Monthly Archives: October 2013

So, Where Are We? California’s New Employment Laws for 2014 – and an Extra from SF!

While there will be new cases, and maybe some administrative action — like last year’s December 30 issuance of the pregnancy regulations! — I am on pretty firm footing to say that we know what the new employment laws will be in California. Governor Brown’s deadline for signing bills was October 13, 2013. Below I summarize a few of the new rules you’ll need to be ready for in 2014. The minimum wage increase starts on July 1, 2014. The rest of the new laws will kick in on January 1, 2014.

Minimum wage increase over the next two years, beginning with the first increase to $9 per hour on July 1, 2014.

The rate will increase to $10 per hour on January 1, 2016.

Note that the increase in minimum wage increases the minimum amount employers must pay most exempt employees (“no less than two times minimum wage. . . “). If you pay your exempt employees a salary of about $33,280 per year, you’ll need to adjust this next summer to preserve the exempt status.

Fair Employment and Housing Act (“FEHA”) amended to extend protections to military and veterans.

“Military and veteran status” are to be added to the list of protected classes under FEHA in order to increase employment discrimination protections for the 1.8 million California residents who are military members and veterans. This law will not affect other state laws allowing employers to consider military or veteran status for purposes of awarding a veterans’ preference.

FEHA amended to clarify the definition of sexual harassment.

FEHA is now clarified to state that sexual harassment need not be motivated by sexual desire. The new law clarifies the legal standard that had been muddied by the 2011 case Kelley v. The Conco Companies. In that case, the court dismissed claims of same-sex harassment because the plaintiff could not show the harasser was sexually interested in him. This result was absurd, and not particularly helpful to employers trying to make it clear to employees what behaviors are not permitted in the workplace.

With the change, plaintiffs can demonstrate harassing conduct by showing one of the following:
• Sexual intent or desire by harasser to plaintiff.
• General hostility by harasser towards particular sex of which plaintiff is member.
• Through comparative evidence about how harasser treated members of both sexes in workplace.

Overtime compensation for domestic workers.

Employers of domestic employees must pay time and a half for each hour worked over nine hours in one day or 45 hours in one week. The law applies to all employees engaged in “domestic work,” including nannies, housekeepers, and those who provide care for people with disabilities (“personal attendants”).

Paid Family Leave expansion.

Currently, California provides wage replacement of up to six weeks when an eligible worker took permitted time off to care for a seriously ill spouse, domestic partner, child or parent. Under the new law, eligible employees are eligible for wage replacement when taking permitted leave to care for siblings, grandparents, grandchildren, and parents-in-law. As before, the Paid Family Leave is a means for employees to receive wage replacement while on permitted leave. It does not create a protected leave of absence.

And an Extra from San Francisco!

San Francisco’s Family Friendly Workplace Ordinance

Last week, San Francisco passed the Family Friendly Workplace Ordinance. Mayor Ed Lee announced that San Francisco is the first city in the nation to “adopt policies that protect its talented workforce and keep San Francisco a city for the 100 percent.”

If you have employees in San Francisco, you need to be aware of this new law and comply. And if you don’t have employees in San Francisco, I suggest that you at least read the rest of this post for sheer fun: we have seen with many workplace reforms passed by San Francisco, they tend to spread across the state and then the country.

San Francisco’s Family Friendly Workplace Ordinance will give employees the right to request flexible work arrangements to assist with caregiver responsibilities. San Francisco employers will be required to consider and respond to all such requests in a formal manner.

Effective January 1, 2014, the Ordinance will apply to employers and their agents who regularly employ 20 or more employees. Under the rule, employees who have been employed for six or more months and work as little as eight hours per week have the right to request a flexible work arrangement to assist with caregiver responsibilities for: (1) a child; (2) a parent age 65 or older; or (3) a spouse, domestic partner, parent sibling, grandchild or grandparent with a serious health condition. Employees can request accommodations in terms of their hours, schedule, work location, work assignment and the predictability of their work schedule.

The employee’s request must be in writing and must explain how the change will help them meet their caregiver responsibilities. The employer must then meet with the employee and respond in writing within 21 days. If the employer denies the request, it must explain in writing the reason for the denial and notify the employee of his or her right to request reconsideration.
In any written denial of a request for a flexible work arrangement, the employer must be clear as to why it cannot accommodate the request. The employer is required to provide a “bona fide business reason” for the denial, such as productivity loss, a detrimental effect on meeting customer demands, an inability to organize work among employees or insufficient work during the time the employee proposes to work. An employer denying a request also must provide the employee with the text of the Ordinance granting reconsideration rights.

The Ordinance allows eligible employees to make two requests per year. However, an employee may make additional requests following the birth of a child, the placement of a child through adoption or foster care, or an increase in the employee’s caregiving duties for a family member with a serious health condition.

The San Francisco’s Office of Labor Standards Enforcement (OLSE) will be responsible for enforcement of the Ordinance. The OLSE intends to publish mandatory posters providing employees notice of their rights under the Ordinance. Employers will be required to post notices in English, Spanish, Chinese and any other language spoken by at least 5% of employees at that site. The OLSE also will manage compliance with the Ordinance through employer audits and handle claims of retaliation or interference with employees’ rights under the Ordinance. Accordingly, employers are required to maintain documentation of employee requests for 3 years.

Okay – you got all that? More to come!

Labor Commissioner Cites Restaurant $481,813 for Wage Violations

Sometimes a business is a “bargain” because it isn’t following the rules. . .

An Alameda restaurant was cited $481,813 by the Labor Commissioner last week for civil penalties and wages owed to employees for violation of minimum wage, overtime and rest period laws.

According to an announcement by California’s Department of Industrial Relations, workers at Toomie’s Thai Cuisine “routinely worked at least 10.5 hours each day, up to seven days a week” and the owners did not pay the required minimum wage for overtime hours. Servers were paid $45 in cash per day; kitchen staff got between $75 and $120, according to the Labor Commissioner’s investigation. The citation figure breaks down to $108,200 in civil penalties and $373,613 back pay to the workers.

In an article about the citation, the San Francisco Chronicle noted that the restaurant “was the subject of a Bargain Bite feature last year.” I assume that the restaurant was a bargain because it wasn’t paying its labor costs. The investigation by the Labor Commissioner is part of that entity’s effort to level the playing field for businesses that follow the rules.

Follow the rules!

What Will California’s Minimum Wage Hike Mean for Construction in California? Probably Not Much.

I just read Garret Murai’s great blog post on the effect the new minimum wage law will have on the construction industry (. . . not much!). I hope you are able to read it, enjoy it, and follow Garret’s blog!

California Construction Law Blog | Wendel Rosen

This past week, backed by a small army of construction apprentice program students in green hard hats (I’m sorry, the green hard hats just get to me for some reason), Governor Jerry Brown signed legislation which will increase California’s minimum wage from its current $8 to $9 per hour beginning July 1, 2014 and from $9 to $10 per hour beginning January 1, 2016, making California’s minimum wage the highest in the nation.

But despite the impressive backdrop of smiling, uniformed construction workers representing California’s future labor force, what will California’s minimum wage increase mean for construction in California?

Probably not much.

According to the U.S. Bureau of Labor Statistics’ most recent survey taken in May 2012, California employed 85,000 construction laborers who earned an annual mean wage of $42,790 per year at an hourly mean wage of $20.57 per hour, second behind only New York whose 49,790 construction laborers earned an annual…

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