The Fair Chance Act, California Government Code 12952 (also known as Ban-the-Box), prohibits employers of five or more people from asking for criminal background information until after a conditional job offer to an applicant. It also requires individual assessments of a person’s criminal record against job description and allowing the person a chance to respond to any employer decisions based on criminal history.

California’s Civil Rights Department has now filed suit against Ralphs for Fair Chance violations, asserting the supermarket chain:

• used improper questions in seeking criminal history,
• failed to individually assess each applicant’s responses,
• withdrew job offers without appropriate notification or opportunity to respond, and
• disqualified hundreds of applicants for minor crimes unrelated to being a grocery worker.

The CRD is seeking a jury trial to recover lost wages, benefits, and emotional distress and punitive damages. It also seeks to require Ralphs’ future compliance with the Fair Chance Act.

Kevin Kish, Director of the CRD, said:

“The Fair Chance Act is about giving every Californian an opportunity to thrive. When roughly 70 million Americans have some sort of record, policies like those employed by Ralphs aren’t just discriminatory and against California law, they don’t make sense. We can’t expect people to magically gain the economic and housing stability needed to reintegrate into their communities and stay out of the criminal legal system without a fair chance at steady employment, particularly when the job has nothing to do with a past offense. Ralphs has continued to unlawfully deny jobs to qualified candidates and that’s why we’re taking them to court.”

As part of its efforts to enforce the Fair Chance Act, the CRD also reviews job advertisements online, notifying violators to correct their advertising.

Take-Aways:

Employers need to learn the requirements of the Fair Chance Act and incorporate them into their hiring practices to provide qualified former offenders a road back to being productive members of society.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• Fair Warning: California Clamps Down on Fair Chance Act Violations (December 10, 2021)
• California Adopts Ban the Box Law – Employers Cannot Seek Criminal Record Until After Offer to Hire Applicant (October 27, 2017)

Helena Kobrin
January 26, 2024

Protected classifications, or classes, in California include race, color, ancestry, national origin, religion, creed, age (40 and over), mental and physical disabilities, sex, gender (including pregnancy, childbirth, breastfeeding or related medical conditions), sexual orientation, gender identity, gender expression, medical condition, genetic information, marital status, and military or veteran status. Harassing or discriminating against an employee because the person falls under one or more of those classification is strictly prohibited by law.

Effective January 1, 2024, California added another protected class to the Fair Employment and Housing Act for those who use cannabis off-the-job and off-workplace. It is now unlawful for an employer with five or more on payroll to discriminate against a person in hiring, termination, or any term or condition of employment for such use.

These protections do not apply to workers in the building and construction trades or to anyone hired for jobs requiring federal government background investigation or security clearance.

All employers can continue to prohibit – and to discipline -- employees from possessing, being impaired by, or using cannabis on the job.

Take-Aways:

Covered employers should:

• Ensure hiring, termination or other employment decisions are not based upon use of cannabis off the job and away from the workplace;
• Review and update policies and procedures to include that off-duty cannabis use is now a protected classification;
• Update substance abuse and drug testing policies; and
• As we previously discussed, ensure preemployment post-offer marijuana drug tests screen only for psychoactive cannabis metabolites.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• What’s New in 2024 – Equal Opportunity Intoxication? Off-Hours Cannabis Users Now Protected Against Workplace Discrimination (October 27, 2023)

Cindy Bamforth
January 25, 2024

The Internal Revenue Service has announced its 2024 optional standard mileage reimbursement rate for employee business use of a personal vehicle, effective January 1, 2024, up from 65.5 to 67 cents/mile.

These rates apply to electric and hybrid-electric automobiles, as well as gasoline and diesel-powered vehicles.

These standard business mileage rates stem from annual government studies of fixed and variable automotive operating costs, including insurance, repairs, maintenance, gasoline and oil.

Under California Labor Code section 2802, employers must reimburse employees for all actual work-related expenses necessarily incurred.

