Laboring Under New Laws

By Mark E. Terman

*Originally published by CalCPA in the January/February 2017 issue of California CPA — the original article can be found here.

Few things in this world can be certain, except that the California Legislature will expand regulation of employers each year and the sun will come up tomorrow. In an apparent pendulum swing, 569 bills introduced in 2016 mention “employer,” compared to 224 in 2015 and 574 in 2014. Most of those bills did not pass, and of the ones that did, most were not signed into law by Gov. Brown. Essential elements of selected bills that became law affecting private employers, effective Jan. 1, 2017, unless otherwise mentioned and organized by Senate and Assembly bill number, follow.

California Minimum Wage Ascending to $15
SB 3 sets a state minimum wage for non-exempt employees that will escalate annually over the next several years. As of Jan. 1, the state minimum wage at employers with 26 or more employees increases to $10.50 per hour, and then increases 50 cents per hour on Jan. 1 of each following year until and including 2022, when the rate will reach $15 per hour. For employers of 25 or fewer employees, state minimum wage will remain $10 per hour until Jan. 1, 2018, when it will increase to $10.50, and then escalate 50 cents per hour each year until and including 2023 when the rate will arrive at $15 per hour.

Beginning July 1, the state director of finance is to determine each year whether economic conditions can support the next scheduled increase. If conditions cannot support an increase, the governor can—no more than twice—temporarily postpone the increase schedule for a year. After the final scheduled escalation year, the state minimum wage can remain the same or increase based on any increase in consumer inflation as determined by the director.

Changes in state, but not local, minimum wage also impact classification of most exempt workers. In addition to strict“duties tests” for administrative, executive and professional wage and hour exemptions, a salary of at least twice the state minimum wage must be paid to meet the “salary basis test.” As of Jan. 1, the annualized salary rate that employers with 26 or more employees must pay to meet the exempt salary requirement will advance to $43,680, up from $41,600.

For employers with smaller workforces, the $41,600 amount of the exempt salary requirement will remain in place until Jan. 1, 2018, when it will move up to $43,680. With each escalation, the required salary also will rise. At a $15 state minimum wage, the exempt salary requirement will be $62,400.

Also affected by SB 3 is the retail, inside-sales exemption, which requires employees be paid at least 1.5 times the state minimum wage, and at least half of their other earnings be from commissions.

At the same time, the trend of municipalities creating and increasing their own minimum wage for companies that have employees working in their jurisdiction continues. For example, by July 1, the city and the County of Los Angeles require employers with 26 or more employees to raise the local minimum wage to $12 per hour, up from $10.50, and then comply with other scheduled annual increases up to $15 per hour by July 1, 2020. Los Angeles employers with fewer employees, or nonprofit corporations who obtain approval to pay a deferred rate, do not start paying more than the state minimum wage until July 1, 2018.

Minimum wage for employees in San Francisco will increase to $14, up from $13, on July 1, 2017. Many other cities—including Berkley, Oakland, Malibu, Santa Monica, El Cerrito and San Diego—have enacted local minimum wage laws. In addition, living-wage laws may require higher minimum wages be paid as a condition of contracting with local, state or federal agencies. Employers should monitor each of the requirements to assure compliance.

As of press time, a federal court enjoined implementation of a new federal rule that would have increased by Dec. 1, 2016, the salary basis requirement for exempt workers status under the Fair Labor Standards Act to $47,476. This would have been higher than the California exemption salary amount will be for at least two years. For now, California employers are not legally required to either increase salaries to satisfy this federal exemption rule or to reclassify employees as non-exempt.

No Sunset on Overtime Pay for Personal Attendant Domestic Workers
The Domestic Worker Bill of Rights (AB 241) added Labor Code Sec. 1454, effective Jan. 1, 2014, (and caused amendment to Wage Order 15-2001). It entitles a domestic work employee who is a “personal attendant” overtime pay at the rate of one-and-one-half times their regular rate of pay for hours worked in excess of nine hours in any workday or more than 45 hours in any workweek. A domestic worker who spends at least 80 percent of his or her time supervising, feeding and dressing a child or person who needs assistance due to advanced age, physical disability or mental deficiency is considered a personal attendant. SB 1015 removes a Jan. 1, 2017, sunset provision from the law. As such, these overtime rules will remain in effect into the future.

Immigration Related Unfair Practices Expanded
SB 1001 adds Labor Code Sec. 1019.1 to existing prohibitions of unfair immigration practices. This bill constrains employers, who are verifying that workers have the necessary documentation to lawfully work in the United States, from requesting of such workers more or different documents than are required under federal law, refusing to honor documents tendered that on their face reasonably appear to be genuine, refusing to honor documents or work authorization based upon the specific status or term of status that accompanies the authorization to work, or reinvestigating or re-verifying an incumbent employee’s authorization to work using an “unfair immigration practice.” Applicants and employees may file a complaint with the Division of Labor Standards Enforcement. Any person who is deemed in violation of this new law is subject to a penalty imposed by the labor commissioner of up to $10,000, among other relief available.

Wage Anti-discrimination Law Now Applies to Race and Ethnicity
Under the Fair Pay Act in effect since Jan. 1, 2016, employers are prohibited from paying an employee at wage rates less than the rates paid to employees of the opposite sex in the same establishment for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions.

