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Intentional Wage Theft to Carry Increased Criminal Liability

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CALIFORNIA EMPLOYER UPDATE

By Chandra Winter, Business Litigation Associate at Lobb & Plewe Attorneys at Law

California employers often feel they are navigating a minefield when it comes to maintaining wage and hour compliance in the ever-changing landscape of California law. One of the latest changes to that landscape, AB 1003 was signed into law by Governor Newsom on September 27, 2021, and will go into effect as Section 487m of the Penal Code on January 1, 2022. This new Section 487m imposes harsh penalties, including potential jail time, for employers committing intentional wage theft. When changes to employment law take effect, there is always concern about the scope and applicability of those changes, and smart employers take the opportunity to review their current policies.  

While the new Section 487m on its face creates harsh penalties, there are some key points the average California employer should understand to alleviate concerns about the threat of jail time. Wage theft is defined in the section as the intentional deprivation of wages, gratuities, benefits, or other compensation by unlawful means with the knowledge that the wages are due to the employee. This definition introduces two main points, intentional deprivation, and knowledge that the wages are due to the employee. Although the term ‘intentional’ is not defined in the bill, other areas of California state law and provisions in the Labor Code require deliberate acts rather than an honest mistake. While comforting, this does not mean that the bill can be ignored given that this crime carries a potential prison sentence of up to three years in addition to allowing employees or the Labor Commissioner to seek redress through civil action. The second point, that there must be knowledge of the wages being due to the employee has also been addressed under current law but is not specifically addressed in the bill. Under the current legal framework, a good faith dispute regarding wages due precludes the imposition of penalties. These two points serve as protection for well-meaning employers following best practices to ensure that their employees are timely paid all wages owed.  

It is important to note that under Section 487m, the code defines an “employee” to include independent contractors, and  “employer” to include the hiring entity of an independent contractor this broader definition increases the type of employer who will be potentially liable under the bill. Additionally, the monetary amounts are the only limits placed, so employers of any number of employees need to ensure compliance as this bill is directed at all employers not only those that employ a larger number of employees. Section 487m makes an employer’s intentional wage theft of more than $950 from one employee, or $2,350 total from at least two employees, within a 12-month period, punishable as grand theft. The bill further allows wages, gratuities, benefits, or other compensation subject to the prosecution to be recovered as restitution. 

As with any change to the legal requirements regarding wages and employment, this bill should serve as a reminder that frequent reviews of your employment policies are the best way to protect yourself and your company. Now is a great time to review your policies and procedures to keep your company’s practices in line with the best practices related to California wage and hour law. This review should include policies related to all employees and independent contractors, policies for time entry and verification, payment of overtime wages, tracking of all tips and gratuities, and the delineation of discretionary and non-discretionary bonuses as appropriate. Our firm can assist your company in organizing a compliance review protocol as well as handling any claims or employment litigation.

The Inland Empire Business Journal (IEBJ) is the official business news publication of Southern California’s Inland Empire region - covering San Bernardino & Riverside Counties.

Business

San Bernardino’s Chem-Pak Ushers in New Era: A Legacy Continues with Fresh Leadership

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Under new ownership by Eric L. Goodman, San Bernardino’s long-standing Chem-Pak embarks on an expansive journey, building upon its 36-year legacy of community and industry service.

Terry Goodman, owner of Chem-Pak, recently announced his retirement, marking the end of a remarkable journey in the industrial supply industry. Starting as a one-man operation 36 years ago, Goodman transformed Chem-Pak into a business with multiple offices and approximately 15 employees.

In the late 1980s, Goodman was a sales representative for Easterday Janitorial Supply Company near Norton Air Force Base. When the company shut down its San Bernardino office, Goodman, a Highland resident, opted to start his venture rather than commute to Los Angeles. He sought support from his customers, laying the foundation for what Chem-Pak is today.

“I never aspired to have numerous employees. My goal was to build a team that enjoyed a good living without feeling drained at day’s end,” Goodman explained. “Having experienced ‘Corporate America,’ where successful territories are often split to limit earnings or, conversely, underperformers are let go, I wanted to follow a different path.”

Many of Chem-Pak’s team members have been with the company for 20 to 30 years, a testament to the familial and collaborative environment Goodman cultivated. “I’ve always viewed my team not just as employees but as equal partners in this journey. There’s nothing in this company that I haven’t done myself. When a few team members were out with COVID recently, I didn’t hesitate to help with deliveries. Our customers’ needs come first,” he said.

Pablo Carbajal, manager of the San Bernardino store for 22 years, shares his commitment to Chem-Pak. “Despite numerous job offers over the years, this is where I belong. Goodman’s mentorship taught me everything from equipment knowledge to customer service, shaping my understanding of the business world,” Carbajal expressed.

Richard Bowman, a contract employee for about 30 years, also praised the company’s ethos. “Working for Chem-Pak has been empowering. It’s akin to finding a golden opportunity.”

Goodman recalls landing major accounts, including Carl’s Jr. and Stater Bros, as career highlights. However, the COVID-19 pandemic posed unprecedented challenges. “During the pandemic, our business boomed, particularly for hand sanitizer and toilet paper. We had to adapt quickly to the surging demand and the evolving ‘new normal’ of a post-pandemic economy,” he recounted.

Goodman’s work ethic dates back to his teenage years, starting with a part-time job at a gas station and later at McMahan’s furniture warehouse. He emphasizes the importance of networking and real-world experience for young people. “I often speak at career days in San Bernardino schools to offer students firsthand insights into the workforce, beyond what they hear from peers or parents,” he said.

Looking forward, Goodman plans to travel and engage in volunteer work, confident in leaving Chem-Pak in capable hands with family members and experienced employees at the helm.

