Mark E. Terman, Author at Laborsphere

Don’t Labor Under New Laws — What Employers Need to Know About 2016 California Labor Laws

*Originally published by CalCPA in the January/February 2016 issue of California CPA — the original article can be found here.

Many California employers feel over-regulated—and under-appreciated. Yet, surprisingly, proposed new regulation of employers has declined. In 2015, 224 bills introduced in the California Legislature mention “employer,” compared to 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. One veto blocked a bill (AB 465) that would have made pre-dispute arbitration agreements made as a condition of employment—the kind that are in widespread use across the state—unlawful. Another veto rejected a bill (AB 676) reintroduced this year that would have penalized employers for limiting job prospects of, or discriminating against, applicants who are not currently employed.

Key elements of some of the bills that became law affecting private employers, effective Jan. 1, 2016, unless otherwise mentioned and organized by bill number, follow.

Minimum Wage Boost

As of Jan. 1, the state minimum wage for non-exempt workers will increase to $10 per hour, up from $9. This change also impacts 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.” That increases the annualized exempt salary requirement to $41,600, up from $37,440. Also affected 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.

An increasing number of municipalities have increased the minimum wage for companies who employ workers in their jurisdiction. As of July 1, minimum wage at Los Angeles employers with 26 or more employees will increase to $10.50 per hour, and will increase annually up to $15 per hour by July 1, 2021. Minimum wage for employees in San Francisco increased to $12.25 from $11.05 per hour May 1, 2015, and will incrementally increase to $15 per hour by July 1, 2018. Many other cities, including Berkley, Oakland and San Diego have either enacted or have pending 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.

Penalties for Pre-offer E-Verify Use

Employers may hire only individuals who have the right to work in the United States—either U.S. citizens or foreign citizens with authorization issued by the federal government. E-Verify, administered by the United States Citizenship and Immigration Services, Department of Homeland Security (DHS) and Social Security Administration (SSA), is an internet-based system that allows employers to determine the eligibility of their employees to work in the United States.

AB 622 continues a California law trend to prevent employment discrimination of immigrants. The new law prohibits employers from using E-Verify to check the employment authorization status of employees or applicants who have not received an offer of employment. Post-offer use of E-Verify remains lawful, as does use required by federal law (such as certain federal contractors) or as a condition of receiving federal funds. In addition to other remedies that may be available, the new law establishes a civil penalty not to exceed $10,000 for each unlawful use of the E-Verify system.

AB 622 also mandates employers provide to the affected worker—as soon as practicable—any DHS or SSA notification containing information specific to the worker’s E-Verify case or any nonconfirmation notice, indicating that the E-Verify data entered does not match federal records.

More Labor Commissioner Enforcement Powers

AB 970 expands the Labor Commissioner’s power to enforce local laws regarding overtime and minimum wage, and to issue citations and penalties for violations, except when the local entity has already issued a citation for the same violation.

Labor Code Sec. 2802 requires employers to indemnify for expenses or losses incurred by the employee in direct consequence of the discharge of the employee’s duties or as a result of obeying the employer’s directions. In addition to a private right of action by the employee to recover these expenditures, AB 970 authorizes the Labor Commissioner to issue citations and penalties against employers who violate Sec. 2802.

Employment Discrimination Clarified

AB 987 clarifies that it is an unlawful employment practice under the Fair Employment and Housing Act for an employer to retaliate or otherwise discriminate against an employee for “requesting” an accommodation for a disability or religious belief or observance, regardless of whether the request was granted.

Employers Can Cure Some Violations to Avoid PAGA

California’s Private Attorneys General Act of 2004 (PAGA) permits an employee to sue to recover civil penalties for certain alleged Labor Code violations that could otherwise be pursued by the Labor and Workforce Development Agency on behalf of the employee and other current or former employees. Employee-side litigants have used the act to leverage penalties on a workforce-wide basis for technical Labor Code violations, even where the employee has not been damaged.

