CA Paid Sick Leave: DLSE Opinion Letter Not a Cure-all

By Kate Gold

Last week, on August 7, 2015, the DLSE issued its first opinion letter interpreting the Healthy Workplaces, Healthy Families Act of 2014 (“Paid Sick Leave Law”), which is codified at California Labor Code section 245 et. seq. and which was recently amended by AB 304, effective July 13, 2015.

As most California employers should now be aware, the Paid Sick Leave Law generally requires employers to provide three days or 24 hours of paid sick leave to an employee who works at least 30 days within a year in California, including part-time, per diem, and temporary employees. Employers may either grant the paid leave up front or, alternatively, allow employees to accrue the paid time off. The question presented to DLSE was how to address the sick leave requirement for an employee who regularly works a ten-hour shift where the employer has opted to follow the front-loading method. Does the employer have to front load thirty hours (the equivalent of that employee’s three days)? Or, rather, does the employer have to front load 24 hours (as referenced in the statute, and because a “day” is typically eight hours)?

The DLSE responded in a three page letter, in which it opined that the Paid Sick Leave Law requires an employer to front load thirty hours in this ten-hour a day scenario. The DLSE reasoned that the Paid Sick Leave Law establishes minimum standards for paid sick leave, and defines “paid sick days” as “time that is compensated at the same wage as the employee normally earns during regular work hours.” (emphasis in original). In order to give effect to this minimum labor standard for all employees, including those that may work more or less than eight hours per day, the language necessarily must be interpreted to require 24 hours or three days, “whichever is more for an employee.” (emphasis in original).

So, with respect to an employee who regularly works a ten hour day, a paid sick day would be the normal full day and the employer with a ten hour per day employee must therefore front load thirty hours in the beginning of the 12 month period. However, an employee who regularly works a six hour day would also be entitled to the minimum amount of leave required under the Paid Sick Leave Law, which for him or her would be 24 hours (e.g., the greater of 24 hours or three days).

The DLSE also clarified that the same analysis would apply when the employer elects to proceed under an accrual system. Under the Paid Sick Leave Law, an employer must allow the employee to accrue up to six days or 48 hours, though the employer may limit the time off to three days or 24 hours. However, in the case of an employee who regularly works a ten hour day, if an employee has accrued 30 hours in his or her sick leave bank, then the employee must be able to use and be paid for the full three days at 10 hours per day. Similarly, the employee who works six hours per day must be permitted to take a minimum of 24 hours of paid sick leave, not only three part-time days.

So far so good, but what happens when the employee normally earns daily or weekly overtime? For example, employers who have not adopted an alternative work week schedule may normally pay overtime to employees who work over eight hours in a day. Some employers may regularly schedule employees for six-day work weeks and pay overtime on the sixth day. If the employee is to be paid “at the same wage as the employee normally earns during regular work hours,” does that include overtime wages? What happens when some employers adjust the shift schedules of employees during their busy season (assume 3 months out of the year) from a regular 8 hour day to a 9 or 10 hour day? How much paid sick leave should the employer provide to such employees if, for instance, the employer has implemented the front load method?  We expect more DLSE answers in the weeks and months to come as DLSE is revising their FAQ section of their website. Please check with us for further updates.

Right to Marry But Not to Work? Pennsylvania Catholic School Terminates Gay Married Teacher

By Maria Lewis and Jessica Burt

Last month, Waldron Mercy Academy, a K-8 Catholic school located in Merion, Pennsylvania, fired Margie Winters from her position as Director of Religious Education, a job she had held for 8 years. According to Ms. Winters, her employment contract was not renewed because she is gay and married to her partner. A few days later, the United States Supreme Court issued its landmark opinion in Obergefell v. Hodges, in which it held that same-sex couples may exercise the fundamental right to marry. The majority opinion in Obergefell stated that religious believers may continue to “advocate” and “teach” their views of marriage, but did not however, address or reverse the precedent established by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, in which the Supreme Court held, in an unrelated context, that churches have the right to make employment decisions free from government interference, including compliance with anti-discrimination laws.

