New Federal Law Entitles Employees to Paid Sick Leave and Paid Childcare-Related Leave Due to COVID-19

On Wednesday, March 18, Congress passed and the President signed off on the Families First Coronavirus Response Act (FFCRA), which will be going into effect on April 1, 2020.  This new law, which curiously applies only to private employers with less than 500 employees as well as some government employers, contains two significant employment-related components: (1) it provides all employees of such employers up to 10 days of paid sick leave for specified reasons related to COVID-19, and (2) it provides employees who have worked for such employers for at least 30 days up to 12 weeks of partially paid leave where employees are unable to work because they need to care for their child whose school or place of care has been closed or the childcare provider is unavailable due to a COVID-19 related reason.  The law builds in provisions entitling employers to receive dollar-for-dollar payroll tax credits for the payments made.  The law raises many unanswered questions, and the Secretary of Labor is supposed to be issuing further guidance to employers soon.  Below is an overview of the employment-related provisions of this new law:

1. Emergency Paid Sick Leave

This portion of the new law requires employers with fewer than 500 employees to provide 10 days (up to 80 hours) of paid sick leave to employees who are unable to work (and unable to work remotely) because:

  1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. The employee is caring for an individual who is either subject to an isolation order as described in item (1) above, or caring for an individual who has been advised by a health care provider to self-quarantine due to COVID-19 concerns as described in item (2) above;
  5. The employee is caring for the employee’s child because the child’s school or place of care has been closed, or the childcare provider is unavailable, due to COVID-19 precautions;
  6. The employee is experiencing “any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretaries of the Treasury and Labor.”

Calculation of Paid Sick Leave Payout:  Paid sick leave used for purposes 1-3 above is paid at the employee’s regular rate of pay, subject to a cap at $511 per day and up to $5,110 total per employee.  Paid sick leave used for purposes 4-6 above is paid at two-thirds the employee’s regular rate, subject to a cap at $200 per day and up to $2,000 total per employee. 

The Department of Labor explains that to calculate an employee’s regular rate of pay, the employer must average the employee’s regular rate of pay over a period of up to six months prior to the date on which the employee takes leave.  Commissions, tips, and piece rates are incorporated into the regular rate calculation. 

Calculation of Available Paid Sick Leave Hours:  Full-time employees will be entitled to 80 hours of Emergency Paid Sick Leave.  Part-time employees will be entitled to a number of hours of paid sick leave that is equal to the number of hours that such employee works, on average, over a two-week period.  For those part-time employees whose schedule varies or is unknown, employers may use a 6-month average to calculate their average daily hours.

Potential Limited Exemption for Businesses with Less than 50 Employees:  The law gives the Secretary of Labor the authority to issue regulations exempting small businesses with fewer than 50 employees from providing the childcare-related paid leave set out in item (5) when complying with such a requirement would “jeopardize the viability of the business as a going concern.”

The Department of Labor explains that to elect this exemption, employers will be required to document why their business meets specific criteria that will be set out in forthcoming regulations. 

No Length of Service Requirement:  Employees will be entitled to immediate use of Paid Sick Leave under this law regardless of how long they have been employed with the employer.  It is unclear whether furloughed employees will be eligible for the benefits of this law and we hope the Secretary of Labor will be providing guidance on this subject soon.

Coordination with Existing Paid Sick Leave and Paid Time Off Policies:  Employers in California are already required to provide paid sick leave to employees, and many also offer other paid time off that can be used for purposes of sick leave.  The Department of Labor has clarified that the Emergency Paid Sick Leave afforded by this new law is in addition to employees’ preexisting leave entitlements.

No Payout Required Upon Termination:  The law does not require employers to pay out accrued, unused Emergency Paid Sick Leave upon termination.

Sunset Clause + No Carry Over:  The law is written to automatically expire on December 31, 2020. Unused Emergency Paid Sick Leave does not roll over from one year to the next.

Health Care Providers and Emergency Responders Can Be Excluded:  Employers may elect to exclude health care providers or emergency responders from Emergency Paid Sick Leave benefits.  If you would like to discuss whether particular employees may fall under this exclusion, please contact us.

Prohibition on Requiring Employee to Find Replacement:  Employers may not require employees to search for or find a replacement employee to cover the hours during which the employee is using paid sick time.

Employers Cannot Require Employees to Use Other Paid Sick Leave First:  Employers may not require employees to use other paid leave available to the employee before using the paid sick time provided by this law.  Practically speaking, because employers will receive a tax credit for making the payments required by this law, it makes more sense to make the payouts required by this law before any other paid leave available under your policies.

Notice Requirement:  Employers must post a notice in conspicuous places on the employer’s premises informing employees of this law.  The Secretary of Labor has made available this Notice to enable employers to satisfy this obligation.

