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Time rounding is the practice of adjusting an employee’s hours worked (either up or down) to a certain increment of time. Some employers opt to round time entries for increased administrative ease and efficiency in recording and calculating hours worked. The most conservative approach an employer can adopt is to pay per actual time punches and not round at all, but time rounding can be legally compliant under certain conditions.

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Earlier this year, the California Supreme Court set forth a new “ABC” test for determining whether someone working for a business is an employee or an independent contractor. In Dynamex, the court held that the ABC test applies in claims brought by workers under Industrial Welfare Commission Wage Orders but did not decide whether the test would apply to non-wage order claims. The wage orders regulate the minimum working conditions for employees in various industries (with different wage orders applying to different industries). In making its decision, the Dynamex court rejected the multi-factor standard that the California Supreme Court had previously adopted in S.G. Borello & Sons, Inc. v. Department of Industrial Relations, but it remained unclear whether the Borello test could still apply to cases involving non-wage order claims.

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By now employers know that rest breaks must be paid and if an employee is paid on a piece-rate basis, the rest break must be compensated at the higher of minimum wage, or their average hourly rate for the workweek. In Certified Tire and Service Centers Wage and Hour Cases, Plaintiffs sued their employer, Certified Tire, claiming that their pay plan was an “activity-based” pay system and did not separately compensate them for non-productive time and rest periods because it allowed them to earn a higher hourly rate based on production. They argued that because they could not increase their hourly rate while working on certain activities or taking rest breaks, this time was unpaid. The employees claimed Certified Tire had wrongly averaged their earnings to contend they were being paid minimum wage for all hours worked, such as in Armenta v. Osmose, Inc.

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As we previously reported, back in 2016, OSHA issued a rule that amended its regulations (29 C.F.R. § 1904.35(b)(1)(iv)) to prohibit employers from retaliating against employees for reporting work-related injuries or illnesses. The subsequent interpretive guidance on this regulation discouraged employers from implementing certain aspects of workplace safety incentive programs and post-incident drug testing. On October 11, 2018, OSHA issued a new memorandum to clarify its position on these issues and to supersede prior guidance and interpretations that it issued.

Automotive repair act overhaul

Using modern technology to communicate with your repair customers

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New rules, effective September 13, 2018, have modernized how your service department can provide and receive approval for repair estimates and additional work requests. The new rules also allow you to provide updates on and store work order and authorization information electronically.

Buy sell holdbacks

A buyer protection plan

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In a simple asset purchase agreement (an “APA”), a seller makes warranties about assets, a buyer purchases them, and if the warranties turn out to be inaccurate, the buyer’s main recourse is to collect damages from the seller. However, in the sale of an existing dealership business, where the selling entity often exits the business and may even dissolve shortly after a sale, a buyer may worry that the entity and its owners have less incentive to stand behind their representations regarding the assets and operations of the business. The risks of purchasing the operating assets of an existing dealership are numerous and difficult to estimate: the fixtures, equipment, inventory, and any real estate purchased may have unknown and costly problems, the prior dealer’s employment policies and practices could be non-compliant, and there may be unknown claims resulting from questionable prior customer dealings that have not yet come to light.

Lessons for California employers from the Uber saga

A testament to the power of arbitration agreements following epic systems & interplay of Dynamex’s impact on the gig economy

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The U.S. Supreme Court validated an employer’s ability to impose mandatory arbitration agreements as a condition of employment in Epic Systems Corp. v. Lewis. The implications of this decision was recently demonstrated in the Ninth Circuit’s August 25, 2018 decision of O’Connor v. Uber, highlighting the power of a properly drafted arbitration agreement as a pro-active measure for employers.


Defensive shield or tactical sword?

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Many litigators will tell you that the best defense is a good offense. As a result, it is always important for defense attorney to assess whether a cross-complaint should be filed when responding to any lawsuit filed against his or her client, asserting any counterclaims the defendant may have against the plaintiff whether related to the plaintiff’s claims or not. Often, bringing pressure down on the plaintiff with counterclaims will make the plaintiff reevaluate their commitment to prosecuting the case and may facilitate early settlement of the action.