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Calif. Employers Must Take Care With Overtime Exemptions, Employees Using Company Email After Work,


Calif. Employers Must Take Care With Overtime Exemptions

For those of us who work with employees in highly specialized fields, it is important to never lose track of the recurring issue of whether exempt classification of employees for overtime purposes is appropriate. While all employers should make it a practice to evaluate the classification of employment positions, employers in the professional and technical industries, such as engineers, architects and contractors, should pay close attention to whether the professional exemption correctly applies to certain skilled employees.

California employers have the burden to prove that an exemption applies, which is not always an easy one to prove. This has become particularly important when authorities, such as the U.S. Department of Labor and California Division of Labor Standards Enforcement, have been auditing firms that frequently work on prevailing wage jobs. A mistake in this area can be costly and jeopardize the firm’s ability to obtain government contracts…

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NLRB Establishes New Right For Employees To Use Company Email During Non-Working Time

On December 11, 2014, a sharply divided National Labor Relations Board (NLRB) ruled in a 3-to-2 decision that employees with access to employer email systems “in the course of their work” must, in most cases, be allowed to use that email to communicate with one another about any and all workplace issues during non-working time. Purple Communications, Inc. 361 NLRB No. 126 (2014). The decision was issued shortly before the end of Board Member Nancy J. Schiffer’s term and overruled its 2007 decision in Register Guard. Unfortunately for employers, the decision leaves many important questions unanswered and places companies squarely in the crosshairs of another NLRB regulatory quagmire. The effect of the Board’s Purple Communications decision is to make it far easier for employees to engage in union activity at work and significantly limits an employer’s right to control its property and equipment.

The Facts

Purple Communications employs video relay interpreters to provide two-way interpretations of telephone communications between deaf or hard-of-hearing individuals and hearing individuals. The interpreters at issue worked at 16 call centers, which operated on a 24/7 basis. Purple Communications established a policy prohibiting employees from using its email system except for “business purposes.” During a union organizing campaign, the Communications Workers of America filed an unfair labor practice charge with the NLRB challenging the policy. The union did not claim that Purple Communications disciplined or discharged any employee in connection with the policy. Rather, the basis of the charge was that the policy was unlawful on its face…

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Employee Or Independent Contractor? Bigger Than Immigration

As we face immigration reform, tax reform and many other big issues, it is easy to ignore an elephant in the room. For several years, government officials have warned they are cracking down. With the IRS, Labor Department and state governments cooperating like never before, the pressure to pay up is upon us. Add the pressure of aggressive start-ups like Uber and other new economy applications and you have Silicon Valley’s branding dilemma.
They stretch the branding and worker classification boundaries with thousands of “non-employees.” Add it all up and you have a perfect storm. Make no mistake, there is money at stake like never before. The worker status issue can come up almost anywhere, and not just from the government. Workers who sign contracts as independent contractors can still sue claiming they are employees. Third parties injured by an ‘independent contractor’ can sue saying he or she was really an employee so the employer is liable…

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