Take-Aways:

Employers applying the IRS standard should reimburse work-related employee vehicle use at the new 67 cent/mile rate starting January 1, 2024.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• Avoid Blower Blowback – Employer Must Reimburse for Work-Related Use of Personal Cell Phones (June 10, 2022)

Cindy Bamforth
January 18, 2024

The federal Department of Labor (DOL) is suing Mathias Wakrat and Jean-Christophe Febbrari, owners of Entre Nous French Bistro in Old Town Pasadena, for keeping hundreds of thousands of dollars in cash and credit card tips intended for their staff to cover the restaurant’s business expenses. DOL investigation also found Entre Nous misclassified some employees as independent contractors and failed to keep proper pay records.

The lawsuit seeks to collect – for 18 employees – $250,000 in back wages and the same amount in liquidated damages (a statutory doubling of unpaid wages).

Mark Pilotin, the DOL’s San Francisco Regional Solicitor of Labor, stated:

“Illegal practices by restaurant employers such as Entre Nous French Bistro in Pasadena hurt employees and also law-abiding employers who face unfair competition due to the stealing of tips by unscrupulous employers. Customers expect — and the law requires — that tips go to employees, not their employer. We seek to recover the wages owed, enjoin this company from future violations and protect the significant public interest at stake.”

In apparent response, Entre Nous’ online menu states: “A 20% fee will be added to your bill. This is not a gratuity or tip. We are a no tipping establishment. The fee is revenue that is not segmented or designated in any way; it is taxed per state law and is used to fund all of our operations.”

State and federal laws govern who owns tips, whether they can be split with anyone, and whether employers can take a credit against minimum wage for tips received (in California, they cannot under Labor Code 351, regardless of federal law permitting such credits). Tips received by employees belong to the employees who receive them and may be part of a shared tip pool with certain other staff. Employers and managers may never keep a portion of a tip for themselves.

Take-Aways:

If employees receive tips, the employer must comply with applicable law to their distribution. While a business must never keep a portion, it may pool tips for sharing by certain employees. Best practice is to spell out such pooling in clearly written policy.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• A Memorable $3.6M Lesson: “Unforgettable” Roofing Co. Hit for Knee-Jerk Retaliation and Intimidation (March 17, 2023)
• Cautionary Tale Episode 64 – Dept. Of Labor Half-Million Assessment Against Four California Care Homes- Feds Target Caregiving Industries (March 3, 2023)

Helena Kobrin
January 12, 2024

In the memory of a dear friend Jan Silber, who recently passed, I am prompted to redouble our African outreach. Though she was never able to come to Liberia, Jan loved and generously supported our work with the Global Cares Academy and Orphanage.

In Jan's name and on her request to be remembered through donations to that school, we, yet again, reach to our supporters -- former, current and those to come -- to help Global Cares achieve its decades-long dream, a model institution to serve the children and transform a nation so long plagued by illiteracy, poverty and war. See, https://www.gofundme.com/f/global-cares-mission-academy-and-orphanage-2024.
***
Little did I know on my first journey to West Africa -- volunteering in 2005 to assist in a one-week youth conference on human rights -- that at least in spirit I would never fully return home. Humanity reached out, not so much to take me by the hand as to grab a hold of my heart. Now, nearly two decades on, helping the peoples of “The Continent” is my continuing calling and joy.

Over recent decades, West Africa has been one of the most challenging regions of the planet, including the Liberian and Sierra Leonean civil wars and genocides (1988-2003 and 1991-2002 respectively), Ebola (2014-2015), COVID (2020-2022) and, through it all, one of the highest regional illiteracy rates on the planet.

And so, I have worked – along with many courageous and inspired West African youth leaders and our Western world donors and supporters – to make the human right to education a regional reality by training teachers and students on L. Ron Hubbard’s Study Technology through Applied Scholastics International.

Partnership in Liberia with the Global Cares Mission Academy and Orphanage and its founder Florence Morris has been a key aspect of our work since my first trip to that country, in 2006. Against all the seemingly insurmountable hardships in one of the world’s poorest nations, “Mother Florence” has taken in, raised and educated thousands of children, many of them orphans, since the slaughters stopped with United Nations intervention in 2003.

While our support of Global Cares through the past 19 years has been meaningful – monies for essential building repairs, paper, pens, books, rice and other provisions (out of which, and to my amazement, they added my name to the school early last year!) – Mother Florence, her teachers and staff remain starkly poor yet defiantly resolute in their mission, taking on 150-200 students in leaky, broken buildings lacking electricity, running water.

