California’s Labor Commissioner continues her pursuit of businesses that fail to comply with wage and hour laws. In a January 9, 2018 News Release, she announced citations of $7,137,036 against Adat Shalom Board & Care, Inc., which operates six residential board and care facilities in Los Angeles.

The Commissioner awarded unpaid minimum wage ($2,272,343) and overtime ($1,871,990), plus penalties for not providing required breaks ($128,196), and liquidated damages ($2,689,907) (double the unpaid minimum wages plus interest). She also included $174,600 in civil penalties for the same violations plus not providing accurate wage statements as required by Labor Code 226(a). See California’s Itemized Paystub Requirements, Ignoring the Needed Details Poses Trap for Unwary Employers, (March, 2016).

The 149 caregivers who share these awards worked 24-hour shifts six days/week caring for elderly persons with various ailments, including Alzheimer’s disease and some on hospice care. For their work, the company paid them $1,500 to $1,800/month, amounting to $2.40 to $2.88/hour for the number of hours worked.

The Commissioner stated: “Adult care facilities require caregivers to work around the clock, making workers in this industry vulnerable to wage theft and exploitation.” She encouraged “other residential caregivers to speak up and report wage theft if they are not paid for the work they do.”

For those running such facilities, it is a very good idea to promptly review your pay practices for legal compliance with an experienced management-side employment attorney. Minimum requirements include payment of minimum wage, currently $10.50 to $11.00 under state law depending on number of employees, but also subject to local ordinances requiring higher amounts. See California Minimum Wage Rates for 2018, (December, 2017). You are also required to pay overtime at 1-1/2 or two times the person’s hourly rate for hours over eight in a day or 40 in a week. Your employees are also entitled to receive meal and rest breaks, with the number determined by the hours of work.

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

Helena Kobrin
February 2, 2018

According to California’s Division of Labor Standards Enforcement, employees are entitled to a “net” ten-minute paid rest break for every four hours worked, or major fraction thereof (i.e., anything more than two hours of work). “Net” here means the rest period begins as soon as the employee arrives at an appropriate rest area away from the work station.

In Augustus v. ABM Security Services, Inc. the California Supreme Court concluded employees shall not remain “on-duty” or “on-call” during their ten-minute paid rest breaks for any urgent, earlier return to the job; such breaks must be uninterrupted; and employers must relinquish any control over how employees spend their break time. See, Workers Don’t Lose the Snooze (June, 2017).

The Court further implied, but did not specifically state, that employers cannot require employees to stay on the work premises during a rest break. The Labor Commissioner’s office recently updated its frequently asked questions to directly address this issue:

Q. Can my employer require that I stay on the work premises during my rest period?

A. No, your employer cannot impose any restraints not inherent in the rest period requirement itself. In Augustus v. ABM Security Services, Inc., [citation omitted] the California Supreme Court held that the rest period requirement "obligates employers to permit-and authorizes employees to take-off-duty rest periods. That is, during rest periods employers must relieve employees of all duties and relinquish control over how employees spend their time." (citation omitted) As a practical matter, however, if an employee is provided a ten minute rest period, the employee can only travel five minutes from a work post before heading back to return in time.

The employer may discipline an employee who does not return on time from an authorized break. Employers should have a written rest period policy confirming these points and should apply it uniformly.

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

Cindy Bamforth
February 1, 2018

Effective January 1, 2018, California’s “Adult Use of Marijuana Act” (AUMA) (California Health and Safety Code [HSC] sections 11357-11362.9) permits adults 21 years of age or older to possess and use marijuana for recreational purposes.

Fortunately, AUMA does not alter the rights of California employers to maintain a drug- and alcohol-free workplace, nor does it require an employer to permit or accommodate the use of marijuana in the workplace. [HSC section 11362.45(f)]

Additionally, both medicinal and recreational marijuana remain a Schedule 1 controlled substance under federal law. Thus, employers may refuse to hire applicants and may terminate existing employees who test positive for marijuana.

Employers should have a drug-free workplace policy that specifically bans the use, purchase/sale, control, distribution, possession of, impairment by, or being under or arriving to work under the influence of recreational and medicinal marijuana, clearly states the circumstances in which the company will require drug testing (including testing for marijuana), and includes disciplinary actions that will be taken for violations of the policy.

