Tony DeCristoforo
Tony DeCristoforo is Of Counsel in the firm’s Labor & Employment group. Based in the firm’s Sacramento office, Tony focuses his practice on the representation of employers and supervisors in employment-related disputes in state and federal courts, as well as in administrative proceedings and arbitrations. Tony has extensive experience litigating wage and hour claims and defending employers in discrimination and sexual harassment lawsuits. He frequently advises employers on wage and hour issues, employment contracts, employee handbooks, noncompetition agreements and statutory leave obligations. Tony is admitted to practice in California.
California DLSE Reverses Itself Regarding Schedule and Salary Reductions for Exempt Employees
The California Department of Labor Standards Enforcement (DLSE) has issued an opinion letter in which it concludes that California law does not prohibit an employer from temporarily reducing the work schedule of an exempt employee from five days a week to four days a week, and correspondingly reducing the employee's salary by 20 percent. The employer in question was experiencing significant economic difficulty and wanted to temporarily reduce the schedules and salaries of exempt employees to avoid or limit the need for layoffs. The DLSE concluded that this practice does not violate the salary basis test and the affected employees would not lose their exempt status.
Although this conclusion is consistent with well-settled principles of federal law, it represents a reversal of the DLSE's opinion. The DLSE reached the opposite conclusion -- that an employer cannot reduce the salary of an exempt employee during a period in which the company operates a shortened workweek due to economic conditions -- in a 2002 opinion letter. The 2002 opinion letter relied on a federal court decision that the DLSE now characterizes as "not well-reasoned and misguided."
Although DLSE opinion letters are not binding authority, California courts usually give them a great deal of weight. Additionally, DLSE opinion letters provide insight into how the DLSE will interpret the law in cases it pursues as California's wage and hour enforcement agency.
California Supreme Court: No Privacy Violation for Employer's Placement of Video Camera in Employees' Office
The California Supreme Court has issued its decision in Hernandez v. Hillsides, Inc., finding that an employer's placement of a hidden camera in an office used by two employees did not violate the employees' right to privacy. This case has been closely watched (OK, pun intended) as it worked its way through the appellate courts. Like all workplace privacy cases in California, the case is highly fact-specific and should not be interpreted as encouraging employers to conduct clandestine surveillance of employees.
Hillsides operated a residential facility for neglected and abused children. Plaintiffs Hernandez and Lopez were employees of Hillsides who shared an enclosed office and performed clerical work during daytime business hours. Hillsides learned that late at night, after the plaintiffs had left the premises, an unknown person repeatedly used a computer in the plaintiffs' office to access and view pornographic web sites. Concerned that the culprit might be a staff member who worked with the children who resided there, Hillsides set up the hidden camera, which could be operated from a remote location at any time. Neither of the plaintiffs was suspected of being the culprit, and the employer only activated the camera after hours when the plaintiffs were gone. The plaintiffs' activities were never viewed or recorded by means of the surveillance system.
Continue Reading...ICE Targets Employers by Launching I-9 Audit Program
Implementing a new audit initiative, the U.S. Immigration and Customs Enforcement Service (ICE) has served Notices of Inspection on 652 businesses nationwide. The notices inform employers that ICE will be inspecting their I-9's and other employment records to ascertain whether the employers are in compliance with federal immigration laws and regulations.
The Obama administration appears to be taking a new approach to immigration law compliance by focusing its enforcement activities on employers. Under the Bush administration, ICE was known for sending armed agents into workplaces to round up employees suspected of working illegally. According to this press release issued by ICE, the new strategy is to dedicate resources to auditing and investigating employers in order to reduce the demand for illegal employment .
The 652 Notices of Inspection served last week exceed the total number of notices that ICE served in all of 2008. It appears that these notices are just the first wave of employer audits. In light of ICE's increased auditing activities, now is the time to conduct your own internal audit and ensure that you have proper immigration compliance measures in place.
