Caregivers to get overtime

Big changes are under way for caregivers and their employers. Up until now, caregivers in disabled people’s homes have been exempt form overtime under California and federal law so long as they spend the bulk of their time actually giving care. On September 23, Governor Brown signed Assembly Bill 241, under which, starting January 1, 2014, most in California working more than 9 hours in a day or 45 in a week will get time and a half. That’s still one more hour at regular pay every day than everyone else, who get overtime after eight. And caregivers paid by government agencies, including those paid by In Home Support Services, will still be exempt.

But not for long. But not for long. A year later, even bigger changes kick in under federal law. Caregivers will get overtime after forty hours from an agency that employs them. Most caregivers are considered employed by both the person and by an agency, and only the agency will owe overtime to these jointly employed caregivers.

The new federal rules will not make a family employing a caregiver pay overtime. But they will limit what the family can have the caregiver do. A too-helpful caregiver who washes everyone’s dishes or changes the disabled person’s bandages gets overtime.

Under the new rules, exempt caregivers will have to spend most their time “elder sitting”: talking, playing games, reading out loud, going on drives or walks, or just being there in case something happens. Caregivers can also spend up to twenty percent of their time doing things like cooking for their charges, cleaning, washing their clothes, and bathing them.

Any one doing much more than that gets overtime. They cook, clean, or do laundry for the rest of the family, and they get time and a half.

Many caregivers do little things that ordinarily a nurse does. They might dress wounds, take blood pressure, check insulin levels, give medications, even give shots. Under the new rules, a caregiver doing anything like that is a regular employee.

Anyone hiring a caregiver for a disabled relative should talk to an attorney about what they can ask the caregiver to do without having to pay overtime. A good rule of thumb is that if a housekeeper or if nursing-home staff would do it, the caregiver can’t. Housekeepers and nursing-home staff get overtime, and a caregiver doing the same work should, too.

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The courts finally side with homeowners against banks

For a while, homeowners having trouble with their mortgages were not faring well in the courts. A couple of years ago, one even held that homeowners who had received a formal foreclosure notice could not challenge the bank’s authority to sell their house. They could not make the bank show that it owed the mortgage or that they owed as much money as it said they did. They had to choose either to pay up or to risk losing their home.

At least in one area, the tide seems to be turning. Every lawyer working with homeowners has heard stories of banks promising to offer mortgage modifications but not following through. The bank would give the homeowners a trial payment period and tell them that if they paid on time for four months or so, it would offer them a loan mod. The homeowners paid right on time, but upon asking the bank about the modification, they got nothing back. Instead, the next they heard, the bank was selling the house.

For a while, homeowners challenging these foreclosures in court did not do well. The banks argued, and the courts agreed, that the bank’s promises were not an enforceable contract. The homeowners promised to do nothing but pay their mortgage, which they were already supposed to do. Also, the banks promised to do no more than make an offer.

In any other cases, the banks’ arguments would be perfectly sound. Every contract requires both parties to give something up and get something back, and the homeowners weren’t giving up anything they hadn’t already promised. And the courts only enforce what the parties have agreed to; they can’t force the parties to agree. An agreement to agree, or to make an offer, is no agreement at all.

But now the banks are losing. By accepting money under the Troubled Asset Relief Program (or TARP), they subject themselves to HAMP, the Home Affordable Modification Prorgrams. And HAMP requires them to make a good faith offer.

Any homeowner who has lost a home, or is threatened with foreclosure, after the bank offered a loan mod should see an attorney right away.

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Landlords and medical marijuana

Do tenants with a pot card have the right to grow or use marijuana at their homes? The smell left by second-hand smoke may be the least of the landlord’s worries. Tenants with a grow, even one the Compassionate Use Act allows, may attract attention from people that landlords would rather not come to the house. More than one holder of a pot card has tried to use it to shield a commercial grow. Some of those may have consulted with a medical professional specifically to further their agricultural ambitions, but others simply could not resist the temptation to grow a little more than they needed.