The Department of Labor has instructed that where an employer’s workforce is teleworking, an employer may satisfy the notice requirement by emailing or direct mailing this notice to employees or posting this notice on an employee information internal or external website.

Anti-Discrimination Provisions + Enforcement:  Employers who fail to comply with the law can be subject to claims for unpaid wages and penalties.  In addition, the law makes it illegal for an employer to discriminate against employees who, among other reasons, take leave pursuant to this law or file a complaint related to this law. 

2. Emergency Family and Medical Leave Expansion Act

This portion of the new law amends the Family and Medical Leave Act, which previously applied only to employers with 50 or more employees and allowed employees meeting certain eligibility criteria to take unpaid job-protected leave for specified reasons.  The Emergency Family and Medical Leave Expansion Act (EFMLA) expands the FMLA by adding a new provision requiring employers with fewer than 500 employees, including those with fewer than 50 employees, to provide a job-protected leave of absence for up to 12 weeks to an employee who is unable to work (or is unable to work remotely) due to a need to care for the employee’s child whose school or place of care has been closed or the childcare provider is unavailable due to a COVID-19 related reason.  To be eligible for this leave, the employee seeking leave must have been employed with the employer for at least 30 calendar days.

First 10 Days of Leave:  The first 10 days of this leave may consist of unpaid leave.  However, an employee may elect to use during these 10 days any accrued vacation, PTO, or sick leave, including any available Emergency Paid Sick Leave discussed above.

Subsequent Days of Leave:  After the first 10 days of leave, employees taking this leave will be entitled to be paid for up to 10 weeks at two-thirds the employee’s regular rate, subject to a cap at $200 per day and up to $10,000 total per employee. 

Job Protection:  Employees taking this leave will be entitled to reinstatement into their same or an equivalent position consistent with existing FMLA regulations.  However, employers with less than 25 employees are not required to reinstate employees who take this leave if (1) the position held by the employee when the leave commenced does not exist due to economic conditions or other changes in the employer’s operating conditions caused by the public health emergency, (2) the employer makes reasonable efforts to restore the employee to a position equivalent to the employee’s previously held position (with equivalent pay, benefits, and other terms and conditions of employment), and (3) if no such position is available at that time, the employer makes reasonable efforts during a one-year period to contact the employee if an equivalent position becomes available.

Potential Exemption for Businesses with Less than 50 Employees:  The law gives the Secretary of Labor the authority to issue regulations exempting small businesses with fewer than 50 employees from the requirements of this law when complying with such requirements would “jeopardize the viability of the business as a going concern.”

The Department of Labor explains that to elect this exemption, employers will be required to document why their business meets specific criteria that will be set out in forthcoming regulations. 

Health Care Providers and Emergency Responders Can Be Excluded:  The Secretary of Labor is authorized to issue regulations allowing employers to exclude health care providers or emergency responders from these benefits.  If you would like to discuss whether particular employees may fall under this exclusion, please contact us.

3. Tax Credits

Employers subject to this law will qualify for a dollar-for-dollar reimbursement through tax credits for all qualifying wages paid pursuant to the law. Additional information regarding the tax credits is expected to come from the IRS next week.  

The Department of Labor has created a COVID-19 page containing additional informational resources about the FFCRA. If you have any questions about this new law or any other employment-related matters, please contact us.  

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The above summary has been prepared for general informational purposes only and is not intended as legal advice.  

Bernstein & Friedland, P.C. is a boutique employment law firm in Los Angeles specializing in wrongful termination, discrimination, harassment, retaliation, and unpaid wage and overtime matters.  Please visit our website at www.laemploymentcounsel.com to learn more about us.

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CA Employers Get Ready – Many New Employment Laws Going Into Effect on January 1

In his first legislative session since taking office in January 2019, Governor Newsom has signed off on several employment laws that will impact California employers starting January 1, 2020.  Below is a brief summary of some of these laws:

AB 5 – Limitation on Independent Contractor Classifications: One of the most publicized new employment laws is Assembly Bill 5, which substantially limits the classification of workers as independent contractors as opposed to employees.  Employers who currently pay workers on a 1099 basis must pay very careful attention to this new law.   

By its terms, AB 5 codifies the “ABC Test” set forth by the California Supreme Court in Dynamex Operations West Inc. v. Superior Court, a case we discussed here.  Under that test, a worker will be presumed to be an employee unless the hiring entity establishes all of the following:

  • (A) The worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
  • (B) The worker performs work that is outside the usual course of the hiring entity’s business; and
  • (C) The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

Employers found to have misclassified workers as independent contractors as opposed to employees can face significant penalties as well as liability for failure to properly pay overtime, failure to provide legally mandated meal and rest breaks and itemized paystubs, and failure to maintain workers’ compensation insurance, among other things. 

