By Dana Peterson and Coby Turner

Depending on your view of the world, California legislators have either implemented much-needed protections for California’s immigrant workforce, or they have given the legislative equivalent of a “gift” to dishonest employees this holiday season.  Starting January 1, 2014, workers will have immunity from disciplinary action for providing updated “personal

Co Authored by Jon Meer, Jonathan L. Brophy, and Brandon McKelvey 

The administrative exemption has been a hot area of litigation for a long time in California with all sorts of twists and turns in the California Supreme Court and Courts of Appeal over the last several years.  Unfortunately, the courts are still struggling with this exemption and have failed to provide clear guidance or clarity in this area.  As a result, plaintiffs’ lawyers continue to target the administrative exemption in individual wage hour actions as well as class actions.

So you have to ask yourself this:  Are you confident that you would be able to withstand an attack as to the exempt status of your employees who are classified as administratively exempt?

Even employers who carefully designate job classifications as exempt are subject to attack.  Employees may claim that, upon closer inspection, their work doesn’t meet the test for the exemption and that they are owed overtime and penalties for missed meal and rest breaks – a costly battle for employers to fight.

Employers, however, can implement some basic safeguards that will help proactively protect their exempt classifications in the event of a lawsuit.  Here are a few suggested steps that employers can put in place now that may help prevent a lawsuit or provide a solid defense in the event of a lawsuit:

1.     Require Self-Evaluations:  During your company’s review process, solicit employees’ self-evaluations in categories related to the exemption test.  Employers should consider including the following types of categories for employee self-evaluations:


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in·de·pen·dent adjective \ˌin-də-ˈpen-dənt\

1: not dependent: as a (1) : not subject to control by others

con·trac·tor noun \1 usually ˈkän-ˌtrak-tər, 2 usually kən-ˈ\

1: one that contracts or is party to a contract: as a : one that contracts to perform work or provide supplies

Two words with straightforward meanings; at least one would think. But put those words together—“independent contractor”—and their meaning in the workplace context is often anything but clear. Applying the independent contractor label carelessly can lead to a world of trouble.

Whether workers are properly designated as independent contractors, rather than employees, depends on a host of factors. The pivotal factor is whether the principal controls the manner and means of accomplishing the desired result.

Manner and Means: Determining The Level Of Control Exerted

If I offered to pay you to deliver something to a particular place before a particular time––say the ceremonial ball to Times Square by New Year’s Eve 2014––but I gave you no additional instructions, you would be free to choose the manner and means you used to get the ball there. Your route could be circuitous, or direct, as long as the ball arrived at the location before the deadline. You could mail it, carry it on a bus, drive it by car, fly it in a plane, or take it by boat.  You could, theoretically at least, hire a mule team to take you and the ball to New York. Or, you could avoid the hassle altogether and pay a friend to do it.
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It’s here!  On April 30, we released the 2013 edition of Cal-Peculiarities: How California Employment Law is Different, the industry’s only annual guide that focuses exclusively on the most vexing aspects of employment law in the country’s most populous state.   Authored by Seyfarth’s California Workplace Solutions group, this 262-page guide captures the latest legislative,