State Reveals Its Template for Notice to All Newly Hired Employees
Balancing Worker Privacy with an Employer’s Rights to Protect Safety
Commencing May 1, 2015, all employers (regardless of where located) must pay wages of at least $12.25 per hour to each employee who performs work in San Francisco (including temporary and part-time employees). As discussed in our prior blog article San Francisco Minimum Wage Escalates to $11.05 and Beyond, the minimum wage requirement, set forth in the November 4, 2014 San Francisco Minimum Wage Ordinance, applies to adult and minor employees who work two or more hours per workweek, including non-city resident workers performing work in San Francisco. Wages includes salary, hourly pay, piece rate, commissions and non-discretionary performance bonuses. The San Francisco minimum wage cannot be waived by the employee except through a bona fide collective bargaining agreement.
Employees who assert their rights to receive the City’s minimum wage are protected from retaliation and may file a civil lawsuit against their employers for any violation of this ordinance. The City can investigate possible violations, shall have access to payroll records, and can enforce minimum wage requirements by ordering reinstatement, payment of back wages, and penalties. See San Francisco Office of Labor Standards Enforcement’s Frequently Asked Questions for more information.
Affected employers must also post an updated San Francisco Minimum Wage notice by May 1, 2015, where employees can read it easily.
For further information, contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
As referenced in our previous article, Required Heat Illness Prevention for Outdoor Worksites, California’s heat illness safety regulations currently require employers with outdoor workers to provide access to ample drinking water and a shaded rest area when the temperature exceeds 85 degrees. The law also requires additional special high heat procedures in temperatures of 95 degrees or above as well as training and preparatory steps for preventing and rectifying heat illness. The heat illness guidelines apply to all outdoor places of employment including partial structures depending on the circumstances. Current regulations also require employers to count the time employees spend in recovering from high heat as “hours worked” without wage deduction.
Occupational Safety & Health Standards Board (OSHSB) has recently sent revised heat illness prevention regulations to the Office of Administrative Law (OAL) for final approval, including a requested accelerated May 1, 2015 effective date in time for the state’s growing season and warmer climate.
A March 23, 2015 government-issued Guidance for Employers and Employees on the New Requirements explains the key differences between existing and the proposed amended language, including:
1. Specified definition of drinking water: Currently, the minimum requirement is that drinking water must only be clean and sanitary. The amendment would clarify that all outdoor employees will require access to drinking water that must be “fresh, pure, suitably cool” and provided “free of charge.” The water shall be located “as close as practicable” to the employees’ work area.
2. Increased access to shade: Employers would have to provide shade when the temperature exceeds 80 degrees Fahrenheit, instead of the current 85 degrees, and accommodate all outdoor employees who are on cool-down rest periods or other breaks instead of the current requirement of accommodating 25 percent of employees working outside.
3. Monitoring of heat prevention cool-down: Cool-down rest periods would be expanded to include “preventative” cool-down and would create a new monitoring requirement. Specifically, employers would have to: (a) allow and encourage preventative cool-down rest breaks; (b) monitor and ask if the employee is experiencing heat illness symptoms; (c) encourage the employee to remain in the shade; and (d) wait until all signs/symptoms of heath illness have abated or the employee has rested for five minutes in the shade, whichever is greater. If exhibiting or reporting heat illness symptoms, the employer would also have to provide first aid or emergency response.
4. High heat procedures modified: Although high-heat procedures remain at 95 degrees, the employer would have to implement additional high-heat procedures such as: (a) observing all employees for alertness and signs or symptoms of heat illness by appointing a designated observer, a mandatory buddy system, regular radio or cell phone communication, or other effective means of observation; (b) designating at least one employee as authorized to call for emergency medical services; (c) pre-shift meetings to review high heat procedures; and, (d) for the agricultural industry the employer must ensure that the employee working in 95 degrees or above takes a ten minute preventative cool-down rest period every two hours.
5. Additional employee training: Employee training would be expanded to include informing the employee of the employer’s responsibility to provide water, shade, cool-down rests, and first aid access. Training would also include information about first aid and emergency response procedures and how heat illness can progress quickly into a life-threatening situation. Employers must also notify employees of their ability to exercise their applicable rights without retaliation.
As soon as the OAL issues any final approval of these amended regulations, covered employees should promptly review them in their entirety, update existing heat illness and prevention plans and any related policy, implement appropriate emergency medical services plans (including designated individuals for each job site to call for emergency services) and train all employees and managers on revised procedures and prevention tips.
For further information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Effective March 2, 2015, Oakland’s paid sick leave ordinance (Measure FF), requires employers to provide paid sick leave benefits to part-time, full-time and temporary employees who perform at least two hours of work in a particular workweek within the city limits. This new law provides benefits greater than those required statewide by California’s The Healthy Workplaces, Healthy Families Act (the Act), going into effect on July 1, 2015. For basics on the Act’s paid sick leave benefits, see our recent articles such as California Labor Commissioner Provides the FAQs on New Paid Sick Leave Benefits Law and Shall The Fog Be Forever Forsaken?, California Labor Commissioner Again Attempts to Resolve Questions on New Paid Sick Leave Benefits Law.