In keeping with Jan's wish, it is time to take our Global Cares support to the next level. Along with my close Liberian collaborator Joseph Jay Yarsiah and a well-respected local contractor, we are embarked on a full renovation of the Global Cares facility, including solid foundation, walls, roofing and windows, along with insulation, plumbing and electrical power.

With construction projected to begin as soon as feasible this year, we are seeking the funds needed – tax deductible as donations to Applied Scholastics International -- for renovation labor and materials along with furniture, books and related materials. As above,
https://www.gofundme.com/f/global-cares-mission-academy-and-orphanage-2024
We of course hope you can help us meet this immediate target to bring Mother Florence’s long sought attainment of a model institution dedicated to the children and thus the future of Liberia.

Again, thanks and best wishes,

Tim Bowles
Pasadena, California
January 12, 2024

The Labor Commissioner targets industries where “wage theft” -- any failure to legally and timely pay required wages, including paid sick leave and premium pay for missed breaks -- is prevalent.

One such industry is board and care i.e., residential facilities housing elderly or disabled people in need of living assistance. There are 8,100 such RCFEs in California.

In 2018, we wrote about the Labor Commissioner citing Adat Shalom Board and Care in Los Angeles County, which ran six such facilities, more than $7 million for unpaid minimum wage, overtime, penalties for not providing required breaks, liquidated (double) damages, and civil penalties involving 148 workers between 2014 and 2017. See Busted: Adult Care Facilities Must Pay Minimum Wage and Overtime or Face Expensive Consequences (February 2, 2018). The Labor Commissioner found employees worked for 24 hours/day, while being paid for six hours, thereby making less than $3.00/hour.

Adat Shalom appealed that ruling with a hearing officer upholding the citations in 2021, increasing the citation to $8.5 million. The Commissioner then went to court to stop the transfer of its assets to be used for collecting the judgment. The case recently settled for $5.5 million, of which Adat Shalom has thus far paid $2 million. Labor Commissioner Lilia Gracia-Brower stated:

“For years, the employer paid these caregivers less than three dollars an hour and attempted to avoid liability by hiding assets. Our team took the employer to court to stop the illegal transfer of assets. My office is committed to collecting owed wages from employers engaged in wage theft and stopping these illegal practices. This settlement also secures an agreement by the employer to no longer operate a residential care business in California.”

RCFE owners sometimes think that they do not have to pay for caregiver sleeping time or other times when they do not need to be actively working. But if RCFE workers must remain available on the premises and respond to residents’ needs, they must be paid, including overtime for all hours over eight in a day or 40 in a week.

Take-Aways:

Board and care operators should consult with employment legal counsel to ensure they are paying all employees in accordance with the law. Best practice ensures income will support operations that include correct pay practices.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• Employers Facing Prison Time: Prosecutors Targeting Garment Industry for Wage Theft (December 15, 2023)
• Dept. of Labor Half-Million Assessment Against Four California Care Homes (March 3, 2023)
• Residential Care Facility Not Feeling the Love (July 12, 2019)

Helena Kobrin
January 5, 2024

Effective January 1, 2024, Senate Bill 616 expands the employer-provided paid sick leave benefits under the Healthy Workplaces, Healthy Families Act of 2014 (Act) from 24 hours or three days to 40 hours or five days.

The Labor Commissioner has issued updated FAQs, including how to properly transition an existing paid sick leave policy.

FAQ No. 15 explains:

“If an employer uses an accrual method and capped an employee’s yearly use of leave at 3 days or 24 hours, what must an employer do to comply with the law on January 1, 2024?
“If an employer uses an annual start date other than January 1 and implements a 12‑month use cap, that cap must change to 40 hours or 5 days on January 1, 2024. For example, if an employer uses the 12-month period of May 1 - April 30 and implements a cap and an employee used 24 hours or three days before January 1, 2024, the employer must allow the employee to use an additional 2 days or 16 hours before April 30 if the employee has accrued that additional leave.”

