola Law School. Mr. Knight is a member of the State Bar of California and received his B.A. from Claremont McKenna College, and his J.D. from UC Hastings College of Law where he served on the Moot Court Board.
Theresa M. Marchlewski Partner, Los Angeles Office Jackson Lewis LLP (213) 689-0404 marchlet@jacksonlewis.com THERESA M. MARCHLEWSKI is a Partner in the Los Angeles, California office of Jackson Lewis LLP. Ms. Marchlewski has over 25 years of experience in all phases of employment and commercial litigation both jury and non-jury in the state and federal courts, handling age, disability, gender, national origin and race discrimination, sexual harassment and wrongful termination claims. She has significant expertise in Sarbanes Oxley, ERISA and trade secret litigation, and matters involving bank operations, mortgage banking, broker dealer and commercial litigation, unfair competition and real estate. Ms. Marchlewski has significant expertise and experience in the electronic discovery process, having developed and implemented e-discovery guidelines and protocols to insure business understanding and compliance with electronic discovery obligations. Ms. Marchlewski has handled numerous wrongful termination, harassment and employment discrimination claims in the financial services, broker dealer and insurance brokerage context. She has had significant exposure in class-action and California Business & Professions Code Section 17200 claims and argued the Cortez v. Purolator Air Filtration Prods. Co., Section 17200 case before the California Supreme Court. Ms. Marchlewski has extensive experience arbitrating employment disputes pursuant to employment arbitration agreements as well as defending employers in judicial and FINRA arbitrations. She has personally handled or supervised dozens of cases before the American Arbitration Association in California and other states. She also has regularly handled both judicial and private employment dispute mediations on behalf of employers. Prior to joining Jackson Lewis in 2009, Ms. Marchlewski was an Assistant General Counsel for Washington Mutual Bank managing and overseeing the company s employment and banking litigation in the Southwest, West and Midwest. Ms. Marchlewski is a former member of the Board of Directors of the Defense Research Institute, the nation s largest defense counsel organization and past chair of its Commercial Litigation and Corporate Counsel and Commercial Litigation committees. She is a frequent lecturer at national legal education seminars on various litigation topics.
Ms. Marchlewski is a member of the California Bar and practices before state and federal agencies and state and federal courts. Ms. Marchlewski received her Bachelor of Arts in economics, magna cum laude, from the Catholic University of America in 1975. In 1978, she received her Juris Doctor from Georgetown University Law Center.
1 Harris v. City of Santa Monica 2013 Revisions to HIPAA Commission Agreements Payroll and Recordkeeping Practices Affirmative Action/OCFFP 2 2013 Jackson Lewis LLP 1
3 The Mixed-Motive Defense in employment discrimination cases Allows defendant employer to avoid monetary damages even when plaintiff has evidence of intentional discrimination Not quite a get out of jail free card, though 4 2013 Jackson Lewis LLP 2
Plaintiff Wynona Harris hired as a driver for Big Blue Bus During training / probationary period, she had two preventable accidents and some attendance problems Her employment terminated days after she informed her supervisor that she was pregnant 5 At trial, the City asked the court to instruct the jury regarding the "mixed-motives defense The trial court refused and instead instructed the jury that Harris was entitled to damages if she proved that her pregnancy was a motivating factor The jury awarded Harris $177,905 in damages 6 2013 Jackson Lewis LLP 3
Plaintiff must show that unlawful discrimination was a substantial factor motivating the termination decision Essential premise of this defense is that a legitimate reason was present and, standing alone, would have induced the employer to make the same decision Plaintiff entitled to injunctive relief and attorneys fees 7 8 2013 Jackson Lewis LLP 4
2013 HIPAA Omnibus went into effect March 26, 2013 Changes to Applicability Changes to Breach Notification Rule Changes to Privacy Rule Changes to Penalties 9 Expands the scope of HIPAA coverage to include business associates of covered entities Previously, covered entities were responsible for actions of any of their business associates by extension Now, business associates of covered entities may be directly liable for compliance with certain requirements 10 2013 Jackson Lewis LLP 5
