Author Archives: Jeanine DeBacker

Just because you can (track your employees with an app), should you?

Well, I had planned on a quick post about the new CFRA regulations issued last month, but then my assistant sent me this article about a case filed in Bakersfield. The plaintiff alleges that she was terminated when she uninstalled an app that allowed her employer to track her movements – during work hours and after hours. The author of the article, Daniel Howley of Yahoo! Tech is a better writer than me, so I won’t steal any more from him.

I want to point out that even if you aren’t tracking your employees’ movements via an app, or a GPS device, there are important issues raised in this article. Almost every employer I work with has employees with smartphones (or watches. . .or tablets. . .) that are used for personal matters and work, during work hours and after work hours, paid for by the employer, or not. There are privacy issues, confidentiality issues, wage and hour issues, harassment issues, etc. I’d like to send the entrepreneurs who create in this area a big thank you for creating great products, and additional employment law work!

More on Paid Sick Leave? More on Paid Sick Leave!

An update on some of the issues California employers are facing with the new law. . .
In my last post, I wrote about some of the basic rules an employer with California employees needs to follow. Since then, I’ve been asked more questions, and wrestled with crafting plans, and attended a few conferences, and read more from California’s Division of Labor Standards Enforcement. . . Here’s some more information:

The start date really is July 1, 2015. The law says that an employee qualifies for paid sick leave if he or she works 30 days in California. Some commentators have stated that this means the rule doesn’t really “start” until those 30 days are up – July 31, 2015. The DLSE clarified that employees start to accrue on July 1, 2015 or their hire date, if later.

The law covers pretty much every employee in California (and thus every employer). If you have a collective bargaining agreement or provide home health services, you need to take a close look at the coverage rules – don’t assume you aren’t a part of this fun!

Employees can start using their paid sick leave after 90 days of employment. Depending upon what method you have elected to use, this could mean different things. If you are relying upon your PTO or sick leave program that already exists and satisfies the rule, don’t put that program on hold for 90 days, or some other “cost-saving” trickery. . .

If you have chosen the “three day grant” method, you must provide no less than 24 hours or three days of paid sick leave for an employee to use each year. The three days (or more, if the employer is more generous) must be available to the employee from the start of the grant year. For initial hires, however, the employee must still meet the 90 day employment requirement prior to taking any paid sick leave.

Another thing about the three day grant – three days must be granted as of July 1, 2015. There is no pro rata or other exception to the three days. And then, on January 1, 2016 you’ll need to grant three days again.

Temporary employees of a staffing agency are covered by the new law. Whoever is the employer or joint employer is required to provide paid sick leave to qualifying employees. Staffing companies and their clients need to address how this will be accomplished.

If you offer “no accrual” or “unlimited” time off, you still need to comply with the law. The employer must separately track sick leave accrual and use. Don’t worry, your employees won’t be confused if you explain it!

The DLSE clarified that where employees work an Alternative Workweek Schedule and the employer has elected the grant method, then the employee will have the days placed into in his or her bank. This means that an employee who works four ten-hour days must be granted three days (30 hours).

If you have an attendance policy that docks unexcused absences for counseling / discipline, etc., you need to take a close look at it and likely revise it. The new law prohibits an employer from disciplining an employee for using sick days accrued under the statute. If an employee properly used paid sick leave and is disciplined for taking an unexcused absence, he or she could raise a retaliation claim. This doesn’t mean your policy must be trashed, just revised.

Electronic paystubs that provide employees with notice of the amount of statutory paid sick leave (or PTO that can be used for statutory paid sick leave) appear to satisfy the rule that you provide the information on an itemized wage statement.

As always, if you have questions, please contact us!

Whoa! It is almost the end of February! Have you completed these 2015 action items?

Here’s a list of action items to make sure your 2015 is off to a fantastic, compliant start!