Under AB 5, the ABC test will apply to every claim under the Labor Code and the Unemployment Insurance Code.  AB 5 exempts a number of occupations, including physicians, dentists, attorneys, certain salespeople, as well as other categories of people providing “professional services.”  If an occupation is considered exempt from AB 5, then the determination of whether the worker is properly classified as an independent contractor as opposed to an employee will be governed by an 11-factor test discussed in more detail here.  The full text of AB 5 is available here.

AB 9 – Extended Time to File Discrimination, Harassment, and Retaliation Claims: Under existing law, with limited exceptions, in order to pursue in court a discrimination, harassment or retaliation claim under the California Fair Employment & Housing Act, an employee must first file a claim with the Department of Fair Employment and Housing within one year of the alleged discriminatory, harassing, or retaliatory act and obtain a “right to sue” – ie., a document authorizing an employee to file their claim in court.  After obtaining the “right to sue,” the employee then has one year to file the discrimination, harassment or retaliation claim in court.  Pursuant to AB 9, employees will now have three years to obtain the right to sue, which effectively means that employers can face a discrimination-, retaliation-, or harassment-based wrongful termination claim four years after terminating an employee.  Given that the statute of limitations on this claim has now essentially doubled, it is more important than ever for employers to thoroughly document and retain documents evidencing their legitimate, non-discriminatory, non-retaliatory reasons for termination. The full text of AB 9 is available here.

SB 778 – Extension of Time to Provide Anti-Sexual Harassment Training: Last year, the Governor signed off on SB 1343, a law requiring all CA employers with 5 or more employees to provide anti-sexual harassment training to their staff at least once every two years or within six months of being hired.  Specifically, the law requires employers to provide 2 hours of anti-harassment training to supervisory employees and 1 hour of anti-harassment training to non-supervisory employees.  This new law clarifies that employers with 5 or more employees have until January 1, 2021 to complete this training and must provide this training at least once every two years thereafter.  The law further clarifies that employers who have already completed their training in 2019 need not conduct additional training until the end of 2021. The full text of SB 778 is available here.

AB 51 – Prohibition on Forced Arbitration Agreements:  Today’s law allows employers to require, as a condition of employment, that employees must agree that in the event of an employment-related dispute, such as a claim of harassment, unpaid wages, or wrongful termination, that such disputes will not be heard in court and instead may be heard only before a private arbitrator.  Once AB 51 goes into effect, it will be illegal for employers to require employees to agree to arbitrate claims they may have for violations of the anti-discrimination, anti-harassment, and anti-retaliation provisions of the Fair Employment & Housing Act (FEHA) as well as claims under the Labor Code.  FEHA and Labor Code claims are some of the most commonly filed employment-related claims in California, and therefore AB 51 aims to significantly curtail the volume of employment-related claims that may be heard under a mandatory arbitration program.  The new law expressly states that arbitration agreements that require an employee to opt out of an arbitration program, or take any affirmative action in order to not be held to have agreed to arbitrate, are also now prohibited.  The new law makes it illegal to threaten, retaliate against, discriminate against, or terminate an employee for refusing to consent to arbitration and provides that attorney’s fees may be awarded to an employee enforcing their rights under this law.  Although we anticipate that AB 51 will face legal challenges by litigants who will argue that it is preempted by the Federal Arbitration Act, such challenges will take time to make their way through the courts, and until those challenges are resolved, AB 51 will be the law in California. The full text of AB 51 is available here.

AB 1223 – Additional (Unpaid) Organ Donation Leave: California employers with 15 or more employees already have a legal obligation to provide an employee up to 30 days of paid leave per year for purposes of organ donation. This law now enables employees to take an additional 30 days of unpaid leave for this purpose.  The full text of AB 1223 is available here.

AB 673 – Penalties for the Late Payment of Wages:  AB 673 amends Labor Code Section 210 to authorize an employee to recover penalties for the late payment of wages by either filing a claim with the Labor Commissioner or by seeking civil penalties under the Private Attorneys General Act in court.

AB 749 – Limitation on No-Rehire Provisions in Settlement Agreements: Employment-related settlement agreements often contain provisions in which the employee agrees that they will never again be eligible for rehire by the employer. AB 749 puts an end to this practice, prohibiting employers from entering into settlement agreements with employees on or after January 1, 2020 that contain a provision whereby the settling employee agrees that they may not seek re-employment with the employer or the employer’s parent company, subsidiary, division, affiliate or a contractor of the employer. AB 749 contains one exception which applies when the employer has found, in good faith, that the settling employee committed sexual harassment or sexual assault; under those limited circumstances, no-rehire provisions may be permissible. Also important, this law only applies to settlement agreements relating to a claim brought by an employee in court, before an administrative agency, in an alternative dispute forum, or through an employer’s internal complaint process and does not apply to standard severance agreements provided to an employee who has not brought a complaint before the employer. 