As of Oct. 2, 2015, AB 1506 allows employers the opportunity to correct itemized wage statements (i.e., paystubs) to include missing inclusive dates of the pay period and the name and address of the legal employer, to avoid a PAGA action over those defects. The employer may cure the alleged violation within 33 calendar days of the postmark date of the PAGA notice it receives. The bill requires only a showing that the employer has provided fully compliant paystubs to each aggrieved employee to establish cure.

Whistleblowers’ Family Members Protected

Labor Code secs. 98.6, 1102.5 and 6310 generally prohibit an employer from discharging or taking other adverse action against any employee or applicant who has complained about unlawful discrimination, retaliation or any adverse action; engaged in whistleblowing activity; or complained about unsafe working conditions.

AB 1509 provides that an employer, or a person acting on behalf of the employer, shall not retaliate
against an employee because the employee is a family member of a person who has, or is perceived to have, engaged in any acts protected by these provisions. The term “employer” or “person acting on their behalf ” includes “client employers” (i.e., a business entity that obtains or is provided workers to perform labor within its usual course of business from a labor contractor) or a “controlling employer” (i.e., an employer listed in Labor Code Section 6400(b) regarding multiemployer worksites).

Piece-Rate Worker Pay Requirements

AB 1513, which adds new Labor Code Sec. 226.2 and repeals others, applies to employees who are
compensated on a piece-rate basis for any work performed during a pay period. This new law requires that employees be compensated for rest and recovery periods and “other nonproductive time” separate from any piece-rate compensation as follows:

Rest and recovery periods must be compensated at a regular hourly rate that is no less than the higher of: (i) an “average hourly rate” determined by dividing the total compensation for the workweek, exclusive of compensation for rest and recovery periods and any premium compensation for overtime, by the total hours worked during the workweek; or (ii) the “applicable minimum wage,” defined by the bill as “the highest of the federal, state or local minimum wage applicable to the employment.”

Certain employers, who comply with the applicable minimum wage requirement, have until April 30 to program their payroll systems to perform and record the calculation required under the average hourly rate requirement and comply with the itemized wage statement requirements (see below), so long as such employers pay piece-rate employees retroactively for all rest and recovery periods at or above the applicable minimum wage from Jan. 1–April 30, inclusive, and pay the difference between the amounts paid and the amounts that would be owed under the average hourly rate requirement, together with interest.

Other nonproductive time is that which is under the employer’s control, exclusive of rest and recovery periods, and not directly related to the activity being compensated on a piece-rate basis. That time must be compensated at an hourly rate that is no less than the applicable minimum wage. The amount of other nonproductive time may be determined either through actual records or the employer’s reasonable estimates, whether for a group of employees or for a particular employee, of other nonproductive time worked during the pay period.

Finally, in addition to the list of items required by Labor Code Sec. 226 for itemized wage statements, Sec. 226.2 requires that the statements include the:

Total hours of compensable rest and recovery periods;
Rate of compensation; and
Gross wages paid for those periods during the pay period.

Employers who do not pay an hourly rate for all hours worked in addition to piece-rate wages must also list on the itemized statements the total hours of other nonproductive time, rate of compensation for that time and gross wages paid for that time during the pay period.

Hospital Meal Period Waivers

For non-exempt employees, Labor Code Sec. 512 requires two meal periods for work periods of more than 10 hours. However, employees are allowed to waive their second meal period if the total hours worked in their shift are no more than 12. Effective Oct. 5, 2015, SB 327 made statutory the longstanding rule under Sec. 11(D) of Wage Order 5 that health care industry employees who work shifts in excess of eight total hours in a workday are permitted to waive their second meal period. The bill effectively sets aside a contrary appellate court decision.

Equal Pay Act for Substantially Similar Work

SB 358, known as the California Fair Pay Act (CFPA), subjects employers to one of the strictest and most aggressive equal pay laws in the country.

Under the CFPA, an employer is prohibited from paying employees of the opposite sex lower wage
rates for “substantially similar work, when viewed as a composite of skill, effort and responsibility, and performed under similar working conditions.”