Paid Sick Leave

For most California employers, there has been a lot of focus, and some tough choices, in preparing for the July 1, 2015 “start date” for California’s Paid Sick Leave law. (AB 1522, the “Healthy Workplaces, Healthy Families Act of 2014”)

The legislation is confusing and difficult to implement and this short blog entry is just meant to provide a brief overview. Basically, every employee is eligible for paid sick leave that starts accruing the first day of employment. This means every full time, every part time, every temporary employee is entitled to the benefit.

The paid sick leave must accrue at the rate of no less than 1 hour for every 30 hours worked. For exempt employees, you can assume a 40-hour workweek to track this. But for non-exempt employees, the law reads that the accrual is for every hour worked.

The employer can delay use of the time until 90 days have elapsed. And there is also the rule that the employee is eligible only if they work 30 days in California. But this “30 day rule” does not trump the “accrue from the first day of employment” so you need to be mindful of how these rules work together.

If your company already has a sick leave policy, or “PTO” or something similar with a more creative name, it might comply with the rules, but you must carefully review the accrual rates, annual caps, etc., to make sure. And be mindful of any “attendance policy” that may punish an employee for taking paid sick leave – you don’t want to walk yourself into a violation of the rule due to in artful language.

Some collectively bargained situations are “exempt” from the rule if the agreement provides for specific benefits to all covered employees, such as paid time off, arbitration of certain disputes and a higher minimum wage. There are some other exceptions – for the construction industry and in-home supportive services, for example – that must be reviewed carefully before applying.

If you have any employees in San Francisco or Oakland, you must comply with the paid sick leave rules specific to those cities. For example, the annual cap for both cities is likely higher for your company than the 48 hours in the state law. And in Oakland, there is no option to grant three days with no accrual.

To do:
•   Notify employees of their rights to paid sick leave under state and local law (once you’ve decided how you’re going to implement the new rules)
•   Post notices in common areas of employees’ rights to paid sick leave
•   Begin tracking accrual for all employees July 1, 2015 (or earlier if in SF or Oakland)
•   Confirm that every employee will receive written notice of his or her current accrual/use every pay period. The pay stub is likely the simplest writing to convey this information.

Employer Policies

In addition to the paid sick leave changes, you should:

•  Confirm that any computer use policy explicitly states that it is not intended to restrict your employees’ rights to discuss the terms and conditions of his or her employment, as provided by law.

•  Update any language in your policies that describes protected time off for volunteer “emergency duty.” California law previously prohibited employers from terminating or discriminating against employees for taking time off due to their emergency duty as a volunteer firefighter, reserve peace officer or emergency rescue personnel. AB 2536 amended the definition of “emergency rescue personnel” to include an officer, employee, or member of a disaster medical response entity sponsored or requested by the state. This definition includes an officer, employee, or member of a political subdivision of the state, or of a sheriff’s department, police department, or a private fire department.

•   If you use unpaid interns, volunteers or apprenticeship trainees (and if you do, you should definitely talk to your employment counsel), be sure that they know that FEHA’s – and your company’s — harassment and discrimination protections extend to them.

•   If your employees use cell phones for work-related matters, including email, you should review all aspects of this use. For one, the company is likely obligated to reimburse at least a portion of your employees’ cell phone bills under Labor Code §2802. And there are a host of other issues you should regularly review: such as, are non-exempt employees using cell phones (or other remote access) after hours? Are employees able to nick confidential information with a simple email? What security is in place to prevent unwanted access to your system?

Having the above items under control is a great start. Since this is California, we’ll definitely have more to talk about soon. And my New Year’s resolution was to update my blog more. . . so. . . better late than never. Here we go!

Are you on board with the Bay Area Commuter Benefits Program? Today’s the Day!

Just a reminder that today is the day that Bay Area employers must get on board with the Commuter Benefits Program.

You probably already know that getting commuters out of single occupancy vehicles can significantly reduce carbon emissions. That’s the best reason for this blog entry.