The Fair Pay Act provides for exceptions such as, the wage differential is based upon one or more of the following factors:

  1. A seniority system;
  2. A merit system;
  3. A system that measures earnings by quantity or quality of production; and
  4. A bona fide factor other than sex, such as education, training or experience.

The later factor will apply if the employer shows that the factor is not the result of a sex-based differential in compensation, is job related to the position, and is consistent with business necessity.

SB 1063 amends Labor Code secs. 1197.5 and 1199.5 to expand requirements of the Fair Pay Act to employees’ race or ethnicity, in addition to gender. In other words, the same rules now apply to prohibit wage differential based on race or ethnicity. Like existing Fair Pay Act sex-based prohibitions, the amendment bans employers from discriminating or retaliating against employees who report or assist with others’ affected by race or ethnicity-based wage differentials; provides the same enforcement rights; and includes protections for employees to disclose, inquire or discuss wages.

AB 1676 amends the Fair Pay Act (Labor Code Sec. 1197.5) to provide that an employee’s “prior salary shall not, by itself, justify any disparity in compensation” under the bona fide factors above.

Non-California Choice of Law and Forum in Employment Contracts Voidable
SB 1241 adds Labor Code Sec. 925 to prohibit employers from requiring an employee who primarily resides and works in California, as a condition of employment, to enter into agreements (including arbitration agreements) to:

  • Adjudicate claims arising in California in a non-California forum; or
  • Deprive the employee of the substantive protection of state law during a controversy arising in California.

Any provision of a contract that violates this new law is voidable by the employee, the dispute will be adjudicated in California under California law and the employee is entitled to recover reasonable attorneys’ fees incurred enforcing Sec. 925 rights. This section applies to any contract entered into, modified or extended on or after Jan. 1, 2017.

There’s an exception to Sec. 925: It does not apply to any contracts with an “an employee who is in fact individually represented by legal counsel in negotiating the terms of an agreement to designate either the venue or forum in which a controversy arising from the employment contract may be adjudicated or the choice of law to be applied.” Thus, in the case of more executive-level employees, who often retain independent counsel to negotiate employment agreements, employers may still be able to make use of forum-selection and choice-of-law provisions.

Workplace Smoking Restricted Further
California law already prohibited smoking of tobacco products inside an enclosed place of employment for certain employers. ABX2-7 amends Labor Code Sec. 6404.5 to expand that enclosed space prohibition to all employers of any size, including a place of employment where the owner-operator is the only employee. “Enclosed space includes covered parking lots, lobbies, lounges, waiting areas, elevators, stairwells and restrooms that are a structural part of the building.” A “place of employment” does not include:

  • 20 percent of the guestroom accommodations in a hotel, motel or similar transient lodging establishment;
  • Retail or wholesale tobacco shops and private smokers’ lounges;
  • Cabs of “motortrucks” or truck tractors;
  • Theatrical production sites, if smoking is an integral part of the story in the theatrical production;
  • Medical research or treatment sites, if smoking is integral to the research and treatment being conducted;
  • Private residences, except licensed family day care homes; and
  • Patient smoking areas in long-term health care facilities.

Violations are punishable by a fine not to exceed $100 for a first violation, $200 for a second violation within one year and $500 for a third and for each subsequent violation within one year.

Overtime Pay Increasing for Agricultural Workers
Existing law affords ag workers who work more than 10 hours per day overtime pay at one-and-one-half times the regular rate of pay. AB 1066 (Phase-In Overtime for Agricultural Workers Act of 2016) amends Labor Code Sec. 554 to, among other things, provide a gradual phase-in of overtime pay expansion to agricultural workers.

For employers with 26 or more employees, beginning Jan. 1, 2019, and continuing until Jan. 1, 2022, the phase-in provides for annual reduction of the daily overtime threshold by a half-hour per day until reaching eight hours, and the weekly overtime trigger by five hours per week until reaching 40 hours. As such, on Jan. 1, 2019, agricultural workers working more than 9.5 hours per day or in excess of 55 hours in any one workweek are to receive overtime pay at one-and-half times their regular rate of pay.

By Jan. 1, 2022, the annual phase-ins will conclude with agricultural workers working more than eight hours per day or in excess of 40 hours in any one workweek receiving overtime pay at one-and-half times their regular rate of pay. In addition, beginning Jan. 1, 2022, agricultural workers working more than 12 hours per day are to receive overtime pay at twice their regular rate of pay.

Finally, this bill authorizes the governor to delay the implementation of the phase-in schedule if he or she also suspends the implementation of the scheduled increase in the California minimum wage (see, Minimum Wage Ascending, above). For employers with 25 or fewer employees, the phase-in schedule begins on Jan. 1, 2022, and continues annually through Jan. 1, 2025.

All-gender, Single-user Restrooms
By March 1, 2017, AB 1732 requires all single-user toilet facilities in any business establishment, place of public accommodation or government agency to be identified with signage as all-gender toilet facilities. For the purposes of this section, “single-user toilet facility” means a toilet facility with no more than one water closet and one urinal with a locking mechanism controlled by the user. This bill also allows inspectors, building officials or other local officials responsible for code enforcement to inspect for compliance.

