Wage theft occurs when an employer pays an employee less then minimum wage, fails to pay overtime, takes workers’ tips, does not permit meal and rest breaks, or requires work off-the-clock. It can also involve paying wages late, not paying required paid sick leave, not paying timely final pay, or any other failure to pay all wages owed.

On January 1, 2022, wage theft of more than $950 from one employee or $2,350 from two or more became felony grand theft under California Penal Code Section 487m. In September 2023, the California Labor Commissioner and Los Angeles District Attorney brought their first section 487m prosecution of garment industry employers against Lawrence Lee (Lee), an owner of Parbe, Inc. dba Fabiola, and garment contractor Soon Ae Park (Park), with an additional charge for perjurious declarations.

The Labor Commissioner’s Bureau of Field Enforcement (BOFE) discovered Park was paying workers less than minimum wage in cash, without overtime, and without pay stubs, workers compensation or paid sick leave information.

Parbe contracted with Park despite explicit Labor Commissioner warnings about Park’s violations. Park and Parbe also both lacked required garment manufacturing licenses, and Lee omitted material information from his application for such a license.

Beyond criminal charges, the BOFE imposed civil fines totaling $161,738 against these individuals and Parbe for their violations.

Labor Commissioner Lilia Garcia-Brower stated: “These employers not only abused their workers by paying them as little as $6.00 per hour but they also defrauded the system. My office will continue to work with the Los Angeles District Attorney’s office to prosecute bad-actor employers who commit wage theft and gain an unfair advantage over law-abiding employers.”

Take-Aways:

Employers need to pay employees correctly and not violate the law.

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

See also:

• Car Wash Dusted: Employer Hit with $800,000 “Wage Theft” Citation (May 18, 2022)
• What’s New in 2022 Grand Theft Wages: Intentional Pay Deprivation Is a Possible Felony (October 15, 2021)
• Rubber Checks and Unpaid Wages Rebound on Construction Company (February 22, 2019)

Helena Kobrin
December 15, 2023

California Labor Code section 515.5 exempts certain computer software professionals from overtime compensation upon receipt of specified minimum compensation.

California’s Department of Industrial Relations (DIR) has announced its rate increase for this minimum, effective January 1, 2024, to $55.58, up from $53.80. Alternatively, an otherwise qualified salaried employee is eligible on minimum annual compensation of $115,763.35, up from $112,065.20, payable at least once monthly at no less than $9,646.96.

An exempt computer professional must also meet each of the Labor Code section 515.5 high-level skills and duties criteria. Among these, the employee must be “primarily engaged” (more than 50% of the time) in intellectual or creative work requiring the exercise of discretion and independent judgment such as:

• applying systems analysis to determine “functional specifications” of hardware, software or systems
• designing computer systems or programs; and/or
• documenting, testing, creating or modifying computer programs related to computer systems software or hardware design

Although these workers need not be paid overtime premium under California law, employers should further ensure they meet the comparable federal law exemption, which includes a less restrictive definition of “primary” duty, a lower hourly/salaried threshold, and similar skills and duties tests.

Such computer professionals may also qualify for the administrative, executive or “learned profession” exemptions from overtime. Each category possesses its own distinct qualifications.

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

Cindy Bamforth
December 8, 2023

SB 497, going into effect on January 1, 2024, amends Labor Code sections 98.6, 1102.5, and 1197.5 to make it easier for employees to win retaliation claims.

Until now, California law has placed the burden on a worker to link an employer’s adverse action – such as a demotion, pay reduction or termination -- to his or her prior complaints over workplace policy or practices. The new law switches that burden, imposing a rebuttable presumption that unlawful retaliation did occur if management takes adverse action within 90 days after the worker’s complaint.

SB 497 also imposes a civil penalty up to $10,000 for prohibiting employees from reporting violations of perceived federal or state law, whether internally or to a government agency, or for retaliating against an employee who does so. The Labor Commissioner must consider the nature and seriousness of the violation in determining the penalty.

Take-Aways:

Employers must promote and apply policies for worker complaints over possible workplace irregularities – including clear procedures for making and responding to such claims -- and take particular care to limit discipline or termination for reasons unrelated to worker complaints. Consulting with employment counsel before taking any adverse action against an employee who has lodged any such complaint is a wise practice.