September 30, 2014 is the day covered Bay Area employers are to register with the Bay Area Air Quality Management District. In essence, the rule is that employers with 50 or more full-time employees within the nine Bay Area counties (Alameda, Contra Costa, Napa, Solano, Sonoma, Marin, Santa Clara, San Mateo, and San Francisco) must offer certain commuter benefits to eligible employees.

A “covered employer” is: “Any public, private, or non-profit entity (person, corporation, partnership, business firm, government agency, special purpose agency, educational institution, health care facility, etc.) for which an average of 50 or more full-time employees per week perform work for monetary compensation within the geographic boundaries of the District. . . The term excludes seasonal/temporary employees.”

A “covered employee” is an employee “who performed an average of at least 20 hours of work per week within the previous calendar month within the geographic boundaries of the District, excluding a seasonal/temporary employee.”

A covered employer must:

1. Offer Commuter Benefit Options. The employer must offer one or more of the following commuter benefit options to eligible employees by September 30, 2014:

a. Pre-Tax Option. Under this option, an employer allows employees to elect to exclude commuting costs incurred for transit passes or vanpool charges from their taxable wages (this must also be consistent with IRC 132(f)). These are basically “commuter checks.” Vendors can provide these to you and help you manage the program – email me if you need suggestions!

b. Employer-Paid benefit. For this option, an employer offers employees a subsidy equal to the monthly cost of commuting via public transit or vanpool, or $75, whichever is lower. Employers may also choose to provide a subsidy for bicycle commuting costs.

c. Employer-Provided transit. You can have your own Google bus! For this option, the employer must give employees at no or low cost (as determined by the Air Pollution Control Officer) a vanpool, bus or similar multi-passenger vehicle operated by or for the employer.

d. Alternative commuter benefit. Finally, an employer can be creative and provide a pre-approved alternative employer-provided commute benefit that is as effective as getting employees out of single occupancy vehicles as the other options (AKA the wild card!).

2. Notify eligible employees of the options available and how to take advantage of them

3. Designate a Commuter Benefits Coordinator and register. The Coordinator (you, lucky reader?) must register with the Bay Area Air Quality Management District through the commuter benefits program website (I fixed the link!).

So. . .a reminder of your obligation to give your employees options to encourage commute alternatives, thus improving air quality, is my primary reason for this post.

The second best reason? It lets me link to an old Onion article: “Report: 98 Percent Of U.S. Commuters Favor Public Transportation For Others.” Makes me laugh every time.

“But we couldn’t make it without our volunteers!” — A very expensive trap for the unwary business owner (even if you don’t think of it as a “business”)

As you may gather from the very title of this blog, I focus on California employment law (!). This past week, a colleague whose practice has a focus on helping wineries and breweries with legal issues gave me a heads up on a confluence of our practice areas: the use of volunteers at wineries. While you, dear reader, may not operate a winery, you may use volunteers – read on!

For most people, getting to work for a small winery is that rare chance to do something you love. Some even perform the work for free because it is fun, or because volunteering is a great opportunity to get a foot in the door, or because it is a chance to help a friend. Many wineries rely upon volunteers to work in the tasting room, pour at festivals, and help with the bottling line. And while months, or years may go by where this creates a seemingly symbiotic system, with rewards for both the volunteer and the winery, the employment concerns are a ticking time bomb of penalties and unpaid wages.

In general, both California and federal laws that govern how people are to be paid prohibit most private sector, for-profit employers from using volunteers. For the most part, only public sector and non-profit organizations can use volunteers and only when the volunteer is performing civic, charitable, or humanitarian work.

An important thing to remember about California’s employment laws is that, for the most part, they apply to every employer — from every “new economy” tech company with the latest killer app to every small business started 40 years ago. Needless to say, there is no exception for small, medium or large wineries.