More Restriction on Criminal History Inquiry of Job Applicants
Under existing law, an employer cannot ask an applicant about an “arrest or detention that did not result in conviction, or information concerning a referral ;to, and participation in, any pretrial or post-trial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law.”

AB 1843 amends Labor Code Sec. 432.7 to prohibit employers from asking applicants to disclose, or using as a factor in determining any condition of employment, information concerning or related to “an arrest, detention, process, diversion, supervision, adjudication or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law.”

This bill also alters the definition of “conviction” to exclude “any adjudication by a juvenile court or any other court order or action taken with respect to a person who is under the process and jurisdiction of the juvenile court law.” In addition, this bill contains some exceptions for health care facilities involving final adjudications of recent sex crimes and specified controlled substances crimes.

More Talent Services Act Artist Protection
AB 2068 amends Labor Code secs. 1703 and 1703.4 to provide further protect of artists’ information and photographs in any form of communication, such as “an online service, online application, or mobile application of the talent service or one that the talent service has the authority to design or alter.” AB 2068 also requires:

  • The talent service to act, within 10 days, on requests of the artist made by any form of electronic communication, including text messages, to remove information or photographs from the talent service’s website, online service, online application or mobile application (collectively “electronic medium”) or an electronic medium the talent service has the authority to design or alter; and
  • That the artist may cancel the contract within 10 business days from the date of the talent service contract or the date on which the artist commences utilizing the services under the contract, whichever is longer.

Domestic Violence, Sexual Assault or Stalking
By July 1, 2017, AB 2337 requires employers with 25 or more employees to provide specific information in writing to new employees upon hire, and to other employees upon request, of their rights to take off time from work and not suffer adverse employment action from doing so under Labor Code Sec. 230.1 (relating to victims of domestic violence, sexual assault or stalking). This bill also requires that, on or before July 1, 2017, the labor commissioner develop and post on its website a compliant form of notice that employers may elect to use. Employers are not required to comply with the notice requirement until the labor commissioner posts the form.

Wage Statement Requirement for Exempt Employees
Labor Code sec. 226 requires employers to provide their employees along with each paycheck an accurate itemized statement in writing containing information listed in the statute, including hours worked, unless the employees are paid solely a salary and are properly exempt from overtime.

AB 2535 clarifies that hours worked are not required to be recorded on wage statements of employees exempt from minimum wage and overtime under a specified exemption for: executive, administrative or professional employees; the “outside sales” exception; salaried computer professionals; parents, spouses, children or legally-adopted children of the employer; directors, staff and participants of a live-in alternative to incarceration rehabilitation program for substance abuse; crew members employed on commercial passenger fishing boats; and national service program participants. This bill does not change the requirement to include total hours worked by non-exempt employees in their itemized wage statements for each pay period.

Bond Required to Contest Minimum Wage Citation
Labor Code Sec. 1197.1 authorizes the labor commissioner to issue, upon inspection or investigation, a citation against an employer who has paid its employees less than the minimum wage. The citation must specify the nature of the violation, and the labor commissioner is to take steps to enforce the citation and to recover the civil penalty assessed, wages, liquidated damages and waiting time penalties.

An employer can contest a citation through the superior court. AB 2899 amends the statute to require that, prior to contesting a citation, the employer must post a bond with the labor commissioner in an amount equal to the unpaid wages assessed under the citation, excluding penalties. The bond must be in favor of the employee and will be forfeited to the employee if the employer fails to pay the amounts owed within 10 days from the conclusion of the proceedings if the citation is not reversed.

What’s Next?
Employers should consider how these new laws impact their workplaces, and then review and update their personnel policies and practices with the advice of experienced attorneys or human resource professionals.

Summary of Key New California Laws for 2017: What Employers Should Know

By Pascal Benyamini

Governor Brown has this year signed several new laws impacting California employers, some of which have already gone into effect and others that will be effective or operative in 2017 or later. A summary of key new laws follows. The effective date of the particular new law is indicated in the heading of the Assembly Bill (AB) and/or Senate Bill (SB).[1] The list below is in numerical order by the AB or SB.

ABX2-7 – Smoking in the Workplace (Effective June 9, 2016)

By way of background, California law already prohibited smoking of tobacco products inside an enclosed at a place of employment for certain employers. This Bill amends Labor Code Section 6404.5 and expands the prohibition on smoking of tobacco products in all enclosed places of employment to all employers of any size, including a place of employment where the owner-operator is the only employee (i.e., owner-operated business). “‘Enclosed space’ includes covered parking lots, lobbies, lounges, waiting areas, elevators, stairwells, and restrooms that are a structural part of the building.” There are, however, certain exemptions. “Place of employment” does not include: (1) 20% of the guestroom accommodations in a hotel, motel, or similar transient lodging establishment; (2) Retail or wholesale tobacco shops and private smokers’ lounges; (3) cabs of motortrucks; (4) theatrical production sites, if smoking is an integral part of the story in the theatrical production; (5) medical research or treatment sites, if smoking is integral to the research and treatment being conducted; (6) private residences, except for licensed family day care homes; (7) patient smoking areas in long-term health care facilities.

