California Assembly Bill (AB) 1978, enacted September 2016 as the Property Services Protection law (the Act), will require janitorial service providers to register annually with the Division of Labor Standards Enforcement (DLSE) and to provide sexual harassment training to their employees. The Act covers all enterprises providing janitorial services under a contract, subcontract or franchise agreements and who have at least one “covered worker.” The new law refers to any such business as an “employer” even if the covered worker/janitor is an independent contractor or franchisee.

The state legislature enacted the Act after Frontline’s “Rape on the Night Shift." and University of California, Berkeley Center for Labor Research and Education’s “Race to the Bottom” reported widespread sexual abuse of primarily female workers in the janitorial sector.

The Act requires all janitorial employers to:

• Begin keeping certain covered worker records as of January 1, 2017 and maintain them for three years. These include names and addresses, hours worked daily, beginning and ending times, wages and pay rate in every payroll period, ages of minor employees, and other employment conditions.

• Effective July 1, 2018, register annually with the DLSE and pay a $500 fee or be prohibited from conducting any janitorial business. Beginning July 1, 2018, janitorial employers must also provide all new and current covered workers a copy of Department of Fair Employment and Housing’s pamphlet DFEH-185.

• Effective January 1, 2019, provide required sexual violence and harassment prevention training. The DLSE has until January 1, 2018 to propose the requirements for such training.

The Act also includes civil penalties of $100/day up to $10,000 for any employer that does not register. Beginning July 1, 2018, any entity or individual that contracts with an unregistered business will be subject to a civil penalty between $2,000 and $10,000 for a first offense and from $10,000 to $25,000 for subsequent offenses.

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

Helena Kobrin
December 20, 2016

The Internal Revenue Service (IRS) has announced a decrease of its optional standard mileage reimbursement rate for an employee’s business miles from 54 cents to 53.5 cents, effective January 1, 2017.

The government bases its standard mileage rate on an annual study of fixed and variable automotive operating costs, including insurance, repairs, maintenance and fuel.

Under California Labor Code section 2802, employers must reimburse employees for all actual work-related expenses necessarily incurred.

According to California’s Division of Labor Standards Enforcement’s Enforcement Policies and Interpretations Manual (p.102), using the IRS mileage reimbursement rate will satisfy an employer’s reimbursement obligation absent 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.

Cindy Bamforth
December 16, 2016

California minimum wage will increase to $10.50 per hour on January 1, 2017 for employers with 26 or more employees (smaller employers will continue to pay $10.00 per hour until January 1, 2018) then increase each year until reaching $15 per hour in 2022. 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. Employers therefore should check regularly for any new or revised minimum wage.

Below is a comprehensive list of currently enacted minimum wage rates in effect on January 1, 2017 or increasing later in the year for all applicable locations that have enacted their own minimum wage ordinances.

See also:

• Los Angeles Moves to Enforce City Minimum Wage Ordinance. Required Forms Now Available (September, 2016).
• Rising Minimum Wages, The California Trend Continues San Diego Approves its First Gradual Increase, Effective July 11, 2016 (August, 2016).
• San Francisco Minimum Wage Rises to $13.00 on July 1, 2016. Will Continue Climb to $15.00 (June, 2016).
• Pasadena Gradually Increases Minimum Wage. The City of Pasadena Approves Gradual Increases in Minimum Wage Stating July 1, 2016 (May, 2016).
• City of Santa Monica Increasing Minimum Wage Annually from 2016 to 2020 (May, 2016).
• Los Angeles County Approves Gradual Increases in Minimum Wage Starting 2016 (July, 2015).
• Oakland Minimum Wage Escalates to $12.25 Rate Effective March 2, 2015 (April, 2015).

Cindy Bamforth
December 12, 2016

A new California law, Health and Safety Code section 118600, requires that business establishments, places of public accommodation, and state or local government agencies must designate their single-user toilet facilities as all-gender facilities. The law provides that such facilities are those that are designated for use by a single occupant or for family or assisted use.

This statute goes into effect on March 1, 2017. There are specific requirements for the identifying signage for unisex toilets in Chapter 11B, section 213.2.1-.3 of the California Building Code, which are currently being revised.

Nothing in the statute requires a business that does not already have them to create single occupant toilet facilities.

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

Helena Kobrin
December 7, 2016

California Labor Code sections 515.5 and 515.6 exempt certain computer software professionals and licensed physicians and surgeons from overtime compensation as long as they receive at least certain specified minimum hourly rates of pay.

As we recently covered in Overtime – Exempt Physicians and Surgeons Minimum Hourly Rate Increases Are Near and Computer Software Professional Overtime Exemption Requirement, these rates were to increase January 2017 from $76.24 to $77.23 (physicians) and from $41.85 to $42.39 (computer software professionals).

However, by an October 25, 2016 announcement California’s Department of Industrial Relations (DIR) has revised those post-2016 rates: (a) a minimum equivalent of $77.15 per hour for eligible physicians and surgeons (an eight cent reduction); and (b) a minimum hourly rate of $42.35 for otherwise-qualified computer software employees (a four cent reduction). Alternatively, an otherwise-qualified software employee paid by salary is eligible on minimum annual compensation of $88,231.36, payable at least once monthly at no less than $7,352.62.