Previously, the equal pay statute was more limited. It prohibited employers from paying 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 performed under similar working conditions. The standard permits employees to bring an unequal pay claim based on wage rates in any of their employer’s facilities and in other job categories as long as the work is substantially similar.

The employer’s defense burden has increased under the CFPA. An employer must establish that the entire wage differential is based on the reasonable application of one or more of the following:

A seniority system;
A merit system;
A system which measures earnings by quantity or quality of production; or
A bona fide factor other than sex—such as education, training or experience.

The last factor will apply if the employer shows that the factor is not the result of a sex-based differential in compensation, is related to the position and is consistent with business necessity. An employee can defeat this defense by proving that an alternative business practice exists that would serve the same business purpose without producing the wage differential.

Seeking to decrease pay secrecy, the CFPA further prohibits employers from enacting rules, policies or otherwise engaging in conduct that prohibits employees from disclosing their own wages, discussing the wages of others, asking about other employees’ wages or aiding and encouraging employees to exercise rights under the CFPA. Yet, no one, including an employer, is obligated to disclose employees’ wages.

Finally, the CFPA prohibits discharge, discrimination and retaliation of employees for asserting rights under the act. The statute, as amended by the CFPA, permits a civil action seeking reinstatement, lost wages and interest, an equal amount as liquidated damages, lost benefits, other equitable relief and attorneys fees recovery. Finally, the CFPA requires that employers maintain records of employees’ “wages and rates of pay, job classifications, and other terms and conditions of employment” for a three-year period.

Wage Garnishment Restrictions

SB 501 amends, repeals and adds Sec. 706.050 of the Code of Civil Procedure, relating to wage garnishment. The new law reduces the prohibited amount of an individual judgment debtor’s weekly disposable earnings subject to levy under an earnings withholding order from exceeding the lesser of 25 percent of the individual’s weekly disposable earnings or 50 percent of the amount by which the individual’s disposable earnings for the week exceed 40 times the state minimum hourly wage, or applicable local minimum hourly wage, if higher, in effect at the time the earnings are payable.

Employee Time Off

California’s Kin Care Law allows employees to use half of their accrued sick leave to care for a “family member” (as defined). The Healthy Workplaces, Healthy Families Act (Paid Sick Leave Act) SB 579, which went into effect July 1, requires certain mandatory accrual of paid sick days. The bill effectively trues-up the two statutes by defining “sick leave” as leave provided for use by the employee during an absence from employment for purposes permitted by the Paid Sick Leave Act; prohibiting an employer from denying an employee the right to use sick leave; and taking specific discriminatory action against an employee for using, or attempting to exercise the right to use, sick leave for these purposes.

In other words, employees may use paid sick leave for their own health condition or preventative care, a family member’s health condition or preventative care, and if the employee is a victim of domestic assault, sexual violence and stalking. Further, “family member” now includes a child, regardless of age or dependency (including adopted, foster, step or legal ward), parent (biological, adoptive, foster, step, in-law or registered domestic partner’s parent), spouse, registered domestic partner, grandparent, grandchild or siblings.

The Family School Partnership Act applies only to employers with 25 or more employees and permits an employee—defined as a parent, guardian or grandparent having custody of a child in school (grades 1–12) or child day care facility—unpaid leave of up to 40 hours each year (and no more than eight hours in a calendar month) to participate in school activities, subject to specified conditions. SB 579 amends this act by changing its scope from “child day care facility” to “child care provider” and adding leave rights for stepparents or foster parents, or one who stands in loco parentis to a child. The new law also allows employees to take unpaid time off to enroll or reenroll their children in a school or with a licensed child care provider.

Even More Labor Commissioner Enforcement Powers

SB 588 provides the California Labor Commissioner with additional powers to enforce judgments against employers arising from the employers’ nonpayment of wages. The new law, among other things, authorizes the Labor Commissioner to use any of the existing remedies available to a judgment creditor and to act as a levying officer when enforcing a judgment pursuant to a writ of execution; and issue a notice of levy if the levy is for a deposit, credits, money or property in the possession or under the control of a bank or savings and loan association or for an account receivable or other general intangible owed to the judgment debtor by an account debtor.