A violation this law is punishable by a fine not to exceed $100 for a first violation, $200 for a second violation within one year, and $500 for a third and for each subsequent violation within one year.

AB 908 – Paid Family Leave (Operative January 1, 2018)

Paid Family Leave (PFL) provides short-term benefits to eligible employees who lose wages when they need to take time off work to care for a seriously ill child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner, or to bond with a new child entering the family by birth, adoption, or foster care placement.

This Bill revises the formula for determining benefits available to those eligible employees “for periods of disability commencing after January 1, 2018, but before January 1, 2022.” This Bill provides “a weekly benefit amount minimum of $50 and increases the wage replacement rate to specified percentages, but not to exceed the maximum workers’ compensation temporary disability indemnity weekly benefit amount established by the Department of Industrial Relations pursuant to existing law.” Further, this Bill removes the existing seven-day waiting period for paid family leave benefits.[2]

AB 1066 – Wages, Hours and Working Conditions for Agricultural Workers (Effective January 1, 2017)

Currently, agricultural workers who work more than 10 hours per day are to receive overtime pay at one-and-half times the regular rate of pay. This Bill, known as the Phase-In Overtime for Agricultural Workers Act of 2016, amends Labor Code Section 554[3] and provides that a gradual phase-in of overtime to agricultural workers. For employers with 26 or more employees,[4] beginning on January 1, 2019, and continuing until January 1, 2022, the phase-in provides for a reduction of half-hour per day per year until reaching 8 hours (or 40 hours per week). As such, beginning on January 1, 2019, agricultural workers working more than 9 ½ hours per day or in excess of 55 hours in any one workweek are to receive overtime pay at one-and-half times their regular rate of pay. And so on until January 1, 2022, agricultural workers working more than 8 hours per day or in excess of 40 hours in any one workweek are to receive overtime pay at one-and-half times their regular rate of pay. Further, beginning on January 1, 2022, agricultural workers working more than 12 hours per day are to receive overtime pay at twice their regular rate of pay. Finally, this Bill authorizes California to delay the implementation of the foregoing phase-in schedule if the governor also suspends the implementation of the scheduled increase in the California minimum wage.

AB 1676 & SB 1063 – Wage Discrimination and Application to Race and Ethnicity (Effective January 1, 2017)

Under the Fair Pay Act, which went into effect on January 1, 2016, existing law generally prohibits an employer from paying an employee at wage rates less than the rates paid to employees of the opposite sex in the same establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. The Fair Pay Act provides for exceptions such as, the wage differential is based upon one or more of the following factors: (a) a seniority system; (b) a merit system; (c) a system that measures earnings by quantity or quality of production; (d) a bona fide factor other than sex, such as education, training, or experience.

AB 1676 amends the Fair Pay Act (Labor Code Section 1197.5) to provide that an employee’s prior salary cannot, by itself, justify any disparity in compensation under the bona fide factors above.

SB 1063 amends Labor Code Sections 1197.5 and 1199.5 and expands the requirements of the Fair Pay Act to include employees’ race or ethnicity, and not just gender.

AB 1732 – Single-User Restrooms (Effective March 1, 2017)

Commencing on March 1, 2017, this Bill requires all single-user toilet facilities in any business establishment, place of public accommodation, or government agency to be identified as all-gender toilet facilities. This Bill would authorize inspectors, building officials, or other local officials responsible for code enforcement to inspect for compliance with these provisions during any inspection.[5]

AB 1843 – Criminal History in Applications for Employment (Effective January 1, 2017)

In addition to existing laws that proscribe what an employer can or cannot ask applicants about their criminal history,[6] this Bill amends Labor Code Section 432.7 and prohibits employers from asking applicants to disclose, or from utilizing as a factor in determining any condition of employment, information concerning or related to “an arrest, detention, process, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law.”

For purposes of this Bill, “conviction” does not include “any adjudication by a juvenile court or any other court order or action taken with respect to a person who is under the process and jurisdiction of the juvenile court law.” Further, this Bill contains additional restrictions and rights for employers of health care facilities.

AB  2068 – Talent Services  (Effective January 1, 2017)

This Bill amend Labor Code Sections 1703 and 1703.4 and provides additional protections to artists for their information or photographs to any form of communication such as “an online service, online application, or mobile application of the talent service or one that the talent service has the authority to design or alter.” Further, this Bill requires, among other things: (1) the talent service to act, within days 10 days, on requests of the artist made by any form of electronic communication, including text messages, to remove information or photographs from the talent service’s website, online service, online application, or mobile application (collectively electronic medium”) or an electronic medium that the talent service has the authority to design or alter; and (2) that the artist may cancel the contract within 10 business days from the above date of the contract or the date on which the artist commences utilizing the services under the contract, whichever is longer.

AB  2337 – Employment Protections for Victims of Domestic Violence, Sexual Assault, or Stalking (Effective July 1, 2017)

This Bill requires that by July 1, 2017, employers with 25 or more employees provide specific information in writing to new employees upon hire and to other employees upon request of their rights to take leave under Labor Code Section 230.1 (relating to victims of domestic violence, sexual assault, or stalking). This Bill also requires that, on or before July 1, 2017, the Labor Commissioner develops a form that employers may elect to use to comply with these provisions and to post it on the Labor Commissioner’s website. Employers are not required to comply with the notice of rights requirement until the Labor Commissioner posts such form.

