California Labor Code section 515.5 exempts certain computer software professionals from overtime compensation if they receive specified minimum compensation.

California’s Department of Industrial Relations (DIR) has announced its rate increase for this minimum, effective January 1, 2019, to $45.41, up from $43.58. Alternatively, an otherwise qualified employee paid by salary is eligible on minimum annual compensation of $94,603.25, payable at least once monthly at no less than $7,883.62.

An exempt computer professional must also meet each of the high-level skills and duties criteria as laid out in Labor Code section 515.5. Among these, the employee must be “primarily engaged” (more than 50% of the time) in intellectual or creative work which requires “the exercise of discretion and independent judgment” 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 such qualified employees need not be paid overtime premium under California law, employers should further ensure such workers meet the overtime exemption for computer professionals under federal law.

It is also possible for computer professionals to qualify for the administrative, executive or “learned profession” exemptions from overtime. Each category possesses its own distinct qualification rules.

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

Cindy Bamforth
December 20, 2018

California minimum wage will increase to $12.00 per hour on January 1, 2019 for employers with 26 or more employees and $11.00 for smaller employers with 25 employees or less. Those rates will continue to increase annually until reaching $15 per hour in 2022 for larger employers and in 2023 for those with 25 or fewer employees. See California’s Gradual Increases in Minimum Wage, to Reach $15.00 Per Hour by January 1, 2022 (April, 2016).

California cities (and two counties) have implemented their own minimum wage ordinances. See also the UC Berkeley Center for Labor Research and Education listing for regular updates. California employers need to examine the rules for every jurisdiction in which they operate, not just the one or more where they might have offices.

For example, as different municipalities have different definitions of “covered employer” and/or “covered employee,” a delivery company with drivers routinely working in multiple cities or counties each week may well have separate minimum wage compliance issues for each simultaneously.

Below is a comprehensive list of California municipalities requiring minimum wage levels greater than the state standard as of January 1, 2019:

Some cities have enacted separate minimum wage laws for hotels. For example, three Los Angeles County cities have their own hotel worker minimum wage.  The current rate for each,  effective July 1, 2018:

Long Beach ($14.64); and Santa Monica and City of Los Angeles (both $16.10).

Non-profit charitable organizations should check for possibly slower implementation requirements under applicable local ordinances.

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 Changes, Many New Minimum Wage Rate Increases Effective July 1, 2018 (June, 2018)
• What’s New For 2018 – California Minimum Wage for 2018 (December, 2017)
• Minimum Wage in California (June, 2017)
• California Increases Minimum Wage Rates for 2017 (December, 2016)

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

Helena Kobrin
December 14, 2018

Some employers, particularly in the restaurant industry, schedule their employees to work a “split shift,” i.e., two distinct work periods in the same workday separated by more than a one-hour meal break. For example: a waiter who works the 10:00 a.m. to 1:00 p.m. breakfast/lunch shift and returns for the 4:00 p.m. to 7:00 p.m. dinner shift is on a “split shift” schedule.

California law requires all employers to pay employees who work split shifts a premium of one-hour additional pay at minimum wage for that day. However, if an employee’s set hourly rate is higher than minimum wage, the employer may use all amounts above minimum wage to offset the split shift premium.

Also, if the employee voluntarily requests the split shift for his or her own convenience or to pick up an extra shift, then no extra pay is required.

Traditionally, the split shift premium was based on California statewide minimum wage. However, California Division of Labor Standards Enforcement (DLSE) recently updated its frequently-asked-questions to indicate the split shift standard is one hour at the state minimum wage or applicable local minimum wage, whichever is greater.

Employers in a city or county with a local minimum wage rate should proceed with particular care in reviewing their split shift pay calculations and protocols.

For example:

A Los Angeles city restaurant employs 25 or fewer employees. That company must pay at least the city’s current $12 minimum wage rate (effective July 1, 2018). In this example, the business chose to pay its waiters $13 per hour.

For a waiter’s six-hour split workday (say, serving breakfast in the morning, returning late afternoon to serve dinner), the restaurant must pay an additional $6 split shift premium.

