Change Afoot: New Federal Overtime Rules Taking Effect in December

With all of the new employment laws coming along, it is good to stay on top of changes that are happening.  One of the big changes coming at the Federal level is regarding overtime pay.  Last week the Department of Labor announced final regulations on overtime pay.  This regulation will go into effect December 1, 2016.  As an employer, all exempt positions that are paying less than $913 per week should be reviewed and possibly reclassified as hourly positions.  With hourly positions employers need to be aware of requirements for unpaid meal and rest breaks and tracking of hours.

For more complete information about this, please refer to this update prepared by Attorney Barbara Cotter of Cook Brown LLP, an employment law firm here in Sacramento.

Two new employment laws in effect in California

With the new year brings new employment laws.  Recently I attended the Cook Brown LLP law firm's legislative update where they discussed two new updates effective in 2015.  Cook Brown LLP Partner Barbara Cotter gave me a quick summary of these below:

Governor Brown signed two pieces of legislation last year that will have a major impact on nearly all California employers.  One deals with the common use of temporary agency or staffing agency employees.  The other deals with paid sick leave.  The first law, now found at Labor Code Section 2810.3,  provides that an employer who obtains workers from a staffing or temporary agency will be held responsible for all wages and worker’s compensation coverage due those workers, even if they are formally hired, supervised and paid by the agency.   This dramatically changes the risk of hiring temporary workers.  Previously, an employer could only be held responsible for agency employees where the employer actually controlled the work performed by the employees and provided hands-on instruction on how the work was to be accomplished.  This new law totally supersedes those prior rules.  Now, an employer can be held strictly responsible even if the employer has never met the staffing agency employees, never dealt with them directly and does  not dictate how they perform the work.  Two key exceptions apply however:  In order to be subject to this law, the employer must have at least 25 workers (including those supplied by the agency); and must utilize more than five agency workers.  This law is effective January 1, 2015.

The second law, known as the “Healthy Workplaces, Healthy Families Act of 2014,” requires that on July 1, 2015, an employee who works for thirty or more days for an employer is entitled to paid sick days to be accrued at a rate of no less than one hour for every thirty hours worked.  An employee is entitled to use sick pay after on or after the ninetieth day of employment.  The sick pay can be capped at three days per year.  Limited exceptions apply to employees subject to collective bargaining agreements and in certain industries, such as in-home care.  The employer must provide a report on the sick pay accrued and used, along with the employee’s paystub.  Employers are required to post a notice of this new law.  The Department of Industrial Relations has published a sample notice on its website at www.dir.ca.gov.

Healthy Workplaces/Healthy Families Act of 2014: Paid Sick Leave

Last week I attended Cook Brown, LLP's employment law seminar about employment law changes coming up in 2015.  One big change for employers is the new law requiring paid sick leave for all employees.  To learn more about this legislature, and what it may mean to your business, visit the legal brief here.

Starting at the beginning of next year, make sure you have this poster displayed where employees can easily read it.  

Breakfast Seminar: Ten Steps to Navigate the Muddy Waters of the Affordable Care Act

For those of you looking for information on how to respond to the Affordable Care Act, this could be a very informative seminar to attend. Barbara Cotter of Sacramento law firm Cook Brown will be presenting a step by step guide for employers.  If you can make it, I'll see you there.

Ten Steps to Navigate the

of the

Affordable Care Act

A Sacramento Breakfast Forum Presented by Attorney Barbara Cotter

Employers are increasingly uncertain about the Affordable Care Act (ACA) and its numerous obligations.   With California's insurance exchange set to open October 1, 2013, now is the ideal time to address those concerns.  Cook Brown has prepared a step by step guide to help employers master the nation's new insurance requirements.   This forum will highlight critical deadlines and provide concrete compliance tips for employers, supervisors, and HR staff.     

WHEN:     Thursday, September 26, 2013

                   8:30 a.m. - 9:00 a.m.  

           (Registration & Continental Breakfast)

                   9:00 a.m. - 10:15 a.m.  