AB 2535 – Itemized Wage Statements (Effective January 1, 2017)

Existing law requires that employers provide their employees an accurate itemized statement in writing containing specified information as listed in Labor Code Section 226. This Bill clarifies that Section 226 does not require employers to include in itemized wage statements the total number of work hours by an exempt employee. An exempt employee is an employee who is exempt from the payment of minimum wage and overtime under the California Labor Code or other applicable Wage Orders promulgated by the Industrial Welfare Commission (a commission within the within the California Department of Industrial Relations). Employers must continue to include the total hours worked by non-exempt employees in the itemized wage statements for each pay period.

AB 2899 – Minimum Wage Violations (Effective January 1, 2017)

This Bill amend Labor Code Section 1197.1 and requires that, prior to an employer appealing a citation by the Labor Commissioner against the employer for violation of wage and hour laws, the employer post a bond with the Labor Commissioner in an amount equal to the unpaid wages assessed under the Labor Commissioner’s citation, excluding penalties. The bond must be in favor of the employee and will be forfeited to the employee if the employer fails to pay the amounts owed within 10 days from the conclusion of the proceedings.

SB 1001 – Immigration Related Unfair Practices (Effective January 1, 2017)

Employers who are in the process of verifying that workers have the necessary documentation to work in the United States are prohibited from requesting of such workers more documents or different documents than are required under federal law, to refuse to honor documents tendered that on their face reasonably appear to be genuine, to refuse to honor documents or work authorization based upon the specific status or term of status that accompanies the authorization to work, or to reinvestigate or re-verify an incumbent employee’s authorization to work. Under this Bill, which adds Labor Code Section 1019.1, applicants and employees may file a complaint with the Division of Labor Standards Enforcement. Any person who is deemed in violation of this new law is subject to a penalty imposed by the Labor Commissioner of up to $10,000, among other relief available.

SB 1167 – Heat Regulations for Indoor Workers (Effective January 1, 2019)

By way of background, the Division of Occupational Safety and Health (“Division”) investigates complaints that a workplace is not safe and may issue orders necessary to ensure employee safety. Under existing law, certain violations of that act or a standard, order, or special order authorized by the act are a crime. Under existing law, the Division has adopted regulations establishing a heat illness prevention standard for outdoor workers.

This Bill, which adds Labor Code Section 6720, requires that, by January 1, 2019, the Division is propose to the Occupational Safety and Health Standards Board (“Board”) for the Board’s review and adoption, a heat illness and injury prevention standard applicable to workers working in indoor places of employment. “The standard shall be based on environmental temperatures, work activity levels, and other factors.” Further, under this Bill, the Division is not precluded from proposing, or the Board from adopting, a standard that limits the application of high heat provisions to certain industry sectors.

SB 1241 – Choice of Law and Forum in Employment Contracts (Effective January 1, 2017)

This Bill adds Labor Code Section 925 and prohibits employers from requiring California-based employees to enter into agreements (including arbitration agreements) requiring them to: (1) adjudicate claims arising in California in a non-California forum; or (2) litigate their claims under the law of another jurisdiction, unless the employee was represented by counsel. Any provision of a contract that violates this new law is voidable by the employee, any dispute arising thereunder shall be adjudicated in California under California law and the employee is entitled to recover reasonable attorneys’ fees. Click here for a more detailed discussion of this Bill.

As a result of the foregoing new laws, employers should consult with legal counsel to ensure their policies are compliant and their employee handbooks are up to date.


[1] As a reminder, the minimum wage in California is increasing to $10.50 per hour on January 1, 2017 for employers with 26 or more employees based on previous legislation signed by Governor Brown in 2015. The minimum wage for employers with 25 or fewer employees will remain at $10.00 per hour for 2017. Also, please note that various cities and local governments in California have enacted minimum wage ordinances that exceed the state minimum wage.

[2] This Bill impacts Sections 2655, 3303 and 2655.1 of the Unemployment Insurance Code.

[3] This Bill also adds Chapter 6 (commencing with Section 857) to Part 2 of Division 2 of the Labor Code, relating to employment.

[4] For employers with 25 or fewer employees, the phase-in schedule begins on January 1, 2022, through January 1, 2025.

[5] This Bill adds Article 5 (commencing with Section 118600) to Chapter 2 of Part 15 of Division 104 of the Health and Safety Code, relating to restrooms.

[6] Under existing laws, an employer cannot ask an applicant about an “arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or post-trial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law.”

My House My Rules: California Reigns In Employers’ Use Of Forum-Selection and Choice-of-Law Clauses to Avoid California Law

By Philippe A. Lebel

Last week, California Governor Jerry Brown signed into law Senate Bill 1241 (“SB 1241”).  The new law (available here), which takes effect on January 1, 2017, adds section 925 to the California Labor Code (“Section 925”).  In general, Section 925 will prohibit employers from requiring California-based employees to enter into agreements requiring them to:  (1) adjudicate claims arising in California in a non-California forum; or (2) litigate their claims under the law of another jurisdiction, unless the employee was represented by counsel.  Section 925 represents a considerable limit on parties’ rights to contract and may be the end of forum-selection and choice of law provisions, currently common in employment agreements.

