The Twentieth Century, and the start of the Twenty-First, have been no cakewalk. While our advances in science and technology have made possible the real prospect of a civilized world community, the reason, ethics and justice that would establish a secure society and lasting peace have been repeatedly crushed by the madness of ignorance, global war and genocide. In the past one hundred years, more people died in the cause of freedom – and at the hands of technological “advancement” – and more put to death for their religion than at any other period of recorded history.

While some say that the past century delivered lessons that have enabled a more stable and interdependent world, we need not look very far for signs to the contrary – decaying, ineffective educational systems, growing pharmaceutical dependence for emotional “stability,” and destruction of human rights and civil liberties to “fight” faceless terrorism. Unless effective and enlightened leadership prevails, these trends herald this emerging Twenty-First Century as more anguished and inhumane than the one that has just passed.

I am a lawyer – and foster and expand this firm – because human survival depends on a social framework that promotes and supports the basic rights and nature of humanity to create and change conditions for the better. We are dedicated to serving in the employment realm as our societies are engaged upon it the vast majority of time. The workplace is thus a critical setting for productive, fair and mutually beneficial human interchange.

The justice system works only when individual citizens adhere to and are accountable to the ideal of personal responsibility – responsibility for one’s own condition, for family, for community and for the human race. Through our work as trusted advisors and litigators, our law firm is committed to helping those we touch to achieve that noble and worthwhile end.

Tim Bowles
January, 2020

Targets of workplace discrimination, harassment and retaliation prohibited by California’s Fair Employment and Housing Act (FEHA) now have three years (up from the previous one year) to file a claim with California’s Department of Fair Employment and Housing (DFEH) against the subject employer.

A person claiming such wrongful conduct must file that DFEH complaint as well as request and receive a right-to-sue letter from that agency before initiating a FEHA lawsuit.

Responding to #MeToo concerns that recipients of such abuse need more time to process, the legislature’s Assembly Bill (AB) 9, effective January 1, 2020, amends the FEHA to permit this longer three-year period. Extensions from 90 days to one year are available for special circumstances such as late discovery of the facts. Some other types of FEHA claims, e.g. for housing discrimination, still have a one-year deadline. Government Code section 12960(e).

A claimant has one year from the date of his/her DFEH right-to-sue letter to file the FEHA court suit.

Employers may now have to respond to court-filed allegations – and to muster documents and witnesses – for incidents four-years or more old. Thus, best personnel practices might well include:

• having a clear-cut policy for reporting and investigating allegations of discrimination, harassment, and retaliation;
• documenting clearly and maintaining thorough records of all such investigations; and
• maintaining contact information for departing employees who may become witnesses over any significant workplace upset or dispute.

See also:

• Find out What’s New in 2020- Get Going by Knowing (January, 2020)
• Prevent No-Consent Torment (January, 2020)
• Boss Sauced; Senior Managers Must Prevent Supervisor Harassment, Discrimination (Sept 2019)
• United States of Procrastination, Deadline Now Jan. 1, 2021 for Sexual Harassment Prevention Training to Rank-and-File Employees (Sept 2019)

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

Helena Kobrin
Tim Bowles
January 10, 2020

Arbitration is a form of private dispute resolution that takes the place of a lawsuit and court trial. Arbitration has many business-related advantages, including a more efficient, less-public process than the often-prolonged procedures of the court. Thus, employers often favor this alternative.

California Labor Code section 432.6, effective January 1, 2020 as part of Assembly Bill (AB) 51, restricts the scope and terms of workplace arbitration agreements. In-state employers will no longer be allowed to require job applicants or employees to enter into mandatory arbitration agreements for discrimination, harassment or retaliation claims under the California Fair Employment and Housing Act (FEHA) and/or claims under the California Labor Code. As this new law has no retroactive application, any valid arbitration agreement under pre-2020 California law signed by December 31, 2019 will remain valid after that date.

Any arbitration agreement entered on or after January 1, 2020 should contain language clearly confirming the worker is voluntarily choosing to arbitrate disputes arising from or relating to the employment relationship. From that date, California employers will no longer be able to condition most workplace arbitration agreements as take-it-or-leave-it even if the employee can opt out of the agreement later. Applicants and employees also cannot be threatened, retaliated or discriminated against for refusing to consent to an otherwise compliant agreement.

Subsection 432.6(f) presents an exception, currently of uncertain scope. Any written arbitration agreement enforceable by the Federal Arbitration Act (FAA) is not invalidated by this new law. It is left to the courts whether the above ban on mandatory agreements conflicts with the FAA.