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

See also:

• Take Heed: Responding to Harassment and Discrimination Complaints Correctly (July 28, 2023)
• A Memorable $3.6M Lesson: “Unforgettable” Roofing Co. Hit for Knee-Jerk Retaliation and Intimidation (March 1, 2023)
• Pay Back on Retribution: Complaining Employee to Collect for Psychiatric Center’s Retaliation (October 1, 2021)

Helena Kobrin
December 1, 2023

California Labor Code section 515.6 exempts certain licensed physicians and surgeons from overtime compensation upon receipt of specified minimum hourly compensation.

California’s Department of Industrial Relations (DIR) has announced its rate increases for this minimum, effective January 1, 2024, to $101.22, up from $97.99, reflecting the 3.3% increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers.

To avoid California overtime premium rates, employers will need to pay such eligible professionals that minimum hourly rate, keeping accurate track of hours worked.

An exempt physician or surgeon must also meet each of the Labor Code section 515.6 skills and duties criteria. Among these, the employee must be “primarily engaged” (more than 50% of the time) in duties requiring licensure.

California Business and Professions Code section 2052 specifies such duties, requiring a medical license for anyone who “diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person.”

Physicians and surgeons paid on a salary basis will not qualify for this exemption, but may otherwise qualify for the administrative, executive or professional exemptions from overtime. Each category possesses its own distinct requirements.

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

Cindy Bamforth
November 21, 2023

Under the newly enacted Labor Code section 6401.9, California employers must establish, implement and maintain an effective workplace violence prevention plan (the Plan); training materials; and a violence incident log.

The law does not apply to employees teleworking from a location of their choosing and control; health care facilities covered under Cal/OSHA’s Violence Prevention in Health Care regulation; law enforcement agencies; correctional facilities; and locations not accessible to the public where less than 10 employees work at any given time.

Workplace violence is defined as “any act of violence or threat of violence that occurs in a place of employment” such as the threat or use of physical force or a firearm or other dangerous weapon but not lawful acts of self-defense or defense of others.

Starting July 1, 2024, the Plan must include:

• Names of individuals responsible for the Plan;
• Effective procedures to obtain employees’ active involvement in developing and implementing it;
• Methods used to coordinate implementation to ensure all employees understand their respective roles;
• Effective procedures for accepting and responding to workplace violence reports without retaliation;
• Effective procedures to ensure compliance with the Plan;
• Effective workplace communication regarding workplace violence matters;
• Effective procedures to respond to actual or potential workplace violence emergencies, including appropriate evacuation or sheltering plans;
• Procedures to develop and conduct the required workplace violence prevention training under the new law;
• Procedures to identify, evaluate and correct workplace violence hazards;
• Procedures for post-incident response and investigation;
• Procedures to review and revise the Plan’s effectiveness; and
• Procedures or other information as mandated by Cal/OSHA.

Covered employers must also provide effective workplace violence prevention training when the Plan is first established and annually thereafter and maintain the training records for at least one year. The training must include:

• Information on the employer’s Plan, including how to obtain a copy and participate in its development and implementation;
• Workplace violence prevention definitions and requirements;
• How to report such incidents or concerns to the employer or law enforcement without fear of reprisal;
• Specific workplace violence hazards, corrective measures implemented, how to seek assistance to prevent or respond to violence, and strategies to avoid physical harm;
• Information about the employer’s violent incident log and how to obtain copies of it; and
• An opportunity for interactive questions and answers with a person knowledgeable about the employer’s Plan.

Lastly, covered employers must create and maintain a violent incident log to record detailed information on every workplace violence incident. Such logs (and any workplace violence incident investigation records) must be maintained for at least five years.

Take-Aways:

Covered employers should promptly begin creating their Plan and training materials.

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

See also:

• What’s New in 2024 – Extended Comeback Rights – Hospitality Workers to Receive Longer Rehire Protection – Rehire First Fire (November 10, 2023)
• Keep Employees Safe – Workplace Murders Are Cal/OSHA Violations (June 30, 2023)

Cindy Bamforth
November 17, 2023

Since 2021, California has required certain hospitality and business services industries to give rehiring preference to workers laid off because of the pandemic. See Comeback Trail: Hotels, Security Services and Others Must Offer Openings to Pandemic-Affected Former Staff (April 30, 2021).

SB 723 extends this requirement through 2025. Covered employers must offer vacant positions to anyone employed for at least six months who was laid off on or after March 4, 2020 for a pandemic-related reason.