Despite Proposition 215, a landlord may evict a tenant growing marijuana on the premises. The law only exempts card holders from prosecution under California law. It does not give them rights against anyone else. Tenants cannot grow against their landlord’s wishes.

Growing marijuana is still a crime under federal law, and a landlord may evict a tenant who uses the premises for an unlawful purpose.  Landlords knowing of, or turning a blind eye to, tenants’ marijuana cultivation are also committing a federal crime for which they face up to twenty years in prison. (Attorney General Eric Holder has announced that the Justice Department would generally not prosecute marijuana users complying with state law. Nonetheless, attorney’s ethical rules prohibit me from forecasting the likelihood of either prosecution or sentence.)

What about tenants who merely use or possess marijuana, whether medically or recreationally? After all, possession of any amount of marijuana is itself a federal crime. Whether the landlord may evict depends on how much the tenant is smoking: how continuous it is and whether it threatens some interest the landlord has in the property. So occasional use of marijuana would not be grounds for eviction. More extensive use, which could damage to the building or give it a reputation as drug house, is a different matter.

Laws against  marijuana may well be stupid. But we have to live under the laws we have, not the ones we think would be better.

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Some internet reviews do cross the line

A while back, I pointed out that a court had rejected a defamation claim based on an angry Ripoff Report posting. The court said that those sites tend to attract angry people so most readers know to take anything posted in them with several grains of salt.

But, another court chimed in, sometimes there’s just not enough salt in the shaker. A San Francisco man named Andreas Papaliolios posted in a Yelp review that his former landlords’ obnoxious behavior had likely caused the deaths of three people in the building, had caused several long-term residents to move out shortly after buying it, and had tried to evict several others. The landlords had evidence that none of this was true; instead, two of the three tenants who had supposedly died were still alive and the only person they had tried to evict was Mr. Papaliolios. All of those statements, the court held, could be defamatory. (But calling one new owner a “sociopathic narcissist” was okay.)

How to distinguish acceptable exaggerated criticism from unacceptable libel? The court pointed out that Yelp, unlike sites Ripoff Report or Craigslist’s Rants and Raves, invites more nuanced reviews. It also noted that Mr. Papaliolios had vouched for the accuracy of his statements in his review.

Fairness to Mr. Papaliolios requires pointing out that no court or jury has said that he indeed had defamed his landlords. Instead, this court held only that a jury could find that he defamed them if it believed them and not him.

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What about sales staff stocking shelves?

A while back, I posted about a recent California court ruling about auto repair shops paying its mechanics by the job. The court said that the shops also had to pay the mechanics minimum wage for all the time that they were on the job but not actually working on a car. Because the employer required them there, it had to pay them for the time they spent training, cleaning up, or just waiting for a customer.

I wondered if the same rule applied to sales people paid on commission. Do the stores have to pay them for the time spent not actually selling?

A federal judge in San Diego has said that they sure do (mostly). Nordstroms requires its sales staff to spend up to 3o minutes each work day stocking shelves. It also requires them to be at the store at least 40 minutes before opening or at least 40 minutes after closing. The employees brought a class-action lawsuit, saying that Nordstroms also had to pay them for the time they are at work but not engaged in sales.

Nordstroms pointed out that it made sure that the employees always made at least minimum wage over the course of the day. It also argued that everything that, even though the sales staff wasn’t directly selling, it was at least engaged in activity that promoted sales.

No matter, said the judge. California employees have to be paid for every hour on the job. If they are paid on commission or by the piece, they get minimum wage for all the time when they can’t earn a commission or the piece rate. (Evidently the issue was not very difficult: the Court of Appeals thought Nordstrom’s request to overturn the judge’s ruling was frivolous.)

But no one has answered the question: what about the time that that the staff has to be at the store, but there are no customers to whom to sell? That’s probably never an issue at Nordstroms. In any store where it is an issue, the sales staff should probably be thinking about moving on.

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Store managers who work the floor entitled to overtime

Store managers often do the same work as their employees. They work the cash registers, respond to customer inquiries, even stock the shelves. While doing this more menial work, they can still do the things that managers are supposed to do, including supervising their underlings.