In California, an individual is an employee if he or she works in the service of another person (the employer) and that employer has the right to control the details of the employee’s work performance. There are a few, very limited exceptions to the rule that California expects workers to be paid as employees. These exceptions include bona fide independent contractors (bona fide being a key phrase!), educational internship programs and immediate family members of the employer (spouse, parent, child). There are also limited exceptions for certain types of jobs. Except for those limited exemptions to the general rule, California requires that an employee be paid at least minimum wage for all hours worked, be paid overtime for all hours worked over eight in a day (and 40 in a workweek), and to be provided the opportunity to take meal and rest periods of a minimum length. This means that, at a minimum, a winery or any other employer must make the appropriate arrangements to properly hire, pay and employ workers.

Before someone can begin working, the employer must require the individual to show that he or she is legally authorized to work in the United States. The employee must complete a Form W4 to determine withholdings for income tax purposes. The employer must track the hours worked by the employee on a daily basis to ensure overtime is paid. The employer must issue paychecks at least every two weeks, and the paystubs must include specific information such as the hours worked, the overtime earned, and the rate of pay, among many other pieces of information. A written offer letter and/or a letter setting forth certain terms and conditions of employment can be invaluable – and sometimes required. This is just a short summary of the requirements for being an employer, but it is a good starting point.

After my colleague told me about this issue for local wineries, I did the heavy research of looking up the matter on the internet. I found some commentators suggesting that wineries simply pay the (former) volunteers as “1099 workers” or as contractors. This decision could get the winery into different, and expensive trouble with the workers and government agencies. It is the rare winery worker who is properly classified as an independent contractor because a critical factor in assessing that status is the degree of control over the worker. For example, the individuals who work in the tasting room pouring your wine the way you want it poured, talking about your wines, and selling them, is an employee. The workers who come every two weeks to maintain the landscaping are contractors.

In the end, many wineries—and other types of companies! – have used volunteers to supplement their paid work force. They have done this without any evil intent. The law, however, is set up to protect workers from, well, “other” companies – the ones that force workers to volunteer for a period before they may consider being hired, the ones that don’t pay at least minimum wage, etc. In any event, no matter how generous you are with your volunteers in ways other than wages, it could be a very detrimental decision to continue using them in this manner. Volunteers can seek back wages for four years’ time, along with substantial penalties, interest and attorneys fees. It is not uncommon for the penalties and fees to exceed the underlying wages owed. And these situations are ripe for the dreaded, financially crippling class action.

If you think you may need to take a close look at how you pay (or don’t pay) people who work at your company, give any of the attorneys at McPharlin Sprinkles & Thomas LLP a call!

(And for a link to my colleague who can help with your winery, brewery and distillery legal issues, click here.)
Whew. I need a drink!

Healthy Workplaces, Healthy Families! Paid Sick Leave Will be the Law in California Next Summer

Starting July 2015, California Employers in California must give part and full-time workers at least three days of paid sick leave each year. Here’s a very quick summary of the new rules – we’ll delve deeper in the ten months before it takes effect.

The new law, signed by Gov. Jerry Brown on September 10, 2014, gives workers paid sick leave at a rate of one hour for every 30 hours worked and lets them begin using the accrued time after 90 days of employment. The hours could also be used for time off to care for a sick family members, including a child, parent, spouse, registered domestic partner, grandparent, grandchild or sibling.
An employee could also use the paid sick leave in conjunction with protected time off for an employee who is a victim of domestic violence or stalking.

Accrued but unused paid sick days will carry over to the next year, but in certain circumstances the employer may limit the workers’ use of the paid time to 24 hours (3 days) per year.

As with the San Francisco Paid Sick Leave Ordinance enacted in 2006, if an employer already offers a paid sick leave program (either paid sick leave or “PTO”), the terms of that program should be reviewed to ensure the accrual, carryover, and protections in the existing program are at least as generous (if not more so) than the new law.

Employers will be required to display posters telling employees of their right to paid sick days and informing them that retaliation for requesting or using paid sick days is illegal. Employers could face fines of up to $4,000 per day for withholding paid sick leave or violating the bill’s requirements. Offer letters, handbooks, and other policy statements should be reviewed and revised appropriately.