Indeed, in an e-mail to parents, the principal of Waldron Mercy Academy advised that Ms. Winters was no longer working at the school, and reiterated the school’s dedication to Catholicism, stating: “Many of us accept life choices that contradict current church teachings . . . but to continue as a Catholic school, Waldron Mercy must comply with those teachings.”

Based on the 2012 precedent established in Hosanna, it is not clear that Ms. Winter has any valid legal challenge to Waldron Mercy’s termination decision, which would violate the laws of many states, if a non-religious organization were involved. Currently, twenty-one states and the District of Columbia have laws prohibiting employment discrimination based on sexual orientation, and 18 states and D.C. also prohibit discrimination based on gender identity. And, Lower Merion Township, the home of Waldron Mercy Academy, also has a local antidiscrimination ordinance which provides that it is the public policy of Lower Merion Township to foster the employment of all individuals in accordance with their fullest capacities regardless of a person’s sexual orientation, gender identity or gender expression. The ordinance further provides, however, that it is not unlawful for religious institutions that are “not supported in whole or in part by governmental appropriations” to refuse to hire or employ an individual on the basis of actual or perceived sexual orientation, gender identity or gender expression.

In Hosanna, still the leading case on the application of anti-discrimination laws to religious organizations, the Court barred the Plaintiff from bringing an employment discrimination suit against the school. The plaintiff had been promoted to a “called” teacher at the “Christ-centered education” school, but had taken leave after being diagnosed with narcolepsy. After her leave, school officials refused to hire her back. Plaintiff argued that she was fired from the school in violation of the ADA and Michigan state law. The Supreme Court found that the First Amendment’s “ministerial exception,” (which exempts religious organization from anti-discrimination laws) applied because the school held the Plaintiff out as a minister, and because her job duties reflected a role in conveying the church’s message and carrying out its religious mission.

Thus, even with the passing of numerous state and local ordinances and the Supreme Court’s landmark decision in Obergefell v. Hodges, it appears for the moment that religious institutions will continue to be exempt from statutes prohibiting employment discrimination on the basis of sexual orientation and/or gender identity and that certain employees of such religious institutions may be barred from bringing suit against the organizations. In Hosanna, the Supreme Court stated that the “ministerial exception” should apply to any employee “who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.” The recent termination at Waldron Mercy and the Obergefell decision are a reminder to employers operating religious institutions that significant questions may remain about the scope and proper application of the ministerial exception.

 

 

Amendments to California’s New Paid Sick Leave Law

By Pascal Benyamini

As California employers, and those non-California employers with employees in California, know by now, as of July 1, 2015, such employers were required to provide paid sick leave to any employee who works 30 days or more within a year under the Healthy Workplaces, Healthy Families Act of 2014 (the “HWHFA”).

The HWHFA provides, among other things, that eligible employees are entitled to paid sick days for prescribed purposes to be accrued at a rate of no less than one hour for every 30 hours worked, or alternatively, be provided at least 3 days or 24 hours on a lump sum method. The accrual rate method imposed by the HWHFA created several challenges for employers who were already providing paid sick leave, albeit under a different accrual method, such as per pay period, per month, per week etc. To provide some flexibility to employers in complying with the HWHFA and provide further clarifications to the HWHFA, on July 13, 2015, Governor Brown signed into law AB 304 to amend the HWHFA. The amendments are effective immediately and a summary of its key provisions are as follows:

1.   An employer is now able to provide for employee sick leave accrual on a basis other than one hour for each 30 hours worked, provided that the accrual is on a regular basis and the employee will have 24 hours of accrued sick leave available by the 120th calendar day of employment, each calendar year, or each 12-month period. This means that employers no longer have the obligation to track actual hours worked (i.e., one hour for each 30 hours worked), on the condition that the employee accrues 24 hours of leave within the first 4 months of employment.

2.  An employer is able to keep their pre-January 1, 2015 paid sick leave and/or paid time off (PTO) policies as long as:

a.  these policies existed prior to January 1, 2015;

 b.  these policies provide for time off for the same purposes as specified in the HWHFA (including carry-over and use requirements);

c.  these policies continue to provide an employee paid sick leave and/or PTO on an accrual and on a regular basis so that an employee, (including an employee hired into that class after January 1, 2015):

(i)  has no less than one day (or 8 hours) of accrued paid sick leave or PTO within 3 months of each year of employment of each calendar year, or each 12-month period; and

(ii) was eligible to earn at least 3 days (or 24 hours) of paid sick leave or PTO within 9 months of each year of employment.