Generally store managers receive a salary and are considered executives exempt from overtime. But does working the floor make them no longer exempt? Not under federal law. Under the Fair Labor Standards Act, or “FLSA,” employees are exempt so long as their “primary duty” is executive. Store managers can spend the majority of their time  in grunt work and still not get overtime.

Thanks to Linda Heyen, in California those managers must get overtime. Heyen worked as assistant manager and interim manager at an Oceanside Safeway. As manager, she put in 15-hour days. Twelve of those hours she spent doing the work of hourly employees, including checking, stocking, and bookkeeping. A little math showed her that, with her $50,000 annual salary, Safeway paid her less an hour than it had before she was a manager. She sued for unpaid overtime and got $26,00o plus interest and her attorney’s fees.

Last Thursday, a Court of Appeal said Safeway indeed owed Heyen the money. Heyen had admitted she could manage the store’s 30 employees from the check stand and could observe its general conditions while stocking shelves. But, said the court, because she did not spend most of her time working as a manager, Safeway had to pay her overtime.

California law’s test for exemption is phrased slightly different than  the FLSA’s.  In this state, an exempt employee must be “primarily engaged” in the duties that are exempt. “Primarily engaged” means that Heyen had to have spent the majority of her time only in those duties. Because she spent most her time working the floor, she was not “primarily engaged” in managing.

Now, if Safeway needs checkers and stockers, it will have to hire them. It can no longer get essentially free labor by making exempt managers do the work.

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Paying employees by the task becomes more difficult

Paying employees by the job rather than by the hour has just become much more difficult. Employers can legally pay their employees a piece rate, so that they get paid by the work accomplished instead of by the time spent doing it. Paying a piece rate is common in some lines of work. Farmworkers picking fruit often get paid by the basket, and auto mechanics get paid by the type of repair. Paying by the piece is perfectly legal, so long as the employee receives the minimum wage of $8.00 an hour.

Should employees get paid for the time that they are on the job but not doing the work that makes them money? Once fruit pickers get on the farm, they still have to get to the orchard that needs picking. Mechanics spend time cleaning up, inventorying tools, educating themselves on new technology, or sometimes just waiting around for customers.

Many employers had assumed that, so long as the employee received a minimum wage for the pay period, they complied with the law. For example, an employee who works a 40-hour week and gets paid weekly should receive at least $320.00. That the employee spent half that time on work for which he is paid by the piece and the other half doing other tasks should not matter.

Not so, says a California Court of Appeal. Under Gonzalez v. Downtown LA Motors, a case involving auto mechanics, employees must get paid for every moment they are on the job. If they are doing tasks for which they are being paid a piece rate, they get their piece rate, which has to come out to at least $8.00 an hour. When they are doing something else, or doing nothing at all but still there, they get the minimum wage.

Gonzalez throws a monkey wrench into task-based pay. Now both employer and employee must keep track of the employee’s time when not performing piece-rate tasks. Piece rates encourage employees to work quickly so that they can finish the work and either get more done or go home. But an auto shop worried about paying mechanics for hanging around will have an incentive to slow them down.

The auto shop has appealed the decision to the California Supreme Court, which can decide it will  hear it, or not. If it does decide to hear it, other courts do not have to rule the same way that the Gonzalez court did. But they might. Unless the Supreme Court decides to overturn Gonzalez, the law about paying piece rate will stay confusing.

The Gonzalez court only discussed paying a piece rate. But what about employees paid only a commission? Does the man from whom I buy my suits get minimum wage when he is not trying to sell me clothes?

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Foreclosure and that new lease: How long is your arm?

Many tenants with landlords in foreclosure mistakenly believe that they can manipulate the law to stay as long as they want. Those tenants may find themselves on the wrong end of an eviction action.

Under section 1161b of the California Code of Civil Procedure, also known as AB 2610,  tenants who have a fixed-term lease may stay after foreclosure until the lease is up. They may sign this lease, for one year, two years, or even longer, at any time before the foreclosure sale. If they don’t have such a lease, the bank or whoever buys the property can evict them on 90 days notice.

