Ernest M. Malaspina

Ernest M. Malaspina

Hopkins & Carley

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Remember to Calculate Overtime Pay Based on Your Employees' "Regular Rate of Pay"

When a non-exempt employee is entitled to overtime compensation, the hourly rate of pay from which the overtime compensation is calculated is known as the employee's "regular rate of pay." If an employee subject to...more

7/8/2014 - Non-Exempt Employees Over-Time Unpaid Overtime Wage and Hour Wages

The California Supreme Court Holds That an Employee May Waive the Right to Bring a Wage and Hour Class Action in an Arbitration...

On Monday, June 23rd, 2014, the California Supreme Court issued its long awaited decision in Iskanian v. CLS Transportation. In Iskanian, the Court held that waivers of the right to bring a wage and hour class action,...more

7/1/2014 - Arbitration Class Action Class Action Arbitration Waivers CLS Transportation Employer Liability Issues Federal Arbitration Act Iskanian PAGA Trucking Industry Wage and Hour

Is Telecommuting Now a Reasonable Accommodation?

The laws prohibiting disability discrimination impose obligations on employers which go far beyond the mere avoidance of discrimination. In addition to refraining from discrimination, employers must also provide reasonable...more

6/9/2014 - Disability Disability Discrimination Employee Rights Reasonable Accommodation Telecommuting

Is Your Standard Severance Agreement Subject to Challenge by the EEOC?

Many employers have a standard severance agreement that they routinely use with minor modification when terminating an employee either as part of a reduction-in-force or for performance or other reasons. Obviously, the major...more

5/23/2014 - Corporate Counsel EEOC Employer Liability Issues Hiring & Firing Severance Agreements Termination

As Summer Hiring Season Approaches, Employers Should Be Aware of Wage Payment Rules for Interns

Continued sluggishness in some sectors of our economy has left many students and recent college graduates without jobs and willing to consider working as unpaid “interns” in order to gain experience and connections in...more

5/16/2014 - Corporate Counsel Employee Rights Hiring & Firing Internships Unpaid Interns Wage and Hour

The Whistle Blower Provisions of Sarbanes-Oxley Extends to Employees of Privately Held Companies Under Some Circumstances

In a decision that expands considerably the number of employees covered by the whistle-blower provisions of the Sarbanes-Oxley Act, the United States Supreme Court ruled earlier this month in Lawson v. FMR LLC that two former...more

5/9/2014 - Employer Liability Issues Lawson v FMR Privately Held Corporations Retaliation Sarbanes-Oxley Securities Fraud Whistleblower Protection Enhancement Act Whistleblowers

Are Your Wage Statements Compliant Under Labor Code Section 226?

The California Labor Code is full of potential penalties for the unwary employer. The penalties arguably exist to ensure compliance by unscrupulous employers but often the penalties result in a windfall to employees for an...more

5/9/2014 - Employer Liability Issues Employer Mandates Labor Code Labor Commissioners Penalties Section 226 Wage and Hour Wage Statements

The California Supreme Court Agrees To Answer Questions Regarding California's Suitable Seating Requirement

Most of the California Wage Orders require an employer to prove “suitable seats when the nature of the work reasonably permits the use of seats.” While the “suitable seat” requirement has been in the Wage Orders for many...more

5/9/2014 - Employee Rights Employer Liability Issues PAGA Suitable Seats Lawsuits Wage Orders

Can An Employer Ban Negativity In The Workplace? Not According To The NLRB

Over the last few years we have written about the increasing relevance of the National Labor Relations Board (“NLRB”) for non-union employers. Earlier this month, the NLRB issued two more opinions that are directly...more

5/8/2014 - Courtesy Policy Employee Handbooks Hills and Dales NLRB Section 7

New Bay Area Commuter Benefits Program Imposes Obligations on Employers

The California Legislature enacted the Bay Area Commuter Benefits Program in 2012 to require certain employers to provide financial incentives to employees to commute to and from work via some means other than driving alone. ...more

5/8/2014 - Commuter Tax Benefits Employee Benefits Payroll Taxes Subsidies

May an Employer Request a Fitness for Duty Exam After an FMLA Leave?

When an employee goes out on an approved medical leave and returns to work following the leave, employers sometimes question whether the employee is ready to return to the workplace. Most employers correctly request a release...more

5/8/2014 - Fitness for Duty Exams FMLA Medical Leave

Employment Law Advisory for March 5, 2014: San Francisco Follows Emerging Trend, Restricts Use of Criminal Records by Employers

On February 17, 2014, San Francisco passed a new law, the Fair Chance Ordinance, that follows an emerging trend and restricts an employer’s ability to seek and utilize information regarding the criminal records of applicants...more

3/6/2014 - Arrest and Conviction Records Ban the Box Criminal Background Checks EEOC Employment Application Hiring & Firing Human Resources Professionals Job Applicants New Hires

Employment Law Advisory for February 28, 2014: The EEOC's New Challenge to a 12 Month Maximum Medical Leave Policy

