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

New Year, New Employment Laws for California Employers

The California Legislature, local city councils, and other lawmakers have been busy over the last several months passing a number of laws that will impact the employment landscape.  Below is an overview of some of the key changes to be aware of as we head into 2017:

1.  New I-9 Form:  By January 21, 2017, employers must start using a new I-9 form prepared by the U.S. Citizenship and Immigration Service with respect to all new hires and reverifications.  The purpose of the form is to verify each individual’s legal authorization to work in the United States.  Note that other laws prohibit employers from requesting more or different verifying information than that set out in the I-9 form or engaging in other unfair immigration-related practices so employers should not do more than what the I-9 requires when it comes to verifying an individual’s authorization to work in the US.

2.  New City of LA Law Prohibits Many Employers From Inquiring into a Job Applicant’s Criminal History Until After a Conditional Offer of Employment Has Been Made:  The City of LA recently passed the “Fair Chance Initiative for Hiring” or “Ban the Box” ordinance that restricts many employers within the City of LA that employ 10 or more employees who regularly work in the City from asking job applicants about their criminal conviction history until after a conditional offer of employment has been made.  The law further requires such employers to state in all job ads that the employer will consider qualified applicants with criminal histories.  Employers are exempt from this law only if (a) they are required by law to obtain information regarding criminal convictions of applicants, (b) the applicant would be required to possess or use a firearm in the course of employment, (c) an individual who has been convicted of a crime is prohibited by law from holding the position sought by the applicant, or (d) the employer is prohibited by law from hiring an applicant who has been convicted of a crime.

The new law prohibits covered employers from taking any adverse action, such as withdrawing an offer of employment, based upon an applicant’s criminal history unless the employer prepares a written assessment that links the specific aspects of the applicant’s criminal history with the risks inherent in the duties of the position sought by the applicant.  In preparing this assessment, the ordinance requires employers to, at a minimum, consider the factors set forth by the Equal Employment Opportunity Commission (EEOC) with respect to criminal history information, which include: (1) the nature of the offense; (2) the individual’s age at the time of the offense; (3) circumstances surrounding the offense; (4) the number of offenses for which the individual has been convicted; (5) employment history before and after the conviction; (6) evidence of rehabilitation; (7) time that has passed since the offense, and other mitigating factors. If the employer decides to take an adverse action, the employer must provide the applicant with a “Fair Chance Process,” which affords the applicant an opportunity to rebut the evidence relied upon in the written assessment.

Violations of this law carry fines and penalties ranging from $500-$2000, which will begin being assessed as of July 1, 2017.  The full text of the ordinance is available here.  Covered employers should be sure to update their job applications and related paperwork to be in compliance with this law.

3.  Employers Are Prohibited from Asking About or Utilizing Information Related to Juvenile Criminal History in Making Employment-Related Decisions.  The California Legislature passed a new law prohibiting employers from inquiring into an applicant’s or employee’s juvenile criminal history for the purpose of making hiring, firing, compensation, promotion, or other decisions related to the terms and conditions of an individual’s employment.  As with the “Ban the Box” ordinance, employers should review their job applications and other paperwork to be sure they are in compliance with these new restrictions.

4.  Employers May Not Require California Employees to Bring Employment Disputes In Another State or Pursuant to Another State’s Laws.  Because California has some of the most employee-protective laws in the United States, some employers seek to get around this by requiring employees to sign contracts stating that if a dispute ever arises with respect to their employment, the dispute must be adjudicated in some other state or pursuant to another state’s laws.  As of January 1, 2017, a new law, codified as Labor Code Section 925, will largely prohibit this practice.  That law provides that employers “shall not require an employee who primarily resides and works in California, as a condition of employment, to agree to a provision that would do either of the following:  (1) require the employee to adjudicate (i.e., litigate or arbitrate) outside of California a claim arising in California; or (2) deprive the employee of the substantive protection of California law with respect to a controversy arising in California.

The law provides that if an employer does include such a provision in an employment contract, the contract will be voidable at the employee’s option, and if it is rendered void, the dispute will be heard in California and pursuant to California law.  The law further allows an employee enforcing his or her rights under this statute to obtain an award of attorney’s fees.

The law does not apply to a contract entered into with an employee who was individually represented by legal counsel in negotiating the terms of an agreement to designate either the venue or the substantive law that would govern in the event of an employment dispute.

The law applies to contracts entered into, modified, or extended on or after January 1, 2017.

5.  Laws Prohibiting Pay-Based Discrimination Expanded.  California’s Fair Pay Act, which went into effect January 1, 2016 and which set out new rules aimed at combating gender-based pay discrimination, has now been expanded in two important ways.  First, the law has been extended to prohibit not only gender-based pay discrimination but also race- and ethnicity-based pay discrimination.  The Act prohibits an employer from paying any of its employees wages that are less than what the employer pays employees of the opposite sex or different race or ethnicity for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.  The Act provides for exceptions allowing for pay disparities when the wage differential is based upon one or more of the following factors: (a) a seniority system; (b) a merit system; (c) a system that measures earnings by quantity or quality of production; (d) a bona fide factor other than sex, race, or ethnicity, such as education, training, or experience.

Second, the law has been amended to provide that “prior salary shall not, by itself, justify any disparity in compensation.”

These new provisions stem from the legislative findings that substantial wage disparities persist between men and women and particularly among women of color.  According to the findings, women are paid less than men in 99.6 percent of occupations.  Moreover, relying on prior salary history to set pay rates contributes to the wage gap by perpetuating wage inequality, causing women to continue earning less than their male counterparts.