For years, employers based outside of California have incorporated forum-selection and/or choice-of-law provisions in agreements with their California employees.  Some employers used these provisions to create company-wide uniformity among their workforce.  Others used forum-selection and choice-of-law provisions to avoid some of California’s more rigid rules about restrictive covenants.  Whatever the motivation, forum-selection and choice-of-law provisions have become commonplace in employment and arbitration agreements.

Despite their prevalence, out-of-state employers sometimes faced hurdles in securing enforcement of forum-selection and choice-of-law provisions with California employees.  In some instances, California state and/or federal courts upheld choice-of-law clauses, although almost never in the case of post-employment restrictive covenants.  Several federal district courts and some California state courts were willing to uphold combined forum-selection and choice-of-law clauses, including in situations involving restrictive covenants, but generally speaking, the law in this area has been unclear and long unaddressed by the California Supreme Court.  That is no longer the case.

Under Section 925, an employer is prohibited from requiring  “an employee who primarily resides and works in California, as a condition of employment, to agree to a provision that would do either of the following:  (1) … adjudicate outside of California a claim arising in California[; or] (2) [d]eprive the employee of the substantive protection of California law with respect to a controversy arising in California.”  Section 925 provides that any provision of a contract that violates either of the above rules is voidable by the employee and any dispute arising thereunder shall be adjudicated in California under California’s substantive law.  Section 925 provides that, in addition to injunctive relief and any other form of relief available to the employee under the substantive law, an employee enforcing his or her rights under Section 925 is entitled to recover reasonable attorneys’ fees.  Importantly, Section 925 makes explicit that it also applies to both litigation and arbitration.  Thus, employers cannot avoid this law through private arbitration agreements that purport to invoke the law or forum of another jurisdiction.

Although the law is sweeping in nature, it does not apply retroactively.  However, it takes effect on January 1, 2017 as to contracts entered into, modified, or extended on or after that date.  Thus, to the extent preexisting contractual relationships automatically renew on a set basis, Section 925 will cover them as of January 1st.

There is one narrow exception to Section 925:  it does not apply to any contracts with an “an employee who is in fact individually represented by legal counsel in negotiating the terms of an agreement to designate either the venue or forum in which a controversy arising from the employment contract may be adjudicated or the choice of law to be applied.”  Thus, in the case of more senior, executive-level employees, who often retain independent counsel to negotiate employment agreements, employers may still be able to make use of forum-selection and/or choice-of-law provisions.

Unfortunately, Section 925’s language leaves some questions unanswered.  For instance, the statute fails to define what it means for an employees to “primarily” reside and work in California.  This may become particularly problematic for employees who entered into such agreements during their employment in another state, who then relocate to California.  Further, it is unclear what Section 925 means by the “substantive protection of California law,” and, in particular, whether California courts would object to application of equally- or more-protective laws of other jurisdictions.

For now, employers should take note of this new legislation and take it into account when entering into new or renewing preexisting employment agreements with California-based employees.

Have a Seat: The California Supreme Court Clarifies the Wage Orders’ Suitable Seating Rules

By Philippe A. Lebel and Thomas J. Barton

On April 4, 2016, the California Supreme Court issued an opinion concerning the Industrial Welfare Commission’s (IWC) Wage Orders’ suitable seating rules. According to the California Supreme Court, whether an employer must provide seating while employees are actively engaged in duties depends on employees’ tasks performed at given work locations. The Court determined that if the tasks being performed at any given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, an employer must provide a seat. The Court held that the determination of whether work “reasonably permits” sitting is a question to be resolved objectively, based on the totality of the circumstances. While an employer’s business judgment and the physical layout of the workplace are relevant factors, they are not dispositive. However, an employer’s preference that employees stand and/or individual employees’ physical characteristics are not to be considered. Finally, the Court held that the burden of establishing that no suitable seating is available falls on the employer.

The Wage Orders’ Seating Provisions

Over a century ago, the California Legislature established the IWC to investigate various industries and to promulgate Wage Orders establishing minimum wages, maximum work hours, and conditions of labor. The majority of Wage Orders currently in effect contain a section devoted to the provision of seating to employees—Section 14. Section 14(A) of the Wage Orders in question provides that “employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” Section 14(B) provides that “when employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area, and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.”

The Issues from Kilby and Henderson

The certified questions before the California Supreme Court arose from two related federal appeals, Kilby v. CVS Pharmacy, Inc. and Henderson v. JPMorgan Chase Bank NA. The cases involved application of identical seating provisions contained in Wage Orders 7 (Mercantile Industry) and 4 (Professional, Technical, Clerical, Mechanical and Similar Occupations), respectively.

In Kilby, the plaintiff, a CVS Pharmacy, Inc. (CVS), customer service representative, sought to represent other CVS retail employees who, like her, were denied seats while performing their jobs. The plaintiff’s duties in Kilby included operating a cash register, straightening and stocking shelves, organizing products in front of and behind the sales counter, cleaning the register, vacuuming, gathering shopping baskets, and removing trash. The district court concluded that Sections 14(A) and 14(B) of the applicable Wage Order were mutually exclusive. It reasoned that section 14(A) applied when an employee was actually engaged in work, while section 14(B) applied when an employee was not actively working. In evaluating the “nature of the work” under Section 14(A), the district court held that an employee’s entire range of assigned duties had to be considered together. Because it was undisputed that some of the performed duties required the employee to stand, the district court ruled that the plaintiff was not entitled to seating during her work time and granted summary judgment for CVS. The plaintiff appealed.