If an employer fails to pay a judgment for unpaid wages within 30 days of it becoming “final” (i.e., exhaustion of appeals), the employer must stop doing business in California unless it posts bond up to $150,000 (depending on the unsatisfied portion of the judgment). And the Labor Commissioner can issue a “stop order” to suspend all business operations to enforce this new provision.

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

Q&A: How to Ensure Compliance with California’s New Fair Pay Law

California’s Fair Pay Act, which takes effect Jan. 1, 2016, mandates that male and female employees doing “substantially similar” work be paid the same wages, unless employers can demonstrate that certain factors such as seniority, a merit system, education, training, experience or productivity can account for the gender disparities. As 2015 winds down, other companies either based in California or operating in the state may still be scrambling to ensure they’re prepared for the new law.

SHRM Online asked Los Angeles partner Mark Terman, as well as two other industry experts, to share their views about statistical analyses, labor law and compliance measures related to the Fair Pay Act.

Please click here to view the entire Q&A at SHRM Online.

Strict New California Fair Pay Act Will Become Effective January 1, 2016

In only a few months, employers in California will be subject to one of the strictest and most aggressive equal pay laws in the country. This week, Governor Jerry Brown signed the California Fair Pay Act (“Act”), Senate Bill 358, a new law intended to increase requirements for wage equality and transparency. The Act amends Section 1197.5 of the California Labor Code relating to private employment.

New “Substantially Similar Work” Standard

Under the Act, an employer is prohibited from paying employees of the opposite sex lower wage rates for “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” Previously, the equal pay statute was more limited. It prohibited employers from paying 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 new standard permits an employee to bring an unequal pay claim based on employee wage rates in any of their employer’s facilities and in other job categories as long as the work is substantially similar. The employer’s defense burden has also increased under the Act. An employer must establish that the entire wage differential is based on the reasonable application of one or more of the following:

• A seniority system;
• A merit system;
• A system which measures earnings by quantity or quality of production; or
• A bona fide factor other than sex, such as education, training, or experience. This 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. An employee can defeat this defense by proving that an alternative business practice exists that would serve the same business purpose without producing the wage differential.

Increased Wage Transparency

The Act also seeks to decrease pay secrecy by further prohibiting employers from enacting rules, policies or otherwise engaging in conduct that prohibits employees from disclosing their own wages, discussing the wages of others, asking about other employees’ wages or aiding and encouraging employees to exercise rights under the Act. Yet, no one, including an employer, is obligated to disclose employees’ wages.

Additional Remedies and Cause of Action for Discrimination and Retaliation

The statute currently allows employee recovery of wages and interest, plus an equal amount as liquidated damages, and attorneys’ fees. The Act also prohibits discharge, discrimination and retaliation of employees for asserting rights under the Act and permits a civil action seeking reinstatement, reimbursement for lost wages and interest, an equal amount as liquidated damages, lost benefits, and other equitable relief. Such a claim must be brought within one year of the prohibited conduct. There is no requirement that an employee exhaust administrative remedies prior to filing suit.

Increased Record Keeping Requirement

Additionally, this new law requires that an employer maintain records of employees’ “wages and rates of pay, job classifications, and other terms and conditions of employment” for a three-year period.

Practical Takeaways

This new law goes into effect January 1, 2016. Employers would be wise to use this time to assure that their compensation practices are in defensible compliance with these new requirements. We suggest the following proactive steps:

• Conduct a wage audit/review of employee pay equity, including identifying opposite sex pay practices for “substantially similar” work;
• Review all pay and compensation-related policies and procedures, including job descriptions, employee handbooks, review and evaluation protocols;
• Consider the scope of information and documents that may fall within the Act’s three-year record retention requirement and modify policies and practices accordingly;
• Provide internal training to members of management who make decisions regarding employees’ pay and compensation; and
• Consider performing some or all of the foregoing under the shield of attorney work-product.

If you have any questions or concerns about this alert please contact the authors named below or your usual Drinker Biddle contact.

