California Labor Code section 515.5 provides that some software employees are exempt from overtime pay requirements if certain conditions are met, including the performance of certain duties and an hourly rate of pay no less than the specified rate. Effective January 1, 2019, the computer software employee's minimum hourly rate of pay will increase from $43.58 to $45.51 and the minimum salary exemption will increase fro $90,790.07 to $94,603.25.   

It's important to note the language of section 515.5, which states that all of the requirements of that section must be met in order for exemption to be properly applied.  This means that if all of the factors are satisfied except this minimum pay requirement, the employee will not be properly classified as exempt and will be entitled to overtime pay for all hours worked in excess of 8 hours per day or 40 hours per week, like other hourly employees. That employee will also entitled to the benefits that other hourly employees enjoy, such as the right to meal periods and rest periods as provided by law. 

An employee's performance evaluation in most cases cannot be used a basis for defamation claim because it generally denotes opinion rather than fact. (See Barker v. Fox & Associates (2015) 240 Cal.App.4th 333, 352.) "Unless an employer's performance evaluation falsely accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics or behavior, it cannot support a claim for defamation.  This is true even when the employer's perceptions about an employee's efforts, attitude, performance, potential or worth to the enterprise are objectively wrong and cannot be supported by reference to concrete, provable facts." Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 965. This is because mangers are given wide latitude in subjectively evaluating their subordinates. Thus, for instance, referring to an employee as "unprofessional" or "lacking in drive" is usually an opinion.

However, careful analysis of the exact statements made in employee evaluation is necessary whether a statement is actionable in court as defamatory. For example, such statement as "difficult to work with" imply an assertion that can be objectively proved as false, especially if the employer claims to have received feedback from other employees supporting this, when they in fact never received such information.  (See Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 728 (...although assertions employee was "not carrying his weight" and
"evidenced a lack of direction" were opinions, other assertion that third parties complained about
employee presented provably false assertion of fact). Certainly, when the employer is caught fabricating evidence, this makes any case, including defamation case, much stronger. Both employees and employers should know that even one provably false statement can form a basis for a defamation case against the employer. This type of claim might or might not be worth pursuing, depending on other circumstances and other claims that can be made against the employer. 

As an employee who is about to be laid off or terminated, you may find yourself in the following dilemma: an employer offers you a certain amount of severance in exchange for your signing a severance agreement and release of all claims. At the same time, you believe you are owed earned bonus or commissions that are to be paid at a future date. The employer disputes your entitlement to those additional wages, and at the same time pressures you into signing the severance agreement sooner than later, if you want to receive that severance. The question is - if you accept severance and sign the severance agreement, can you still bring a claim for unpaid bonus or commissions, if you choose to do so?   

California law provides for significant and important protection to employees in these types of situation.  California Labor Code section 203 states that an employer has to pay all wages earned in full and cannot require signing of a waiver as a condition of paying those wages. Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 365. This effectively means that when you sign any type of severance release, you are not waiving your claim to any earned and unpaid wages, and you can bring a claim for unpaid wages, earned commissions and bonuses to which you believe you are entitled to in even after you sign that severance agreement. Of course, this only applies to earned, performance based extra wages and not to discretionary bonuses. 

The California Supreme Court held that obesity may qualify as a protected disability within the meaning of FEHA (Fair Employment and Housing Act), if medical evidence demonstrates that (1) it results from a physiological condition affecting one or more of the basic bodily systems and (2) limits a major life activity. Cassista v Community Foods, Inc. (1993).  "Physiological" means "relating to the functioning of living organisms" and includes genetics, i.e. genetic reasons for obesity. 

Over the past few weeks,  a number of people contacted me who were terminated in part or in whole because they refused to sign the acknowledgement of receiving a disciplinary notice (warning) or a performance review that they thought was unfair. In most cases, refusing to sign those types of documents a mistake, and for several reasons:

First, your employer will normally ask you for your signature to only acknowledge that you received the document; not that you agree with its contents, so there is really now downside to signing it.

Secondly, an employer can lawfully terminate any at-will employee for refusing to sign that type of document, referring to it as insubordination. In the absence of significant evidence that the true reason for termination is discriminatory or retaliatory, this would not be a wrongful termination under the law.

Lastly, being terminated for refusing to sign any type of warning or PIP is particularly costly if you are terminated right before a portion of your RSU vests or your bonus is earned. In this case, you may be losing a significant amount of money for no good reason.   

I can't think of any good reason to refuse to sign a disciplinary notice. It can't make your situation at work better, but it can make it worse by ending your employment and/or also hurting your earnings that you would otherwise could have received. 

Many employees and employers are not aware of their obligation to set a commission plan in writing. Effective California Labor Code section 2751 (enacted back in 2013) requires employers to provide written commission plan agreements to all employees who perform services in California and whose compensation involves commissions. The agreement must  explain the method by which commissions shall be computed and paid. The commission plan must also be signed by the employer and the employer must obtain a sign receipt from each employee.  

This law incorporates the definition of commissions from California Labor Code section 204.1 which  defines commissions as "compensation paid to any person for services rendered in the sale of such employer's property or services and based proportionately upon the amount of value thereof."  The types of payments excluded from this definition are productivity bonuses, temporary incentive payments and bonus and profit sharing plans, unless there has been an offer by the employer to pay fixed percentage of sales or profits as compensation for work to be performed. 

Clearly, the purpose of this law is to reduce the chances of vagueness and misunderstanding between employers and commissioned employees regarding their compensation structure and create a binding, enforceable contract.  ​

The video below explains a key difference between bonus payments and commission, and why this difference is important.