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New Laws ’18, part 2!

Two very significant new laws were signed by Governor Brown last week.  Here’s a quick summary.

Parental Leave for Employees of “Smaller” Employers

Last week, Governor Brown signed SB 63, the New Parent Leave Act.

The new law requires employers that have between 20 to 49 employees within 75 miles to hold eligible workers’ jobs when they take up to 12 weeks of parental leave.

The new law amends the California Family Rights Act (CFRA) to provide this protected time off. The new law will likely alleviate some of the confusion created by the (poorly) named Paid Family Leave program. That law provides wage replacement when an employee took family leave, but didn’t actually provide the protected time off. This created a lot of misunderstanding about who was entitled to take time off.

Ban the Box

AB 1008 was also signed by Governor Brown last week.

This law will make it an unlawful employment practice under for an employer with 5 or more employees to include on employment applications any question that seeks the disclosure of an applicant’s conviction history or to inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer. The new law also prohibits employers from considering or distributing information about an applicant’s prior arrests, diversions, and convictions. If an employer intends to deny an applicant solely or in part because of conviction history, the employer must make an individualized assessment as to how the conviction has a direct and adverse relationship with the specific duties of the job, among other things. Notice to the applicant is required and the applicant must be given an opportunity to explain or dispute the accuracy of the information. There are, of course, exceptions to this rule – but don’t assume they will apply to your workplace!

Countdown to New Laws ’18! – Protections Against ICE Workplace Raids

On October 5, 2017, Governor Brown signed AB 450 into law. The law prohibits employers from allowing federal immigration agents on private business property without a judicial warrant.

If ICE shows up at your business, do not permit them access to non-public areas without a warrant.

The new law also requires business owners to give their employees public notice — within 72 hours — of federal immigration inspections of employee records. A template created by the Labor Commissioner can be used for the notice.

AB 450 also:

  • Requires an employer to provide affected employees (meaning employees who may lack work authorization or whose documents have deficiencies) a copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms, upon reasonable request.
  • Requires employers to provide to affected current employees, and to an employee’s authorized representative, a copy of the immigration agency notice that provides for the inspection results and written notice of the obligations of the employer and the affected employee arising from the action.
  • Prohibits an employer from re-verifying the employment eligibility of a current employee at a time or in a manner not required by federal law.
  • Prescribes penalties for violations of the provisions of the new law from $2,000 – $10,000.

And in case you didn’t know. .. a new-NEW!- Form I 9 is now in effect (even newer than the one I wrote about in January).  You can pull it up here.

Summer Webinar Fun! Unlimited PTO: What Employers Need to Know

“Unlimited” means “No Limits”, Right?

On July 20, 2017, I will be participating in a webinar that will take a deeper dive into popular “Unlimited Time Off” programs.  Many employers have implemented these programs as a perk for employees and to avoid the hassle of tracking time off and the reasons for it.  But “unlimited” can mean “unlimited” and that can get companies into trouble.

I will talk about non-accrual time off programs, including their risks and rewards, and how to implement and manage them; we’ll also talk about how to go back to the accrual method.  And how this all works within the various state and local paid sick leave requirements.  The learning objectives include:

  1. Reviewing the general rules governing time off in California for vacation and sick leave
  2. Implementing a non-accrual time off program for new and existing businesses, including recommended policy language
  3. Managing a non-accrual time off program
  4. Converting from a non-accrual to an accrual program

If you offer unlimited PTO or are thinking about it, this is a must attend webcast.  Register today!

Here is the registration information:

Title of webcast: Unlimited PTO: What Employers Need to Know

Date 7/20/17  10-11 AM

Registration URL –

https://event.on24.com/wcc/r/1449235/F6935618891E2B057D0616AEADD3DE11

Pending approval for 1 general continuing education credit from HRCI.

Celebrities, They’re Just Like Us!

Well, they’re just like a lot of employers who don’t realize or admit that they are employers.