SB 142 – Lactation Accommodation: This law requires all CA employers to “provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child each time the employee has a need to express milk.”  Where possible, this break time should run concurrently with any break time already provided to the employee, such as meal or rest breaks. Break time for an employee that does not run concurrently with an employee’s statutorily mandated paid rest breaks are unpaid.  In addition, the new law requires employers to provide a private location for lactating employees that may not be a bathroom and that must be in close proximity to the employee’s work area, shielded from view and free from intrusion while the employee is expressing milk.  This private location must be safe and clean, free of hazardous materials, contain a surface to place a breast pump and personal items, contain a place to sit, and have access to electricity.  Employers must also provide access to a sink with running water and a refrigerator or another suitable cooling device for storing milk in close proximity to the employee’s workspace.  Employers with less than 50 employees may be exempt from certain requirements of the new law if they can demonstrate that the requirement would impose an undue hardship.  The bill makes a failure to comply with these provisions a failure to provide a rest break under the Labor Code (with associated penalties) and mandates that employers develop a written policy regarding lactation accommodation containing specified language. SB 142 is available here.

SB 188 – Prohibits Discrimination Based on Traits Associated with Race, Such as Hair:  This law amends the definition of “race” in the Fair Employment and Housing Act to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”  The bill aims to chip away at “Eurocentric” professional norms by outlawing “workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks.” The Legislature has concluded that these policies “have a disparate impact on Black individuals as these policies are more likely to deter Black applicants and burden or punish Black employees than any other group.” SB 188 is available here.

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The above summary has been prepared for general informational purposes only and is not intended as legal advice.  

Bernstein & Friedland, P.C. is a boutique employment law firm in Los Angeles specializing in wrongful termination, discrimination, harassment, retaliation, and unpaid wage and overtime matters.  Please visit our website at www.laemploymentcounsel.com to learn more about us.

Posted in Arbitration, Employee Handbooks, Independent Contractor Misclassification, Leaves of Absence | Leave a comment

CA Supreme Court Makes It More Difficult to Classify Workers as Independent Contractors

The California Supreme Court has issued a decision in Dynamex Operations West, Inc. v. Superior Court that broadens the scope of workers who will qualify as employees as opposed to independent contractors for purposes of California’s wage and hour regulations set forth in the Industrial Welfare Commission’s (IWC) Wage Orders, including regulations regarding minimum wage, overtime, and meal and rest breaks.

In Dynamex, delivery drivers sued a nationwide package and document delivery company alleging that the company had misclassified its delivery drivers as independent contractors rather than employees. When the case got to the California Supreme Court, the Court set out a new test called the “ABC test” to be used in evaluating whether a worker is an employee or an independent contractor for purposes of the IWC wage orders.  Under the ABC test, a worker is presumed to be an employee unless the hiring entity establishes all of the following:

(A) The worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;

(B) The worker performs work that is outside the usual course of the hiring entity’s business; and

(C) The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

The ABC test makes it much more difficult than before to prove that a worker is an independent contractor as opposed to an employee, particularly if the worker is doing work that is within the usual work done by the hiring entity (e.g., a delivery driver working for a delivery company).

In light of this new decision, employers must be even more cautious before classifying workers as independent contractors.  For more information about this decision or any other employment-related matters, please contact a Bernstein & Friedland, P.C. attorney at 818-817-7570.

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The above summary has been prepared for general informational purposes only and is not intended as legal advice.  

Bernstein & Friedland, P.C. is a boutique employment law firm in Los Angeles specializing in wrongful termination, discrimination, harassment, retaliation, and unpaid wage and overtime matters.  Please visit our website at www.laemploymentcounsel.com to learn more about us.

Posted in Independent Contractor Misclassification | Leave a comment

New CA Laws Expand Protections for Immigrant Workers

Consistent with its status as a “Sanctuary State,” new immigration-related California laws going into effect on January 1, 2018 will prohibit employers from:

(1) Providing voluntary consent to a federal immigration enforcement agent to enter any nonpublic areas of a place of labor unless the immigration enforcement agency provides a judicial warrant for entry, and

(2) Providing voluntary consent to a federal immigration enforcement agent to access, review, or obtain the employer’s records without a subpoena or judicial warrant, unless the request for review applies to I-9 Employment Eligibility Verification forms or other documents for which a Notice of Inspection has been provided to the employer.

