If you are an “App User,” the U.S. Department of labor launched its first smartphone application – the DOL-Timesheet that may be useful to you in tracking your hours worked. This timesheet application, which is available in English and Spanish versions, provides a record keeping system that enables you to keep track of your work hours and determine the wages your employer owes you.

Users can track regular work hours, break time, and overtime hours. Users can also add notes or comments (project name, work site, etc) and view summaries of their work time (and wages owed) in daily, weekly, and monthly formats. Even better? You can email the summary as an attachment to ensure your record – and your paycheck – is accurate.

This application is a huge boon to employees who no longer have to rely on their employer’s records. In the event of a wage and hour dispute, the employee’s records could assist in winning a wage claim, particularly where the employer has failed to maintain accurate records as required by law.

If you do not have a smartphone, you can download a timesheet calendar that will help you maintain the same information. Both  can be downloaded from the DOL’s Wage and Hour Division homepage.

In California, it is unlawful for an employer to terminate you because you suffer from a disability. What happens when you have been injured and attempt to return to work? Many employers offer light duty assignments to employees who are temporarily unable to perform the essential duties of their positions, some do not. While there is no hard and fast rule that an employer must offer permanent light duty, a recent decision gives hope to those who seek to remain productive members of the workforce following an injury.

In Cuiellette v. City of Los Angeles, a California court found an employer liable for disability discrimination because it failed to provide an employee with a 100% disability rating a permanent light duty assignment.  It is significant to note that the employer had available (and permanent) light duty positions and routinely made use of those positions to accommodate injured employees.  The employer argued that it had never provided a permanent light duty position to an employee with a workers’ compensation rating of 100%. The court dismissed the employer’s argument, reasoning that a workers’ compensation disability rating does not absolve the employer of the obligation to engage in the interactive process and determine whether the employee can perform the essential functions of an open alternative position.  The employer’s decision to
rely on the workers’ compensation disability rating (and the advice of a third party workers’ compensation administrator to terminate the employee) was wrong and supported a finding for violation of the law.

The Cuiellette decision makes clear that the legal parameters of Workers’ Compensation and the Fair Employment and Housing Act, or FEHA. Your legal rights under those two systems are different and your employer’s legal obligations are not the same, nor do they always coincide.  If you have been injured and are returning to work with restrictions, you owe it to yourself to be aware of your legal rights. Fighting disability discrimination is a passion of our law firm. We are here to help.

If you are an employer faced with the decision of accommodating a disabled employee, you should  focus on the employee’s actual restrictions in relation to the essential functions of the employee’s existing position and/or open alternative positions. If you have a number of facilities or locations, the required decision-making process may
dictate that you look outside the original facility where the employee worked before making an offer of accommodation or denying accommodation.  The process of returning a previously injured employee to work is a complicated one that presents traps for the unwary. Give us a call if you have any questions.

A recent California Appellate decision expanded the definition of “commissions” and found that no overtime was owed to a car salesperson, despite the long hours she worked. In Areso v. CarMax, Inc., the Court held that CarMax’s commission plan qualified as “commission wages” under Labor Code section 204.1, for purposes of the exemption, because it pays a uniform or standard amount to each salesperson for each vehicle sold, regardless of price.

Are you a commissioned salesperson? Are you owed overtime? The Areso case may be of interest to you. If you have any questions regarding this case, or a possible claim, give us a call. A summary of the case follows:

Areso was a car salesperson for CarMax, Inc. She filed a putative class action lawsuit, alleging misclassification and failure to pay overtime wages. Under the law, an employer’s commission plan must be “based proportionately on the amount or value” of the sale of the employer’s property or services.  CarMax won on a motion for summary judgment because the Court found that its compensation arrangement is a “performance-based incentive system and thus fairly understood to be a
commission structure” based on the statutory language that commissions may be based on the “amount” rather than “value” of vehicles sold, where the “amount” is
interpreted to mean the number of vehicles sold.

To qualify for the commissioned salesperson exemption, the employee: (1) must be involved principally in selling a product or service (not making a product or rendering a service); and (2) the amount of their compensation must be based proportionately on the amount or value of the product or service.  However, the Areso Court distinguished this case from other cases where the employer’s commission plan was held not to constitute commission wages because those cases interpreted whether the commissions were based on the “value” of the product or service.

The Court also noted no other court has construed the word “amount” in the statute, and that CarMax’s payment of a standard amount of earnings for each vehicle sold satisfies the statutory requirement. The Court found that a standard – or uniform, fee for each vehicle satisfies the law and is “proportionate” because it is a one-to-one proportion based on the number of vehicles sold.

While this case appears good for employers who pay salespersons by commissions, there are strict requirements before the compensation plan will pass muster and qualify under the law. The case is also a relatively new interpretation of law and it remains to be seen if other courts will follow. You can find a full copy of the case at http://case.lawmemo.com/ca/areso.pdf

If you are an employee paid under a commission plan who wonders if that plan is legal, or if you are an employer seeking to establish a compensation plan in compliance with the law, feel free to give us a call.


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