As of September 23, 2013, the definition of business associates is now broadened as well: o Any person or entity that provides data transmission services of PHI to a Covered Entity and requires access on a routine basis to such PHI o Any subcontractor of a business associate that handles PHI o Any person or entity that maintains PHI on behalf of a Covered Entity, even if that person or entity does not access or view the PHI 11 Under the revised HIPAA regulations, Business Associates are now directly liable for: o Impermissible uses or disclosures of PHI; o Failure to provide proper breach notification to a Covered Entity; o Failure to provide appropriate access to an electronic copy of PHI to a Covered Entity, individual, or individual s representative; o Failure to disclose PHI when required by HHS to investigate the Business Associate s compliance with HIPAA; o Failure to provide an accounting of disclosures; o Failure to comply with the applicable requirements of the Security Rule. 12 2013 Jackson Lewis LLP 6
New regulations considerably alter what constitutes a breach of Protected Health Information (PHI) and whether breach notification requirements are triggered. New presumption of breach standard is a much lower standard than previous significant risk of harm standard and is likely to lead to more breach notifications from Covered Entities and their Business Associates. 13 An improper use or disclosure of PHI is presumed to be a breach unless Covered Entity or Business Associate demonstrates that there is a low probability that the protected health information has been compromised through a risk assessment of at least four factors: o The nature and extent of the PHI involved, including the types of identifiers and the likelihood of re-identification o The unauthorized person who used the PHI or to whom the disclosure was made o Whether the PHI was actually acquired or viewed o The extent to which the risk to the PHI has been mitigated 14 2013 Jackson Lewis LLP 7
Notice of Privacy Practices must: o Describe the types of uses and disclosures that require authorization under HIPAA (if the Covered Entity intends to engage in any of them); o Inform individuals that they have the right to opt out of receiving fundraising communications (if the Covered Entity uses PHI to conduct fundraising activities); o Inform individuals that they have a right to pay out-of-pocket for a service and the right to require that the Covered Entity not submit PHI to the individual s health plan if they do so; and o Inform individuals that the Covered Entity has a duty to notify affected individuals following a breach of unsecured PHI 15 o Maximum penalty of $1.5M but may exceed if multiple violations o Penalty Tiers: Tier One (Did Not Know) = $100 $50,000 Tier Two (Reasonable Cause) = $1,000 $50,000 Tier Three (Willful Neglect Corrected) = $10,000 $50,000 Tier Four (Willful Neglect Not Corrected) = $50,000 o Affirmative defense for all violations within tiers one and two if corrected within 30 days of discovery; may also be extended 16 2013 Jackson Lewis LLP 8
17 Upon hire employers must give non-exempt employees notice containing specific information ( and also during employment): 1. The rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime, as applicable; 2. Allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances; 3. Regular payday designated by the employer as required by law; 4. The name of the employer, including any doing business as names used by the employer; 5. The physical address of the employer s main office or principal place of business, and a mailing address, if different; 6. The telephone number of the employer; 7. The name, address, and telephone number of the employer s workers compensation insurance carrier; and, 8. Any other information the Labor Commissioner deems material and necessary. 18 2013 Jackson Lewis LLP 9
AB 1396 amended Labor Code 2751 and 2752 to require all employers paying commissions to provide employees a written contract specifying how commissions will be calculated and paid. o This does not include short-term productivity bonuses or bonus and profit sharing plans. AB 2675 amended 2751 to exclude temporary, variable incentive payments that increase, but do not decrease, payment under the written contract. 19 Labor Code 2751 (c) As used in this section, "commissions" has the meaning set forth in Section 204.1. "Commissions" does not include short-term productivity bonuses such as are paid to retail clerks; and it does not include bonus and profit-sharing plans, unless there has been an offer by the employer to pay a fixed percentage of sales or profits as compensation for work to be performed. (emphasis added) 20 2013 Jackson Lewis LLP 10
