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On June 1, 2016, the City of Los Angeles (City) joined the list of California cities that have enacted their own paid sick leave ordinances, including for exampleEmeryville,Oakland,San FranciscoandSanta Monica. This law will impose double the minimum paid sick leave requirements upon covered employers that California law currently mandates. SeeCalifornia Paid Sick Leave Law, More About.
On June 1, 2016, the City of Los Angeles (City) joined the list of California cities that have enacted their own paid sick leave ordinances, including for example Emeryville, Oakland, San Francisco and Santa Monica. This law will impose double the minimum paid sick leave requirements upon covered employers that California law currently mandates. See California Paid Sick Leave Law, More About.
Effective July 1, 2016, Ordinance No. 184320 amends the Los Angeles Municipal Code. Sections 187.02 and 187.04 of that ordinance require that employers must provide paid sick time to any “Employee” working in the City for 30 days or more in a year. Section 187.01 defines “Employee” as any individual who in a particular week performs at least two hours of work within the geographic boundaries of the City for an Employer. It is possible that the ordinance does not apply to small businesses with 25 or fewer Employees until July 1, 2017; however, the City has not yet provided guidance on this point.
Section 187.04G provides that an employer must provide sick time benefits upon the oral or written request of a covered “Employee” for absences necessary to tend to the illness of that employee, of various specified family members, and of “any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.”
The law requires that employers must provide either:
While under the ordinance, one hour for every 30 hours worked would add up to more than 48 hours in the course of a year for a full time worker, an employee will only be “entitled to take up to 48 hours of sick leave in each year of employment, calendar year, or 12-month period.”
Under the California law, an employer may cap accrued, unused paid sick time at 48 hours. However, for covered employers, this Los Angeles city ordinance extends that cap to 72 hours. Whether the carry-over applies only to the accrual method of calculating sick leave or also to the up-front method (first bullet point above) is another point of ambiguity in the ordinance. Attorneys with clients potentially affected are seeking clarification from the City to resolve that issue.
As with the state sick leave law, employees hired after the effective date of the ordinance will be allowed to use accrued paid sick leave beginning on the 90th day of employment.
Potentially affected employers should ensure their sick leave policies and practices comply with these new standards.
This is an outline of the basic aspects of this new law. If you would like further, more detailed information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin, June 17, 2016
California’s Home Care Organization Consumer Protection Act (the Act) required all home care agencies to apply by March 1, 2016 in order to obtain by July 1, 2016 an operating license as well as registration of all of their home care aides. See,You Snooze, You Lose, andCaregiver Agencies Must File License and Caregiver Registration Applications by March 1, 2016 or Cease Operation. Nevertheless, a recent online announcement from the state confirms that affected organizations can still apply by
California’s Home Care Organization Consumer Protection Act (the Act) required all home care agencies to apply by March 1, 2016 in order to obtain by July 1, 2016 an operating license as well as registration of all of their home care aides. See, You Snooze, You Lose, and Caregiver Agencies Must File License and Caregiver Registration Applications by March 1, 2016 or Cease Operation. Nevertheless, a recent online announcement from the state confirms that affected organizations can still apply by June 30 and thus remain in operation on an interim basis from July 1 onward if they have not received a previous adverse action.
To implement the Act, the California Department of Social Services (CDSS) created the Home Care Services Bureau (HCSB) under the Community Care Licensing Division (CCLD). The CDSS is conducting webinars two times a month to provide updates on the progress of applications and to answer applicants’ questions. See Stakeholder Meetings. We obtained valuable information from the most recent, June 10 online session. The next one will be on June 24, 2016.
In the June 10 webinar, the CCLD reported receipt to date of some 1,200 applications for HCO licenses. The agency is processing these in the order received and as quickly as possible by a two-step review and approval process. However, the HCSB officials plainly stated that the volume is too great to reasonably expect decisions on every pending application before July 1.