Henderson was a putative class action brought by three bank tellers at JPMorgan Chase Bank NA (Chase). Chase tellers had duties associated with their teller stations, including accepting deposits, cashing checks, and handling withdrawals. They also had duties away from their stations, such as escorting customers to safety deposit boxes, working at the drive-up teller window, and making sure that automatic teller machines were working properly.  These duties varied, depending on the shift or branch location and on whether the employee was a lead or regular teller. On the basis of these differences, the district court denied class certification, and the plaintiffs appealed.

Faced with Kilby and Henderson, the Ninth Circuit certified three questions for the California Supreme Court to answer:

  • Does the phrase “nature of the work” (used in Section 14 of most Wage Orders) refer to individual tasks that are performed throughout the workday, or to the entire range of an employee’s duties that are performed during a given day or shift?
  • When determining whether the nature of the work “reasonably permits” use of a seat, what factors should courts consider? Specifically, are an employer’s business judgment, the physical layout of the workplace, and the characteristics of a specific employee relevant factors?
  • If an employer has not provided any seat, must a plaintiff prove that a suitable seat is available in order to show that the employer has violated the seating provision?

A Location-Driven “Nature of the Work” Standard

As to the first certified question, the defendants argued that examining when the “nature of the work reasonably permits the use of seats” requires consideration of an employee’s job as a whole, i.e., a “holistic” consideration of all of an employee’s tasks and duties throughout a shift. In the defendants’ eyes, if the majority of an employee’s duties favored standing, no seat would be required. By contrast, the plaintiffs argued that whether the “nature of the work reasonably permits the use of seats” turns on a task-by-task evaluation of whether any single task may feasibly be performed seated. In their eyes, if any individual task could be done sitting down, a seat had to be provided.

The California Supreme Court, however, took a middle-of-the-road approach instead. The Court held that, when evaluating whether the “nature of the work reasonably permits the use of seats,” courts must examine subsets of an employee’s total tasks and duties by location, such as those performed at a cash register or a teller window, and must consider whether it is feasible for an employee to perform each set of location-specific tasks while seated. According to the Court, the focus should be on the actual tasks performed by employees (or those reasonably expected to be performed), as opposed to abstract characterizations, job titles, or job descriptions. In the Court’s view, tasks that are performed with more frequency or for a longer duration are more germane to the seating inquiry than tasks performed briefly or infrequently.

The Court also clarified that Section 14(A) and 14(B) of the Wage Orders are not mutually exclusive, although they do not apply at the same time. If an employee’s actual tasks at a discrete location make seated work feasible, he or she is entitled to a seat under Section 14(A) while working there. However, if other job duties take the employee to a different location where he or she must perform tasks while standing, the employee would be entitled to a seat under Section 14(B) during “lulls in operation.”

The Multifactor “Reasonably Permits” Analysis

According to the California Supreme Court, whether an employee is entitled to a seat under Section 14(A) depends on the totality of the circumstances. The analysis starts with an examination of the relevant tasks, grouped by location, and whether the tasks can be performed while seated or require standing. In undertaking this analysis, consideration must be given to the feasibility of providing seats. Feasibility considerations may include, for example, an assessment of whether providing a seat would unduly interfere with other standing tasks, whether the frequency of transition from sitting to standing may interfere with the work, or whether seated work would impact the quality and effectiveness of overall job performance. The analysis is to be qualitative in nature—not a rigid counting of tasks or amount of time spent performing them.

The Court held that an employer’s business judgment about the nature of work could be considered. However, the Court rejected the notion that an employer’s mere preference for standing—as opposed to sitting—could be part of the analysis.

As to work location, the Court held that the physical characteristics of the area where the work is performed should be part of the assessment. On the other hand, just as an employer’s preference for standing could not constitute a relevant “business judgment,” the Court held that employers are not permitted to deliberately design workspaces to further a preference for standing or to deny a seat that might otherwise be reasonably suited for the contemplated tasks.

Finally, the Court held that the analysis should focus on the nature of the tasks at issue and should take into account the location where they are to be performed, as opposed to specific employees’ experiences and abilities in performing tasks. Thus, whether a seat is required depends on the work, as opposed to the physical characteristics of any employees.

Showing That Seating Is Not Feasible Is an Employer’s Burden

The California Supreme Court also held that an employer that seeks to be excused from Section 14(A) bears the burden of showing that compliance is infeasible because no suitable seating exists. There is no obligation on plaintiffs to demonstrate that they requested a seat or that it would be feasible to provide seating for any position.

Takeaways

While the California Supreme Court’s opinion clarifies the Wage Orders’ seating requirements, it may require many California employers to dramatically alter their work environments by providing employees with seats. The decision has particularly significant implications for employers in customer-facing environments where seating may be less common and more difficult to implement, including in the retail and hospitality industries.

