Guest guest Posted September 4, 2007 Report Share Posted September 4, 2007 Oh, and I also get a monthly newsletter froim MMC. Marty ---------- Forwarded message ----------Date: Aug 31, 2007 4:50 PM Subject: News from MMCTo: mschulman@... MMC Client E-News " Exceeding Expectations " Vol. 4, Issue 8 August 2007 In This Issue Preparing For Fall 2007 More On Independent Contractors School Is Back In Session Tips For Limiting Risks Of Internal Theft The Final Payroll Check: When Is It Due? More On Independent Contractors Discussion about what determines which workers should be classified as independent contractors continues to remain an issue that MMC, Inc. is asked to respond to. Primarily the concern is fueled by the various definitions of what constitutes independent contractor status balanced against the perception that an independent contractor classification can translate to significant employer savings. The IRS has its definition, the labor code suggests another standard, and the courts' management of the issue on a case- by-case basis can inspire the more creative among employers to engage in " employment classification roulette. " Nonetheless, the California Labor Commission has recently issued a strong deterrent to employers who err in their classification of workers as " independent contractors. " Relying on JKH Enterprises v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, the Commission cites on its website the potential liabilities that can follow with a misclassification. These include: Stop orders and penalty assessments pursuant to Labor Code section 3710.1; Liability for overtime premium, meal period pay, and other remedies available to employees under the Labor Code and Orders of the Industrial Welfare Commission; Exposure for tort liability for injuries suffered by employees when workers compensation insurance is not secured (LC section 3706); Exposure for unfair business practices (B & P section 17200); Tax liability and penalties; and Criminal liability. (LC section 3700.5) All employers are urged to be aware of this important decision and the myriad consequences of misclassification of employees including: All employers with questions regarding classification of workers, are encouraged to work closely with MMC to avoid potential problems. To read more about classification of workers, click . . . School Is Back In Session At this time of the year, many parent-employees may seek time off to help orient their school-aged children to a new school, new teacher, or new college, while others may wish to join school boards or after-school activities. These situations beg the question of what are employee rights to take time off and is an employer obligated to approve time-off requests? In many states like California, there is a public policy favoring parent- involvement in children's education. Therefore, labor laws provide parents, guardians, and grandparents with custody of primary school-aged children with a protected right to take up to 40 hours off each year from work to participate in school activities. However, there are limitations, many of them are logical. As an initial matter, protections are afforded only to employees in workplaces with 25 or more employees at one location. Secondly, leaves for parent- involvement cannot exceed more than one 8-hour period, per calendar month. Thirdly, parents and guardians must give reasonable notice prior to taking time off. In sum, planning for time off in advance is key. We at MMC wish all a happy new school year. Tips For Limiting Risks Of Internal Theft Over the years, MMC has unfortunately had to step in as " investigator " when workplace theft is suspected in our client organizations. Our experiences have taught us that certain industries like the healthcare industry and certain work environments are especially prone to workplace theft. Often times, employers like physicians are often preoccupied with the bottom-line functions of the business rather than the day-to-day management of operations. This sometimes leads to a perception that no one is truly watching the 'cookie jar.' Thus lax hiring practices, the lack of " checks and balances " for receiving cash co-pays, managing prescription pads, or protecting patient identities, can lead to theft of these items by employees. What's important to remember is not to be embarrassed by theft but to quickly institute methods to prevent theft from occurring again. It's important to know that good work environments foster trustworthy employees (among other positive benefits). Also important are the presence of known safeguards in the workplace like insurance against employee dishonest acts, assuring that multiple people are cross-trained to manage cash receipts and the inventory of valuables. Preventative steps like these not only make good sense but provide added assurances for all that theft in the workplace will not be tolerated. We at MMC know that managing workplace theft is a broad effort. To assist each of our clients with this task, we are attaching a helpful check-list for identifying whether your workplace is particularly at risk that is accessible on our website. We encourage clients to go through the check-list and to identify any problem areas that may need remedying. We are also happy to perform workplace audits or private consultations with clients on ways to address and fix concerns regarding internal theft risks. Please feel free to call upon the Human Resources and Employment & Labor Law Departments to schedule an audit or consultation today, by