Category Archives: Legal Update

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!

Gov. Brown to Sign Law Increasing Minimum Wage Today

Governor Brown will sign AB 10 today at official signing ceremonies in Oakland and Los Angeles today. (These are invitation-only ceremonies. I wasn’t invited.)

AB 10 will raise California’s minimum wage in two one-dollar increments, from $8 per hour today to $9 per hour, effective July 1, 2014 and from $9 per hour to $10 per hour, effective January 1, 2016.

Walk on the Safe Side: Distribute Your Health Care Reform Notices to Workers by October 1, 2013

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But Don’t Tear Your Hair Out if You’re Late

Here’s the executive summary: Under Health Care Reform, employers must give a notice to all workers that explains how the health insurance exchanges work and the impact of buying coverage off the exchange if the worker already has employer-provider coverage, among other things. But this week, the DOL said that while the notices must be provided, there is no penalty for not handing them out. We recommend you still distribute the notices.

Here’s a slightly more elaborate explanation:

The “individual mandate” under federal Health Care Reform will become effective on January 1, 2014. As of that date, all individuals must have health insurance coverage or pay a penalty.

To ease the purchase of coverage by individuals, state insurance exchanges will offer coverage commencing on January 1, 2014, with open enrollment beginning on October 1, 2013. California’s insurance exchange is called “Covered California.”

Notices due by October 1, 2013

Under the Health Care Reform law, employers must notify employees of their options for coverage under the law by October 1, 2013. The notice informs employees of the existence of the exchanges, the possibility that workers may be eligible for a tax credit if they buy coverage through an exchange, and that workers who purchase coverage through an exchange may lose their employer’s contribution toward coverage.

The deadline for the notice to existing employees is October 1, 2013. And employers are to give it to employees hired after that date within 14 days of their date of hire. The notice must be provided to each employee, regardless of plan-enrollment status or part-time or full-time status. Employers are not required to provide a separate notice to dependents or retirees, but an employer’s obligation to provide notice may extend to its independent contractors and leased workers, depending on the nature of their relationship with the employer.

The notice may be distributed by email or in hard copy, and the Department of Labor created a model notice that employers can use to satisfy their obligations under the law. The model notice, OMB No. 1210-0149, is available on the Department of Labor’s website Click here (if you offer coverage) and here (if you don’t).

There is no penalty (yet) if employers fail to distribute the notice!

The Health Care Reform law has a $100-a-day penalty for noncompliance with its provisions and we had assumed this penalty would apply to employers that fail to distribute the exchange notice. But in a “FAQ on Notice of Coverage Options” posted on the DOL’s website this week, the DOL writes:

Q: Can an employer be fined for failing to provide employees with notice about the Affordable Care Act’s new Health Insurance Marketplace?
A: No. If your company is covered by the Fair Labor Standards Act, it should provide a written notice to its employees about the Health Insurance Marketplace by Oct. 1, 2013, but there is no fine or penalty under the law for failing to provide the notice.

The U.S. Small Business Administration repeated this point in a Sept. 12 online posting that stated: “If your company is covered by the Fair Labor Standards Act, you must provide a written notice to your employees about the Health Insurance Marketplace by Oct.1, 2013. However, there is no fine or penalty under the law for failing to provide the notice.”

You should still distribute the notice

While there is no penalty, you should still distribute the notice to your workers. (Okay, maybe you don’t need to work all weekend to get it out by October 1, but you should make an effort to get it out by then — or shortly thereafter.) In addition to it being “the rule”, the DOL’s position on the penalty could change – and maybe you are focusing on something else during that time and miss it. The DOL has directed employers to provide the information – Just Do It!

The employment lawyers at McPharlin Sprinkles & Thomas LLP are ready to help you with questions about compliance with health care reform. Give us a call!

When we win, we’ll get our attorneys’ fees, right? Right!??!?

file0001422084804Well, if you are an employer defending a wage and hour claim, probably not. Earlier this week, Governor Jerry Brown signed SB 462. The new law severely restricts the award of attorneys’ fees to employer-defendants in wage claim issues. Effective January 2014, employers that prevail in litigation will have to show that workers sued “in bad faith” over nonpayment of wages, benefits or pension contributions to secure attorney fees and costs. The same restriction will not apply to winning worker-plaintiffs.
The law amends Labor Code section 218.5, which previously permitted either the employee or employer to seek attorney’s fees as the prevailing party. The revised statute authorizes attorney’s fees to employers (or any other party that is not the “employee”) only if the court determines the lawsuit was brought in “bad faith.” That’s a high standard –meaning it is unlikely that employers will be awarded their fees.

Summer! Fun! Employment Law Update All Day Training June 27!

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Please join me as I moderate and present at the Employment Law Update in California training in San Jose on June 27, 2013. My partner Anne Stromberg and Marc Jacuzzi of Simpson, Garrity, Innes and Jacuzzi, P.C. will be talking about the following:
* Hiring, Counseling and Terminating Employees
* Wage and Hour Law Update
* FMLA, ADA, FEHA and Workers’ Compensation
* Sexual and Other Unlawful Harassment in the Workplace
* Harassment Investigations

The training will be at the San Jose Airport Garden Hotel (1740 North First Street in San Jose). 6.50 hours of HRCI credit are available – and there is also MCLE, CPE and CPP/FPC credit.

To sign up/ register, please click here.