The requirement applies to both full-time and part-time employees, but exempts workers subject to certain collective bargaining agreements and airline flight crews and attendants who are under federal labor laws. As reported by the L.A. Times, a late amendment was added to the bill to exempt state-funded in-home healthcare providers because including them would have cost the state $106 million annually.

For your reading pleasure, you can find the full text of the new law here:

Paid Time Off: It Brings (Some) of Your Workers Back

Yesterday, an article in the New York Times (The Upshot by Claire Cane Miller) discussed paid time off and how government and employer policies can result in more workers with children back in the workforce. Of course, it exposed the rift between employers of low skilled and highly skilled workers – and we could definitely get together over a cup of coffee to break down the socioeconomic issues there. The article also discussed the role of paid paternity leave as a means of relieving maternity leave pressures, and of the growing effect that elder care will play in the coming years. (Even more coffee!)

I was going to cheat and give you a link to the article, but its behind a paywall. Instead, here are some highlights:

As you’ve heard many times, the U.S. is the only developed country not to offer paid maternity leave as part of federal policy. About 59% of workers say that their companies offer them paid leave. While this makes it easy to count money saved where there is no paid leave in the budget, the ultimate effect may be harmful to the companies without paid leave.

After California became the first state to offer paid parental leave with the six week Paid Family Leave program, “new mothers were more likely to return to work, according to a study by Maya Rossin-Slater and Jane Waldfogel of Columbia University and Christopher J. Ruhm of the University of Virginia. One to three years later, mothers of small children were working more and at higher incomes. Paid leave provides job continuity, economists say, so women are less likely to leave the labor force. Paid leave is particularly important for low-income mothers, who more than doubled their maternity leaves in California.”

On the other end of the socioeconomic spectrum, Google found that “postpartum women were leaving the company at a rate twice that of other employees. So Google expanded its maternity leave to five months fully paid from three months partly paid. Attrition decreased by 50 percent.”

For Google, and other places who require a highly skilled workforce, the cost of paid time off was less than the cost of recruiting another highly skilled employee.

Different workplaces, however, have different “cost calculations.” As the article notes, “At low-skilled jobs . . . the calculus shifts, because workers are more easily replaceable. That has led to increased inequality, because high-skilled workers tend to have paid leave while low-skilled ones do not.”

Of course, all the employer-provided paid leave benefits are in addition to the job protections under state and federal law. Many employers –not yours, dear reader, given that you are looking at a blog about employment law, I assume you are on top of this — don’t provide the full protections of those laws. For more information on those laws, please see my prior posts.

Interested in Applicants Criminal History? Steer Clear. . . and “Ban the Box”

I finally decided on a great, interesting blog topic – and one that I get questions about often: Asking about applicants’ criminal history. And then I remembered why I thought it was such a great, interesting blog topic: because one of my favorite employment lawyers already wrote about it. So, I am turning my attention to a new topic and in the meantime, here is a link to Mary L. Topliff’s very informative article on the “Ban the Box” movement.

For leaves of absence, be open minded!

LOA Chart

Employers can get into trouble in a lot of ways. An easy way to mess up is to “hide the ball” and not let employees know that they might be entitled to a protected leave of absence. It is important to remember that a protected leave of absence is usually just the right to take unpaid time off and then come back to work. It is generally not paid time off, and is generally not meant to be used for a trip to Aruba. Employers should be mindful of all the different types of protected leaves an employee could be eligible to take –and provide information about the protections. Do not wait until an employee uses magic words to ask for the time off (like, “I note that we have more than 50 employees, and I’ve worked here for over 1,250 hours this year, and over 12 months for you in total. . . I’d like to take protected time off under the federal Family and Medical Leave Act and the California Family Rights Act…”).
I have a short chart I use to remind myself of the leaves of absence that can come into play here in California. It is, of course, not intended to replace looking at the actual statute, or talking to your legal counsel! It is just meant to remind you that “there [may be] a protected leave for that!” So. . .click the link at the top of this post, print it out, scribble on it, keep it close at hand, train your managers to look out for situations where leave may be appropriate – in other words, Enjoy!

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!