© 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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<ul><li> Slide 1 </li> <li> 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 &amp; Weather: Must-Have Policies on Absenteeism, Pay, Telecommuting, and More </li> <li> Slide 2 </li> <li> 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 </li> <li> Slide 3 </li> <li> 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. </li> <li> Slide 4 </li> <li> About Our Speaker Kristine E. Kwong, Esq., is a partner in the Los Angeles office of the law firm Musick, Peeler &amp; 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 </li> <li> Slide 5 </li> <li> Compensation Issues During Inclement Weather Kristine E. Kwong, Esq. Musick, Peeler &amp; Garrett, LLP k.kwong@mpglaw.com </li> <li> Slide 6 </li> <li> 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). </li> <li> Slide 7 </li> <li> 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. </li> <li> Slide 8 </li> <li> 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. </li> <li> Slide 9 </li> <li> 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. </li> <li> Slide 10 </li> <li> Federal (FLSA) The standard: Whether the employee's time is spent primarily for the benefit of the employer. Tennessee Coal, Iron &amp; 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. </li> <li> Slide 11 </li> <li> 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. </li> <li> Slide 12 </li> <li> 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. </li> <li> Slide 13 </li> <li> 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. </li> <li> Slide 14 </li> <li> 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. </li> <li> Slide 15 </li> <li> 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. </li> <li> Slide 16 </li> <li> 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. </li> <li> Slide 17 </li> <li> 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. </li> <li> Slide 18 </li> <li> 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. </li> <li> Slide 19 </li> <li> 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. </li> <li> Slide 20 </li> <li> 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. </li> <li> Slide 21 </li> <li> 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). </li> <li> Slide 22 </li> <li> 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). </li> <li> Slide 23 </li> <li> 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. </li> <li> Slide 24 </li> <li> 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 travel time between her home and the railroad station need not be compensated. Also, the usual mealtime need not be paid (29 CFR 785.37). </li> <li> Slide 25 </li> <li> Paid Commuting Time Employers may agree to pay for ordinary commuting time. However, such time does not have to be counted as hours worked and is not subject to the minimum wage and overtime requirements. Employer Policy pay for commute time even during inclement weather. </li> <li> Slide 26 </li> <li> Travel During Regular Work Hours Time that an employee spends traveling as part of his or her principal activity, such as travel from jobsite to jobsite during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions, pick up tools, or to perform other work there, the travel from the designated place to the workplace is part of the day's work and must be counted as hours worked regardless of contract or custom (29 CFR 785.38). </li> <li> Slide 27 </li> <li> Travel During Regular Work Hours For example, if an employee normally finishes his work on the premises at 5 p.m. and is sent to another job, which he finishes at 8 p.m., and is required to return to his employer's premises, arriving at 9 p.m., all of the time is work time. However, if the employee goes home instead of returning to his employer's premises, the travel after 8 p.m. is home-to-work travel (if w/in the normal commute zone) -- not hours worked. Employer must pay all travel time even if inclement weather makes travel time longer. </li> <li> Slide 28 </li> <li> Overnight Travel Travel that keeps an employee away from home overnight is designated as "travel away from home" by the Wage and Hour Division regulations (29 CFR 785.39). Travel away from home is paid work time under federal law when it "cuts across the employee's workday." This is because the employee is deemed to be simply substituting travel for other duties. The time is not only hours worked on regular workdays during normal work hours, but also during the corresponding hours on nonwork days. </li> <li> Slide 29 </li> <li> Overnight Travel The California Wage and Hour Division, however, does not consider time spent traveling away from home outside of regular working hours as a passenger on a plane, train, boat, or bus as paid work time. CALIFORNIA LAW DESIGNATES ALL SUCH TIME AS HOURS WORKED. </li> <li> Slide 30 </li> <li> Overnight Travel Regular meal period time is not counted as work time. Sleep and off-duty time is not work time. Time spent travelling in planes, trains and automobiles, however, is work time under California law. Federal law would only call the hours work if they cut across normal business hours, even though on non- working days. </li> <li> Slide 31 </li> <li> Overnight Travel Employees who are expected to use their personal vehicles for company business should be required to show proof of insurance coverage and to keep accurate and detailed records (time, date, duration, purpose). If an employee is required to drive his or her car, the employer must count all time spent en route as hours worked regardless of whether or not the hours were normal working hours. </li> <li> Slide 32 </li> <li> Work Performed While Traveling Any work that an employee is required to perform while traveling must, of course, be counted as hours worked. An employee who drives a truck, bus, car, boat, or airplane, or an employee who is required to ride as an assistant or helper, is working while riding. But, the employer need not pay for meal periods or time when the employee is permitted to sleep in adequate facilities furnished by the employer (29 CFR 785.41). </li> <li> Slide 33 </li> <li> Reporting Time If employee is furnished with half of scheduled days work, the employee is paid the greater of: 1.Half of scheduled days work 2.Two hours pay </li> <li> Slide 34 </li> <li> Reporting Time If employee reports to work a second time in a scheduled workday and is furnished less than two hours work, employee must be paid for two hours pay. </li> <li> Slide 35 </li> <li> Reporting Time Exceptions to paying: Employers failure to supply work is outside of employers control such as an Act of God Act of God is not defined </li> <li> Slide 36 </li> <li> Make-Up Time Exempt from overtime Need agreement to make-up time Make-up time must be within the same work week </li> <li> Slide 37 </li> <li> Failure to Come to Work Due to Inclement Weather Non compensable Policy for compensation not counted as hours worked paid leave of absence </li> <li> Slide 38 </li> <li> Failure to Report to Work Due to Inclement Weather Exempt employees no deductions allowed Non-Exempt employees deductions allowed </li> <li> Slide 39 </li> <li> Inclement Weather Policy Although no compensation required, employer may implement a policy for compensation Allow telecommuting to diminish harsh financial consequences draft carefully worked policy to avoid overtime claims </li> <li> Slide 40 </li> <li> Questions? Kristine E. Kwong, Esq. Musick, Peeler &amp; Garrett, LLP One Wilshire Boulevard, Suite 2000 Los Angeles, CA 90017 213.629.7977 (phone) 213.624.1376 (fax) k.kwong@mpglaw.com www.mpglaw.com </li> <li> Slide 41 </li> <li> 2011 Employer Resource Institute. All Rights Reserved Recertification Credit This program has been approved for 1.5 recertification credi...</li></ul>

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