6.  Ban on Smoking in Enclosed Workplaces.  The Legislature has expanded Labor Code Section 6404.5 to prohibit the smoking of tobacco products in all enclosed places of employment, even in owner-operated businesses with no employees, as long as those businesses allow clients or other non-employees access to the workplace.  The phrase “place of employment” is defined to exclude: (1) 20% of the guestroom accommodations in a hotel, motel, or similar transient lodging establishment; (2) retail or wholesale tobacco shops and private smokers’ lounges; (3) cabs of motortrucks; (4) theatrical production sites, if smoking is an integral part of the story in the theatrical production; (5) medical research or treatment sites, if smoking is integral to the research and treatment being conducted; (6) private residences, except for licensed family day care homes; and             (7) patient smoking areas in long-term health care facilities.

7.  Minimum Wage Increases and New Posting Requirements:  As we previously blogged about here, the California Legislature and many city councils have passed laws increasing the minimum wage.  As of the start of the new year, California’s statewide minimum wage will be $10.50 per hour with respect to employers with 26 or more employees (smaller employers must be at $10.50 per hour by January 1, 2018).  But a variety of cities, including Los Angeles, have passed their own laws setting the minimum wage even higher: Employers in the City of LA with 26 or more employees should have been paying at least $10.50 per hour as of July 1, 2016, which will go up for these employers to $12 per hour as of July 1, 2017.  As with the CA state law, smaller employers in the City of LA have a one-year grace period to match these minimum amounts.  Increases to the minimum wage also impact whether or not an employee qualifies as “exempt” from the overtime and meal and rest break requirements of California law so employers are well-advised to familiarize themselves with the nuances of these laws to avoid costly wage and hour violations.  All employers should also be posting a new minimum wage poster, available here, and employers in the City of LA should be posting the minimum wage and sick leave poster prepared by the City available here.

8.  New Paid Sick Leave Requirements:  Several cities within CA have implemented paid sick leave laws that exceed the minimum requirements of CA’s paid sick leave law, discussed in greater detail here, which entitles California employees to 3 days or 24 hours (whichever is greater) of paid sick leave each year.  For example, employers in the City of LA with 26 or more employees should have begun making available to their non-exempt employees working inside the City no less than 48 hours of paid sick leave each year.  On July 1, 2017, employers in the City of LA with less than 26 employees will also be required to meet this requirement.  Similarly, businesses in Santa Monica with 26 or more employees working in the city must offer non-exempt employees working inside the city at least 40 hours of sick leave per year, which will increase to 72 hours as of January 1, 2018.  Smaller employers in Santa Monica need to offer no less than 32 hours of paid sick leave as of January 1, 2017 and 40 hours of leave as of January 1, 2018.

More information about the City of LA’s sick leave law is available here, and more information about Santa Monica’s sick leave law is available here.  Other CA cities, including San Diego, San Francisco, Oakland, Emeryville, and Berkeley have also adopted their own sick leave ordinances providing for greater paid sick leave benefits than those required under CA state law.

In light of these changes, employers should review their employee handbooks and other employment-related paperwork to ensure compliance with these new laws.  Please feel free to call Polina Bernstein or Diana Friedland at (818) 817-7570 for help with these or any other employment-related matters.

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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, Employee Handbooks, Minimum Wage, Sick Leave | Leave a comment

New CA Case Holds That Employer Should Have Accommodated Employee’s Scheduling Needs So That He Could Care For His Disabled Son

Does an employer need to reasonably accommodate an employee’s shift scheduling requirements to enable the employee to tend to the medical needs of his son?  The court in Castro-Ramirez v. Dependable Highway Express, Inc., 2 Cal. App. 5th 1028 (Aug. 29, 2016), answered that question “yes.”

In this case, the plaintiff had informed his manager upon hire that he had daily obligations at home related to administering dialysis to his son that required him to end his shifts by 7 or 8 p.m.  For years, his manager accommodated this scheduling limitation and scheduled plaintiff accordingly.  But then a new manager came on board, nicknamed “Junior,” and Junior refused to accommodate plaintiff’s scheduling needs.  On one occasion, Junior assigned plaintiff a schedule that would have prevented him from returning home in time to administer his son’s treatment.  The plaintiff requested an earlier schedule or, alternatively, the day off, but Junior stated that if he did not work the assigned schedule, he would be fired.  The plaintiff said he was sorry but could not work the schedule.  Junior then fired him.

Although the trial court granted the employer’s motion for summary judgment, the appellate court reversed, finding that California’s Fair Employment and Housing Act creates an affirmative duty for employers to provide a reasonable accommodation to an employee who is “associated with” a disabled person.  Specifically, the court held that the evidence demonstrated that plaintiff’s association with his disabled son was a substantial motivating factor in Junior’s decision to terminate him and that a reasonable inference from the facts presented to the court is that “Junior, as the person responsible for scheduling the drivers, wanted to avoid the inconvenience and distraction plaintiff’s need to care for his disabled son posed to [him].  Thus, Junior engineered a situation in which plaintiff would refuse to work the shift, giving Junior reason to terminate him. In other words, plaintiff’s termination for refusal to work the shift was a pretext for Junior’s desire to be rid of someone whose disabled associate made Junior’s job harder.”

The Fair Employment and Housing Act applies to employers with five or more employees.  As a result, this case underscores an important obligation applicable to many California employers.  Fundamentally, this case makes clear that employers must take seriously employees’ requests for accommodations due to the medical needs of not only themselves but also their family members.  Supervisors and human resources personnel should be trained to be aware that such requests should be carefully evaluated to avoid exposing the employer to disability discrimination claims.

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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 Disability Discrimination, Discrimination | Leave a comment