Wage and Hour: Recent Developments and Emerging Trends
January 24, 2012
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Wage and hour compliance is a topic that's on most employers' radar screens for 2012, particularly in light of California’s new Wage Theft Prevention Act, which requires employers to provide a detailed notice to nonexempt new hires. Miller Law Group recently presented a webinar exploring wage and hour developments under California and federal law, with a focus on the new Wage Theft Prevention Act. The following are answers to frequently asked questions by webinar attendees.
Q: WHERE CAN I FIND THE LABOR COMMISSIONER’S GUIDANCE ON THE WAGE THEFT PREVENTION ACT (“WTPA”) NEW HIRE NOTICES?
A: The Labor Commissioner first published a series of FAQs in late December. And since our webinar, the Labor Commissioner has posted additional FAQs, providing further guidance on what it means to provide the notice at the time of hire and what information must be included on the notice regarding rates of pay, prevailing wages, pay days, and more. The full set of FAQs is online at http://www.dir.ca.gov/dlse/FAQs-NoticeToEmployee.html.
Q: IS IT PERMISSIBLE TO PROVIDE THE WTPA NEW HIRE NOTICE ELECTRONICALLY?
A: The Labor Commissioner’s FAQs authorize electronic delivery of the new hire notice, provided there is a system whereby the worker can acknowledge receipt of the notice and print out a copy.
Q: IF WE USE TEMPORARY EMPLOYEES THROUGH A TEMP AGENCY -- WHERE THE AGENCY HANDLES THE HIRING AND PAY -- ARE WE REQUIRED TO PROVIDE THE TEMP WITH THE WTPA NEW HIRE NOTICE?
A: The Labor Commissioner has not addressed this question in the FAQs. In the absence of guidance, it would be prudent to get written confirmation from the temp agency that they are in compliance with the new hire notice (and updated notice) requirements of the WTPA and/or request that the temp agency provide you with copies of the signed notices for your files.
Q: WHAT ARE THE PENALTIES FOR NONCOMPLIANCE WITH THE WTPA NEW HIRE NOTICE REQUIREMENT?
A: Because the WTPA does not specify a penalty, it is likely that PAGA (Private Attorneys General Act) penalties would apply. In particular, for those provisions of the California Labor Code that contain no penalty, PAGA authorizes aggrieved employees to recover $100 for an “initial” violation and $200 for each “subsequent” violation. Additionally, PAGA authorizes the recovery of attorneys’ fees and costs.
Q: THE LABOR COMMISSIONER, IN ITS NEW HIRE NOTICE TEMPLATE, HAS INCLUDED INTRODUCTORY AND CONCLUDING PARAGRAPHS WITH INFORMATION ABOUT THE WTPA. IF OUR COMPANY DESIGNS ITS OWN NOTICE FORM, MUST WE INCLUDE THESE ADDITIONAL PROVISIONS?
A: The Labor Commissioner’s FAQs state only that employers must include all of the information “requested” on the template, which could mean that employers only have to include those specific sections that require information to be filled in. On the other hand, the additional paragraphs could be considered information that the Labor Commissioner “deems material and necessary” -- and to that extent, employers would be required to incorporate that information into their own forms. Because the law is new and the guidance is still sparse, the safest practice is to: 1) assume that all of the information on the template is required information; and 2) include all information that is on the template in your new hire notices.
Miller Law Group exclusively represents business in all aspects of California employment law, specializing in litigation, risk management, wage and hour class actions, ERISA litigation, and appellate law. If you have questions about your workplace obligations, please contact Michele Ballard Miller (mbm@millerlawgroup.com) or Carolyn Rashby (cr@millerlawgroup.com), or call 415-464-4300.
This webinar and Question and Answer Summary are presented by Miller Law Group to review recent developments in employment law. This material is designed to provide informative and current information as of the date of the webinar and should not be considered legal advice.
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