Step 1. Calculate the required local minimum wage and split shift premium for the workday:

• Six hours at $12/hour local minimum wage = $72
• Split shift premium: $12 (one hour at local minimum wage)
• Total = $84

Step 2. Calculate the actual total hourly pay (including split shift premium):

• Six hours at $13/hour = $78

Note: As waiter’s tips may not be credited towards minimum wage, they would have no effect on such calculations. (See Labor Code section 351).

Step 3. Pay the difference:

$84 (total on step 1) minus $78 (total on step 2) = $6 (differential amount for working a split shift)

Do not include split shift premium pay in overtime calculations.
Best practices:

• Keep time records of any split shift intervals, which must be itemized separately on the employee’s pay stub.
• Do not schedule unpaid meal breaks that exceed one hour in an attempt to avoid split shift obligations.
• Document all voluntary split shift requests.

Cindy Bamforth
December 14, 2018

A claim for sexual harassment exists under section 51.9 of the Civil Code against someone who is in a “business, service or professional relationship” with the harassment victim. This section enumerates various professions subject to such a claim including attorneys, persons with a master’s degree in social work, realtors, physicians, psychotherapists, dentists, accountants, certain financial industry professionals, building contractors, teachers, and landlords. The section includes a catchall for any “relationship that is substantially similar to any of the above.”

In its current form, the victim would have to show that he or she “cannot easily terminate the relationship” in order to bring such a claim. Effective January 1, 2019, SB 224 amends the statute to remove any requirement that a victim show an inability to terminate the relationship. In response to the #MeToo movement, the section 51.9 amendment adds directors or producers, investors, lobbyists, and elected officials to the specified list and also includes anyone “who holds himself or herself out as being able to help the [victim] establish a business, service, or professional relationship.”

The legislature and the governor have also approved enhanced protection for victims of sexual assault. AB 1619, which created new Civil Code section 340.16, expands the statute of limitations to bring a civil action for sexual assault on a person over 18 from two years to “10 years from the date of the last act, attempted act, or assault with the intent to commit an act of sexual assault” or three years from the date the victim discovers or reasonably should discover such an act caused an injury or illness.

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

Helena Kobrin
December 7, 2018

The #MeToo movement has spurred the California Legislature to significantly expand mandatory sexual harassment prevention training to all employers with five or more on payroll, including seasonal and temporary workers. Companies now must train supervisors and subordinate workers alike. Previously, only businesses with 50 or more employees have been obligated to provide such training and, then, only to their supervisors.

As revised, California Government Code section 12950.1 requires all five-plus employers to provide at least two hours of “classroom or other effective interactive training and education” to all supervisory employees and at least one hour of such classroom or other effective sexual harassment training to all nonsupervisory employees. There are special rules for seasonal, temporary and agricultural employees. Section 12950.1 mandates the first such delivery by January 1, 2020, and once every two years after that.

The expanded law also directs the Department of Fair Employment and Housing to develop or obtain two online training courses, one for supervisors and the other for nonsupervisory employees, on the prevention of sexual harassment in the workplace and to post the courses on the department’s internet website.

This section dictates only the minimum requirements and “should not discourage or relieve any employer from providing longer, more frequent, or more elaborate training and education … to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination.” Section 12950.1(g). Accordingly, the revisions specify that an employer is free to develop its own training module for compliance. Section 12950.1(j)

Please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin with any questions on these changes. Our office will continue to provide such California-mandated interactive anti-harassment, -discrimination, and -retaliation training, including on-site seminars for flat fees. Contact officemgr@tbowleslaw.com for more information and to schedule your seminar.

Tim Bowles
November 30, 2018

California employers must provide employees with accurate, itemized written wage statements semi-(twice)-monthly or at the time or each payment of wages. Those statements must contain exact, detailed pay-related information, such as the employee’s identity, hours worked, and gross and net wages earned. Labor Code 226(a). See, Ignore at Your Own Peril (February, 2018).

Existing law also permits current or former employees to “inspect or copy” such payroll records within 21 calendar days of the request. An employer’s failure to comply by the deadline may entitle the worker or the Labor Commissioner to recover a $750 penalty plus reasonable attorney’s fees (Labor Code 226(f) and (h)).

Effective January 1, 2019, amended Labor Code 226 clarifies a current or former employee’s right to “copy” his or her wage-related documents (e.g. pay stubs) means the right to actually receive a copy generated by the employer.

