Changing Times Department:

New Definition of Spouse
Under Federal Family Medical Leave Act
Now Includes Same Sex CouplesCHE Banners - Gay Pride March, [1974]

CHE Banners – Gay Pride March, [1974]

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.

Oakland Minimum Wage Escalates to $12.25

 Rate Effective March 2, 2015

Industrial Workers of the World Labor Day Picnic, Oakland, California, 1939.

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.

Shall the Fog Be Forever Forsaken?

California Labor Commissioner
Again Attempts to Resolve Questions
on New Paid Sick Leave Benefits Law

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The George Washington Bridge in Heavy Smog, 1973

As we covered in Mandatory Paid Sick Leave for California Employees, all companies with employees working in California are subject to this state’s paid sick leave law (Assembly Bill [AB] 1522), effective July 1, 2015. AB 1522 requires each employer, regardless of size (and except for those with collective bargaining agreements and other very limited exemptions), to provide paid sick leave benefits to any temporary, part-time and full-time employee once he or she has worked for that company in California for a certain period of time.

As an indicator of the confusions created by ambiguous language in this law, the state’s Division of Labor Standards Enforcement (DLSE) website now includes a second, expanded version of her agency’s frequently-asked questions (“FAQs) (and answers) on employer AB 1522 obligations. That website also now includes a new “facts and resources” AB 1522 power point presentation.

(1) UPDATED FAQS:

The updated FAQs, posted February 2015, seek to further clarify employers’ notice requirements, to explain how seasonal workers accrue paid sick leave benefits, and to specify how to provide benefits for part-time employees as well as those on alternative work schedules:

• Wage Theft Prevention Act Notice (“Notice Form”): In addition to providing this notice form to new hires, employers must also now provide it to each hourly employee hired prior to January 1, 2015 and within seven days of implementation of or changes to the company’s paid sick leave policy. In the newly revised FAQs, the DLSE directs that an employer need not issue this separate notice if that company conveys the required information by an authorized “alternative method,” e.g. a pay stub or itemized wage statement.

• Seasonal Employees: Under AB 1522, employees who work in California for at least 30 days within a year are eligible to earn/receive paid sick leave. However, newly hired employees cannot start taking paid sick leave until the 90th day of their employment. This means that a seasonal worker who works 30 days or more but less than 90 in a year will be eligible for sick pay but ineligible to actually use it. The new revised FAQs specify a situation where such workers can use the benefit. If a seasonal employee leaves and returns to the same employer within one year, the 30 and 90 day counts will pick up where that worker left off for AB 1522 eligibility purposes. Thus, if a seasonal employee worked 60 days and then came back within a year, the re-hire date is equivalent to “day 61” of employment.

However, if a seasonal worker worked 60 days and doesn’t come back within a year, the DLSE gives no guidance, stating this is a question “not addressed in the new law and will depend on the particular facts of the situation to answer.”

• Part-Time Employees: 1522 allows an employer to limit the amount of paid sick leave taken to 24 hours or three days. This leaves an ambiguity for part time workers. Is a part time employee who only works six hours daily eligible for only 18 hours (3 days x 6 hours/day = 18) or 24? The DLSE’s expanded FAQs direct that “24 hours or three days” should be read in the manner that benefits the employee more. Thus, except for workers on an properly constructed alternative workweek schedule (see below), no employee – regardless of a shortened scheduled – may receive any less that 24 hours of sick leave benefit.

• Alternative Workweek Schedules of Four 10-Hour Days: According to the updated FAQs, employees who work an authorized alternative workweek schedule of four 10-hour days are eligible for a minimum of three days or 30 hours of paid sick leave (the equivalent of three ten-hour days). Again, the Labor Commissioner interprets “24 hours or three days” as whichever benefits the employee more.

(2) FACTS AND RESOURCES POWER POINT:

The DLSE’s new 21-page “facts and resources” power point presentation covers key 2015 implementation dates, facts on AB 1522, six steps to successful compliance, paid time off policies, exemptions, separation from employment, protection from retaliation, administrative penalties, and various hypothetical scenarios.

Perhaps the most interesting aspect of these new DLSE postings is that the agency issues no assurance that these publications will be the last it will issue before (or after) the July 1, 2015 effective date for AB 1522. Stay tuned.