The June 10 webinar revealed that the HCSB has also been overwhelmed with approximately 64,000 applications for the Home Care Aide (HCA) registration. The agency is attempting to deal with such challenges as duplicate ID numbers and getting prospects through the required orientation and background checks. Here again, the HCSB confidently projects that it will not be able to register all HCA applicants by July 1 as directed by the Act.
Accordingly, agency representative Evon Lenerd announced in the June 10 webinar that the HCSB will soon begin to issue conditional licenses to home care agencies which have submitted applications no later than June 30, 2016 and are cooperating with the HCSB to comply with all requirements. Ms. Lenerd stated that the HCSB will only issue such conditional licenses to applicants who have no previous denial or administrative action taken against them by the CCLD.
According to Ms. Lenerd, the HCSB will likewise permit HCAs whose applications or background checks are in process to continue working after July 1, marking each one’s status on the online registry as “Employable” as of June 30. The HCSB will change that status to “Registered” on full review and approval of an HCA applicant.
Ms. Lenerd explained the HCSB is adopting this interim plan to avoid disruption of any affected HCO’s business operations and ability to care for its clients while the agency is completing application review.
Thus, Ms. Lenerd has delivered good news and bad news.
The good news: (1) any person or organization providing HCO services; (2) who/which has not as yet applied for HCO licensing; and/or (3) has not submitted applications for registration of employed HCAs; and (4) wants to continue in business legally after Friday, July 1, 2016, may still submit the appropriate applications for licensing and registration to the HCSB by Thursday, June 30 and continue operations on an interim basis pending agency approvals.
The bad news: any such person or organization providing HCO services who or which fails to submit the required applications by Thursday, June 30 will be operating illegally from July 1, 2016 and thus required by the Act to shut down.
While time is obviously short for those affected, there is nevertheless still time. For further information or assistance in getting applications in on time, please contact Timothy Bowles, Cindy Bamforth, or Helena Kobrin.
Helena Kobrin
June 15, 2016
Conducting job interviews is no easy task. In addition to weeding out clearly unsuitable candidates such as those described below, the interviewer should steer clear of discriminatory questions and topics throughout the process.
Conducting job interviews is no easy task. In addition to weeding out clearly unsuitable candidates such as those described below, the interviewer should steer clear of discriminatory questions and topics throughout the process.
According to a CareerBuilder nationwide survey (released January 14, 2016), of more than 2,500 hiring and human resource managers, the most common inappropriate candidate behavior included acting dishonestly, behaving arrogantly, dressing inappropriately, cursing, and answering a cell phone or text mid-interview. Some of the oddest conduct reported in the survey included removing a family photo from the interviewer’s desk and stuffing it into the candidate’s purse; yelling that the interview was taking too long; singing responses to the interviewer’s questions; and rubbing on foot lotion mid-interview.
Although it may be tempting to inquire in detail about the candidate’s mental health when exhibiting such bizarre behavior, the California Fair Employment and Housing Act (FEHA) prohibits any non-job-related inquiries, either verbally or through a job application form, that express a limitation, specification or discrimination as to a protected class. A protected class means a characteristic protected from employment discrimination laws including but not limited to race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, marital status, sex/gender, age, sexual orientation, genetic information, and military and veteran status.
California’s Fair Employment and Housing Commission (FEHC) regulations indicate that questions which, directly or indirectly, identify an individual on one of the above protected bases are also unlawful.
The California Department of Fair Employment and Housing DFEH-161 Fact Sheet: Employment Inquiries provides further examples of inquiries/discussion topics the interviewer must not address, such as:
Employers should periodically refresh or re-train their job interviewers on such acceptable and unacceptable employment inquiries. By using tools such as the DFEH Fact Sheet, the next time someone brings her pet bird to the interview or tries to conduct a psychic palm reading on the interviewer, it should be easier to respond without inadvertently discriminating.
