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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Legal Update: October 19 in Modesto

I’m one of the speakers at the Central Valley Human Resources Management Association’s Fall Conference!!!!!!!  You can register and read more here.

I’ve spoken at this event in the past – and it is always a really well done event.  Great presentations, great atmosphere, wonderful attendees.  I highly recommend it!

I hope to see you there!

More For Your New-Hire Packet: Notices to Employees about DV Protections

AB 2337 was signed into law this week, and requires employers to add another document to their new hire packet.

Currently, an employer cannot fire or in any other matter discriminate or retaliate against an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work for specified purposes related to addressing the domestic violence, sexual assault, or stalking.  (Who would do that, you ask? You’d be surprised!)

In addition, current law provides that if an employee is (mis)treated in this way, she or he is entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer, as well as appropriate equitable relief, and is allowed to file a complaint with the Labor Commissioner.

Under the new law, employers must actually let employees know of these rights (in a little more detail than many already do).  Notice must be provided upon hire and to other employees upon request.

By July 1, 2017, the Labor Commissioner is to develop a form employers may use to comply with the new rules.  Employers can wait to start distributing such notices until the Labor Commissioner posts the sample form.

California’s farmworkers will soon get to enjoy the payment of overtime after an 8 hour day (like almost everyone else).

California farmworkers are currently exempt from the rule that requires overtime be paid for work over 8 hours in a day or 40 in a week.  Instead, farmworkers are currently paid overtime if they work more than 10 hours in a day or 60 hours in a week.

This morning, Governor Jerry Brown signed into law Assembly Bill 1066.  The law will slowly remove the provisions that make farmworkers exempt from the rules regarding hours, meal breaks, and other working conditions, including specified wage requirements.  It also provides for the overtime changes to be phased in over four years: starting in 2019, OT kicks in at 9 ½ hours; in 2020, it is at 9 hours; 2021 at 8 ½ hours and in 2020, 8 hours.   Double-time will begin at the 12th hour.   Employers who employ 25 or fewer employees will have an additional 3 years to comply with the phasing-in of the overtime requirements.

For more information, please click here.

Employment Law Update Webinar!

You’re invited (yes – YOU!)

I’ll be doing a LIVE webinar on Thursday, February 25, 2016 through HR Options (a wonderful group of people who provide Human Resources consulting from recruiting to analysis of workforce plans and strategies.

I’ll be discussing compensation and discrimination issues “new for 2016” such as:

– The minimum wage increase & how it effects exempt employees
– Amendments to the Equal Pay Act law
– Restrictions on piece-rate compensation that affects ALL employers
– Corrections to incorrect paystubs
– Clarification of meal period waivers and employee classification
– Expansion of the Labor Commissioner’s Powers
– Expanded protections for employees who complain about discrimination

Time: 10:00 AM – 11:00 AM Pacific Time

The program is free!!

To register, click here.

This program is pending approval for 1 General HR recertification credit hours toward California, GPHR, HRBP, HRMP, PHR and SPHR recertification through the HR Certification Institute. For more information about certification or recertification, please visit the HR Certification Institute website at http://www.hrci.org

 

EEOC Wants to Collect More Pay Information from Large Employers to Promote Equal Pay.

I read “The Week” – a magazine that collects in tiny bits all of the news of the past week so I can read it quickly and then get back to my sports and entertainment news. There is a section called “Boring but Important” – and the EEOC’s announcement this morning falls squarely into that topic:

This morning, the Equal Employment Opportunity Commission (EEOC) announced a proposed revision to the Employer Information Report (EEO-1) to include collecting pay data from employers, including federal contractors, with more than 100 employees. The goal of the data collection is to help the EEOC identify possible pay discrimination and to assist employers in promoting equal pay in their workplaces. The timing of the EEOC’s proposal is part of the commemoration of the seventh anniversary of the Lilly Ledbetter Fair Pay Act.

EEO-1 data provides the federal government with workforce profiles from private sector employers by race, ethnicity, sex, and job category. The proposed change would require aggregate data on pay ranges and hours worked starting with the September 2017 report. Members of the public have until April 1, 2016, to submit comments about the proposed change.

The purpose of the change is to give the EEOC and the DOL (and its Office of Federal Contract Compliance Programs – OFFCP) more information about potential pay disparity. The EEOC intends to compile and publish aggregated data that will help employers in conducting their own analysis of their pay practices to facilitate voluntary compliance. And the agencies will be able to use the pay data to assess complaints of discrimination, focus agency investigations, and identify existing pay disparities.

So, kinda “boring,” and, while a pain on the collection side, having more information in the aggregate seems like it will help with identifying and reducing the pay gap.