For additional assistance understanding and implementing California’s paid sick leave benefits law, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Written Employment Policies Are Vital

Minimum Necessary Published Guidelines

for a Thriving Workplace

Photograph of postal employeees in the Postal Savings Office, New York City.  1914

Photograph of postal employees in the Postal Savings Office, New York City. 1914

Few conditions can kill business morale and production faster than the absence of a written set of workable policies and related forms (e.g., employment application, confidentiality provision). A current, thorough set of written internal procedures covering all major aspects of the employment relationship permits each manager and rank-and-file worker to know where he or she stands. Without well-crafted, up-to-date, available and understood written policy guidelines, managers can unwittingly overstep their bounds, potentially creating upheaval with arbitrary human resources decisions. See, “Why Written Policy is Good Policy, Reduce the Chances of Workplace Lawsuit Disaster by Proper Forms, Policy Handbook

Businesses should implement and maintain written workplace policies and forms that cover the scope of the employment relationship. Companies should review and update their policies at least annually, since laws and regulations frequently change. For example, our 2015 hire-to-fire forms and employee policy manual packages contain significant revisions to keep abreast of new laws and recent case decisions. See also, “Court Case Prevention Measure: The 2015 Changes to Model Employment Handbook.” These changes include:

• New California employment forms checklist for an overview of the state and federal forms, policies and notices to distribute to new hires;

• New language in the form employment application confirming that any requests for disclosure of criminal felony or serious criminal misdemeanor convictions are limited to those relevant to the job position;

• Expanded job description template to accompany employment application specifying a position’s required skills and training as well as its essential functions;

• Templates for the new mandatory paid sick leave benefits policy with specific rules governing accrual, carry-over and use of such benefits as required by California’s Healthy Workplaces, Healthy Families Act. See, “Mandatory Paid Sick Leave For California Employees.”

For more information, please contact one of our attorneys, Timothy Bowles, Cindy Bamforth or Helena Kobrin.

The Annals of Intellectual Property Number 2

What is a Trade Secret?

Street in San Juan, Puerto Rico, Dec. 1941

Street in San Juan, Puerto Rico, Dec. 1941

In our blog, “What is Intellectual Property?”, we identified several kinds of intellectual property, i.e., products created through one’s creativity and intellect, that others may not use without permission. One of those is trade secrets. The most famous example is the Coca-Cola formula, maintained as a trade secret since its creation.

Each state, including California, enacts its own trade secret laws. California Civil Code sections 3426 – 3426.11 define a trade secret as “information, including a formula, pattern, compilation, program, device, method, technique, or process” which meets two criteria. First it must have “independent economic value” whether “actual or potential,” based on the fact that it is not “generally known to the public” or to people who would be able to make money or gain other economic value from using or disclosing the information. Second, its owner must take reasonable efforts to keep it secret from unauthorized persons.

If you have an invention, source code, a chemical formula that you are developing to create some product, an idea or prototype for some device, or anything with current or potential economic value, you can claim trade secret protection. An advantage over patents is that trade secrets are not filed with the government and thus not made public.

However, to claim trade secret protection, it is crucial that you comply with the second requirement by taking reasonable measures to safeguard the secrecy of the information that fit the situation. For example, you developed source code for a new computer app, but need funding to market it. If you give a potential funding source your source code to review without any confidentiality measures, you are not making reasonable efforts to keep the source code secret. On the other hand, if you have an attorney create a strong non-disclosure agreement (NDA) and require the potential funding source and its staff to sign that document in advance of disclosure, this could well be deemed a reasonable effort. In 2012, a small company, TechForward, won a $27 million verdict against Best Buy for misappropriating its trade secrets because it had done that.

If you left the papers containing such source code lying around the office conference room where unauthorized persons might be able to pick it up, you would not be taking reasonable efforts to keep it secret. Such material should be stored securely with access permitted only by people with a need to know and obligated to non-disclosure by an adequate, signed NDA. Your measures might also include non-disclosure of access passwords or encryption codes by otherwise authorized persons as well as other special technological procedures, such as required deletion or erasure by any employee who inadvertently receives trade secret data he or she is not permitted to hold.

What measures will be deemed reasonable under the trade secret law depends on various factors, such as the value of the trade secret, the size and income of your company, and the likelihood of industrial espionage in your industry aimed at the particular type of property. For the Coca-Cola Company, this meant specially constructing a large vault to protect its trade secret.

A downside to relying on trade secret protection is that if it does get out in spite of your efforts and becomes generally known to the public or to those who can profit from using it, that protection likely will be lost. A decision to treat information as a trade secret – as well as just what confidentiality measures are necessary to protect it – should be made deliberately with skilled attorney assistance.

For any questions concerning trade secrets, please contact attorney Helena Kobrin.

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