3.  If an employer modifies the accrual method used in the policy it had in place prior to January 1, 2015, the employer must comply with the one hour for each 30 hours worked accrual method, or alternatively, provide for the lump sum method.

4. The amendments provide for a new method for calculating the rate of pay:

a.   For non-exempt employees with different hourly rates, an employer now has an option on how to pay sick days. Paid sick time for nonexempt employees shall be calculated using either of the following two options:

(i) in the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek; or

(ii) by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.

b.  For exempt employees, paid sick time must be calculated in the same manner as the employer calculates wages for other forms of paid leave time.

5.  An employee must work for the same employer for at least 30 days in California in order to qualify for paid sick leave.

6. Employers who provide unlimited sick leave to their employees can satisfy notice requirements by indicating “unlimited” on the employee’s itemized wage statement.

7.  The provisions of the original text of the HWHFA required an employer to reinstate accrued paid sick days to returning employees within one year of termination, resignation, or separation from employment. This requirement is unchanged by the amendments. However, if an employer paid out accrued PTO to an employee upon termination, resignation, or separation from employment, an employer is not required to reinstate accrued PTO if the employee is rehired within one year.

8.  An employer no longer has the obligation to inquire into or record the purposes for which an employee uses sick leave or paid time off. However, as provided under the original text of the HWHFA, an employer is still required to keep records for three years documenting the hours worked and paid sick days accrued and used by an employee and to make those records available to the Labor Commissioner upon request.

9.  The original text of the HWHFA contained an exemption for employees in the construction industry covered by a valid collective bargaining agreement (which met certain requirements). The HWHFA previously defined “employee in the construction” to mean an employee performing onsite work associated with construction, including work involving alteration, demolition, building, excavation, renovation, remodeling, maintenance, improvement, repair work …”. (Emphasis added). The amendments removed the term “onsite”, which now broadens the exemption for employees in the construction industry because the focus is no longer on where the work is performed but rather on the work that employee is assigned to perform.

10.  For employers governed by Wage Orders 11 (Broadcasting Industry) and 12 (Motion Picture Industry), the amendments delay to January 21, 2016 the requirements that these covered employers provide to their employees written notice setting forth the amount of paid sick leave and/or PTO available on each wage statement or other document on each pay date.

While most of the provisions of the amendments are welcomed news to employers because the amendments provide some flexibility and much needed clarifications, the amendments may perhaps be a little too late especially for those employers who expended significant resources to modify their PTO policies to be compliant as of July 1, 2015.

Non-compliance with the HWHFA and its amendments carry significant liabilities, and as such, employers should consult with legal counsel to ensure their paid sick leave and/or PTO policies are compliant.

 

An Employer’s Obligation to Follow up after Receiving a Medical Certification: Greater Than You Might Think

By David J. Woolf

If an employee seeks FMLA leave, she typically needs to ask for it. Likewise, it goes without saying that if an employee is asked to provide a medical certification in support of her request (something employers are free to seek) and fails to provide that information – or worse provides a certification indicating that she does not qualify for FMLA leave – the employer has no obligation to provide that leave. Or does it?

In Hansler v. Lehigh Valley Hospital Network, the plaintiff, Ms. Hansler, asked for a two-day per week, one-month leave of absence to deal with certain medical issues, a condition that was diagnosed after her separation as diabetes. In support of her request, Ms. Hansler submitted a medical certification that referred to the length of the requested leave, but did not describe the nature or duration of her condition. The hospital network, instead of asking for clarification of the certification, terminated Ms. Hansler’s employment after she took several days off, contending that because Ms. Hansler was requesting only limited time off, her condition did not qualify as a “serious health condition” under the FMLA and entitle her to leave.

Ms. Hansler thereafter brought suit claiming that the hospital network interfered with her FMLA rights by terminating her employment and retaliated against her for requesting the leave, claims that the trial court dismissed on the ground that Ms. Hansler’s medical certification indicated on its face (by virtue the duration of leave requested) that Ms. Hansler did not qualify for FMLA leave. On appeal, the Third Circuit Court of Appeals reversed. The Court, in a 2-1 decision, held that the hospital network, rather than just acting on the information in the certification, should have asked Ms. Hansler for additional information, even though on its face the information indicated that Ms. Hansler did not qualify for FMLA leave.

