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California’s Court of Appeal and Legislature have in recent years created an unprecedented and potentially crushing interpretation of piece work compensation requirements. See,Piece Work Compensation is a Wreck Waiting to Happen, The Perils of New Labor Code Section 226.2(December, 2015) (Piece Work).Among that statute’s provisions, effective January 1, 2016, California piece work employers (the norm for whole industries, including trucking, agriculture, and vehicle repair) were required to sub
California’s Court of Appeal and Legislature have in recent years created an unprecedented and potentially crushing interpretation of piece work compensation requirements. See, Piece Work Compensation is a Wreck Waiting to Happen, The Perils of New Labor Code Section 226.2 (December, 2015) (Piece Work). Among that statute’s provisions, effective January 1, 2016, California piece work employers (the norm for whole industries, including trucking, agriculture, and vehicle repair) were required to submit a public “safe harbor” notice by July 1, 2016 that they were opting to pay all affected workers additional back pay to mid-2012 under one of two calculation methods. See, Safe Harbor in Sight, Piece Work Compensation in California (May, 2016) (Safe Harbor).
However, through a suit filed days before that July 1 deadline, Nisei Farmers League (League), a major agricultural trade association, has secured a statewide court order extending that filing deadline until at least July 28, 2016. See, June 30, 2016 order in Nisei Farmers League v. California Labor and Workforce Development Agency, Fresno County Superior Court No. 16CECG02107. The state’s Department of Industrial Relations (DIR) has since posted a statement on-line:
“Pursuant to an Order of the Fresno Superior Court, the State has been temporarily restrained from enforcing the July 1, 2016 deadline for employers to submit notice of their election to make payments to current and former employees pursuant to Labor Code Section 226.2(b). The Director of Industrial Relations will continue to accept and post these notices through at least July 28, 2016 or further order of the Court.”
This lawsuit throws far more than this “safe harbor” notice deadline into play. Pointing to key provisions in the statute that may be incapable of any specific definition, the suit seeks to declare Labor Code 226.2 unconstitutional.
Thus, the only thing now certain regarding section 226.2 is uncertainty. The suit also questions whether piece work employers who have already given the required notice to the state will have to fulfill their “safe harbor” back payments by the December 15, 2016 deadline set in the statute (as reported in Piece Work and Safe Harbor).
The judge in the League case will hold a hearing on Monday, July 18, 2016 to determine whether these section 226.2 safe harbor notice and back pay deadlines will be extended to new definite dates or suspended indefinitely until the League’s full case can be tried.
Stay tuned. Our lawyers Tim Bowles, Cindy Bamforth, or Helena Kobrin are available for more information as the above lawsuit develops.
Timothy Bowles, July 8, 2016
Effective July 1, 2016, all employers (wherever located) must pay wages of at least $13.00/hour to every employee who performs work in San Francisco (including temporary and part-time employees). San Francisco (City) was right behind Seattle inleading the charge to a $15.00 minimum wagewhen its voters passed theSan Francisco Minimum Wage Ordinanceon November 4, 2014. SeeSan Francisco Minimum Wage Escalates to $11.05 and BeyondandSan Francisco Minimum Wage Escalates to $12.25 on May 1, 2015. S
Effective July 1, 2016, all employers (wherever located) must pay wages of at least $13.00/hour to every employee who performs work in San Francisco (including temporary and part-time employees). San Francisco (City) was right behind Seattle in leading the charge to a $15.00 minimum wage when its voters passed the San Francisco Minimum Wage Ordinance on November 4, 2014. See San Francisco Minimum Wage Escalates to $11.05 and Beyond and San Francisco Minimum Wage Escalates to $12.25 on May 1, 2015. San Francisco’s minimum will be $3.00 ahead of California’s current $10.00 minimum standard. It will reach $15.00/hour in mid-2018, two years before the statewide minimum hits that level.
The San Francisco ordinance applies to adult and minor employees who work two or more hours per workweek, including non-city resident workers performing work in San Francisco. Compensation used to calculate the City’s minimum includes salary, hourly pay, piece rate, commissions and non-discretionary performance bonuses. See San Francisco Office of Labor Standards Enforcement’s Frequently Asked Questions for more information. An eligible employee cannot waive this minimum except through a valid collective bargaining agreement.
Employers may not retaliate against an employee who asserts his or her right to receive the City’s minimum wage. An employee may file a civil lawsuit against an employer for any violation of this ordinance. The City may investigate possible violations, access payroll records, and enforce minimum wage requirements by ordering reinstatement, payment of back wages, and penalties. See San Francisco Minimum Wage Notice
Affected employers must also post an updated Notice by July 1, 2016, where employees can read it easily.
For further information, contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
June 29, 2016
California employers must comply with all applicable state and supplemental local sick pay laws. In the latest trend sweeping the state, Southern California municipalities includingLos Angeles, Santa Monica and now San Diego have rushed to enact their own sick pay ordinances, leaving employers with a confusing, contradictory and ever expanding set of standards to follow.
California employers must comply with all applicable state and supplemental local sick pay laws. In the latest trend sweeping the state, Southern California municipalities including Los Angeles, Santa Monica and now San Diego have rushed to enact their own sick pay ordinances, leaving employers with a confusing, contradictory and ever expanding set of standards to follow.
Where the terms of one set of applicable laws contradict the other(s), employers must implement whichever provisions are most favorable to their employees. As more and more local ordinances continue to crop up, this headache-inducing task is easier said than done.
On August 18, 2014, the San Diego City Council originally approved its paid sick leave and minimum wage ordinance (Ordinance No. 20390). After the mayor vetoed the ordinance, it lay dormant until San Diego voters resurrected it on June 7, 2016.
Once the City officially certifies the election results, the ordinance will immediately go into effect. The Office of the City Treasurer estimates the certification process will take place either the week of July 11 or July 18.
Under Ordinance Section 39.0104(a), employers must provide paid sick time to any “Employee,” i.e., any person who in one or more calendar weeks of the year performs at least two hours of work within San Diego’s geographic boundaries for an Employer.
Section 39.0105(b) requires Employers to provide an Employee with one hour of earned sick leave for every 30 hours worked within the city’s boundaries.
Section 39.0105(g) allows employers to limit an employee’s use of earned sick leave to 40 hours in a given year, but employers must allow employees to continue to accrue and carryover earned sick leave to the following year without any cap or limit.
The ordinance does not specify whether employers may provide paid sick leave benefit using the alternative advance/front-loading method available under the statewide law and, if so, whether the employer must carryover any unused hours into the following year. See, Mandatory Paid Sick Leave for California Employers.
According to Section 39.0106(a)(6), in addition to using earned sick leave for the reasons specified under state paid sick leave law employees may also use earned sick leave when, by order of a public official due to a public health emergency, there is a closure of the employee’s place of business or the employee’s child’s school or child care provider.
This is an outline of the basic aspects of the currently-available ordinance. For further information, contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
June 24, 2016
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