Many tenants have signed new leases, for five years or longer, right before their houses go on the auction block. It’s no skin off the landlords’ back—they’re about to lose the place, anyway. The tenants then wave their new lease at the bank and say that they can stay for, really, as long as they want.

Not so fast. The law has two big hurdles for tenants with their new leases. First, the rent must be close to market value unless the tenant is on Section 8 or gets some other subsidy. Tenants paying half the rent that the place is worth should look at packing up in 90 days, despite that lease.

Second, the lease must be a result of an “arms’ length transaction.” That’s lawyers’ jargon for a contract between people with roughly equal bargaining power acting in their own interest. In other words, an arms’ length lease is one to which two strangers, both trying to get the best deal they could, would reasonably agree. A lease the landlord gives just to thwart the bank is not arms’ length.

A lease will hold off an eviction after foreclosure only if it looks like a real lease. Few residential leases last longer than one year, two years tops. A longer one is not at arms’ length. If the landlord and tenant had been happy with a month-to-month rental, suddenly deciding on a long lease just before the bank takes over looks very shaky. A tenant who wants to stay until the end of a long lease may even have to show that the landlord had some hope of avoiding foreclosure.

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Drinking, driving, and your other license

Getting a DUI may affect more than your driver’s license. A professional license may be disciplined for just one, a California court has held. The Board of Registered Nursing had imposed discipline upon an otherwise blemish-free RN after he collided with the center divider on the freeway. A breath test showed a blood-alcohol content of .16 percent. The nurse appealed, but the court sided with the agency.

The Business & Professions Code allows a licensing agency to discipline a licensee for any conviction that is “substantially related” to practicing the profession. But, according to the court, the Nursing Board could discipline the nurse even though his conviction was not substantially related to being a nurse. The Nursing Practice Act prohibits a nurse from using “alcoholic beverages, to an extent or in a manner dangerous or injurious to himself or herself, any other person, or the public . . ..” Also considered unprofessional conduct is any conviction “for a criminal offense involving the prescription, consumption, or self-administration” of alcohol or drugs is also unprofessional conduct.  Because the defendant’s DUI endangered himself and others and led to his conviction for a crime involving alcohol, it was unprofessional conduct.

The court’s decision shows the great disparity in how the law treats different professionals. Some, like registered nurses, can face discipline the first time they engage in alcohol-related misconduct. Vocational nurses, chiropractors, occupational and respiratory therapists, and optometrists are among this group. For acupuncturists, any alcohol consumption that endangers themselves or the public is unprofessional conduct, but the law does not deem every alcohol-related conviction misconduct. The Naturopathic Medicine Commitee has determined that every DUI conviction is substantially related to practice, but it says nothing about any other alcohol-related conduct. Physicians, pharmacists, dentists and veterinarians get one free drunk: only the second conviction is unprofessional conduct. Physical therapists get in trouble only if the conviction is substantially related to their practice.

Of course, the risks of driving  under the influence go way beyond the impact on your license. And anyone who wants to know what the law says before getting drunk may well have a drinking problem already.

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“Whoops” is no excuse under the Family and Medical Leave Act

Employers have to be very careful about terminating employees for abusing their family and medical leave. That’s according to a California appellate court in Los Angeles.  An employer had fired an employee whom it believed was using his leave to work another job. The employer turned out to be wrong, and the court held that it had to pay the employee damages.

Ordinarily an employer who discharges an employee whom it truly believes engaged in misconduct is not liable for wrongful termination. For example, an employer may fire an employee for spreading lies that another employee is sexually harassing her. The employer has not retaliated against her even if it turns out that she was right and the employer’s belief that she was lying was stupid. So long as its stupid belief is in good faith, it is not liable.

Termination for family and medical leave is different. The employer’s mistake cannot eliminate the employee’s right to leave. (But the employer can still terminate the employee for reasons having nothing to do with the leave).

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