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

See also:

• Drugs and Alcohol in the Workplace, (March, 2011)
• High Times in California, (April 7, 2017)

Tim Bowles
Cindy Bamforth
January 19, 2018

Under A.B. 1701 (the Act), effective January 1, 2018, a “direct contractor” engaged in “the erection, construction, alteration, or repair of a building, structure, or other private work” becomes liable for all wages and benefits that any subcontractor at any level on that job fails to pay its workers. “Direct contractor” is defined in Civil Code 8018 as “a contractor who has a direct contractual relationship with an owner.”

The Department of Labor or various third parties, including labor unions and federally established joint labor-management cooperation committees, may enforce the Act against direct contractors via administrative or civil actions. However, subcontractor employees may not bring an action themselves.

The Act limits a direct contractor’s liability to “any unpaid wage, fringe or other benefit payment or contribution, including interest owed.” Such contractor would not be obligated to pay any penalties or liquidated damages.

To provide a measure of prior warning and prevention, the Act enables direct contractors to require subcontractors to provide payroll records, including pay stub information under Labor Code 226(a) and the status of fringe or other benefit payments. See also California’s Itemized Pay Stub Requirements, (March 2016).

A direct contractor may withhold as “disputed” any and all payments to a subcontractor until the latter provides the requested records.

A direct contractor is also free to “establish by contract or enforce any otherwise lawful remedies against a subcontractor it hires for liability created by the nonpayment of wages, fringe or other benefit payments.”

Direct contractors should consider better protecting themselves against the consequences of this new law by actions such as:

1. Implement contracts with subcontractors confirming their ultimate responsibility for full wage and benefits payments to their workers;
2. Ensure such contracts require subcontractors, as a condition of payments to them for services rendered, to promptly provide the direct contractor full payroll and benefit information for each pay period;
3. Include indemnification, bonding and/or set-aside provisions in such contracts to ensure quick repayment for any amounts the direct contractor must make to subcontractor employees under the Act; and
4. Consult with a knowledgeable attorney to confirm the Act-related contract provisions needed to protect against subcontractor misconduct to the greatest extent possible.

Helena Kobrin
January 11, 2018

California minimum wage will increase to $11.00 per hour on January 1, 2018 for employers with 26 or more employees and $10.50 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).

Concurrently, many California cities (and two counties) have implemented their own minimum wage ordinances. See the UC Berkeley Center for Labor Research and Education listing for regular updates. Employers should examine the rules for every jurisdiction in which they operate, not just the one or more where they might have offices. Close attention is required as different municipalities have different definitions of “covered employer” and/or “covered employee.” For example, a delivery company with drivers routinely working in multiple cities or counties each week may well have separate minimum wage compliance issues simultaneously.

These California municipalities require minimum wage levels greater than the state standard as of January 1, 2018:

Note: The City of Belmont has enacted its own minimum wage ordinance effective December 28, 2017, but employers will not need to start paying $12.50 per hour until July 1, 2018.

Some cities have enacted separate minimum wage laws for hotels. For example, Long Beach has a minimum wage of $14.35 (effective July 1, 2017) only for hotel workers. Santa Monica’s minimum wage for hotel workers is $15.66 (effective July 1, 2017). City of Los Angeles’ hotel workers minimum wage is $15.66 (effective July 1, 2017).

Non-profit charitable organizations should check for possibly slower implementation requirements.

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:

• 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 28, 2017

In a December 14, 2017 press release, the Internal Revenue Service (IRS) announced an increase for 2018 in its optional standard mileage reimbursement rates for employee business use of a personal vehicle from 53.5 to 54.5 cents.

The IRS bases the mileage rate on an annual study of fixed and variable automotive operating costs, including insurance, repairs, maintenance, gas and oil.

Under California Labor Code section 2802, employers must reimburse employees for all actual work-related expenses necessarily incurred. Many employers use the IRS mileage reimbursement rate to satisfy their reimbursement obligation.

According to section 29.2.4 of California’s Division of Labor Standards Enforcement’s Enforcement Policies and Interpretations Manual (p.99), using the IRS mileage reimbursement rate will satisfy an employer’s reimbursement obligation unless the employee provides evidence demonstrating otherwise. For example, if the employee can show the IRS reimbursement rate does not cover all of his/her actual and necessary business-related vehicle expenses, the employer must pay the difference.

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

Helena Kobrin
December 22, 2017

The 2018 changes in California employment law are numerous. Compliance with these from January 1 on will of course reduce the prospect of related claims or lawsuits.

