© 2011 Employer Resource Institute. All rights reserved. These materials may not be reproduced in part or in whole by any process without written permission

Download © 2011 Employer Resource Institute. All rights reserved. These materials may not be reproduced in part or in whole by any process without written permission

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  • 2011 Employer Resource Institute. All rights reserved. These materials may not be reproduced in part or in whole by any process without written permission. Monday, July 11, 2011 Presented by the Employer Resource Institute Work & Weather: Must-Have Policies on Absenteeism, Pay, Telecommuting, and More
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  • 2011 Employer Resource Institute. All Rights Reserved About Todays Presentation This entire webinar is being recorded and all of the accompanying materials are protected by copyright. If at any time during todays event you experience technical issues, please call (877) 297-2901 to reach an operator. Questions or comments about this webinar? Employer Resource Institute (800) 695-7178 custserv@employeradvice.com
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  • 2011 Employer Resource Institute. All Rights Reserved Disclaimers This webinar is designed to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. This webinar provides general information only and does not constitute legal advice. No attorney-client relationship has been created. If legal advice or other expert assistance is required, the services of a competent professional should be sought. We recommend that you consult with qualified local counsel familiar with your specific situation before taking any action.
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  • About Our Speaker Kristine E. Kwong, Esq., is a partner in the Los Angeles office of the law firm Musick, Peeler & Garrett, LLP. She advises and counsels clients on a wide range of business and employment issues, and her practice includes the drafting and updating of handbooks, policy manuals, codes of conduct, and severance packages. She regularly produces and presents training programs for employers on current issues of employment law, and she's a longtime popular speaker for BLR. Kristine earned her law degree from the University of the Pacific (McGeorge School of Law). k.kwong@mpglaw.com www.mpglaw.com
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  • Compensation Issues During Inclement Weather Kristine E. Kwong, Esq. Musick, Peeler & Garrett, LLP k.kwong@mpglaw.com
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  • Which Employees? By and large, pay issues apply primarily to non-exempt employees (i.e., workers who are NOT exempt from overtime rules as determined by federal and state exemption guidelines).
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  • The Core Concept Is travel time compensable? The key issue in many instances is whether an employee is engaged in travel as part of the employers principal activity or for the convenience of the employer. If so, then that time is probably compensable in many cases, because its work time.
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  • Work Time Means Work time is the time an employee "suffers or is permitted" to work. Work time is work not requested but suffered or permitted. Work time means all of the time that employees spend working for an employer. Work time is any time that employees spend that primarily benefits their employers - directly or indirectly. Work time includes time spent even if an employee is not doing work but is under the control of the employer.
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  • Federal vs. California When both federal and state laws exist on a specific topic, the law which is more favorable to the employee will govern.
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  • Federal (FLSA) The standard: Whether the employee's time is spent primarily for the benefit of the employer. Tennessee Coal, Iron & RR. Co. v Muscoda Local 123, 321 U.S. 590, 598 (1944) And, in the absence of a contrary legislative expression, we cannot assume that Congress here was referring to work or employment other than as those words are commonly used -- as meaning physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.
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  • California The standard: Whether the employee is subject to the control of the employer. Morillion v. Royal Packing Co., 22 Cal.4th 575, 578 (2000) The concept of control is narrower than federal standard.
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  • Two Critical Court Cases Armenta v. Osmose, Inc. Compensable hours worked includes nonproductive time including travel time to remote jobsites, time spent loading equipment and supplies, time spent doing paperwork, and time spent maintaining the defendant's vehicles.
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  • Two Critical Court Cases Overton v. Walt Disney Co. Time spent riding an employer-provided shuttle that transports employees from a parking lot to the work site is not compensable. Because the employer did not require employees to take the shuttle, the time was not compensable travel time.
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  • The Basic Rules Basic Rule # 1: The time employees spend commuting to and from their regular place of work each day is not work time, so employers do not have to pay employees for this time.
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  • The Basic Rules Basic Rule # 2: Work time does include time spent traveling to another location for a special assignment, substantial travel for an emergency outside the normal working hours, and time spent traveling during regular work hours as part of the employees principal job duties.
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  • The Basic Rules Basic Rule # 3: If an employee reports to a central location to pick up equipment before proceeding to his or her assigned worksite, the time spent traveling to the central location is not work time. The time spent traveling to the assigned worksite is work time.
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  • The Basic Rules Basic Rule # 4: Overnight travel or travel away from home is always work time under California law. Under federal law, it is work time only when it cuts across the employees normal workday and/or requires the employee to work on weekends or days when he or she would not otherwise be required to work.
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  • The Basic Rules Basic Rule # 5: Regular meal periods and time spent sleeping or in other leisure activities while traveling is not work time, and the employer does not have to pay the employee for this time.
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  • Regular Commuting Normal travel from home to work is not work time. This is true whether the employee works at a fixed location or at different jobsites (29 CFR 785.35) within a reasonable commute zone. Commuting includes the time spent walking from the parking lot to the worksite. If an employee has to report to a central meeting site to pick up equipment, supplies, or co-workers, or to get instructions, work time starts at that location.
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  • After-Hours Commuting When an employee has gone home after completing his or her day's work and is subsequently called out at after hours to travel a substantial distance to perform an unplanned job for one of the employer's customers, all time spent traveling is work time (29 CFR 785.36). Federal authorities have not addressed whether travel to and from the regular workplace in an emergency after hours is work time, but in California, it probably is. Remember: Travel time wages paid by an employer for calling an employee back to work must be included in the calculations of hours worked for purposes of paying overtime.
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  • Commuting in Employer Vehicles The Portal to Portal Act provides that travel between home and work in a company-owned vehicle is not paid work time as long as the travel is within the normal commuting area for the employer's business, and the use of the vehicle is subject to an agreement between the employer and the employee or the employee's representative (29 USC 254(a)). This exception also applies to time spent in activities incidental to the use of the vehicle for commuting (such as stopping for gas).
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  • Commuting in Employer Vehicles Rutti v. Lojack Commute in company vehicle may be compensable under California law. Rutti was required to drive a Lojack utility van to the services stops. He was not allowed to use the van for personal errands, could not talk on the cell phone while driving, could not carry passengers, and could not deviate from the service route. The 9th Circuit relied on Morillion v. Royal Packing Co., 22 Cal. 4th 575, 578 (2000).
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  • Special-Assignment Commuting When an employee who regularly works at a fixed location in one city is given a special one-day assignment in another city, most of the time spent traveling is work time and must be compensated. For example, an employee who works in San Francisco, CA, with regular work hours from 9 a.m. to 5 p.m., is given a special assignment in Sacramento, with instruction to leave San Francisco at 8 a.m. She arrives in Sacramento at 10:00, ready for work. The special assignment is completed at 3 p.m., and the employee arrives back in San Francisco at 5 p.m.
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  • Special-Assignment Commuting Such travel is not regarded as ordinary home-to-work travel and must be compensated. It was performed for the employer's benefit and at its special request to meet the needs of a particular and unusual assignment. Therefore, it would qualify as an integral part of the principal activity that the employee was hired to perform. All the time involved, however, need not be counted. Except for the special assignment, the employee would have had to report to her regular worksite. The trav


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