In light of this new guidance, employers who do not currently provide seats at all times should examine the nature of their employees’ job duties and work environments to determine whether certain types of work (and work locations) are amenable to seated employees. In addition, employers should ensure that they have suitable seats for employees when they are not actively engaged in their duties. For assistance with ensuring compliance, employers should seek advice from qualified California employment counsel.

Get the Most Out of Your Employee Payroll Audit

By Kate S. Gold, Heather B. Abrigo and Philippe Lebel

Employee payroll audits, which have long been recommended as a best practice for corporations that want to stay on the right side of the law, have become even more critical with the current proliferation of labor and employment laws at the state level. Among other things, the California Fair Pay Act, which went into effect on January 1, 2016, places new demands on California employers that in many cases can only be effectively satisfied by means that include a payroll audit.

Earlier this month, we held a webinar to discuss the CA Fair Pay Act requirements and what employees should do to comply. Below you will find some of the key takeaways.

What is the California Fair Pay Act?

The new law goes further and imposes more obligations on employers than longstanding federal and state equal-pay and employment-discrimination laws. More than simply requiring employers to pay men and women equal pay for the same work, the California statute prohibits employers from paying members of one sex less than the rates paid to employees of the opposite sex “for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” And the employees of opposite sexes whose jobs and pay are being compared need not work together in the same establishment. There are several important defenses to liability under the law, such as the employer’s use of a bona fide factor that is not sex-related.

How can a payroll audit help?

Determining what types of work are “substantially similar” in terms of skill, effort, responsibility and working conditions is no easy task. That’s where a payroll audit can help.

On a step-by-step basis, a properly conducted audit will identify potential problems under the California Fair Pay Act by identifying positions that have “substantially similar work,” analyzing the pay of these workers by gender, finding any disparities in pay, and determining whether any defenses apply. For example, does the company have a bona fide seniority system or merit system, or is there a business necessity for the disparities in pay?

In addition to these complex Fair Pay Act questions, employee payroll audits remain desirable or necessary for other purposes, such as ensuring that employees are treated fairly under the company’s employee benefit plan and that certain employees or groups of employees are not excluded from the plan.

What steps should be taken?

 When conducting a payroll audit, it should be done with review and consultation of attorney with the end goal of identifying and quickly addressing disparities that cannot be explained adequately or need to be corrected. It is important to note that the audit is subject to attorney/client privilege and/or work product protection. The following are key steps in the audit process:

  • Consider all job titles/descriptions across all geographic regions
  • Consider how to identify or sort based on disparate geographical locations
  • Compare the positions that have “substantially similar work
  • Determine if the statutory exemptions apply
  • Identify explanations for disparities
  • Address disparities that can’t be explained
  • Determine what action needs to be taken

Ongoing Compliance

From a compliance perspective, the number one benefit to conducting employee payroll audits is the ability to determine what action needs to be taken to address and correct disparities if they exist. Failure to address disparities that can’t be explained within the requirements of the California Fair Pay Act or the Federal Pay Act can result in penalties, sanctions and, in some cases, litigation with the DOL and/or IRS. Ongoing compliance should include regular review of the following:

  • Handbooks and policies to remove outdated references to “equal” work
  • Policies that prevent employees from discussing or asking about other employees’ compensation
  • How compensation decisions are made and adjust if necessary
  • Job descriptions – update and describe as comprehensive as possible
  • Record keeping – records must be kept for three years
  • Training of HR personnel, senior management on the new law and how it should be applied in setting compensation at hiring

Click here to watch the full presentation.

Click here to view a PDF of the presentation.

California Employers: New Poster to be Posted April 1, 2016

By Pascal Benyamini

Did you recently update your workplace posters? Time to do it again.

In California, all employers have obligations to satisfy workplace posting, such as posting information related to wages, hours and working conditions. The workplace posters must be placed in an area frequented by employees where these posters may be easily read during the workday.

As a result of new amended regulations pertaining to the California Fair Employment and Housing Act (“FEHA”) going into effect on April 1, 2016, certain covered employers must post a new poster on April 1, 2016. Employers with 5 or more employees (full-time or part-time) are covered by the FEHA and must post a specific notice, which replaces Pregnancy Disability Leave (“PDL”) Notice A. This new poster, titled “Your Rights and Obligations as a Pregnant Employee,” provides clarifications of the PDL, including, but not limited to, the following:

  • Eligible employees are entitled up to four months of leave per pregnancy, and not per year;
  • The four months means the working days the employee would normally work in one-third of a year or 17 1/3 weeks; and
  • PDL does not need to be taken all at once, but can be taken on an as-needed basis as required by the employee’s health care provider.

For a copy of this poster, click here.

Under the California Code of Regulations, “[a]ny FEHA-covered employer whose work force at any facility or establishment is comprised of 10% or more persons whose spoken language is not English shall translate the notice into every language that is spoken by at least 10 percent of the workforce.”  The Spanish version of the foregoing notice should be available soon at http://www.dfeh.ca.gov/Publications_Publications.htm.

Any time employers are required to update their posters and/or new (or amended) regulations are issued, employers should take the opportunity to ensure their workplace posters and their employee handbooks and policies are up to date and compliant.

For further information, please contact the author or any member of our Labor and Employment Practice Group.