calling us at (800) 899-MMCI (6624). To view the check list, click here . . . The Final Payroll Check: When Is It Due? Most employers find it difficult to manage an employee's separation, whether it is voluntary or involuntary. Often, notice of the separation brings on a type of panic. Such that if work is outstanding, equipment unreturned, or if money is owed by the employee for outstanding personal loans or wages advanced the temptation to (wrongfully) withhold the final payroll check may be great. Generally, the law in this area of labor law is clear. For California employers, final wages (wages earned and any accrued vacation or paid time off benefits) are due immediately upon an involuntary separation (termination or lay-off). This means the employer should present final wages during the separating employee's exit interview or shortly thereafter. Delays can result in costly fines and Labor Commission Complaints. And any delay beyond the exit interview should be with the employee's understanding and agreement to the same. When an employee resigns and fails to provide sufficient prior notice, the employer is permitted up to 72 hours to pay final wages. But again, any necessary delays in paying the employee " immediately " should occur only with the employee's understanding and permission. Are there exceptions to these rules? Sometimes. When an employee owes monies for benefit contributions or has agreed, in writing, to permit a withholding from wages for repayment of monies advanced, withholdings may be lawful. However, employers are urged to proceed with any decision to withhold wages ever so cautiously. This is because there is a general policy against employers levying [withholding] wages due to the employer's ability to do so as a means of collecting unpaid debt. Violating this policy could result in penalties and damages being owed to the employee and his or her family. To read more about wage law, click . . . Update: DIR Invites Discussion re Meal/Rest Penalties Most likely in response to the shockwaves that the April 2007 California Supreme Court's v. Cole Productions decision has sent through the labor law community, the Department of Industrial Relations held a public forum earlier this month to discuss the state of meal and rest period law. Many may recall that the Cole case held that missed meal and rest periods constituted a penalty (rather than a wage case), which translates, for employers, to potential liability for up to three (3) years for wages unpaid for missed meals and rest periods, plus penalties. The decision decided an ongoing, long term gray-area that both the plaintiffs and defense bars bet against when resolving wage disputes. What will result from the forum as the newly appointed commissioner Bradstreet attempts to respond to growing employer concerns is unclear. For employers (and employees as well), help is needed. This is because the many employers who failed to comply with the law and did not adhere strictly to meal and rest periods risk possibly closing their doors altogether due to the potential liability that is inherent to steep penalties that can follow non-compliance. To review DIR Announcement, click . . . Update re ADA: Employees Must Prove They Are Qualified On August 23, 2007, the California Supreme Court decided Green v. State of California. In Green, the Court held that under state law and federal law, an employee who alleges discrimination on the basis of disability must first establish that he or she was a " qualified individual with a disability. " This means that the employee was capable of performing the " essential functions of a job " and was subjected to adverse employment decisions motivated by his or her disability and/or unfairly not permitted reasonable accommodation. This decision is significant in that it clarifies that both state and federal law are in alignment and impose a duty on plaintiffs to prove they were or are qualified for certain jobs, despite their disability. Prior to this decision state law was uncertain as to whether the duty rested with employers to establish that employees were not qualified for the job. To read Green v. State of California in full, click here Preparing For Fall 2007 Summertime is almost officially over. Longer days, more traffic, and increased time constraints are upon us all. Before you become overwhelmed with what's ahead before the year's end, consider some of the helpful tips included in this edition for better managing the workplace. As always, we are happy to assist clients with direct consultation. So if we have not yet responded to concerns or questions through our newsletters, never hesitate to call the Human Resources, Employment and Labor Law, Risk Management, or Benefits Departments of MMC, Inc. directly at (800) 899-MMCI (6624). History of MMC: MMC, Inc. was established in 1983 for the purpose of providing highly effective administrative and human resource functions. Our goal is to offer quality services that set the highest standards and exceed the expectations of our clients. For a list of h.r. services available to you click here . . . Quick Links... Access your account Training Videos Quick Survey More About Us email: cobrien@... phone: web: http://www.MMChr.com This email was sent to mschulman@..., by cobrien@... Instant removal with SafeUnsubscribe™ | Privacy Policy. Email Marketing by MMC | 8150 Beverly Blvd | Los Angeles | CA | 90048 Quote Link to comment Share on other sites More sharing options...
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