Under Oakland’s Measure FF, eligible employees shall accrue one hour of paid sick leave for every 30 hours worked, which is identical to the Act’s accrual rate. Employers may cap accrued paid sick leave at 40 hours for small businesses (fewer than 10 workers) and at 72 hours for other employers. Employees may use paid sick leave for the employee’s own illness or injury, or to care for family members or other designated persons as defined by the ordinance. Accrued sick leave will carry over from year to year but need not be paid out upon termination of employment.
Employers covered by Measure FF are required to post a notice informing employees of their rights under the paid sick leave ordinance.
The Act “establishes minimum requirements pertaining to paid sick days and does not preempt, limit, or otherwise affect the applicability of any other law, regulation, requirement, policy or standard that provides for greater accrual or use by employees of sick days,… or that extends other protections to an employee.” California Labor Code section 249(d). Thus, employers affected by both Measure FF and the Act must comply with the highest standard imposed by either law. Such employers will also have to post the notices required by each of these laws.
Some of the main differences between Measure FF and the new Act include:
• State law allows employers to provide the sick leave benefit up front instead of accruing over time, Oakland’s does not.
• Oakland allows an employee without a spouse or registered domestic partner to designate another person for whom they may use paid sick leave, state law does not.
• Oakland does not include parents-in-law in its definition of “family members,” state law does.
• Oakland allows employers to require medical certificates to verify paid sick leave under certain circumstances, the state law is silent on the issue.
• Oakland’s small business 40-hour cap on accruable sick leave does not comply with state law’s cap of 48 hours or 6 days. Thus, small business employers must cap at the higher state threshold.
• Oakland’s 72 hours cap on accruable sick leave for other employers is greater than the Act’s accrual cap of 48 hours or 6 days.
• State law caps or limits amount of accrued sick leave an employee may use in a year at 24 hours or three days, Oakland does not permit a usage cap. Thus, under Oakland law an employee may take or use all of his or her accrued sick leave throughout the year without restriction.
CHE Banners – Gay Pride March, 
The federal Family and Medical Leave Act (FMLA) provides that qualified employees of companies having 50 or more persons on payroll may take a 12-week unpaid leave in any given year for certain family and medical situations. Such leave can be to care for a spouse with a serious health condition. Whether and how this benefit applied to same sex couples has been unclear until recently.
Prior to 2013, same sex spouses had no FMLA leave benefits regardless of whether their residence state recognized same sex marriages. However, U.S. Supreme Court’s 2013 decision in U.S. v. Windsor struck down the federal Defense of Marriage Act which had defined marriage as being between a man and a woman. The ruling opened the door to the expansion of the rights of married persons to same sex couples.
The Department of Labor’s initial regulations following Windsor protected the FMLA rights of same sex spouses but only if their marriage was legally recognized in the state where they lived. This standard created confusion where such a same sex couple later moved to a state (or were employed in one) that did not recognize their marriage. Newly issued FMLA regulations remedy this inequity. FMLA protections now apply to all spouses who were legally married in any state even if the state where they now reside or work does not recognize same sex marriages. See, 29 Code of Federal Regulations (C.F.R.) section 825.102.
The new rule does not alter the eligibility requirements under FMLA or change the threshold of 50 or more employees in order for a company to be bound by that law. Please consult the Department of Labor’s newly issued “Frequently Asked Questions” (FAQs) for a broad survey of FMLA’s rights and requirements. Our attorneys Tim Bowles, Cindy Bamforth, and Helena Kobrin are also able to address questions regarding this law.
Starting March 2, 2015, employers (regardless of where located) must pay wages of at least $12.25 per hour to each employee who performs work within Oakland, California (including part-time employees). This minimum wage requirement, pursuant to Measure FF and set forth in Oakland Municipal Code section 53.92.020, applies to any employee who works two or more hours in a particular workweek within the geographic limits of the City of Oakland.
Beginning on January 1, 2016 and with each succeeding calendar year, the minimum wage will again increase with any increases in the regional (San Francisco – Oakland – San Jose) Consumer Price Index (CPI).
Oakland’s Office of the City Attorney issued a set of February 5, 2015 frequently asked questions (and answers) (FAQs) on Measure FF. These include information on employee rights and employer obligations. In an email response to us, the City Attorney’s position is that the Oakland minimum wage law only applies to the actual hours worked within Oakland. Thus, if an employee of a landscaping company worked two hours on jobs in Oakland, and the rest of his or her 40 hour workweek in surrounding cities, the $12.25 minimum would only apply to the Oakland hours. The current statewide minimum wage is $9.00/hour. Please note however that other Bay Area cities such as San Francisco ($11.05), Berkeley ($10.00) and San Jose ($10.30) also have similar ordinances for minimum hourly wage within respective city limits.
Employees who assert their rights to receive Oakland’s minimum wage are protected from retaliation. Affected workers may file a civil lawsuit against their employers for any violation of this ordinance and may seek reinstatement and payment of back wages. The city can investigate possible violations and shall have access to payroll records. Employers may also be liable for civil penalties for each violation up to a maximum of $1,000 per violation.
Affected employers must also post an updated Oakland Minimum Wage notice where employees can read it easily.
For further information, contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.