Two new provisions particularly require immediate review of employment applications and hiring practices for “Day One” compliance. See:

• California Adopts Ban the Box Law (October, 2017)
• Salary History Is No Longer a Factor for Hiring in California (October, 2017)

Managers should not put this off. No matter the size of business, applications that include salary history or criminal background after December 31, 2017 will be in violation of the law.

Other changes include the New Parent Leave Act for all businesses with more than 20 employees and increases in minimum wage as well as new standards for exemption from overtime for physicians and surgeons and computer software professionals.

We will be publishing more “What’s New in 2018” articles in coming weeks. Business owners and managers may also attend one of our two scheduled Pasadena seminars on how these changes will impact employers: on Friday, January 26 or Friday, February 23, 2018.

Our attorneys are also available to answer questions and assist businesses with any implementation issues. For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin
December 14, 2017

Sexual harassment has been unequivocally unlawful, in theory, for over three decades. With the rising flood in recent months of high-profile terminations and resignations stemming from such inexcusable violations, 2017 hopefully marks the make-break point where the law will at last widely apply in practice.

Women in Film L.A. has been a leading advocate against such exploitation in Hollywood since the 1970s. Spurred by the individual courage of targeted women finally speaking out, the organization held a November 28 Sexual & Gender Abuse in the Workplace panel to raise awareness and offer long-term solutions to this seemingly endemic scourge.

With Women in Film president and Oscar-winning producer Cathy Schulman moderating, panelists included actress Heather Graham, actress/writer Rosette Laursen, casting director Tracy “Twinkie” Byrd, author and attorney Kathleen Tarr, and our own Cindy Bamforth, Bowles Law partner.

Cindy is particularly qualified to speak on the issue, having been our office’s lead in the training of thousands in workplace harassment prevention, investigation and resolution for most of the past decade. With the extensive press coverage generated, the forum provided her the channel to educate a broad audience on what is and is not unlawful conduct.

The Hollywood Reporter coverage included Heather Graham’s recollections of working with Harvey Weinstein and her looking “to the recent slew of allegations as a breakthrough moment. ‘I found [the allegations against Weinstein] to be so exciting because I felt like woman were finally speaking their truths, and finally being heard, and finally doing something about it.’”

The resulting Los Angeles Times article stated in part: “Cynthia Bamforth, a Pasadena attorney, described how California employment law covers people who work not only for big companies but also for small ones. Independent contractors, job applicants, volunteers and interns also are covered, Bamforth said. She added that there were different forms of harassment, including hostile work environments and ‘quid pro quo’ situations in which someone dangles job advancement in exchange for sex.”

Cindy and our office will continue to educate and enlighten our clients and the public on employee rights and employer duties to address and prevent workplace harassment.

December 8, 2017

See also:

New Transgender Rights In The Workplace (July, 2017)
The State Of Workplace Harassment And Retaliation Claims (July, 2017)
Expanding Policy and Notice Requirements to Protect Employees (June, 2017)

Law Offices of Timothy Bowles
December 8, 2017

Effective January 1, 2018, California’s “New Parent Leave Act” (the Act) requires all private employers with 20 or more on payroll to provide eligible workers with up to 12 weeks of unpaid job-protected parental leave to bond with a new child within one year of birth, adoption, or foster care placement (parental leave).

An eligible employee must have worked for the employer for more than 12 months and at least 1,250 hours during the previous 12-month period. The employee must also work at a worksite comprising at least 20 employees within 75 miles.

The Act only covers eligible employees who are not otherwise subject to both the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA).

The parental leave shall be separate from and in addition to Pregnancy Disability Leave.

The employee may choose whether to use accrued vacation pay, paid sick time, or other accrued paid time off during the parental leave. Additionally, the employer must maintain group health plan benefits during the leave at the same level and under the same conditions as if the employee was still working.

The employer may not deny the parental leave or ask the employee to reschedule the leave’s start date. The employer must provide a guarantee of reinstatement to the same or comparable position before the leave begins. If on or before commencement of the leave the employer fails to provide such a guarantee, the employer shall be deemed to have refused to allow the leave.

Both parents working for the same employer are entitled to a cumulative 12 weeks total. The employer may, but is not required to, provide simultaneous leave to both parents.

Covered employers should update their employee handbooks and prepare internal notices and forms for employees to use when requesting leave under the Act. The Fair Employment and Housing Council is expected to issue new regulations in the coming year, which will probably require amending such handbook provisions and notices.

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

Cindy Bamforth
December 8, 2017