Work It: What California Employers Should Know About New Laws for 2019

*Originally published by CalCPA in the January/February 2019 issue of California CPA — the original article can be found here.

As the #MeToo movement gained momentum to right the wrongs of sexual harassment alleged against Hollywood, business and politicians, so too has the California Legislature responded by declaring, in essence, #TimesUp.

Of the nearly 600 bills introduced in 2018 that mention “employer,” compared to 304 bills in 2017) 455 mentioned “sexual harassment,” (compared to 347 the prior year). While most of those bills did not pass, and of the ones that did, Gov. Brown did not sign several into law, many of the new laws will have significant impact on our state.

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How to Prepare For a Visit from ICE: I-9 Audits and Workplace Visits

On December 11, 2018, U.S. Immigration and Customs Enforcement (ICE) issued a press release reaffirming the agency’s continued commitment to prosecuting employers who knowingly hire and employ ineligible workers. The agency further announced that it will use I-9 audits and penalties to ensure that employers comply with applicable laws.

According to ICE, in Fiscal Year 2018, the agency initiated 6,848 worksite investigations, 5,981 I-9 audits, 779 criminal arrests and 1,525 administrative arrests. Given this active enforcement landscape, it is imperative that employers comply with applicable immigration laws, and understand their rights under such laws.

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Philadelphia Enacts a Fair Workweek Law

On December 6, 2018, the Philadelphia Council voted 14-3 to pass a Fair Workweek bill, which Mayor Kenney is expected to sign. Once signed, the ordinance would take effect on January 1, 2020, and is expected to impact roughly 130,000 workers. The Fair Workweek ordinance will apply to employers with more than 250 employees and over 30 locations (including Philadelphia) worldwide. It will require employers in the retail, fast-food, and hospitality industries to provide advance written notice of work schedules and predictability pay to their service workers. Other cities that enacted similar Fair Workweek laws include New York, San Francisco, San Jose, Emeryville and Seattle.

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Part 20 of “The Restricting Covenant” Series: Radius, The Raven, and Restrictive Covenants

You’re probably reading the title of this article and saying, “He’s gone bonkers! What does ‘radius’ and Edgar Allan Poe’s poem ‘The Raven’ have to do with restrictive covenants?”

This article is for all you inner mathematicians and geometry aficionados. More to the point, it is for those who draft, interpret and litigate non-compete agreements that contain geographic restrictions. When I heard that Google Earth had launched a new tool to measure distance and area, it sparked memories yonder of an esoteric, but very important, issue that is litigated occasionally in non-compete cases, and now the subject of the twentieth article of this Series.

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Get Ready New York Employers: Threshold Salaries for Exempt Employees Are Going Up

The Fair Labor Standards Act and New York Labor Law include exemptions from overtime and minimum wage requirements for employees holding certain executive and administrative positions. In order to qualify for the executive or administrative exemption, an employee must, among other things, earn at least the minimum threshold salary. Under federal law, the current minimum threshold salary is $455 per week ($23,660 per year). However, the minimum threshold salary is higher under New York law and, as of December 31, 2018, is scheduled to rise even higher.

The new minimum thresholds vary depending on the size of the employer and the employee’s work location, as set forth below.

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Part 19 of “The Restricting Covenant” Series: Clickwrap Covenants Not to Compete

If you are one of the billions of smartphone users worldwide, I bet you recently downloaded a mobile app and clicked “I agree” to the app’s terms of use or service. Did you actually read all (any) of the terms before you agreed? Courts typically call these contracts (yes, they can be enforceable contracts) “clickwrap agreements.” A clickwrap agreement is formed when a user affirmatively clicks a button or checks a box that explicitly indicates that the user has accepted or agreed to the terms of an agreement upon viewing its terms.

It is becoming commonplace for employers to use web-based clickwrap agreements with their employees either as part of onboarding (e.g., employment agreements) or during the course of employment (e.g., stock award agreements). These clickwrap agreements can include important post-employment restrictive covenants. Are these covenants enforceable?

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