Human resource professionals know that administering leave policies and practices is one of the most difficult tasks for any employer. An employer’s obligations to provide reasonable accommodation to a disabled employee and...more

2/28/2014 - EEOC FMLA Medical Leave Sick Leave UPS

Employment Law Advisory for February 13, 2014: Avoid Common Mistakes When Creating Commission and Bonus Plans

Commissions or bonuses represent a significant component of the compensation packages of many employees. As of January 1, 2013, California Labor Code section 2751 requires commission agreements to be set forth in writing, and...more

2/14/2014 - Bonuses Compensation Agreements Compliance Employer Liability Issues Wages

Another Good Reason for Employers to Stay Out of the Labor Commissioner's Office

Labor Code and Wage Order compliance can be one of the human resource department’s most tedious tasks. The requirements of the Labor Code and the Wage Orders are detailed, based on working environments that no longer exist...more

2/7/2014 - Human Resources Professionals Labor Commissioners Wage and Hour

New Protections for Whistleblowers and Suspected Undocumented Workers Take Effect January 14, 2014

The California Legislature had a busy year in 2013 and produced a great deal of employment-related legislation which just took effect on January 1. Because retaliation claims against employers have been on the rise for...more

1/23/2014 - Compliance Dodd-Frank Employer Liability Issues Retaliation Training Undocumented Immigrants Whistleblower Protection Policies Whistleblowers

Employment Law Update 2014 - New Developments in Employment Law 2014

In this issue: - 2014 Schedule of Seminars - Wage & Hour Developments - Discrimination, Harassment, and Retaliation Developments - Arbitration and Class Action Developments - Employer...more

1/7/2014 - Adverse Employment Action Affordable Care Act Discrimination Gender-Based Pay Discrimination Harassment Hiring & Firing Minimum Wage Wage and Hour

Employment Law Advisory: Company-Sponsored Holiday Celebrations: Avoid the Obvious Risks

As the holiday season reaches its peak, company-sponsored holiday parties, and the risks that arise with them, are ubiquitous. Each year, company-sponsored holiday parties result in incidents that prompt claims against the...more

12/12/2013 - Discrimination Drunk Driving Employer Liability Issues Harassment Holiday Parties Religious Discrimination Wine & Alcohol

Employment Law Advisory for December 4, 2013 - Beware of the Payroll Implications of Temporary Shutdowns During Holidays

The holiday season is upon us again, and some companies consider closing their operations during all or part of a holiday week. Companies planning a shutdown during all or part of any holiday week should consider the effect...more

12/5/2013 - Compliance Exempt-Employees Holidays Paid Leave Wages

A Workplace Run Amok: Richie Incognito and the Miami Dolphins

For the past week, our national news has been filled with reports about the decision by Miami Dolphin football player Jonathan Martin to leave the team as a result of hazing and harassment to which he was subjected by...more

11/14/2013 - Discrimination Harassment Hazing Human Resources Professionals NFL Richie Incognito Sports Supervision Workplace Bullying

The CA Supreme Court Issues a Confusing Opinion on the Question of Whether Employees can be forced to Arbitrate Unpaid Wage Claims...

We have written regularly regarding the enforceability of arbitration clauses contained in standard employment agreements. Understandably, most employers would love to avoid the uncertainty of appearing before a judge or jury...more

10/24/2013 - Administrative Hearings Arbitration Arbitration Agreements Employer Liability Issues Mandatory Arbitration Clauses Unconscionable Contracts Unpaid Wages

When is an Employee's Automobile Accident an Employer's Responsibility?

Two recent California Appellate decisions reached different results on the issue of when an employer is liable for an employee’s automobile accident. In Moradi v. Marsh, the court found the employer liable for an employee’s...more

10/4/2013 - Car Accident Going and Coming Rule Scope of Work Vicarious Liability

Employment Law Advisory for September 25, 2013: Anti-Harassment Training Due in 2013 for Many Employers

California law not only prohibits discrimination and harassment, it also requires certain employers (those that receive services from 50 or more persons, including both employees or independent contractors) to provide formal...more

9/26/2013 - Anti-Harassment Policies Deadlines Discrimination Harassment Training

Employment Law Advisory for September 10, 2013: Same-Sex Spouses—What Does the Supreme Court's Ruling on DOMA Mean for Employers?

On June 26, 2013, in United States v. Windsor, the United States Supreme Court found unconstitutional Section 3 of the Defense of Marriage Act (“DOMA”). Section 3 of DOMA prohibited the federal government from acknowledging...more

9/11/2013 - COBRA DOL DOMA Employee Benefits Hollingsworth v Perry IRS Marriage Proposition 8 Same-Sex Marriage SCOTUS Tax Benefits U.S. Treasury US v Windsor

Employment Law Advisory for September 4, 2013: The Employee's Social Security Number Doesn't Match: Now What?

As a result of receiving a so-called “no match letter” from the Social Security Administration, or through other means, employers occasionally learn that the Social Security number stated by an employee during the hiring...more

9/5/2013 - Hiring & Firing I-9 Social Security Social Security Adminstration Social Security Numbers

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