In addition, employers will be required to provide a notice to each employee of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving notice of the inspection.

Violation of these laws can expose an employer to penalties ranging from $2,000 to $10,000.

Click here to view the full text of these new laws.

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The above summary has been prepared for general informational purposes only and is not intended as legal advice.  

Bernstein & Friedland, P.C. is a boutique employment law firm in Los Angeles specializing in wrongful termination, discrimination, harassment, retaliation, and unpaid wage and overtime matters.  Please visit our website at www.laemploymentcounsel.com to learn more about us

Posted in Immigration | Leave a comment

New Legislation Prohibits CA Employers From Considering Job Applicants’ Criminal Histories Until After Making a Conditional Offer of Employment

On January 1, 2018, California will become the newest U.S. state to “Ban the Box” when a new law will prohibit most employers in the state that regularly employ five or more employees from (1) including on any application for employment, before the employer makes a conditional offer of employment to the applicant, any question that seeks the disclosure of an applicant’s conviction history, or (2) inquiring into or considering the conviction history of an applicant until after the applicant has received a conditional offer of employment.

Under the new law, if after providing a conditional offer of employment to a job applicant, an employer intends to deny the applicant a position of employment solely or in part because of the applicant’s conviction history, the employer must first make an “individualized assessment” of whether the applicant’s conviction history has a “direct and adverse relationship” with the job’s duties that justifies the decision to deny employment.  An “individualized assessment” takes into account: (1) the nature and gravity of the offense, (2) the time that has passed since the offense and completion of the sentence, and (3) the nature of the job sought.  Under the new law, this individualized assessment does not have to be in writing.

Consistent with existing law, in conducting a criminal history check, employers may not consider any of the following: (1) arrests not followed by conviction, (2) referrals to or participation in a pretrial or posttrial diversion program, or (3) convictions that have been ordered sealed, dismissed, expunged, or statutorily eradicated.

If the employer determines after conducting this individualized assessment that the applicant’s conviction history disqualifies the applicant from employment, the employer must notify the applicant of this preliminary decision in writing.  This notification must include all of the following information:

(1) Notice of the disqualifying conviction(s) that is/are the basis for the preliminary decision to rescind the conditional offer of employment;

(2) A copy of the conviction history report, if any; and

(3) An explanation of the applicant’s right to respond to the notification of the preliminary decision before the decision becomes final and the deadline by which to respond.  This explanation must inform the applicant that his/her response may include submission of evidence challenging the accuracy of the conviction history report, evidence of rehabilitation, or evidence of mitigating circumstances.  The applicant must be provided at least five business days to respond to the notification before the employer makes a final decision, and if the applicant notifies the employer in writing within this deadline that he/she disputes the conviction report’s accuracy and is taking steps to obtain supporting evidence, then the applicant must be allowed five additional business days to respond to the notice.  The employer must consider any information the applicant timely submits before making a final decision.

If an employer reaches a final decision to deny an applicant employment solely or in part because of the applicant’s conviction history, the employer must notify the applicant in writing of all of the following:

(1) That the employer has made a final decision to deny employment;

(2) Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration; and

(3) The right of the applicant to file a complaint with the state Department of Fair Employment and Housing.

The statute expressly does not apply to the following positions:

  1. A position for which a state or local agency is otherwise required by law to conduct a conviction history background check.
  2. A position with a criminal justice agency.
  3. A position as a Farm Labor Contractor.
  4. A position where an employer or agent of an employer is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.

In light of this new law, employers should update their job applications, offer letters, and other documents and policies to remove questions seeking the disclosure of criminal history information before a conditional offer of employment has been made.  Employers should also be mindful that various California cities, including Los Angeles, have their own “Ban the Box” ordinances, which may impose additional obligations on employers.  For more information about these laws, please contact a Bernstein & Friedland, P.C. attorney at 818-817-7570.

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The above summary has been prepared for general informational purposes only and is not intended as legal advice.  

Bernstein & Friedland, P.C. is a boutique employment law firm in Los Angeles specializing in wrongful termination, discrimination, harassment, retaliation, and unpaid wage and overtime matters.  Please visit our website at www.laemploymentcounsel.com to learn more about us.

Posted in Criminal Background Checks | Leave a comment

California Employers Will Soon Be Banned From Asking Job Applicants About Their Prior Salary

In the latest legislative effort to fight gender- and race-related wage disparities, a new law effective January 1, 2018 will prohibit California employers from seeking, whether “orally or in writing,” salary history information, including benefits information, from job applicants. The law expressly prohibits employers from relying on an applicant’s salary history information as a factor in determining whether to extend an employment offer or what salary to offer an applicant.  The law also requires employers to provide the “pay scale” for a position to an applicant upon reasonable request, but does not define the term “pay scale.”