(Program)

WHERE:  The Firehouse Restaurant

                  1112 2nd Street

                  (Old) Sacramento, CA 95814
                  Telephone: (916) 442-4772

Click Here To Register

WineTalent's Upcoming Webinar: WAGES & WINE: Making sure your blend of pay practices complies with California law.

Next week WineTalent will be teaming up with Attorney Barbara Cotter, Partner of the employment law firm Cook Brown LLP to present a webinar about pay practices in the wine industry.  We will be presenting an overview of roles in the wine industry, discussing classifications of employment (salary, hourly, executive, management, consultant, contractor) and providing some case studies from real world situations.  If you are hiring or managing employees or consultants in the wine industry this webinar will provide you with useful information.  Stay on top of employment issues and up to date on new legislation.  We will also be having a question and answer session at the end in case you have specific issues you need addressed.    I hope you can join us.

WAGES & WINE: Making sure your blend of pay practices complies with California law.

Join us for a webinar on May 15, 2013 at 9:00 AM PDT.

Register now!  https://attendee.gotowebinar.com/register/655674317569408512

COOK BROWN LLP TEAMS UP WITH WINETALENT FOR A "RATE YOUR PAY PRACTICES" WEBINAR

Attorney and Cook Brown LLP partner Barbara Cotter teams up with wine industry recruiter and WineTalent President Amy Gardner in discussing compensation issues confronting the wine industry employer. Attendees will be provided with a convenient checklist, a primer on wage and hour law for the wine industry, and a common sense guide that will answer a multitude of questions such as:

1. How do you classify employees correctly under California law?
2. What happens to an employer when an employee is misclassified?
3. What constitutes a salaried position? An hourly position?

After registering, you will receive a confirmation email containing information about joining the webinar.

Avoid the Taxman

Consulting in the wine industry? Thinking about it? Well, be smart and make sure you are a true consultant in the eyes of the IRS.

When you are making a career change, or in between traditional jobs it is natural to think about consulting. It's easy to put out your own shingle and say you're a consultant. But before you venture too far into consulting, make sure you are handling your business correctly.

Companies use consultants in various areas. Wineries use consultants for winemaking, vineyard management, marketing, sales and many other areas. There are many opportunities for a skilled professional to carve out a healthy occupation being a consultant. Companies use consultants frequently to handle areas that they feel need special attention. If a winery owner doesn't know the ins and outs of a particular subject, they will hire a consultant to provide them with the information and often to provide a solution for a problem. While wineries do hire many regular, full time employees for the majority of their positions, hiring a consultant allows them some flexibility.

Okay, so you want to consult, and a winery needs you. To protect yourself and the winery from any potential IRS problems, here are some guidelines to manage your business. The IRS offers an online 12 point checklist for you to review that a client can use to make sure they are hiring a consultant. A consultant is a business person who is responsible for their own business, taxes and marketing. A winery does not have any responsibility to a consultant other than that outlined in a consulting agreement. The general rule of thumb is that a person is an independent consultant if the hiring company has the right to control or direct only the result of the work, not what the work is to be done or how the work will be done.

The basic items the IRS checklist covers are:

• Behavioral Control: An independent consultant is not directed and controlled by the client. The client can only direct and control the work.
• Financial control: As a contractor, you have a financial stake in the work, and will incur expenses that the client does not need to reimburse for. Also, if you can show a profit or incur a loss you are more likely to be an independt contractor.
• Relationship of the Parties: As a contractor, you need to seperate your company as much as possible from your client company. You must maintain your own benefits, insurance and business. You are not an employee, and so you aren't entitled to the same benefits an employee is.

Why is this important? First of all you want to make sure you are handling your taxes correctly. Second, there have been rulings in the past where independent consultants did not meet these requirements, and were eligible to receive the benefits of a regular employee. Microsoft and several other large companies were found to be misclassifying regular employees as independent consultants. These were landmark rulings, and have caused independent consultants to come under scrutiny with the IRS. Clients can be leery of hiring an independent consultant. To see if you can really call yourself an independent consultant, employment lawyers have a 20 question checklist that you can review:

For the following questions, a "yes" answer means the worker is an employee.
1. Does the principal provide instructions to the worker about when, where, and how he or she is to perform the work?
2. Does the principal provide training to the worker?
3. Are the services provided by the worker integrated into the principal's business operations?
4. Must the services be rendered personally by the worker?
5. Does the principal hire, supervise and pay assistants to the worker?
6. Is there a continuing relationship between the principal and the worker?
7. Does the principal set the work hours and schedule?
8. Does the worker devote substantially full time to the business of the principal?
9. Is the work performed on the principal's premises?
10. Is the worker required to perform the services in an order or sequence set by the principal?
11. Is the worker required to submit oral or written reports to the principal?
12. Is the worker paid by the hour, week, or month?
13. Does the principal have the right to discharge the worker at will?
14. Can the worker terminate his or her relationship with the principal any time he or she wishes without incurring liability to the principal?
15. Does the principal pay the business or traveling expenses of the worker?

For the following questions, a "yes" answer means the worker is an independent contractor.
16. Does the worker furnish significant tools, materials and equipment?
17. Does the worker have a significant investment in facilities?
18. Can the worker realize a profit or loss as a result of his or her services?
19. Does the worker provide services for more than one firm at a time?
20. Does the worker make his or her services available to the general public?
(from TaxProphet.com, http://www.taxprophet.com/apps/active2/indep-mm.html).

I know it is a lot to review, but it is good to know what is required, so that you can call yourself a true consultant. I am not a lawyer, but think the information is helpful. Let me know if I'm on or off base.

Do One Thing Everyday That Scares You

From Baz Luhrman's song "Sunscreen" he advises the class of '97 to Wear Sunscreen. With global warming, this is a great bit of advice. Another piece of advice he relates is to "Do one thing everyday that scares you". For the complete song, click here:

BAZ LUHRMANN lyrics

I've just finished up my PowerPoint presentation for the upcoming Vineyard and Winery Management Seminar for Managing the Winery Laboratory. Why am I presenting at a laboratory meeting. Because I secretly love public speaking and know that seminars are in need of industry specialists. My presentation deals with employment law for lab managers, and hopefully will be a bit more fun than a law seminar. I'm already getting butterflies in my stomach, imagining the room I'll be presenting in, thinking about where I might mess up---and the meeting is 3 weeks away.

Why do I do something that scares me? Because I need to push myself constantly to try new things, ask the delicate questions that need to be asked, introduce myself to a new company or call an industry heavyweight. From my past experiences, going that extra distance and pushing the envelope has paid off. I've had great life experiences, found out the true reason behind a looming issue, met new clients and learned from some great wine insiders. If I hadn't done something that scared me, I'd most likely be sitting in a cubicle somewhere in a job I hated.

So, my advice to you, class of 2007 is to Wear Sunscreen--and a hat if you're out in the sun for a long time. And do something everyday that scares you. The initial fright is well worth the pay off.

Big Brother is watching, and reading your work email

Did you see a posting for a great job and you want to send your resume? My words of advice are, don't send an email from your current employer's system.

As a job hunter, you want to respond quickly to job postings. Many of us are on our emails first thing when we get to work, and check it regularly throughout the day. Friends send us jokes, family checks in with us, and colleagues shoot out quick messages that need our attention. It's easy to forget that the email system is legally the company's property.

A company has the legal right at anytime to review an employee's emails. Another fact is that email is a written document that can be used in a court of law. So, when you send off your resume to the competition for a job and your employer finds out they can terminate your employment based on improper use of company equipment and systems.

That email you sent with your resume had better be a good one if it means losing your job.

So, when looking for a job, only use personal email accounts for correspondence. Personal email accounts are confidential and cannot be searched by your employer. I also recommend not looking for a job on the company internet because your website visits can also be tracked by your employer.

Having your own email account is simple, and probably takes as long as 3 minutes to set up. I recommend anyone who is actively looking for a job to set up a gmail, hotmail or yahoo account immediately. These email accounts are free for the bare bones features, but all you truly need is an email address where companies can contact you.

So send off those resumes and contact hiring managers or human resource managers all you want through your personal email address. And remember to check your email daily to make sure you are on top of any messages you might have.

Oh, and a personal cell phone or voicemail system is a high priority. Just remember to keep your message professional.