Covered industries include hotels; private clubs; event centers; airport-related hospitality operations and service providers; and janitorial, building maintenance or security services provided to office, retail or other commercial buildings. This law also applies where businesses have changed hands, relocated, or changed form.

Such employers must send a job offer to qualified former employees within five business days after establishing a position and allow at least five business days for a response. Certain seniority rules apply if more than one worker responds. Covered employers must also keep records for three years for each laid-off employee and must notify such employees within 30 days, in writing, if they hire someone else and the reason.

The Labor Commissioner may seek fines of $100 plus $500 liquidated damages that go to the employee for each day a violation of the law continues.

Take-Aways:

Employers in the covered industries need to become familiar with SB 723 and follow its requirements.

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

See also:

• 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)
• Former Workers Get First Shot: 3.3 Million Reasons to Hire Back Pre-Pandemic Hospitality Employees (March 11, 2022)

Helena Kobrin
November 10, 2023

For the fifth year running, Law Offices of Timothy Bowles is Best of Pasadena's best law firm. Thanks to everyone who voted and supported us. We are pleased to continue to provide experienced and trustworthy guidance to business navigating the difficulties of California employment law.

Please be sure to contact us as your need arises.

Tim, Cindy, Helena and staff
November 9, 2023

Existing Business and Professions Code 16600 prohibits California employers from having their employees sign non-compete clauses that restrain them from engaging in lawful professions, trades or businesses.

The legislature has now created these additional prohibitions:

1. AB 1076 amended section 16600, effective January 1, 2024, to require that the statute “be read broadly . . . to void the application of any noncompete agreement in an employment context, or any noncompete clause in an employment contract, no matter how narrowly tailored,” unless there is a legally-recognized exception, such as non-competes signed by owners who are selling a business.

AB 1076 also added Business and Professions Code 16600.1, which expressly states it is unlawful to have a non-compete in an employment contract or require an employee to sign such a contract unless it is subject to an exception. This new statute also requires employers – by February 14, 2024 – to notify any employees who have signed such agreements that the non-compete clauses are void.

2. SB 699 created new Business and Professions Code 16600.5 which mandates that neither current nor former employers may enforce non-compete clauses signed by an employee or former or prospective employee, even if they were entered into outside of California and the work also was performed outside this state. It allows a private right of action for violations of the non-compete laws.

Take-Aways:

Employers must leave non-compete clauses out of employment contracts. If their existing contracts have such clauses, they will either need to replace them with compliant contracts prior to February 14, 2024 or notify employees those clauses are void. And they also must not enforce such clauses against California-based workers, even if the individual was not working in California when the non-compete was signed. Any employer that wants a non-compete clause in a contract needs to consult with competent employment counsel.

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

See also:

• What’s New in 2024 – California vs. Arbitration: Next Round Legislature Permits Courts to Carry on with Cases While Arbitration Denial Appealed (October 23, 2023)
• Competition Free-For-All: Most Non-Competes Are Unenforceable in California (July 23, 2021)

Helena Kobrin
November 3, 2023

California law requires private employers of five or more on payroll and all public employers to grant an employee’s request to take up to five days of unpaid bereavement leave upon the death of a family member.

Senate Bill (SB) 848, effective January 1, 2024, requires such employers to provide a separate form of leave for up to five days of consecutive or non-consecutive leave following a “reproductive loss event,” such as a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction (i.e., an unsuccessful round of intrauterine insemination or embryo transfer). Both parents are eligible for this leave.

Unlike bereavement leave, reproductive loss leave does not require the employee to provide supporting documentation.

The leave must generally be taken within three months of the event unless the employee is on another leave entitlement, such as CFRA, in which case it must be taken within three months of that other leave’s end date.

Employers may cap the total cumulative leave for multiple reproductive loss events to 20 days per year.

Unless the employer has a policy to the contrary, the leave may be unpaid with employees free to use any vacation, personal leave, available paid sick leave, or compensatory time off to which they are entitled.

Employers must keep the request confidential other than from internal personnel or counsel, as necessary, or as required by law.

Take-Aways:

Covered employers should promptly review and update their existing leave of absence policies and absence request forms with competent legal counsel and notify and train relevant personnel on these changes.

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

See also:

• Time Off Mourning – California Requires Bereavement Leave (December 1, 2022)

Cindy Bamforth
November 2, 2023