The law makes clear that if an applicant voluntarily and without prompting discloses salary history information to a prospective employer, then the employer may consider and rely on that information to determine the applicant’s starting salary.  However, consistent with previous legislation, the law reiterates that prior salary cannot by itself justify disparities in compensation among employees who are performing substantially similar work for the same employer but who are different sexes, races, or ethnicities.

In light of this new law, employers should review and revise employment applications, background check documents, interview templates, compensation guidelines, or any other documents or policies to remove questions seeking salary history information of applicants for employment.

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The above summary has been prepared for general informational purposes only and is not intended as legal advice.  

Bernstein & Friedland, P.C. is a boutique employment law firm in Los Angeles specializing in wrongful termination, discrimination, harassment, retaliation, and unpaid wage and overtime matters.  Please visit our website at www.laemploymentcounsel.com to learn more about us.

Posted in Salary History Information | Leave a comment

New California Law Affords More Parents the Right to Take a Job-Protected Leave of Absence to Bond with a New Child

Effective January 1, 2018, the “New Parent Leave Act” will require employers with at least 20 employees to allow employees who have performed more than 12 months of service to take up to 12 weeks of unpaid job-protected leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement provided that the employee has at least 1,250 hours of service with the employer during the previous 12-month period and that the employee works at a worksite in which the employer employs at least 20 employees within 75 miles.  The law entitles eligible employees to apply accrued vacation time, paid sick time, or other accrued paid time off during the period of parental leave.

With respect to employees who have health care coverage through their employer pursuant to a group health plan, the Act entitles eligible employees taking leave pursuant to the Act to continue to receive health care coverage per the same terms and conditions as would have been provided if the employee had continued working in his or her position during the leave for a period up to 12 weeks. If the employee fails to return to work after the leave is exhausted, the law allows the employer to recover the costs of maintaining the employee’s health plan during the leave unless the failure to return is caused by a serious health condition or other circumstances beyond the employee’s control.

If an employee is eligible for child-bonding leave under the Family & Medical Leave Act and the California Family Rights Act, the New Parent Leave Act is inapplicable.

If the employer employs both parents, the employer is not required to provide more than 12 weeks of combined leave.

The New Parent Leave Act prohibits discrimination and retaliation against employees for taking leave pursuant to the Act.  The law further provides that if, on or before the commencement of the leave, the employer does not provide a guarantee of employment in the same or a comparable position upon the termination of the leave, the employer is deemed to have refused to allow the leave.

Through January 1, 2020, the law also requires the Department of Fair Employment and Housing (“DFEH”) to create a parental leave mediation pilot program to address claims of violations of the Act.  Under that program, an employer may request all parties to participate in a DFEH mediation within 60 days of receiving a right-to-sue notice.  If the employer makes such a request, the employee cannot pursue any civil action until the mediation is complete.

To see the complete text of the law, click here. For more information about the Act, please contact a Bernstein & Friedland, P.C. attorney at 818-817-7570.

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The above summary has been prepared for general informational purposes only and is not intended as legal advice.  

Bernstein & Friedland, P.C. is a boutique employment law firm in Los Angeles specializing in wrongful termination, discrimination, harassment, retaliation, and unpaid wage and overtime matters.  Please visit our website at www.laemploymentcounsel.com to learn more about us.

Posted in New Parent Leave Act | Leave a comment

Why Every Employer Should Have An Employee Handbook – And The Policies That Should Be In There

Whether an employer has one employee or 1,000, having a legally compliant employee handbook is essential.  Particularly in a state like California, where employment-related lawsuits are filed against employers virtually every day, employee handbooks often serve as an employer’s first line of defense against many such claims by demonstrating an employer’s understanding of (and compliance with) the laws they are required to follow. Employee handbooks also communicate the policies that staff are expected to follow, and therefore they can serve as an objective standard justifying the imposition of disciplinary action, including termination, against employees who fail to comply with company policies. The following topics should be covered in every California employer’s handbook.

Policy of At-Will Employment

The default rule under California law is that employees are employed “at will,” meaning that both the employee and the employer have the right to terminate the employment relationship at any time for any reason with or without notice.  Some employers choose to deviate from this default rule by entering into employment agreements (verbal or written) promising an employee that he or she will be employed for a specific period of time (for example, a one-year or three-year employment commitment).  Employers who want to retain the flexibility to terminate employees “at will” should include language in their handbook expressly setting out that employees are employed at-will, with no guarantee of continued employment, absent a written agreement to the contrary signed by an authorized officer of the company.