In one sense the decision is predictable and understandable. After all, the hospital network with its sophisticated HR capabilities could easily have reached out to Ms. Hansler and asked her for additional information via an updated certification and Ms. Hansler, for her part, was later diagnosed with diabetes, a condition that does qualify as a “serious health condition.” Yet, the decision is not without concern. FMLA regulations provide that an employer “shall advise an employee whenever the employer finds a certification incomplete or insufficient, and shall state in writing what additional information is necessary to make the certification complete and sufficient.” But FMLA case law also holds that, where the certification indicates that the employee does not have a serious health condition, the employer need not follow up further with the employee about her need for leave. And, here, there was at least a decent argument that that was the case given the limited leave requested by Ms. Hansler.

So what is an employer to do when faced with an incomplete FMLA certification? If the certification clearly indicates that no leave is needed or that the employee otherwise clearly is not entitled to leave, it seems fair to say that the employer can rely on the certification and deny the leave request. If, however, the certification indicates that a leave of any length is needed, the employer would be wise to follow up with the employee and provide her an opportunity to submit additional information within the seven-day period contemplated in the FMLA regulations.

EEOC Takes on Transgender Discrimination under Title VII

By DeMaris E. Trapp

On April 21, 2014, the U.S. District Court for the Eastern District of Michigan ruled that the EEOC may proceed with sex discrimination claims on behalf of a transgender plaintiff. This litigation is one of two actions filed by the EEOC in September 2014 alleging that employers violated Title VII by discriminating against transgender employees on the basis of sex.

While the EEOC acknowledges that transgender status is not explicitly protected under Title VII provisions, the Commission has taken the position since 2012 that discrimination against an individual because that person is transgender nevertheless constitutes sex discrimination under the theory of sex-stereotyping, i.e., taking an adverse action against an employee on the basis of that person’s nonconformance to sex- or gender-based preferences.

Federal Courts Permit Transgender Plaintiffs’ Claims under Sex Stereotyping Theory 

The Commission’s two federal complaints, EEOC v. Lakeland Eye Clinic, P.A. (No. 8:14-cv-2421) in the Middle District of Florida and EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (No. 2:14-cv-13710) in the Eastern District of Michigan, both involve transgender women who allege they were fired soon after notifying their employers that they would begin transitioning from presenting as a man to presenting as a woman. The parties settled the Florida case, but the Michigan litigation is continuing after the court’s denial of the employer’s motion to dismiss. While reiterating that “transgender” is not a protected status under Title VII, the court noted a Sixth Circuit decision holding that an employer’s treatment of a transgender employee in consideration of the employer’s sex- or gender-based preferences, expectations, or stereotypes, i.e., sex stereotyping, is actionable under Title VII. District courts in the Third, Fifth, and D.C. circuits have also held that sex stereotyping is a viable theory for transgender employees and allowed those employees’ Title VII claims to survive dismissal. 

Employer Takeaways 

Given the EEOC’s increased focus on transgender workers’ rights, employers should revisit their policies, such as dress code and grooming policies, to consider how they may affect transgender employees. In addition to prohibiting discriminatory treatment of transgender employees with respect to hiring, firing, and compensation decisions, employers should also develop, or improve upon, their protocol for handling an employee’s gender transition. A recent EEOC administrative decision (in which it found that the Army discriminated against a transgender employee) provides guidance on the type of employer actions that are likely to constitute unlawful discrimination against a transitioning employee: 

• An employer should not limit a transgender employee’s access to a single stall restroom, even if equal in quality to the common restrooms.

• An employer should not condition recognition of a transgender employee’s gender identity (i.e., the name or pronoun used when addressing the employee) on that individual’s completion of certain surgical procedures that render the individual physically male or female.

• An employer may be held liable for harassment if supervisors or coworkers refuse to address the transgender employee by his or her transgender name and/or by pronouns that are associated with that individual’s desired gender identification.

Labor Laws for the New Year

By Mark Terman

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.