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Inland Empire Regional Chamber of Commerce Welcomes Hawaii Chamber as Honorary Global Member

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Empowering Future Generations: IERCC and Chamber of Commerce Hawaii Forge Partnership for Youth Development

In a landmark meeting that signifies the growing collaboration between regional chambers of commerce, the Inland Empire Regional Chamber of Commerce (IERCC) proudly welcomed the Chamber of Commerce Hawaii as an Honorary Global Member. This momentous occasion was marked by a ceremonial presentation led by Eddy Sumar, MBA, CCE, CICE, a distinguished member and Chair of the Education and Youth Skills Development Liaison at IERCC.

Eddy Sumar, renowned for his passionate advocacy for youth education and skill development, met with Sherry Menor-McNamara, CCE, President & CEO, and Tyler Hunt, Associate Vice President of Membership Services, of the Chamber of Commerce Hawaii. The meeting was not just a formal presentation but also an opportunity to share the innovative approaches IERCC is employing to champion youth development.

In a unique and inspiring gesture, the Chamber of Commerce Hawaii representatives were introduced to IERCC’s youth initiatives through a trilogy of educational books authored by Eddy Sumar himself. These books – “A Treasure Hunt With OTIS,” “The Hidden Dreams,” and “The Cutting Edge” – are a testament to Sumar’s dedication to empowering the youth. Each book addresses critical areas of youth development:

  • “A Treasure Hunt With OTIS” provides wisdom to guide young lives.
  • “The Hidden Dreams” unlocks the potential of identifying and pursuing youthful aspirations.
  • “The Cutting Edge” offers vital insights into understanding credit and financial literacy.

Edward Ornelas, Jr., President & CEO of the Inland Empire Regional Chamber of Commerce, expressed his enthusiasm for this new partnership, stating, “This collaboration with the Chamber of Commerce Hawaii represents a significant step in our ongoing commitment to foster the leaders of tomorrow. By combining our resources and expertise, we can more effectively prepare our youth for the dynamic world they will inherit. Our shared vision for youth development and education is the cornerstone of this partnership.”

The Chamber of Commerce Hawaii expressed its enthusiasm for the collaboration, recognizing the value of the resources provided by IERCC. This partnership is a significant step towards a shared goal of fostering a brighter future for youth through education, skill development, and empowerment.

The Inland Empire Regional Chamber of Commerce is enthusiastically developing plans to launch a summer internship program exclusively for students from the Inland Empire, offering them the opportunity to travel to Hawaii for this enriching experience. This initiative, which stems from the IERCC’s recent collaboration with the Chamber of Commerce Hawaii, is focused on providing Inland Empire students with a unique opportunity to immerse themselves in the diverse business and cultural environment of Hawaii. The program aims to equip these students with invaluable hands-on experience in various industries, enhancing their skills and broadening their perspectives. This visionary approach underscores the IERCC’s dedication to fostering the professional and personal growth of its youth, preparing them for successful careers in an increasingly interconnected world.

The IERCC is committed to continuing these collaborative efforts and looks forward to a fruitful and impactful partnership with the Chamber of Commerce Hawaii, collectively striving to nurture the leaders of tomorrow.

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Corona Factory Files Landmark Trade Secret Lawsuit in New Hampshire Federal Court

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Leading Private Label Company Alleges Massive Data Breach by SGS North America, Inc., Threatening Millions in Investment and Profits

Amid a surge of corporate theft nationwide, U.S. Continental Marketing, Inc. has initiated trade secret litigation against SGS North America, Inc. alleging misappropriation of proprietary and confidential chemical formulations that may cost U.S. Continental millions of dollars.

The largest private label leather and fabric care company in the world, U.S. Continental operates out of a 100,000 square foot factory in Corona, California, and partners with popular footwear, fashion, and furniture brands such as Birkenstock, Timberland, and Michael Kors to develop a range of products. The company provides commercial packaging solutions as well.

In its complaint filed last week in the U.S. District Court for the District of New Hampshire, U.S. Continental alleges that earlier this year, it spent millions to develop five unique and secret chemical formulations for an unnamed customer for use on branded textiles. Those formulas were sent to SGS North America for independent testing.  David Williams, U.S. Continental’s President, explains, “Leading up to its testing, we made very clear to SGS that the confidentiality of any and all information about our formulations was critical. Third parties, and even our customers, could not be privy to our proprietary data and SGS knew that.”

Williams added, “To put a finer point on the sensitivity of the formulations in question, we negotiated an ironclad NDA with SGS, which it signed, promising not to disclose confidential information related to our formulations to anyone without written approval.”

U.S. Continental’s complaint alleges that despite its assurances, SGS twice sent detailed, unredacted testing reports directly to the customer in August, revealing specifics about the chemical formulations SGS promised to keep under wraps.

According to Williams, “By virtue of SGS’s indiscretion, which one of its Vice Presidents cavalierly claimed was a ‘mistake,’ our customer was sent all the information it needed to manufacture essential chemical formulations on its own. That puts at risk the $2 million we invested in R&D, along with another $20 million or so in profits from our manufacturing agreement with the customer. It only gets worse from there if SGS discloses our proprietary information—which it refuses to return—to any others.”

Jeffrey Farrow, a partner at Michelman & Robinson, LLP, which represents U.S. Continental along with local counsel in New Hampshire, says, “It’s beyond crucial that trade secrets, like my client’s chemical formulations, be carefully safeguarded. By failing to do so, SGS breached its NDA—a breach that continues given that the data at issue has yet to be returned despite multiple requests from U.S. Continental. This is simply unacceptable and through this lawsuit, we want SGS to know that its unlawful disclosure of trade secrets, and unlawful retention of them, won’t go unchecked.”

The lawsuit is currently pending and U.S. Continental is awaiting a response from SGS.

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