In the meantime, as failure to comply with the new law exposes employers to damages claims and possible criminal charges, it is risky to presume this FAA exemption will ultimately prevail. The better practice for affected employers is to ensure compliance with section 432.6 upon the start of the new year.

See also:

• Find Out What’s New in 2020: Scientia Est Potentia (Knowledge is Power) (December, 2019)
• New Year’s Resolution: Get Smart(er) Order Our 2020 Updated Model Employee Handbook and Hire-to-Fire Forms (December, 2019)

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

Cindy Bamforth

December 18, 2019

California law requires employers with 15 or more on payroll to provide paid organ donor leave to any employee undergoing such procedures.

Beginning January 1, 2020, employers must also provide additional unpaid time off up to a total of 30 business days for organ donor leave.

Thus, any employee undergoing an organ donation procedure may take up to 30 business days of protected paid leave in a one-year period (for which the employer may first credit up to two weeks of an employee’s accrued, unused sick or vacation/paid time off benefits), after which the employee may then receive an additional 30 days of protected unpaid leave.

Best practices include a well-written, up-to-date leave policy. Current policies, procedures and forms covering all major aspects of the workplace relationship permit managers and rank-and-file workers alike to know where they stand.

See also:

• Hot Off the Presses (February, 2020).
• Time Off for Fire Fighting, Crime Victims, Drug Rehab, School Visits, and More (June, 2018)

For further assistance in complying with the new laws, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

March 3, 2020

An outdated workplace policy manual can cause its own set of problems. In employment law, the only thing constant is change.

Our 2019 model employment handbook and forms contain significant revisions to keep pace with new laws and recent case decisions, many motivated by the #metoo movement.

Our model forms and policies include:

• Employment application (including releases that acknowledge an employer’s use of pre-employment tests consistent with the Americans with Disabilities Act and California’s constitutional privacy protection);
• Form job description (again, setting the foundation for pre-employment use of tests);
• Pre-employment procedures policy (properly positioning the above tests as aimed at job-related qualities rather than physical or mental disabilities);
• Employment agreement (including confidentiality/non-disclosure of company trade secrets);
• Alternative dispute resolution agreement (establishing private mediation and arbitration in lieu of court-filed complaints and limiting class action participation to the extent possible);
• Meal and rest break acknowledgments (confirming employer provision of required breaks);
• Paid sick leave policies (to comply with California’s recently enacted requirements); and
• Termination policy, checklist and standard release (to be applied with troublesome employees for greater protection against later, frivolous suits).

Our comprehensive model employee handbook includes:

• Conditions of company employment
• Discrimination and harassment, prevention and handling
• Employee compensation
• Employee benefits
• Employee job performance; mutual termination rights
• Employee privacy expectations, employer access to employee-maintained databases and social media guidelines
• Paid and unpaid time off
• Job-related injury or illness
• Workplace health and safety
• Drug and alcohol policy; drug testing

CONTACT US TO ORDER NOW

To order or for more information, contact client services director Loretta Gardea at 626.583.6600 or email her at clientservices@tbowleslaw.com

December 27, 2019

On January 1, 2020, California minimum wage will increase to $12.00 for small employers with 25 or fewer employees and to $13.00 per hour for larger employers with 26 or more employees. These rates continue to increase annually until they reach $15.00 per hour in 2022 for larger employers and in 2023 for those with 25 employees or less. See California’s Gradual Increases in Minimum Wage, to Reach $15.00 Per Hour by January 1, 2022 (April, 2016).

Some California cities plus two counties have their own minimum wage ordinances. In-state  employers need to examine the rules for every jurisdiction in which they operate, not just the one or more where they might have offices. The UC Berkeley Center for Labor Research and Education publishes regular updates.

A covered employer must also conspicuously post an updated wage notice/bulletin for each applicable jurisdiction. Click the above city/county link(s) to download the most current notice.

See also:

• Mid-Year Minimum Wage Rate Increases (July, 2019)
• Cautionary Tales Episode 31 – Residential Care Facility Not Feeling Love (July, 2019)
• Cautionary Tales Episode 25 – Rubber Checks and Unpaid Wages Rebound on Construction Company (February, 2019)

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

Helena Kobrin
December 12, 2019

California Labor Code section 515.6 exempts certain licensed physicians and surgeons from overtime compensation if they receive set minimum hourly compensation. Effective January 1, 2020, the California Department of Industrial Relations is increasing the minimum from $82.72 to $84.79 per hour, effective January 1, 2020.