Equal Employment Opportunity, Anti-Discrimination, Anti-Harassment, and Anti-Retaliation Policies

As we previously blogged about here, as of April 2016, California employers became legally obligated to set out their anti-harassment, anti-discrimination, and anti-retaliation policies and procedures in writing.  Because discrimination, harassment, and retaliation claims are among the most frequently litigated employment claims in California, it is particularly important for these topics to be addressed in detail in the handbook.

Meal and Rest Break Rights

California law entitles non-exempt employees to unpaid, duty-free, 30-minute meal periods and also to paid, duty-free, 10-minute rest periods.  Employees who do not receive meal and rest breaks in a manner that complies with the law can be entitled to significant damages and penalties. For example, in December, a jury reached a $2 million verdict against Apple for violating meal period laws with respect to its retail employees.  Having a compliant meal and rest break policy is the first step to preventing (and, if necessary, defending against) such claims.

Overtime Obligations

Non-exempt employees are entitled to overtime pay when they work more than eight hours in a day, more than 40 hours in a workweek, or on the seventh consecutive day in a workweek.  Employee handbooks should define the employer’s “workweek” for overtime purposes.  Moreover, employers seeking to limit overtime costs should advise employees in the handbook that managerial approval must be obtained prior to working overtime.

Sick Leave

As we discussed here, California law entitles most employees in the state to at least 24 hours of paid sick leave each year.  Moreover, as we discussed here and here, several cities in California, including Los Angeles and Santa Monica, have enacted more generous paid sick leave laws.  Employers should be sure to include in their handbooks sick leave policies designed to comply with these laws.

Vacation/Paid Time Off

Paid vacation time or other forms of paid personal time off are not legally required in California, but many employers choose to offer paid time off to their staff as an employment perk.  Employers who do so should be sure to set out their paid time off policies in their handbooks, including providing information as to (1) who is eligible for paid time off, (2) when employees are eligible for paid time off, (3) how paid time off is accrued, (4) whether employees with greater seniority will be eligible for more paid time off than employees with less seniority, (5) any caps or limits on vacation accrual and/or use, and (6) how much advance notice is required of employees seeking to take paid time off.

Leaves of Absence

California and federal laws afford employees the right to take a variety of leaves of absence, including for medical reasons, to serve on a jury, and to vote, among other things.  Some of these legally protected leaves are described here.  The employee handbook should contain a discussion of the leaves of absence for which employees are eligible and define the procedures employees should follow when they seek to take such leaves of absence.

Rules of Conduct

Each employee handbook should contain a Rules of Conduct to put employees on notice of the kinds of behavior that can result in disciplinary action, such as falsifying time records, drinking or doing drugs on the job, repeated tardiness or unexcused absences, removing or borrowing company equipment, insubordination, and unsatisfactory work quality or quantity.  An employee’s failure to comply with the Rules of Conduct can then serve as a legitimate reason to discipline or terminate that employee.

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The above summary has been prepared for general informational purposes only and is not intended as legal advice.  If you have any questions regarding your employee handbook, or if you are looking to have an employee handbook prepared for your business or organization, please contact Bernstein & Friedland, P.C. attorney Diana Friedland at (818) 817-7570.

Bernstein & Friedland, P.C. is a boutique employment law firm in Los Angeles specializing in wrongful termination, discrimination, harassment, retaliation, and unpaid wage and overtime matters.  Please visit our website at www.laemploymentcounsel.com to learn more about us.

Posted in Employee Handbooks | Leave a comment

CA Supreme Court Holds Employers Must Provide Non-Exempt Employees at Least One Day of Rest Each Workweek and Clarifies Other Day of Rest Rules

The California Labor Code entitles non-exempt employees to at least one day of rest every seven days. Specifically, Labor Code § 551 provides: “Every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.”  Similarly, Labor Code § 552 provides: “No employer of labor shall cause his employees to work more than six days in seven.” Labor Code § 556 provides an exception to these rules, stating: “Sections 551 and 552 shall not apply to any employer or employee when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.”

In Mendoza v. Nordstrom, the California Supreme Court recently clarified ambiguities in these laws and specifically answered the following questions that were presented to the Court:

  1. Is the day of rest required by Sections 551 and 552 calculated by the workweek, or does it apply on a rolling basis to any seven-consecutive-day period?
  2. Does the Section 556 exemption for workers employed six hours or less per day apply so long as an employee works six hours or less on at least one day of the applicable week, or does it apply only when an employee works no more than six hours on each and every day of the week?
  3. What does it mean for an employer to “cause” an employee to go without a day of rest per the language in Section 552?  Force, coerce, pressure, schedule, encourage, reward, permit, or something else?

As to the first question, the Court ruled that the “one day of rest in seven” must be calculated by the workweek rather than on a rolling basis. Employers may define their workweek as any seven-consecutive-day period, such as Monday through Sunday or Wednesday through Tuesday.