Joint Employer Liability on the Rise

The Issue: Could my company be liable as a joint employer for California Labor Code violations of our subsidiary or third-party staffing company?

The Solution: Companies with subsidiaries and staffing companies in California should take steps to limit exposure.

Analysis: Parent corporations are generally presumed to be separate entities from their subsidiaries, and therefore not liable for the unlawful treatment of their subsidiary’s separate employees unless they exercise significant control over day-to-day operations. Recent developments, however, call this precedent into question.

In Castaneda v. Ensign, 229 Cal. App. 4th 1015 (2014) (review denied), the California Court of Appeal held: “an entity that controls the business enterprise may be an employer even if it did not ‘directly hire, fire, or supervise’ the employees.” (emphasis added). The parent company at issue claimed a lack of control over wages, hours and working conditions of its subsidiary operating companies’ employees. In reversing summary judgment for the parent and sending the case to be tried by a jury, the court highlighted evidence that the parent provided centralized human resources, accounting, payroll, and other key services to its subsidiary; controlled the mechanisms used to track subsidiary employees’ hours; handled subsidiary employee discipline, benefits and workers’ compensation claims; required subsidiary compliance with parent policies, practices, templates, forms, and training; and set the pay rate for some subsidiary employees.

Castaneda also resurfaced recent California Supreme Court precedent that “[m]ultiple entities may be employers where they control different aspects of the employment relationship…This occurs, for example, when one entity (such as a temporary employment agency) hires and pays a worker, and another entity supervises the work…Supervision of the work, in the specific sense of exercising control over how services are performed, is properly viewed as one of the ‘working conditions’…control over how services are performed is an important, perhaps even the principal, test for the existence of an employment relationship.” In other words, the worksite employer who supervises the worker may be liable to workers for Labor Code violations and other alleged wrongs even if it is not the employer of record who issues paychecks.

The California Legislature is not sitting on the sidelines, either. Effective January 1, 2015, AB 1897 imposed joint employer liability on many companies who engage labor contractors such as staffing agencies that fail to pay required wages to, or secure valid workers compensation insurance for, the workers they supply—regardless of the “control” test discussed above. Please see our prior blog post on this new law here.

Likewise, the California Department of Industrial Relations has clarified that California’s new paid sick leave law will apply equally to staffing agencies and their “joint employers.” Please see our prior blog post on this new law, here.

Given this upward trend in joint employer liability, companies with the help of counsel should evaluate their subsidiary and staffing relationships. Corporate structure—in name and in operations—should be separate and independent. Companies who prefer centralized corporate services by the parent company should weigh the risk that efficiency may indicate control over wages, hours, and working conditions. Careful selection and some oversight of, and indemnity agreements with, labor contractors should be considered.

Labor Laws for the New Year

If only the Beatles’ call to “Let it Be” was heard by the California Legislature. Instead, employer regulation is on the rise again. In 2014, 574 bills introduced mentioned “employer,” compared to 186 in 2013. Most of those 500-plus bills did not pass, and several that did pass were not signed into law by the governor. One veto blocked a bill that would have penalized employers for limiting job prospects of, or discriminating against, job applicants who aren’t currently employed.

A sampling of significant new laws affecting private employers, effective Jan. 1, 2015, unless otherwise mentioned, follows.

Shared Liability for Employers Who Use Labor Contractors

AB 1897 mandates that companies provided with workers from a labor contractor to perform labor within its “usual course of business” at its premises or worksite will “share with the labor contractor all civil legal responsibility and civil liability” for the labor contractor’s failure to pay wages required by law or secure valid workers compensation insurance, for the workers supplied.

The law applies regardless of whether the company knew about the violations and whether the company hiring the labor contractor (recast by the new law as a “client employer”) and labor contractor are deemed joint employers. This liability sharing is in addition to any other theories of liability or requirements established by statutes or common law.

The client employer will not, however, share liability under this new law if it has a workforce of less than 25 employees (including those obtained through the labor contractor), or is supplied by the labor contractor with five or fewer workers at any given time.