For more information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth, June 9, 2016
What constitutes personnel filing can vary wildly from company to company. An alarmingly high volume of California employers are content to maintain a single file folder for each worker, the repository for any and all documents management deems relevant to that individual.
What constitutes personnel filing can vary wildly from company to company. An alarmingly high volume of California employers are content to maintain a single file folder for each worker, the repository for any and all documents management deems relevant to that individual.
This is perhaps no surprise considering the California legislature does not fully define what constitutes a “personnel file” and many employers may be unaware of their obligation to maintain separate personnel files for certain sensitive or confidential documents.
California Labor Code section 1198.5 addresses employees’ rights to access their “personnel records” without defining the term. Although the Labor Commissioner’s Office uses the terms “personnel file” and “personnel records” indiscriminately, it at least mentions the categories of records that are generally considered to be “personnel records” i.e., “those that are used or have been used to determine an employee’s qualifications for promotion, additional compensation, or disciplinary action, including termination.”
Examples of personnel records that may be kept in each employee’s main personnel file include:
However, employers should store the employee’s more private confidential information in separate files, including:
Retain all personnel records, confidential and otherwise, for at least four years after the employment relationship ceases. Documents requiring even longer retention periods include pension and welfare plan information (six years), first-aid records of certain job injuries causing loss of work time (five years), and safety and toxic or chemical exposure records including safety data sheets (30 years).
Employers should periodically review and update company policy and procedures that establish: (i) who will maintain the company’s personnel records; (ii) how and where to store all such records; and (iii) how to protect the records from unauthorized access, removal or destruction.
For more information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth, June 3, 2016
Some companies develop a habit of paying employees partially or fully in cash. This is a dangerous practice that can violate various laws, particularly if the company is not properly documenting the payments.
Some companies develop a habit of paying employees partially or fully in cash. This is a dangerous practice that can violate various laws, particularly if the company is not properly documenting the payments.
While it is not outright illegal, there is no compelling reason for employers to compensate their workers in cash. Doing so can give the immediate impression of an attempted irregularity, such as the employer or the employee not wanting to report the income or pay any required taxes. Paying taxes is of course a cost of doing business and it needs to be part of any company’s budget.
There are concrete reasons not to pay cash other than just conveying the wrong impression to an outside observer. State and federal laws require an employer to: (a) keep records of all wages paid to employees; (b) make tax filings showing what the employees were paid; and (c) provide the employee with a pay stub. Federal law specifies that employers:
In California, employers must:
Paying by check or electronic means facilitates the maintenance of this required documentation. Ideally, all businesses, no matter how small, should have a computerized program where they record all information concerning employee wages and/or a payroll service that does so for them so that if an employee wants information about past pay or sues the company, or a government agency wants to do an audit, you have full and defensible records.
If you have been paying in cash, it’s a good idea to switch over to a well- documented system of paying employees that enables you to show clearly company compliance with applicable laws.
For more information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
June 3, 2016
The U.S. Department of Labor (DOL) has issued this month itsFinal Ruleraising the minimum salary amounts for certain workers to qualify forovertime exemptionunder theFair Labor Standards Act (FLSA).
The U.S. Department of Labor (DOL) has issued this month its Final Rule raising the minimum salary amounts for certain workers to qualify for overtime exemption under the Fair Labor Standards Act (FLSA).
While the FLSA guarantees most employees an overtime premium equal to at least one and one-half times the employee’s regular rate of pay for hours worked over 40 in a workweek, it also provides exemptions for administrative, executive, professional, outside sales, and computer employees, as well as “highly compensated employees.”
To qualify for these national FLSA “white collar” exemptions, an employee’s principal job duties must meet certain requirements and the employer must pay him or her a salary equal to or exceeding certain minimums stated in the regulations. The new regulations do not change the required principal job duties. Rather, they increase the lowest salary that an employer must pay an otherwise-qualified white collar employee in order to classify the employee as exempt. The new number that the DOL adopted is equal to the “40th percentile of weekly earnings of full-time salaried workers in the lowest-wage Census Region,” i.e., the South.