According to the California Rural Legal Assistance Foundation, the advocacy group which spearheaded this change, some employers interpreted “copy” to require a requesting employee to bring a copying device to the workplace to make the copies at his/her expense. The amendment confirms otherwise.

The employer may, however, charge the current or former employee for the actual cost of reproduction (Labor Code 226(b)).

For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth
November 29, 2018

Section 218.7 of the Labor Code, effective January 1, 2018, made contractors responsible for wage and benefit payments to employees of subcontractors who fail to make those payments. It permitted a contractor to require proof of wage and benefit payments from subcontractors and to withhold portions of a subcontractor’s payment if the demanded proof was not supplied.

Our blog on section 218.7 recommended that contractors require subcontractors to document payroll and benefit information for each pay period. See, Contractors Liable for Wages and Benefits If Subcontractors Don’t Pay Their Employees (January, 2018).

In A.B. 1565, the legislature has now created section 218.7(i) to require that written contracts with subcontractors must provide for production of such documentation before a contractor may withhold funds for unpaid wages and benefits from subcontractor payments. Subcontractors may include the same written provision with their subs and may withhold money from payments if the documentation is not forthcoming.

While obtaining and reviewing this documentation is an additional burden for contractors, it is more important than ever to do so, as a contractor can then ensure the needed payments are made from withheld funds.

Without such documentation and review, and subsequent withholding of funds for direct payment to unpaid employees, contractors risk government actions to enforce contractor wage and benefit payments to subcontractor employees from the contractor’s own pocket, especially if the contractor is using small, inadequately funded subcontractors.

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

Helena Kobrin
November 23, 2018

California employers must make reasonable efforts to provide their lactating employees with the use of a room or location – other than a toilet stall – in close proximity to the employee’s work area for the employee to express breast milk in private.

Effective January 1, 2019, amended California Labor Code section 1031 will not permit the use of a toilet stall or bathroom – so as to further ensure working mothers can express breast milk in a cleaner and safer environment, benefiting both mother and child. Thus, under the amended law a single-stall bathroom with a chair next to the sink will no longer be acceptable.

Employers will be allowed to provide a temporary lactation location only if:

1. a permanent location is not available due to operational, financial, or space limitations;
2. the temporary location is safe and private while expressing milk;
3. it is only used for lactation while expressing milk; and
4. it meets the state law requirements concerning lactation accommodation (e.g., it’s not a bathroom).

Under the amended law, agricultural employers may provide a lactating employee with a private, enclosed and shaded space, such as an air-conditioned truck or tractor cab.

An employer may apply to the California Department of Industrial Relations for an exemption if it can establish that the lactation accommodation would constitute an undue hardship concerning the employer’s size, nature, or structure. However, employers will still be required to provide a location other than a bathroom, which can be difficult for small businesses already facing significant space constraints.

For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth
November 21, 2018

The California Fair Employment and Housing Act (FEHA) requires employers with five or more on payroll to provide pregnancy disability leave, transfer and/or other reasonable accommodation due to pregnancy, childbirth, or a related medical condition. A woman is “disabled by pregnancy” if her health care provider determines: (i) she is unable because of pregnancy to perform any one or more of her job’s essential functions without undue risk to herself, her baby, or others; or (ii) she is suffering from severe morning sickness or needs time off for prenatal or postnatal care, bed rest, gestational diabetes, or other pregnancy-related physical conditions.

Employers may require written medical certification as a condition of granting reasonable accommodation, job transfer or pregnancy disability leave. If so required, the pregnant employee must be given at least 15 calendar days to submit the medical certification.

If the employee fails to give her employer reasonable advance notice (other than in emergency situations) or does not provide written medical certification when required, then the employer may be justified in delaying the reasonable accommodation, transfer, or pregnancy disability leave.

The California Department of Fair Employment and Housing (DFEH) recently reformatted and simplified its Certification of Health Care Provider form, which employers may download and issue to pregnant employees in these circumstances.

Additional resources:

• PDL, CFRA and FMLA Requirements and Obligations.

See also:

• New California Pregnancy Disability Leave Poster Requirements (March, 2016)
• Pregnancy and Disability (April, 2014)
• Pregnancy Disability Leave (February, 2011)

Cindy Bamforth
November 15, 2018