A labor contractor is defined as an individual or entity that supplies, either with or without a contract, a client employer with workers to perform labor within the client employer’s usual course of business, unless the specific labor falls under the exclusion clause in AB 1897. Excluded are bona fide nonprofits, bona fide labor organizations, apprenticeship programs, hiring halls operated pursuant to a collective bargaining agreement, motion picture payroll services companies and certain employee leasing arrangements that contractually obligate the client employer to assume all civil legal responsibility and civil liability for securing workers’ compensation insurance.

This bill is a significant expansion of existing law—which is limited to prohibiting employers from entering into a contract for labor or services with a construction, farm labor, garment, janitorial, security guard or warehouse contractor—if the employer knows or should know that the agreement does not include sufficient funds.

In light of the new law, labor services contractor engagements should be evaluated with an eye toward limiting the risk of retaining non-compliant contractors, including indemnity, insurance, termination provisions and compliance verification protocols.

Wage and Hour Changes

California’s $9 hourly minimum wage is due to increase to $10 Jan. 1, 2016. Defeated by the California Legislature, however, was a bill to raise the hourly minimum wage to $11 in 2015, $12 in 2016, $13 in 2017 and then adjust annually for inflation starting in 2018.

Undeterred, several municipalities have increased their respective minimum wage for companies who employ workers in their jurisdiction. For example, employees who work in San Francisco more than two hours per week, including part-time and temporary workers, are entitled to the San Francisco hourly minimum wage, which increased Jan. 1 from $10.74 to $11.05 and will increase to $12.25 by May 1. Hourly minimum wages also increased Jan. 1 in San Jose ($10.30).

The minimum wage will increase in Oakland March 2 ($12.25) and in Berkeley Oct. 1 ($11). Many other cities have either enacted, or have pending, minimum wage laws.

Federal minimum wage continues to lag behind California, but no longer for federal contractors. President Obama issued Executive Order 13658 in 2014 which established that workers under federal contracts must be paid at least $10.10 per hour. This applies to new contracts and replacements for expiring federal contracts that resulted from solicitations issued on or after Jan. 1, 2015, or to contracts that were awarded outside the solicitation process on or after Jan. 1, 2015. There are prevailing wage requirements for many state and local government and agency contractors as well.

Employers should monitor each of the requirements, including those in the jurisdiction in which they do business, to assure compliance.

Paid Sick Days Now Required

Effective July 1, AB 1522 is the first statewide law that requires employers to provide paid sick days to employees. The new law grants employees, who worked at least 30 days since the commencement of their employment, the right to accrue one hour of paid sick time off for each 30 hours worked—up to 24 hours (three days) in a year of employment. Exempt employees are presumed to work a 40-hour normal workweek; but, if their normal workweek is less, the lower amount could be used for accrual purposes.

An employer may cap accrual at 48 hours (six days) and also may limit the use of paid sick days in a year to 24 hours. Unused paid sick days normally carry-over from year to year, though no carry-over is required if 24 hours of paid sick days is accrued to the employee at the beginning of a year. No payout is required at termination of employment.

The paid sick days may be used for the employee’s own health condition or preventative care; a family member’s health condition or preventative care; if the employee is a victim of domestic assault or sexual violence; and stalking. “Family member” means a child, regardless of age or dependency (including adopted, foster, step or legal ward), parent (biological, adoptive, foster, step, in-law or registered domestic partner’s parent), spouse, registered domestic partner, grandparent, grandchild or siblings.

The law applies to all employers, regardless of size, except for a few categories of employees that are not covered—such as those governed by a collective bargaining agreement that contains certain provisions, in-home supportive services providers and certain air carrier personnel.

Employers must keep records for at least three years, a new workplace poster is required and employers are barred from retaliating against employees who assert rights under this new law.

Failure of an employer to comply with AB 1522 can result in significant monetary fines and penalties in addition to pay for the sick days withheld, reinstatement and back pay if employment was ended, and attorneys fees and costs.