As to the second question, the Court concluded that Section 556 only exempts an employer from providing the day of rest required by Sections 551 and 552 when an employee either (1) works less than six hours in each of the seven consecutive days of the workweek, or     (2) less than 30 hours total in the workweek. If on any one day of the workweek an employee works more than six hours, the employer must provide a day of rest during that workweek unless some other exception applies.  As one example of an exception that could apply, Labor Code Section 554(a) provides that “when the nature of the employment reasonably requires that the employee work seven or more consecutive days,” strict compliance with Sections 551 and 552 is not required if “in each calendar month the employee receives days of rest equivalent to one day’s rest in seven.”

As to the third question, the Court held that an employer “causes” an employee to go without a day of rest when it induces the employee to forgo the day of rest to which the employee is legally entitled. The Court made clear that employers are not forbidden from permitting or allowing employees who are fully apprised of their entitlement to a day of rest to independently choose not to take the day of rest.

This case underscores the importance to employers of clearly defining the seven-day period that comprises their workweeks and setting this out in an employee handbook or other written policy that is disseminated to staff.

In addition, pursuant to Labor Code § 510, employers who do require employees to work seven consecutive days in a workweek must pay those employees 1.5 times their regular rate of pay for the first 8 hours of work performed on the seventh consecutive day in the workweek, and 2 times their regular rate of pay for all hours worked in excess of 8 on the seventh consecutive day in the workweek. However, even if an employer properly pays overtime to an employee performing seven consecutive days of work, the employer can still be found to have violated Sections 551 and 552, exposing it to liability, including under Labor Code Section 553, which provides that “[a]ny person who violates this chapter [regarding days of rest] is guilty of a misdemeanor,” as well as under the Private Attorneys General Act, Labor Code Section 2698 et seq., which allows employees to recover civil penalties for violations of various Labor Code provisions.

As a result, before requiring employees to work seven consecutive days in a workweek, employers should proceed with caution and consider consulting with experienced employment law counsel.

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The above summary has been prepared for general informational purposes only and is not intended as legal advice.  

Bernstein & Friedland, P.C. is a boutique employment law firm in Los Angeles specializing in wrongful termination, discrimination, harassment, retaliation, and unpaid wage and overtime matters.  Please visit our website at www.laemploymentcounsel.com to learn more about us.

Posted in Days of Rest, Overtime, Uncategorized, Wage and Hour | Leave a comment

CA Supreme Court Holds Employers Cannot Require Employees to be “On-Call” During Legally Required 10-Minute Rest Breaks and Affirms $90 Million Judgment Against Security Company

A few weeks ago, the California Supreme Court in Augustus v. ABM Security Services, Inc. affirmed a $90 million judgment in favor of a class of more than 14,000 security guards, finding that their employer failed to provide legally compliant 10-minute rest breaks where the guards were required to remain “on call” during their breaks – they needed to keep their radios and pagers on, remain vigilant, and respond when needs arose. The court held that these requirements posed a “broad and intrusive degree of control” over the employees such that they were unable to take the duty-free breaks required by law.

By way of background, California law entitles non-exempt employees to take periodic 10-minute paid, duty-free and uninterrupted rest breaks throughout the workday. Employers who fail to permit employees to take these breaks must pay a penalty of one hour of pay for each day that a legally compliant break is not provided.

In Augustus, the court said, “An employee on call cannot take a brief walk — five minutes out, five minutes back — if at the farthest extent of the walk he or she is not in a position to respond.  Employees similarly cannot use their 10 minutes to take care of other personal matters that require truly uninterrupted time — like pumping breast milk or completing a phone call to arrange child care.”  Ultimately, the court stated that California’s rest break obligations require employers to relieve their non-exempt employees of all work-related duties and employer control or otherwise be subject to penalties, as in the case of ABM.

This ruling should come as a wake-up call to employers who require their non-exempt employees to be on-call during breaks.  At a minimum, employers should not require non-exempt employees to respond to cell phones, pagers, radios, or other communications devices during breaks or otherwise require employees to be available at a moment’s notice.  Employers should also revise their handbooks or other employment policies to memorialize the fact that employees need not be on-call during rest breaks.  For assistance with this or any other employment-related matters, please feel free to reach out to Polina Bernstein or Diana Friedland at 818-817-7570.

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The above summary has been prepared for general informational purposes only and is not intended as legal advice.  

Bernstein & Friedland, P.C. is a boutique employment law firm in Los Angeles specializing in wrongful termination, discrimination, harassment, retaliation, and unpaid wage and overtime matters.  Please visit our website at www.laemploymentcounsel.com to learn more about us.

Posted in Meal and Rest Breaks | Leave a comment