Employee paid by commissions Agreement must be in writing Employer must give employee a copy of the signed agreement Must obtain signed acknowledgement receipt Must include method by which commissions are calculated Must include method by which commissions will be paid 21 Labor Code 204.1 Commission wages paid to any person employed by an employer licensed as a vehicle dealer by the Department of Motor Vehicles are due and payable once during each calendar month on a day designated in advance by the employer as the regular payday. Commission wages are compensation paid to any person for services rendered in the sale of such employer's property or services and based proportionately upon the amount or value thereof. The provisions of this section shall not apply if there exists a collective bargaining agreement between the employer and his employees which provides for the date on which wages shall be paid. (emphasis added) 22 2013 Jackson Lewis LLP 11
Most Recordkeeping Laws are satisfied if you keep employment records for the duration of employment + 4 Years except: Pension and Welfare Records = 6 years First Aid Records of Job Injuries = 5 years Safety and Toxic Chemical Exposure (MSDS) = 30 years Don t forget about Lilly Ledbetter pay records issue 23 Personnel Files and Payroll Records An employee must be permitted to inspect personnel file (a copy is sufficient) at reasonable intervals upon request Can be done in the presence of HR Employee is entitled to a copy of their personnel file Employees must be allowed to review or obtain a copy of their own payroll records within 21 days of a request to do so Employer can charge for reasonable copying costs 24 2013 Jackson Lewis LLP 12
Employment Law Potpourri August 21,2013 Any deductions for items that are for the convenience of the employer Costs of uniforms (unless employer has established uniform deposit procedure which complies with CA labor Code) The costs of tools used at work (note exception to require tools of trade and 2x min wage) Financial losses due to the clients or customers not paying bills Advanced vacation time not yet accrued Damages to the employer s property by the employee or any other individual There is a conflict between the Wage Order language and the Labor Code Theft of the employer s property by the employee or other individuals 25 Assuming that paying a salary makes an employee exempt Failing to pay for all hours an employee is suffered or permitted to work Directing staff to get the job done but ignoring the time it takes to complete the task Failure to pay for pre or post shift work activities Thinking that the business is not covered by Federal law or ignoring California law Improperly applying an overtime exemption Failure to properly calculate an employee s regular rate 26 2013 Jackson Lewis LLP 13
Employment Law Potpourri August 21,2013 Treating an employee as an independent contractor Taking partial day deduction from exempt employee s salary exception intermittent FMLA leave Do not confuse with lawful practice of partial day deductions from paid leave accounts The clock rule syndrome - Auto-deduct ½ hour for meal periods; rounding up to scheduled start but deduct one minute at end if employee clocked out early Employee does work at home but the hours are not recorded, thus, not paid 27 28 2013 Jackson Lewis LLP 14
Employment Law Potpourri August 21,2013 On July 31, 2013, the Office of Federal Contract Compliance Programs (OFCCP) sent two final rules to the Office of Management and Budget (OMB) federal contractors on recruiting veterans and people with disabilities have for a final review and approval. This is the last step in the regulatory rulemaking process. Typically, final rules are under OMB review for 30 to 90 days and after that allotted period of time, the rules could be finalized and published. Employer must work with their OFCCP experts 29 The two rules would apply to companies with a direct contract (as opposed to federally-assisted contracts) or subcontract with the federal government. The rules would expand the obligations of federal contractors toward veterans and individuals with disabilities. The most controversial aspect of the disability rule is the goal of having people with disabilities make up 7 percent of those hired in every affirmative action plan job group. And there is a goal that 2 percent of people hired have severe disabilities 2013 Jackson Lewis LLP 30 15
Employment Law Potpourri August 21,2013 31 32 2013 Jackson Lewis LLP 16