FAQ No. 16 explains:

“If an employer utilized the “up-front” method prior to January 1, 2024 and provided an employee with 3 days or 24 hours of leave on the employee’s anniversary date during the year, what must an employer do to comply with the law on January 1, 2024?
“The employer has the choice to frontload the two additional days on January 1, 2024 or move the measurement of the yearly period to January 1, 2024 and frontload five days. For example, if an employee started on May 1, 2021 and the employer used that anniversary date to frontload 3 days or 24 hours on May 1, 2023, the employer may either provide 2 days or 16 hours on January 1, 2024 and keep the May 1 date to frontload or can “reset” the frontload date to January 1, 2024 and provide the employee 5 days or 40 hours then.”

Also, the Labor Commissioner has updated its individualized Notice to Employee and its mandatory Paid Sick Leave Poster to reflect the increased paid sick leave hours.

Take-Aways:

California employers should promptly (i) review all updated FAQs; (ii) coordinate with payroll on the transition; and (iii) use the updated Notice to Employee form and post the updated Paid Sick Leave Poster by January 1, 2024.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• What’s New in 2024 - Wage Theft Prevention Notice Updates (December 15, 2023)
• What’s New in 2024 – Expanded Paid Sick Leave Requirements – California Employers Must Now Provide 40 hours or Five Days of Sick Pay (October 11, 2023)

Cindy Bamforth
December 28, 2023

Effective January 1, 2024, California minimum wage will increase to $16 per hour for all employers, regardless of size.

The California cities and counties below have ordinances with higher or more extensive minimums.  Employers must review and comply with the rules for any locality in which their employees work. Many of those cities change on January 1 of each year, others on July 1 as noted below.  The UC Berkeley Center for Labor Research and Education publishes regular updates.

Covered employers must review the information for their location(s) and conspicuously post the current wage notice for each applicable jurisdiction, which can be downloaded through the links above.

Businesses with remote employees or employees in more than one location may need to apply different minimum wage rates in each. Some companies solve this complexity by paying the highest applicable rate across the boards.

Some jurisdictions set higher minimum rates for hotel workers.  And a new law, AB 1228, prescribes a minimum wage of $20/hour for in-state restaurants of national fast food chains, effective April 1, 2024.

See also:

• What’s New in 2024 - Wage Theft Prevention Notice Updates (December 15, 2023)
• What’s New in 2024- Computer Software Employee Overtime Exemption Rates (December 8, 2023)
• What’s New in 2024 – Physicians and Surgeons Overtime Exemption Rates (November 21, 2023)

Helena Kobrin
Daniska Coronado
December 20, 2023

California’s “Wage Theft Prevention Act” requires most employers to provide nonexempt-from- overtime employees with specified wage-related information in writing (the notification) at the time of hire and within seven calendar days after any changes to:

• Employer’s full contact information;
• Pay rates -- including overtime rates -- and their bases, whether hourly, shift, daily, weekly, salary, piece, commission, or otherwise;
• Regular payday;
• Workers’ compensation carrier’s full contact information; and
• Paid sick leave benefits

Covered employers can use the California Labor Commissioner’s sample “Notice to Employee, Labor Code section 2810.5” form for these purposes.

Effective January 1, 2024, the notification must reference:

• increased sick leave benefits and
• any information on “the existence of a federal or state emergency or disaster declaration applicable to the county or counties where the employee is to be employed, and that was issued within 30 days before the employee’s first day of employment, that may affect their health and safety during their employment.” (See new Labor Code section 2810.5 (a)(1)(I).)

The Labor Commissioner’s office will update its sample “Notice to Employee” form by March 1, 2024.

Take-Aways:

Until the Labor Commissioner updates the Notice to Employee form in early March, employers should promptly (i) revise the sample form’s paid sick leave section to reflect the 2024 increased minimum paid sick leave requirements under state law; (ii) modify the existing sample form to include any relevant “state of emergency” information and implement a process to track announcements of such emergency declarations; and (iii) periodically monitor the Labor Commissioner’s website for its updated sample form and any additional guidance.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• What’s New in 2024 – Retaliation Wake-Up Call Employer Discipline, Termination May Be Presumed Illegal (December 1, 2023)

Cindy Bamforth
December 15, 2023