California Minority Counsel Program Presents The DLSE’s Growing Arsenal What Every Employer Needs to Know About the Wage Theft Protection Act and the DLSE’s Criminal Investigation Unit PANELISTS: Elliot S. Beckelman Attorney and Member of Criminal Investigation Unit California DLSE Jeffrey D. Polsky Partner Fox Rothschild LLP Shannon Walpole Corporate Counsel, Director Employment Law Ross Stores, Inc. Moderated by Cristina Armstrong, Associate, Fox Rothschild LLP 1 Panelist Elliot Beckelman,DLSE Elliot S. Beckelman currently advises DLSE’s newly formed Criminal Investigation Unit, and litigates a full range of civil actions. Previously, he was a San Francisco Assistant District Attorney from 1995 to 2010. As an Assistant DA, he tried numerous felony jury trials including homicide, gangs, narcotics, elder abuse, and general felonies (which included all crimes of theft), served as Managing Attorney of the Sex Crimes and Career Criminal units, headed the task force on the investigation of child sexual abuse allegations within the S.F. Archdiocese, and was cocounsel of a year-long DNA admissibility hearing which led to the acceptance of DNA technology in San Francisco courts. He is coauthor of two chapters in the CEB publication (2012), Scientific Evidence in California Criminal Case. In 1995, he partnered with the law firm of Leonard Carder in a class action against The Mitchell Brothers Theatre for misclassifying their exotic dancers as independent contractors. He also served as in-house counsel for San Francisco’s largest private union, Hotel Employees & Restaurant Employee’s Union, Local 2. 2 Panelist Jeffrey Polsky, Fox Rothschild Jeff focuses his practice on business and employment litigation and counseling. He represents clients in disputes relating to claims of discrimination and harassment, trade secret violations, wage and hour compliance, wrongful discharge, and breach of contract. Recognizing the risk and expense inherent in litigation, Jeff has extensive experience in alternative methods of resolving disputes, including mediation. In addition to his litigation practice, Jeff advises and counsels employers on a wide range of employment law issues, including reorganizations, terminations, corrective actions, developing policies, investigating misconduct and accommodating disabilities. Jeff also represents employers in collective bargaining, arbitrations, and National Labor Relations Board proceedings. Prior to joining the firm, Jeff was a partner with Kauff McClain & McGuire LLP in San Francisco, CA, where he practiced for nearly 20 years. Jeff earned an A.B. at the University of California, Berkeley, and a J.D. from the University of California, Hastings College of the Law. 3 Panelist Shannon Walpole, Ross Stores, Inc. Shannon Walpole has been the Director of Employment Law at Ross Stores, Inc., based in Pleasanton, California, since 2010. In her position, among other things, Shannon has been responsible for helping Ross comply with the California Wage Theft Protection Act requirements in California. Prior to joining Ross, Shannon was General Counsel for the Golden Rain Foundation of Walnut Creek. She began her legal career as an associate at Littler Mendelson, P.C. Shannon earned her B.A. in Political Science from the University of California at Santa Barbara and her J.D. from Santa Clara University School of Law. 4 What Will We Cover? Wage Theft Protection Act’s Wage & Hour Notice to New Employees DLSE’s Criminal Investigation Unit 5 Written Wage & Hour Notice: Labor Code § 2810.5 (1/1/12) 1. At the time of hiring, an employer shall provide each employee a written notice, in the language the employer normally uses to communicate employment-related information to the employee, basic employment information 2. Labor Commissioner must have a template 3. Employer shall notify employees in writing of any changes to the information within 7 calendar days of the changes 6 Wage Notice: What Must I Include? 1. All rates & basis (hourly, shift, daily, weekly, salary, commission, etc.) of pay, including OT rates 2. Minimum wage allowances, if any, including meal and lodging allowances 3. Regular payday 4. Employer’s Legal Name, incl. “dba” names 7 Wage Notice: What Must I Include? 5. Physical and mailing address of employer’s main office/principal place of business 6. Employer’s phone number 7. Contact info of employer’s W/C insurance carrier 8. Any other info Labor Commissioner deems material or necessary 8 What does the DLSE Require as “Material & Necessary?” Information re staffing agency Information re written agreements to providing the rate - No longer have to try to respond to whether Employment Agreement is Oral or Written 9 Who Must Provide Wage Notices? All employers who “engage another . . . to do something for the benefit of the employer or a third person” in California. Best Practices: - Any employer that has employees in California should provide notice to California employees Any employer in California should provide notice to all employees Including: - Private employers Private schools Non-profit corporations (CMCP) Private sub-contractors 10 Who Must Provide Wage Notices? Exceptions: Public employees Exempt employees Most employees covered by collective bargaining agreements 11 When Must the Notice be Given? At the time of hiring - Hiring date vs. start date - No later than the start date Best Practice: Give the Notice to existing employees if you haven’t already. 12 Do I have to Update the Notice? Employers must notify employees in writing of any changes to the info in the Notice within 7 calendar days of the change Unless: - All changes are reflected in timely wage statement - Employer provides notice of changes in another writing required by law w/in 7 days 13 What if my Employees Speak Different Languages? Notice must be given in language normally used to communicate employment-related information Labor Commissioner has templates in six languages: 1. English 4. Korean 2. Vietnamese 5. Tagalog 3. Chinese 6. Spanish 14 What Wage Notice Records Must I Maintain? Record of Notices provided - Can be electronic Best Practices: - Acknowledgement of Receipt - But cannot require employees to sign Acknowledgement Maintain Acknowledgement for 4 years after termination 15 Wage Notice: What Else do I Need to Know? DLSE templates and FAQs: http://www.dir.ca.gov/dlse/FAQsNoticeToEmployee.html Not necessary to use template, but Notice must contain all info in DLSE’s template If you prepare your own Notice form, it must be a free standing form 16 Established Feb. 27, 2012 Designed to investigate employers who perpetrate wage theft and other criminal activities against workers Labor Commissioner designates peace officers who have power to arrest and serve processes and notices. Labor Code § 95(a):“enforce all labor laws of state … not specifically vested in any other agency” No civil liability for false arrest or false imprisonment if acting within scope 17 What is CIU’s Focus? Flagrant mistreatment of workers - Not innocent violators Workers Compensation violations Wage theft Payment of wages with bounced checks Unlicensed farm labor contractors/ Garment mfr’s Public works projects kickbacks Minor worker violations 18 How does the CIU work? 1. Identify violations 2. Investigate cases 3. Prosecutable • Present package to District Attorney • Be available as an expert • Testify – proper 115 qualified • Victim support – e.g. immigration issues, partner non-profits 19 Increased enforcement efforts August 7, 2012: Joint DLSE/DOL Inspection of Garment Manufacturing Businesses, Downtown Los Angeles L.C. Julie Su is 1st L.C. recognized as Top Labor & Employment Attorney in California Increased efforts to enforce citations Most common violations: 1. Failure to carry workers’ compensation 2. Failure to pay overtime compensation 20 Thank you! For any questions, please contact: Jeffrey Polsky, jpolsky@foxrothschild.com Cristina Armstrong, carmstrong@foxrothschild.com Tyreen Torner, ttorner@foxrothschild.com 21