To avoid California’s requirements to pay overtime premium rates after eight hours worked in a day or 40 in a week, employers will need to pay eligible physicians or surgeons that minimum hourly rate, keeping accurate track of hours worked.

Under Labor Code section 515.6, a doctor is exempt-from-overtime only if he or she is a licensed physician or surgeon “primarily engaged” (more than 50% of the time) in duties that require that licensure. California Business & 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.”

Employers relying on this exemption will of course need to implement this rate change by the January 1 deadline.

Physicians and surgeons paid on a lump sum salary (whether weekly or otherwise) will not qualify for this exemption but may otherwise be excused under the administrative, executive, or professional overtime exemptions.

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

Cindy Bamforth
December 5, 2019

In 2016, the U.S. Department of Labor (DOL) issued a “Final Rule” more than doubling the minimum salary amounts for certain workers - administrative, executive, and professional, employees, as well as “highly compensated employees” (HCE) to qualify for overtime exemption under the Fair Labor Standards Act (FLSA).

That rule proved not to be final after all. A judge enjoined its enforcement. The challenge to that 2016 version remained on appeal but inactive until the Trump DOL recently rescinded and replaced it with a new Final Rule, effective January 1, 2020.

This federal regulation directs certain increases in the minimum compensation amounts for exempt workers but does not change the principal job duties required to qualify. See DOL Fact Sheet #17A.

For instance, the new regulation raises the minimum qualifying salary amount for overtime exempt professional, executive, and administrative employees from $455/week; $1,971.67/month; $23,660/year to $684/week; $2,964/month; $35,568/year.

Eligibility for the FLSA’s HCE exemption will require a minimum $107,432/year salary, up from the current $100,000.

For exempt motion picture industry workers, the DOL is raising the qualifying “base rate” for a full week to $1,043/week, or a proportionate amount of that minimum equal to one sixth of the base rate for each day worked in a shorter week.

The new regulation also permits employers to count ten percent of an exempt employee’s non-discretionary bonuses and other incentive compensation payments in the calculation of the applicable minimum salary amount.

No Immediate Effect on California’s Exempt-from-Overtime Criteria: This state’s salary minimums for “white collar” professional, executive, and administrative exempt employees already exceed these incoming federal standards. California’s salary threshold is the double the statewide hourly minimum wage for a 40-hour week. Thus, for 2020, with that minimum wage going to $13/hour for companies with 26 or more employees and $12.00/hour for businesses with 25 or fewer employees, minimum salaries to qualify for overtime exemptions will be $1,040/week; $4,506.67/month; $54,080/year for the 26-plus employers and $960/week; $4,160/month; $49,920/year for businesses with smaller payrolls.

California employers with exempt out-of-state employees will need to consider whether the new Final Rule affects what they are paying those employees.

See also:

• Find Out What’s New In 2020! CALIFORNIA EMPLOYERS: Annual Employment Law Seminar Covers the New and Enduring Workplace Essentials (November, 2019)
• Mid-Year Minimum Wage Rate Increases (June, 2019)

If you need assistance with working any of the issues raised by these new regulations, our attorneys, Tim Bowles, Cindy Bamforth or Helena Kobrin, can help.

Helena Kobrin
November 27, 2019

With all due respect to the many who regard America’s Thanksgiving as the biggest holiday of the year, there are currently some 7.35 billion people on this planet for whom this coming Thursday will be just another day. Alternatively, for example, please note:

• Mid-Autumn (Mooncakes) Festival, China and Vietnam: A late-September/early-October full moon harvest celebration, giving thanks to the harmonious union of family and friends
• Chonburi Buffalo Races, Ban Bueng and Nong Yai Districts, Thailand: An October celebration to precede the rice harvest, featuring outrageously adorned water buffalos competing for speed, stamina and fashion
• Pongal Festival of the Sun, Tamil Nadu, India: A January multi-day Tamil community harvest festival of South India, dedicated to the Hindu sun god Surya with cows enlisted for decoration, ritual bathing and parades; and
• Asogli Te Za (Yam Festival), Volta Region, Ghana: An August/September commemoration to the ripening of the yams.

Whatever your custom or preference, happy Thanksgiving!

American lawyer, somewhere in the Ashanti Region, Ghana, 2007

November 27, 2019