Mary-Kate and Ashley Olsen were ordered to pay $140,000 to former interns who claimed they were not paid wages for work performed.  The case was in Manhattan, but the basics are the same here in California: if someone performs work for you / your company, the default is that they should be paid at least minimum wage (and overtime, and get breaks). Only after a detailed legal analysis should you move to anything other than “pay for time worked.” The “honor” of learning at your feet does not pay for the basics of daily living! Here’s a short article on the claim.

Be careful!  “Pay now or pay later” is really “pay the basics now or pay a ton in wages, penalties and attorneys’ fees later.”

New Form I-9’s!

Mark your calendars! As you know, all employers must use a Form I-9 to verify the identity and employment authorization of individuals hired for employment.

The new Form I-9 is now available for use and employers must use this new version as of January 22, 2017. This means that for anyone hired on or after January 22, 2017, you must use the new form.  You should not require current employees to re-verify (unless there is a legally required reason to do so).

Go through your “new hire packets.”  All blank versions of the older Form I-9 should be destroyed – and any links on computers changed.

The new form is an example of “more, not less” – more pages! More instructions! The person at your company tasked with the power (okay, the responsibility) of completing the form should pour a nice cup of coffee and read them through – there are some subtle, but important, changes.

For example, in a move to protect privacy, individuals will only need to provide other last names used (if any) – not former first names.

Subtler changes are that Section 1 now asks foreign national employees to provide either their Form I-94 number or foreign passport information, not both. And Section 2 has been enlarged with space to enter information that used to be squeezed into the margins – such as Temporary Protected Status extensions, Optional Practical Training for STEM student extensions, H-1B portability, etc.

And. . .keep in mind that here in California, protections for employees are stronger than other states.  It is unlawful for an employer to request different or additional documents than are required for the Form I-9, to refuse to honor documents that appear genuine on their face, to refuse to honor documents or work authorization based upon the specific status or term of that work authorization, and to attempt to re-investigate or re-verify an incumbent employee’s authorization to work using one of the above methods.

Good luck!

2017 Employment Laws

Happy New Year!

Here’s a short summary of new employment laws set to take effect in January and beyond. If you have any questions about these changes, please do not hesitate to contact me.

Changes to federal overtime rules are on hold.  New federal overtime guidelines were to take effect on December 1, 2016.  In general, these new rules would require that exempt employees be paid an annual salary of at least $47,476. A federal judge in Texas recently issued a preliminary injunction that indefinitely delays the implementation of a new rule.

Minimum Wage Increase.  For employers with at least 26 employees, minimum wage will increase on the following schedule:

  • $10.50 per hour starting January 1, 2017
  • $11 per hour starting January 1, 2018
  • $12 per hour starting January 1, 2019
  • $13 per hour starting January 1, 2020
  • $14 per hour starting January 2021
  • $15 per hour starting January 1, 2022

For employers with 25 or fewer employees, the minimum wage increase will lag behind larger employers by one year:

  • $10.50 per hour starting January 1, 2018
  • $11 per hour starting January 1, 2019
  • $12 per hour starting January 1, 2020
  • $13 per hour starting January 1, 2021
  • $14 per hour starting January 1, 2022
  • $15 per hour starting January 1, 2023

Many local municipalities have their own minimum wages. As of January 1, 2017, local minimum wages include:

  • $13/hour for San Francisco
  • $13/hour for Sunnyvale
  • $12.25/hour for Oakland
  • $11/hour for Santa Clara
  • $10.50 for San Jose

Exempt employees.  The minimum salary that must be paid to exempt employees in California corresponds to the state minimum wage. Exempt employees must earn at least twice the state’s minimum wage for full-time employment, and must increase as the minimum wage increases. Thus, per the above schedule, for larger employers the minimum salary is $43,680 and for smaller employers, the minimum salary is $41,600.

Fair Pay Expansion.  Last year, the Labor Code was revised in an effort to eliminate the gender wage gap by trying to increase wage transparency and making it more difficult for employers to defend against gender-based equal pay claims.  For 2017, these laws are expanded to bar employers from paying employees wage rates less than the rates paid to other employees of another race or ethnicity for substantially similar work.

