California Supreme Court Clarifies “Commissioned Inside Salespersons Exemption"

The California Supreme Court just ruled that an employer satisfies the minimum earnings requirement for the "commissioned inside salespersons exemption" only if the employer actually pays the required minimum earnings of 1.5 times the minimum wage during each pay period.  An employer may not allocate wages paid in one pay period to a prior pay period to cure a shortfall.

Important Job Application Procedures To Reduce Risk

Job applications and your interview notes should only hold job performance related information and should document only the valid relevant job performance reasons for selecting or rejecting applicants.

Require signed applications from all candidates to avoid future claims for primarily discrimination and other potential grounds, such as privacy and defamation.

Include the following in your job applications and have job applicants initial each:

• State that either employee or employer may terminate employment at any time and for any reason, other than an illegal reason.

• State that applicant’s signature is an authorization to check references.

• State that applicant’s signature means that a drug test, if your policy requires same, will be required to be taken as a condition to hiring.

• State that applicant’s signature means that an arbitration agreement, if your policy requires same, will be required to be signed as a condition to hiring.

• State that applicant’s signature means that all of his or her information is true, and that any omission or false information will be grounds for rejection of the application or grounds for later termination if applicant is hired.

 

Internet Copyright Infringement Is Now More Clear

In American Broadcasting Cos., Inc. v. Aereo, Inc., the US Supreme Court ruled that Aereo's transmission of over-the-air broadcasts to its network of paid subscribers constituted a public performance of copyrighted works owned by ABC within the meaning of the Copyright Act’s “Transmit Clause” (17 U.S.C. § 101), thereby infringing ABC’s exclusive right to perform its copyrighted works publicly. 

This ruling infers that the transmission of any other copyrighted materials (articles, images, songs…) over the Internet to paid subscribers would constitute infringement of the copyright owner's rights.

Be Careful Firing Employees For Screaming At You

MY CAVEAT: In view of the United States Supreme Court’s ruling of June 26, 2014 (National Labor Relations Board v. Noel Canning et al., the following may be suspect as precedent for future decisions.

 

Note to small-business owners: Be very careful firing employees for screaming at you.

The invaluable Overlawyered blog alerts us to two recent decisions by the National Labor Relations Board. The first involved a staff meeting at a car dealership in Yuma, Ariz., where a worker lost his cool and called his supervisors -- well, let's just say several variations of the f-bomb. He stood up, shoved his chair aside and told them they'd regret it if they fired him.

He was duly fired... but the NLRB found his termination "an unlawful violation of the employee's rights to engage in the protected concerted activity."

Meanwhile, a man trying to unionize four Starbucks in Manhattan told a manager to go, umm, have self-induced carnal knowledge. In front of customers, he said this. For which he was duly fired.

 

The Seattle Post-Intelligencer reports the NLRB ordered Starbucks to offer him his old job "or a substantially equivalent position, compensate him for any loss of earnings and other benefits and remove from its files any references to the unlawful firing."

We can only imagine how awkward that first day back might be...

Dave Gonigam, The 5 Min. Forecast, Agora Financial, June 25, 2014

 

One Less (NLRB) Poster!

The National Labor Relations Board (NLRB) has abandoned its rule which required private sector employers to post an “Employee Rights under the National Labor Relations Act” notice, which turned out to be an 11"x17" poster informing employees of their general rights under the National Labor Relations Act.  This results from the NLRB's decision not to seek US Supreme Court review of two US Court of Appeals decisions which invalidated this NLRB notice posting rule putting an end to the poster requirement.