Under the current FLSA regulations, adopted in 2004, in order for an employer to classify an employee as an exempt professional, executive, administrative, or computer worker, it must pay the employee at least $455/week, $1,972/month, or $23,660/year. See DOL Fact Sheet #17A. When the new regulations take effect on December 1, 2016, an employer will need to pay a qualified employee a minimum of $913 per week, $3,957 per month or $47,476 annually in order to classify the employee as exempt from overtime. The Final Rule also provides for these numbers to be updated every three years.
Some states have their own laws on this subject. For example, California requires that exempt white collar workers be paid a salary at least double the minimum wage for a 40-hour week. Thus, at the current minimum wage of $10.00/hour, California requires a minimum salary of $41,600 annually ($10.00/hour x 40 x 52), $3,467 monthly ($41,600 ÷ 12), or $800 weekly to qualify a worker who is otherwise eligible by job duties as exempt.
The new regulations also raise the minimum annual salary for the “highly compensated employees” exemption from $100,000 to $134,004 annually. This amount is the 90th percentile for full-time, salaried workers nationally. See Final Rule.
All employers with salaried, exempt executives and administrators need to work out by the December 1, 2016 effective date how the Final Rule will affect their workforces. Some employees otherwise validly classified as exempt may already earn more than the required amount. For those that do not, the issue will be whether it will cost more to increase salary to $47,476 or more per year (or at least $3,957/month, $913/week) than to shift such persons to hourly (and overtime) wages. The challenge will of course be far greater for companies currently employing a great many exempt employees at salaries under the new minimums.
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, May 26, 2016
As we reported in last December’sPiece Work Compensation is a Wreck Waiting to Happen, The Perils of New Labor Code Section 226.2(Piece Work),California has implemented detailed requirements for production-based compensation systems beginning January, 2016. This new law affects whole industries that have grown around such piece work (“by-the-piece”) arrangements, benefiting workers and management. For instance, at levels that on average far exceed the applicable minimum hourly wage, it has been
As we reported in last December’s Piece Work Compensation is a Wreck Waiting to Happen, The Perils of New Labor Code Section 226.2 (Piece Work), California has implemented detailed requirements for production-based compensation systems beginning January, 2016. This new law affects whole industries that have grown around such piece work (“by-the-piece”) arrangements, benefiting workers and management. For instance, at levels that on average far exceed the applicable minimum hourly wage, it has been the norm for trucking companies to pay drivers for miles driven or deliveries completed, for auto shops to pay mechanics for repairs accomplished, and for service companies to pay technicians for jobs finished and paid for.
As Piece Work and our April, 2016 article California’s Itemized Pay Stub Requirements explain, Labor Code 226.2 now requires businesses operating with such pay systems, among other things: • to compensate affected workers at least the applicable minimum wage for each specific hour worked (no averaging permitted); • to accurately calculate and pay affected workers separately for each daily rest and recovery period; and • to include in each affected worker’s stub for each pay period detailed information showing the calculations and sub-totals for each component of the compensation system. These requirements also apply to companies that only use production as one of several factors in their compensation scheme.
However, section 226.2 provides an important protection to companies that have operated with such piece work systems for any length of time prior to 2016, the so-called “safe harbor” provisions. As explained in Piece Work, two 2013 California Court of Appeal decisions (Gonzales v. Downtown L.A. Motors and Bluford v. Safeway) directed that an employer is in violation of California’s minimum wage law – which requires such compensation for “every hour worked” – unless that business paid its piece workers separately for rest periods and for payable “non-production” time (for example, staff meetings, training time). Section 226.2(b) permits such businesses to avoid any potential past liability for such underpayments of minimum wage and other piece work-related obligations by fairly calculating a 3% – 4% amount from the gross wages of affected workers between July 1, 2012 and December 31, 2015 and by paying all such amounts, with accurate accounting documentation, by December 15, 2016.
