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:

• 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An outdated workplace policy manual can cause its own set of problems.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

Law Offices of Timothy Bowles
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:

• 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

New Labor Code 2750.3(d), effective January 1, 2020 as part of Assembly Bill (AB) 5, exempts real estate licensees, regulated under the Business & Professions Code (B&P), from the strict Dynamex ABC test for independent contractor classification. See, Dodging the Bullet (October 2019).

Labor Code 2750.3(d) defers to B&P 10032(b), which permits real estate brokers and agents to structure their relationships either as employer-employee, respectively, or as hirer-independent contractor. However, that provision of 10032(b) notably does not apply where broker and agent have no written contract between them. For such “non-10032(b)” real estate broker-agent associations:

• Unemployment Insurance Code 650 will render such agents ineligible for unemployment, as “real estate salesperson” is excluded from the definition of “employment”;

• brokers must provide workers compensation coverage for such agents; and

• for all other labor issues (e.g., obligations to pay minimum wage, meals/breaks, overtime), B&P 10015.1 directs a modified factor-balancing Borello test to determine employee or contractor status. Unique to the real estate field, brokers are obligated by statute to supervise agents under them. However, the statute also provides that such supervision does not count to nullify the agent’s otherwise possible independent contractor status.

Moral: As the complexity and uncertainty of California’s employee/independent contractor law increase, so too the wisdom of utilizing competent legal counsel to help navigate the rocks and shoals of such classifications.

See also:

• Bullet Dodging Part 5, The Referral Agency Exception To California’s Strict Independent Contractor Definition (November, 2019)
• Bullet Dodging Part 4, Building Subcontractors’ Exemption From the Strict New Limits on Who is “Independent” (October, 2019)
• Bullet Dodging Part 3, California’s “Professional Services” Exemption To Strict Independent Contractor Definition Licensed Beauticians Among the Eligible (October, 2019)
• Bullet Dodging Part 2, California’s “Business-to-Business” Exception To Strict Independent Contractor Definition (October, 2019)
• California’s Independent Contractors (October 2019)
• Independent Contractor or Employee? (April, 2019)
• Independent Contractor Status? It Depends (November, 2018)

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

Helena Kobrin
November 22, 2019

California has long regulated the “employment” of infants in the movies. Labor Code 1308.8 bans babies under 15-days old while requiring physician certification for our “older” new arrivals (aged 15-days to “under one month”) to work on any “motion picture set or location.”

Beginning January, 2020, Assembly Bill (AB) 267 will apply such “micro-age” prohibition and certification standards to the entire “entertainment industry,” now defined (new Labor Code 1286(f)) in this digital age as:

• motion pictures of any type and format (for example, “theatrical film, commercial, documentary, or television program”) and by any medium (e.g., theater, commercial or videocassette), plus
• “photography;
• “recording;
• “modeling;
• “theatrical productions;
• “publicity;
• “rodeos;
• “circuses;
• “musical performances;
• “advertising; and
• “any other performances where a minor performs to entertain the public” (emphasis supplied).

This broader “entertainment industry” scope understandably applies to the labor regulation of all minors under age 18. Yet, read literally, the expanded definition means that no precocious newborns two-weeks old or younger may bull ride (rodeo) or swallow swords (circus), period. Other babies not yet a month-old could in theory do so, but would require written certification from “a licensed physician or surgeon who is board-certified in either pediatrics or family medicine.”

Perhaps slightly more to the point is the uncertainty of just how far this Labor Code ban and written certification requirement applies to newborns engaged in “photography…modeling…and any other performances where a minor performs to entertain the public.” Would that not be every such baby picture and video posted on Facebook, Instagram and any other social media medium?

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

Tim Bowles
November 15, 2019

When new Labor Code section 2750.3(g) goes into effect on January 1, 2020 as part of Assembly Bill (AB) 5, certain types of referral agencies may be able to avoid classifying associated service providers as employees under the uber-strict Dynamex ABC standards. See, California’s Independent Contractors (October 2019).

Only referral agencies that deal in specified industries are eligible: those connecting clients or customers with service providers dealing in graphic and/or web design, photography, tutoring, event planning, minor home repair, furniture assembly, picture hanging, moving, errands, home cleaning, animal services, dog walking or grooming, pool cleaning or yard cleanup.

Such associated service providers must be either a sole proprietorship, corporation, partnership, limited liability company or limited liability partnership.

Additionally – and keeping with the previously prevailing “Borello” multi-factor balancing test for contractor vs. employee classification -- the service provider must:

• Be free from the referral agency’s direction and control;
• Obtain and maintain any required state contractor’s license, business license and/or business tax registration;
• Deliver services to the client/customer under the service provider’s name, not the name of the referral agency;
• Provide its own tools and supplies;
• Customarily engage in an independently established business of the same nature as the work performed;
• Maintain its own clientele without any restrictions and remain free to seek work elsewhere including through a competing referral agency;
• Set its own hours and terms of work and freely accept or reject clients and contracts without repercussion; and
• Set its own rates without deduction by the referral agency.

See also:

• Bullet Dodging Part 4: Building Subcontractors’ Exemption From the Strict New Limits on Who is “Independent” (October, 2019)
• Bullet Dodging Part 3: California’s “Business-to-Business” Exception To Strict Independent Contractor Definition (October, 2019)
• Bullet Dodging Part 2: California’s “Professional Services” Exemption To Strict Independent Contractor Definition Licensed Beauticians Among the Eligible (October, 2019)
• Dodging the Bullet: The Industries and Professions Not Subject to California’s New Independent Contractor Restrictions (October, 2019)
• Independent Contractor or Employee? (April, 2019)
• Independent Contractor Status? It Depends (November, 2018)

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

Cindy Bamforth
November 8, 2019