New pay rules for certain industries.  In-home support services providers are now eligible for paid sick leave after working in California for 30 or more days within a year of hire.  The weekly pay rules governing temporary services employers will cover most security guards.  Starting in 2019, farm laborers will be eligible for daily overtime (not just weekly).  Also, starting in July 2017, private school teachers must earn no less than 70% of the lowest scheduled salary offered by the school, district, or county in which the school is located, or 100% of the lowest salary offered by any school district to a credentialed teacher – whichever is greater.

Clarification on wage statements.  Wage statements (or paystubs) for exempt employees do not need to include the total hours worked in the workweek.  Those of nonexempt employees must include this information.

Restroom facilities.  Effective March 1, 2017, all single-user restroom facilities in any business establishment, place of public accommodation, or government agency must be identified as “all gender” facilities rather than being designated as male- or female- only.

Assistance for employee victims of domestic violence.   By July 2017, the Labor Commissioner is scheduled to publish a notice to employees explaining the protections available for domestic violence victims, victims of sexual assault, or stalking.

Definition of “employee” under the Fair Employment and Housing Act.   Individuals employed under a special license in a nonprofit sheltered workshop, day program, or rehabilitation facility are covered under FEHA as employees and may bring actions for unfair employment practices.

Employment Verification.  California employers cannot ask for different or additional documents than those required by the federal I9 Form.  Employers cannot refuse to honor documents that appear genuine or refuse to honor documents of a specific status or with a term.  Finally, employers cannot go back and require that employees re-verify their status using any of the above methods.

Restrictions on the scope of background checks.  Starting in 2017, California employers cannot ask about or consider juvenile convictions and cannot use juvenile criminal matters as a factor in determining any condition of employment.

Required expansions of the scope of background checks.  “Transportation network companies” (like Uber and Lyft) must do a local and national criminal background check for each participating driver.

California as the judicial forum for disputes.  Employment contracts entered into, modified, or extended on or after January 1, 2017, cannot contain a provision forcing a “California employee” to adjudicate a claim that arose within the state of California in a different state.  The law covers claims resulting in litigation or arbitration. The law prohibits employers from requiring an employee to agree to any provision which would deprive the employee of the protections of California law with respect to a claim or dispute arising in California.  Any such provision is voidable by the employee, even if the employee agreed to it at the time.  There is an exception if the employee was represented by a lawyer during the contract negotiation process and the parties agreed to the change.

Smoking is prohibited from almost every California workplace.  The new law eliminates the “owner-operated” exception and those that permitted smoking in hotels, bars, warehouse facilities and employee break rooms.

Proposition 64 and Recreational Marijuana Use.  The passage of Proposition 64 does not impact the right of a California employer to prohibit marijuana use nor will it require an employer to accommodate such use.  The Act expressly states that it will not be construed or interpreted to restrict the right of an employer to maintain a drug-and alcohol-free workplace.  It cannot be interpreted to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace.  And it does not affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees.

“Opportunity to Work” – San Jose’s Measure E.  Starting in the first quarter of 2017, employers in the City of San Jose must offer more hours to existing part-time workers before hiring new workers.  Businesses with less than 36 employees are exempt, and other businesses can apply for a “hardship” exemption.

 

California Imposes New Disabled Access Obligations on Commercial Property Owners

Here is a detailed, easy-to-read explanation of new accessibility rules in California. My former law partner, David Goldman, is an excellent resource and advocate for businesses facing accessibility issues!

California Construction Law Blog | Wendel Rosen

Handicapped Parking Space at Business Location Parking Lot

The following article was written by my colleague David Goldman on the new ADA accessibility legislation which was signed into law this past month by Governor Brown.

Since July 1, 2013, California Civil Code section 1938 has required commercial property owners to disclose in every commercial lease whether the property being leased has been inspected by a Certified Access Specialist (“CASp”). A CASp is an individual certified by the State of California as qualified and knowledgeable of construction-related access to public accommodations by persons with disabilities. In addition to disclosing whether or not the property being leased has been CASp inspected, if a CASp inspection has occurred, the commercial lessor must disclose in the lease whether the premises has or has not met all the applicable construction-related accessibility standards established by law. These lease requirements, along with other disability access obligations, were discussed in an earlier article written in 2012.

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