CA Governor Mandates New Statewide Business Closures in Specified Sectors

On Monday, July 13, Governor Newsom issued new statewide orders impacting numerous business sectors in the state.  Per the orders, all counties throughout the state must close all indoor operations in these sectors:

  • Dine-in restaurants
  • Wineries and tasting rooms
  • Movie theaters 
  • Family entertainment centers (for example: bowling alleys, miniature golf, batting cages and arcades)
  • Zoos and museums
  • Cardrooms

Bars throughout the state must close all indoor and outdoor operations unless they are offering sit-down, outdoor dine-in meals.

Moreover, counties that have remained on the County Monitoring List for 3 consecutive days will be required to shut down the following industries unless they can be modified to operate outside or by pickup:

  • Fitness centers
  • Worship services
  • Offices for non-essential sectors
  • Personal care services, like nail salons, body waxing and tattoo parlors
  • Hair salons and barbershops
  • Malls

Currently on the County Monitoring List are the counties of Los Angeles, San Diego, Orange, Santa Barbara, and Ventura, among more than 20 other counties.  The state’s COVID page that identifies the impacted counties and describes the new shut down order is available here.

With respect to offices for non-essential sectors, the state has identified 13 essential sectors, discussed here.  In addition, the County of LA just updated its Safer at Work Order, which further provides clarity into the designation of “essential businesses” in LA County. That order is available here.  Unfortunately, there is no end date specified with respect to the new closure orders. 

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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 COVID-19 | Leave a comment

Minimum Wage Increases Go Into Effect in Cities Across CA

Effective July 1, the minimum wage has gone up in numerous cities throughout CA, including in LA, Pasadena, Santa Monica, and San Francisco.  In LA, Santa Monica, and Pasadena, the new minimum wage is $14.25/hr for employers with 25 or fewer employees, and $15/hr for employers with 26 or more employees.  The minimum wage in San Francisco is now $16.07/hr.

With respect to other cities in CA, the CA Chamber of Commerce has provided a list of the new minimum wage rates applicable in those jurisdictions, available here

For employers with employees working outside of the listed cities, such employees are subject to only the CA state minimum wage.  The state minimum wage remains $12/hr for employers with 25 or fewer employees, and $13/hr for employers with 26 or more employees.  The state minimum wage is not scheduled to go up until January 1. 

Exempt (salaried) employees must be paid no less than two times the state minimum wage for full-time employment in order to retain their exempt status.  That means a minimum annual salary of $49,920 for employers with 25 or fewer employees, and a minimum annual salary of $54,080 for employers with 26 or more employees. 

If as a result of COVID-19 or other reasons an employer has reduced their exempt employees’ pay below the exemption threshold, those employees can claim that they were misclassified and are entitled to unpaid overtime, meal and rest break penalties, and other damages, so it is very important for employers to remain mindful of this. 

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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 Minimum Wage | Leave a comment

New COVID-19 Return to Work Guidelines and Requirements for CA Employers

Now that the Safer at Home Orders have loosened and most industries are allowed to resume operations, it is important for CA employers to be aware of the requirements that the state and local governments have placed on employers who are having employees return to the workplace. Every CA employer must comply not only with guidance from the state, but also with guidance from the county and city governments (if available).

Pursuant to state guidance, every CA employer must implement a written, worksite-specific COVID-19 prevention plan at every work location.  The state has published detailed reopening guidance and checklists tailored to more than 25 industries here:  https://covid19.ca.gov/industry-guidance/.  All employers should review the guidance applicable to their industry and review the associated checklist in drafting their COVID-19 preparedness policies.

Additionally, the County of LA has created its own protocols and checklists that employers in that jurisdiction must review, check off every box applicable to their business, post at or near each public entrance to the facility, distribute to staff and train them on.  The protocols are available here.  (Scroll down to Health Officer Order, click the drop down, and then find the Appendix that pertains to the relevant business.) 

The City of LA has also prepared industry guidance and sample posters that employers can use, available here

The employment attorneys at our firm have reviewed all this guidance, including guidance from the CDC and OSHA, to prepare template policies that we are tailoring for clients who would like our assistance to prepare the policies that they are legally required to have.  If you would like our help to create a written COVID-19 Preparedness & Response Plan for your business or if you have any other employment-related needs we can assist with, please contact Diana Friedland at diana@laemploymentcounsel.com.

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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 COVID-19 | Leave a comment

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.

Posted in Uncategorized | Tagged | Leave a comment

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.

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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.

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