Employers should beware to integrate city specific paid sick leave laws with the new state law. For example, the pre-existing San Francisco paid sick day law has some provisions that are similar and some that are different from AB 1522. As a general rule, where multiple laws afford employee rights on a common topic, the employee is entitled to the law benefits that favors the employee most.

Discrimination Law and Training Requirements Expanded

AB 1443 amends the California Fair Employment and Housing Act (FEHA) to make its anti-discrimination, anti-harassment and religious accommodation provisions apply to unpaid interns. It also amends FEHA’s anti-harassment, and religious belief or observance accommodation provisions, to apply to volunteers. This new law appears to respond to, and trump, courts that have not classified these workers as employees and, in turn, found them not eligible for legal protections afforded to employees.

Prior law requires the California Department of Motor Vehicles to commence issuing special drivers licenses in January to applicants who meet other requirements to obtain a license, but cannot submit satisfactory proof of lawful presence in the United States. AB 1660 amends FEHA to prohibit discrimination against holders of these special drivers licenses; adverse action by an employer because an employee or applicant holds a special license can be a form of national origin discrimination. Employer compliance with any requirement or prohibition of federal immigration law is not a violation of FEHA.

Since 2006, employers of 50 or more employees have been required to provide supervisors with two hours of classroom or other effective interactive anti-sexual harassment training, every two years. New supervisors are to receive the training within six months after they start a supervisory position. This is commonly known as “AB 1825” training.

In apparent response to societal concerns about the impacts of bullying in general, AB 2053 requires that AB 1825 training include a component on abusive conduct prevention. Under the new law, abusive conduct means “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive and unrelated to an employer’s legitimate business interests.

Abusive conduct may include repeated infliction of verbal abuse—such as the use of derogatory remarks, insults and epithets; verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating; or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.”

The new law does not make abusive conduct unlawful in and of itself, but it’s common for plaintiffs’ counsel to try, in attempts to win cases, to tether abusive behavior by a supervisor to conduct that is alleged to be unlawful.

SB 1087 requires farm labor contractors to provide sexual harassment prevention and complaint process training annually to supervisory employees and at the time of hire and each two years thereafter to non-supervisory employees. The new law also blocks state licensing of farm labor contractors who have been found by a court or administrative agency to have engaged in sexual harassment in the past three years, or who knew— or should have known—that a supervisor had been found by a court or administrative agency to have engaged in sexual harassment in the past three years.

Child Labor Laws Enhanced

AB 2288, the Child Labor Protection Act of 2014, accomplishes three things.

1. It confirms existing law that “tolls” or suspends the running of statutes of limitation on a minor’s claims for unlawful employment practices until the minor reaches the age of 18.

2. Treble damages are now available—in addition to other remedies—to an individual who is discharged, threatened with discharge, demoted, suspended, retaliated or discriminated against, or subjected to adverse action in the terms or conditions employment because the individual filed a claim or civil action alleging a violation of the Labor Code that arose while the individual was a minor.

3. For Class “A” child labor law violations involving minors at or under the age of 12, the required range of civil penalties increases to $25,000 to $50,000. Class A violations include employing certain minors in dangerous or prohibited occupations under the Labor Code, acting unlawfully or under conditions that present an imminent danger to the minor employee, and three or more violations of child work permit or hours requirements.

Immigration and Retaliation

Several new California laws involving immigration issues surfaced last year. All were premised on existing law that all workers are entitled to the rights and protections of state employment law regardless of immigration status, and that employers must not leverage immigration status against applicants, employees or their families.

This year, AB 2751 adds to and clarifies these existing laws.

For example, actionable “unfair immigration- related practices” now include threatening or filing a false report to any government agency. The bill also clarifies that a court has authority to order the suspension of business licenses of an offending employer to block otherwise lawful operations at worksites where the offenses occurred.

What’s Next?

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

*Originally published by CalCPA in the January/February 2015 issue of California CPA.

San Francisco’s Retail Workers Bill of Rights Has Passed: Are you ready?