However, in order for an affected employer to take advantage of this “safe harbor” protection, it must by July 1, 2016 give written notice to the Department of Industrial Relations (DIR) that it is engaged in such back pay calculations and payments. The DIR has posted a specific notice form for businesses to utilize by that deadline. The DIR will then post the name of the company giving notice on its public website until July 1, 2017.
An affected company that has missed this July 1, 2016 deadline will thus be subject to claims from any employee(s) who may have been underpaid minimum wages under the Gonzales and Bluford rules extending back as far as four years prior to the date such claim is filed with the DIR or with the courts. Particularly in alleged class action claims, the potential liability posed upon an employer who has missed that July 1, 2016 notice deadline may well be far in excess of the 3% – 4% payments deemed sufficient under the safe harbor rules to resolve all such issues.
Thus, any California employer that has utilized a piece pay plan at any time since 2012 should place careful attention on Labor Code 226.2 and how it affects operations. The matter is urgent as the July 1, 2016 safe harbor notice requirement will soon be upon us and then gone. Our lawyers Tim Bowles, Cindy Bamforth, or Helena Kobrin are available for more information.
Tim Bowles, May 20, 2016
On May 4, 2016 California Governor Brown signed aseries of legislative amendmentseffective June 9, 2016 which extend smoke-free workplace protections, re-define tobacco products to include e-cigarettes and vaping devices, and raise the legal minimum smoking age from 18 to 21.
On May 4, 2016 California Governor Brown signed a series of legislative amendments effective June 9, 2016 which extend smoke-free workplace protections, re-define tobacco products to include e-cigarettes and vaping devices, and raise the legal minimum smoking age from 18 to 21.
Although current law prohibits the smoking of tobacco products at a place of employment or in an enclosed space, the new legislation broadens the definition of employer to include an owner-operated business (i.e., one without employees), eradicates the formerly lawful use of designated smoking breakrooms in the workplace, and defines “enclosed space” to include covered parking lots (in addition to lobbies, lounges, waiting areas, elevators, stairwells and restrooms).
Under newly amended Business and Professions Code sections 22950.5(c) and (d) “smoking” now includes the use of an electronic smoking device that creates an aerosol or vapor, in any manner or in any form, and “tobacco product” includes an electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah.
Employers should update their company policy and procedures to expressly prohibit e-cigarettes and vaping in the workplace and take steps to notify all employees of the above restrictions by the June 9 deadline.
For more information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth, May 18, 2016
Employers should take proper steps to generate and protect complete and accurate payroll records. In addition to being legally obligated to compile such records, employers can also use these documents to refute a worker’s claim for unpaid overtime, off-the-clock hours worked, and/or missed meal breaks. UnderfederalandCalifornialaw, employers must maintain and preserve payroll records that include hours worked, wages paid, pay dates, and gross and net pay.
Employers should take proper steps to generate and protect complete and accurate payroll records. In addition to being legally obligated to compile such records, employers can also use these documents to refute a worker’s claim for unpaid overtime, off-the-clock hours worked, and/or missed meal breaks. Under federal and California law, employers must maintain and preserve payroll records that include hours worked, wages paid, pay dates, and gross and net pay.
As more specifically described in the California wage orders record-keeping requirements and other state regulations, each employer must keep accurate employee information including:
The above-listed records must be in English; written in ink or other indelible form; and properly dated, showing day, month, and year. Payroll records should be kept either at the employee’s place of employment or at a central location within California for at least four years to comply with employment-related records retention requirements. Employers should consult with their tax advisors for any additional IRS-mandated retention periods.
Employers should safeguard all such employee records from unauthorized use, disclosure, removal or destruction. Restrict access to such files to trusted human resources and/or accounting personnel only and always keep the records in a secure, locked location. After all, when it comes to wage and hour claims, the best defense is a good set of payroll records.
For more information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth, May 11, 2016