Veterans Benefits and Eligibility Requirments

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Veterans benefits are perhaps the most misunderstood and underutilized resources available to millions of veterans and their families.  While it is commonly known that certain benefits are available for the brave men and women who served in our armed forces, many veterans (and their families) are unaware that they could be eligible for a wide range of benefits through the United States Department of Veterans Affairs even if they did not directly retire from the military or suffer injuries in the line of duty. Veterans Benefits offered to eligible beneficiaries include: Non-Service Connected Pension: Non-Service Connected Veterans Pension is a benefit paid to wartime veterans who have limited or no income, and who are age 65 or older, or, if under 65, who are permanently and totally disabled.  Certain veterans may qualify for an additional monthly benefit such as the Aid and Attendance or Housebound allowance.  These are benefits that are paid in addition to the basic pension rate. Death Pension: The VA Death Pension is a benefit paid to eligible dependents of deceased wartime veterans. Disability Compensation:  Certain military veterans with a service-related disability may qualify for regular monthly benefits. These benefits are generally tax-free and are paid to veterans who have injuries or diseases that occurred while on active duty, or were aggravated and made worse by active military service. It is also paid to certain veterans disabled as a result of care provided by VA medical facilities. Dependency and Indemnity Compensation: This is a monthly benefit paid to eligible survivors of certain deceased veterans. Parents DIC:  Parents' Dependency and Indemnity Compensation is an income-based monthly benefit for the qualifying parents of a military service member or veteran who has died. Special Monthly Compensation:  Special Monthly Compensation (SMC) is a monetary compensation (in addition to the regular VA Disability Compensation) to a veteran who, as a result of military service, incurred the loss of or the loss of use of specific organs or extremities. Loss, or loss of use, is described as either an amputation or having no effective remaining function of an extremity or organ. Burial and Memorial:  In exchange for the service that Veterans have selflessly given to the United States, the Department of Veterans Affairs and the Department of Defense provide several memorial and burial services for eligible active-duty, Reserve, Guard, retired and veteran members.  All Veterans and military family members should be aware of the memorial benefits offered by the Department of Veterans Affairs before they are actually needed. Employment andTraining: The Department of Veterans Affairs (VA), Department of Labor (DoL) and the Department of Education (DoE) all administer a number of employment, education, and training programs for veterans.  These programs include, but are not limited to The Montgomery G.I. Bill - Active Duty, The Montgomery G.I. Bill – Selected Reserve, Veterans’ Educational Assistance Program (VEAP), Veterans Upward Bound and Veterans’ Employment and Training. Survivor Benefits:  Surviving family members of veterans are entitled to certain benefits that can help ease their financial difficulties.  When a loved one dies, it can be emotionally difficult to look into available benefits, but this process should be done as soon as possible to prevent eligibility problems. Veterans Health Care:  The Veterans' Health Care Eligibility Reform Act was passed by Congress in October of 1996, paving the way for the Medical Benefits Package plan to be made available to all enrolled veterans. The Medical Benefits Package emphasizes preventive and primary care and offers a full range of inpatient and outpatient services.  In addition, combat veterans returning from active military service may be eligible to receive free health care services and nursing home care for up to two years, beginning on the date of separation from active military service. This benefit covers all illnesses and injuries except those clearly unrelated to military service.  Dental services are not included in this health care package. Veterans Life Insurance:  Service members' Group Life Insurance (SGLI) is a program which provides low cost group life insurance for service members on active duty, ready reservists, members of the National Guard, members of the Commissioned Corps of the National Oceanic and Atmospheric Administration and the Public Health Service, cadets and midshipmen of the four service academies and members of the Reserve Officer Training Corps. Unfortunately, many of the eligible beneficiaries are initially denied these benefits when a claim is filed.  Applicants should be aware that the decisions for these claims can be appealed by veterans and their eligible family members.  Once a claim has been filed and consequently denied, the veteran or other potentially eligible beneficiary has sixty days to file for an appeal with their regional office. Legislation was passed and came into effect on June 20, 2007 which provides veterans the option of retaining an attorney after the first denial by the Department of Veterans Affairs at the “Notice of Disagreement” (NOD) stage. The Department of Veterans Affairs benefits claims and appeals process can be complicated.  If a veteran or a veteran’s family members have received a denial of benefits to which they believe they are entitled, it is in their best interest to contact an attorney who is familiar with veterans benefits to assist them with the application and appeals process. Orange County attorney Bradley S. Erdosi is an Accredited Veterans Attorney and has counseled many veterans and their families in obtaining benefits, including the Aid and Attendance benefit. Courtesy of Bradley Erdosi ~ Please feel free to contact him...not me!

Working at Home during Family and Medical Leave (FMLA)

More employees who are physically unable to come to work are performing work for their employer from home.  Please note that performing work for the employer from home does not count against the 12-week leave allotment under FMLA.  It is therefore important both for the employee and the employer to document when and if the employee on FMLA leave is performing work tasks from home, as the hours spent performing those tasks should be deducted from any calculation of FMLA leave used.  Perhaps, if technology allows, the employee would have to work through the employer's network, which could track these hours, or at least the employee would contemporaneously record the time, subject matter, client, etc. of the work on the network.