Operative July 3, 2015, companies located in San Francisco who are “Formula Retail Establishments” must comply with additional wage and hour requirements under the Retail Workers Bill of Rights (a combination of two ordinances, Ordinance 236-14 and Ordinance 241-14), the country’s first-ever such legislation.

Supporters claim that this new law is intended to improve life for retail employees which, according to some accounts, include more than 40,000 workers at 1,250 locations in the City of San Francisco. In passing the bill, the San Francisco Board of Supervisors found that Formula Retail Establishments are a major employment base and stated that the City has a strong interest in ensuring that jobs at these establishments allow employees to meet their basic needs and achieve economic security. An overview of this onerous and extensive legislation follows.

Formula Retail Establishments

The new law applies to companies who employ 20 or more employees in 20 or more locations worldwide and who operate a Formula Retail Establishment in San Francisco. Other than the number of locations, “Formula Retail Establishments” borrow from the definition of “Formula Retail Use” in The San Francisco Planning Code and generally have standardized merchandise, facade, worker apparel, interior design, signage and/or trademarks. Of course retail stores are included, but so are many businesses that one would not commonly think of as retailers. For example, hotels, restaurants, bars, movie theatres, certain financial institutions, and “Property Services Contractors” such as janitorial and/or security services contractors. For a full listing, click here.

Part-Time Employee Preferences and Retention After Ownership Change

Under this new law, employers are generally required to: (a) offer additional hours of work to current part-time employees before hiring new employees or subcontractors; and (b) retain employees (i.e., by the successor employer) for 90 days upon change in ownership control of the business.

Initial Estimate of Minimum Hours

Prior to the start of employment, employers must provide new employees with a good faith estimate in writing of the employee’s expected minimum number of scheduled shifts per month, and the days and hours of those shifts. The estimate must not include on-call shifts. This is a non-binding estimate. It is not a contractual offer.

Two Weeks’ Notice of Work Schedules & Predictability Pay

Employers must give employees at least two weeks’ advance notice of employees’ work schedules. Changes on less notice requires employers to issue additional “predictability pay” for each previously scheduled shift that the employer moves to another date or time or cancels, or each previously unscheduled shift that the Employer requires the employee to come into work:

With less than seven days’ notice but 24 hours or more notice to the employee, one hour of pay at the employee’s regular hourly rate
With less than 24 hours’ notice to the employee, two hours of pay at the employee’s regular hourly rate for each shift of four hours or less
With less than 24 hours’ notice to the employee, four hours of pay at the employee’s regular hourly rate for each shift of more than four hours

There are exceptions to predictability pay requirements, such as an employer request that an employee work overtime or fill in for another employee who is out due to sickness or discipline.

Pay for On-Call Shifts

Employers must provide employees with the following compensation for each on-call shift for which the employee is required to be available but is not called in to work:

Two hours of pay at the employee’s regular hourly rate for each on-call shift of four hours or less
Four hours of pay at the employee’s regular hourly rate for each on-call shift of more than four hours

Equal Treatment to Part-Time Employees

Employers must generally provide part-time employees with equal treatment in the hourly wage, access to pro-rated time off, and eligibility for promotions.

Impact of Non-Compliance

The San Francisco Office of Labor Standards Enforcement (OLSE) is authorized to take appropriate steps to enforce and coordinate enforcement of this new law, including the investigation of any possible violations, and order any appropriate relief, including, but not limited to, requiring an employer to offer additional hours of work to part-time employees, reinstatement, penalties, payment of lost wages and the payment of an additional sum as an administrative penalty that does not exceed the amount of the award for lost wages. Further, to compensate the City for the costs of investigating and remedying the violation, the OLSE may also order the employer to pay the City’s enforcement costs.

Conclusion

While this new law will take effect in January 2015, it does not become operative until July 3, 2015. As such, employers affected by the Retail Workers Bill of Rights have some time to determine how to best comply. This is an opportune time to review with counsel your employment and hiring practices, including the manner in which your company schedules employee shifts and changes them to ensure compliance by July 2015.

Should you have questions about this alert, please contact the authors or any other member of Drinker Biddle’s Labor & Employment Group.