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

Cindy Bamforth

updated, revised December 3, 2016

California’s Home Care Organization Consumer Protection Act (the Act) required all home health care organizations (HCOs) to obtain a license from the Home Care Services Bureau (HCSB) of the Department of Social Services (DSS) by July 1, 2016 and to register their home care aides with the HCSB. See, You Snooze, You Lose ( April, 2016) and Home Health Care Organizations Last Chance to Continue Operations After June 30, 2016 (June, 2016).

For those HCOs that are now licensed, the HCSB will soon be implementing the next phase of the Act by commencing unannounced biennial (i.e., every two years) inspections of all licensees. See Health and Safety Code 1796.52(b) and Written Directive 90-050(a). The HCSB analyst conducting the inspection will focus on an HCO’s compliance with applicable laws with final report to note any deficiencies found. The HCO will then need to implement a plan of correction to remedy each deficiency.

The HCSB has stated that it will start these inspections in late December, 2016 or January, 2017, minimally to include review of premises, books, and records. Refusal to permit an inspection is grounds for the HCSB to revoke an HCO’s license.

The HCSB has created an HCO inspection checklist. An HCO can use this document to confirm it has all relevant records hard copy and to determine and fix any potential deficiencies before an inspection occurs. Analysts will not accept electronic copies.

The analyst is to come to the inspection with all HCSB information on any outstanding fees; consumer complaints; the background checks of all associated home care aides, owners and administrative staff with access to clients; and the status of any waivers or exceptions to the Act’s provisions.

How long an inspection will take depends on the size of the HCO, how well it has organized its records, and the number of deficiencies found. Obviously, the better an HCO can prepare for the visit, the smoother and faster the inspection is likely to go.

In its October webinar, the HCSB encouraged HCOs to provide feedback during this initial inspection process.

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

Helena Kobrin
December 1, 2016

Employee uniforms often contribute to creating a vital image for a business. Most people recognize an employee working in a particular chain super store by their red shirt and khaki pants, or a manager at a well-known food market by a button-up Hawaiian shirt. A uniform can become a hallmark of a company just as much as a logo or slogan.

Under California Labor Code section 452, employers may require workers to wear uniforms of a specified color, quality, texture, style and form so long as the employer provides and maintains them. See, Mandatory Employee Uniforms (July, 2011).

Even if the uniform is comprised of clothing or accessories that can be worn off the job, such as tropical shirts or a plain blue polo shirt and khaki pants, the employer may still be responsible for providing such a uniform unless the clothing is commonly worn in the certain occupation and can be worn from one job to another within a specific industry (for example, a nurse’s white uniform or a black-and-white uniform for a food server).

Employers may instruct employees to maintain their issued uniforms as long as only minimal time is required for the care, such as uniforms made of material which requires only machine washing and tumble or drip drying. For uniforms requiring ironing, dry cleaning, special laundering or repairs, employers must provide maintenance or a maintenance allowance for the care.

Although California law allows employers to require deposits as security for return of uniforms, the rules are strict and generally inadvisable. See, Industrial Welfare Commission Orders, Section 9. No pay deductions are ever allowed for normal wear and tear. See, Wage Deductions (August, 2016).

Employers that require employees to wear a uniform need a good workplace policy which covers all aspects of issuing, maintaining, and returning uniforms upon termination of employment.

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

Cindy Bamforth
November 23, 2016

Earlier this year, the Department of Labor issued its Federal Overtime Exemption Rule, “the Final Rule.” Starting December 1, 2016, this was to raise the minimum salary amounts for certain workers to qualify for overtime exemption under the Fair Labor Standards Act (FLSA). See New Stricter Federal Requirements on Exemptions from Overtime, Employers Must Comply No Later than December 1, 2016 (May, 2016).

Two lawsuits filed in the Eastern District of Texas -- one by 21 states and the other by a business-interest group – sought to slow or stop implementation of the Final Rule. See Federal Increase Due December 1, 2016 To Qualified Exempt-from-Overtime Employees (October 2016) and Not So Fast – Congressmember Seeks to Slow New Overtime Exemption Rule (August, 2016).

On November 22, 2016, the federal judge presiding over these cases issued a nationwide injunction against enforcement of the Final Rule, giving businesses across the country a reprieve from the impending, December 1 implementation of the new salary threshold of $47,476 annually ($913/weekly or $3,957/monthly). See ,State of Nevada v. United States Department of Labor Case 4:16-Cv007 31-ALM. The court found that Congress controls the criteria for executive, administrative, or professional overtime exemption and that the FLSA “does not grant the Department of Labor authority to utilize a salary-level test or an automatic updating mechanism under the Final Rule.”

It is not currently known whether the Department of Labor will appeal this injunction to the federal Fifth Circuit Court of Appeals. However, as President-elect Trump has expressed opposition to the Final Rule and an intention to revoke it, any such appeal may be futile.

A business that has not yet implemented any actions under the Final Rule need not do so, at least for now. A company that has implemented new pay structures under the rule may consider undoing them but should likely do so only after consultation with qualified legal counsel.

For further information on the issues raised by these new regulations, please contact our attorneys, Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin
November 23, 2016

As part of their ongoing efforts to establish family-friendly workplaces, the City and County of San Francisco are now the first municipalities in the U.S. to require employers to pay for parental leave.

The San Francisco Paid Parental Leave Ordinance and its amendment (together, PPLO), starting January 1, 2017 for larger companies, direct employers to provide supplemental pay to San Francisco employees who receive state-funded California Paid Family Leave (PFL) benefits for newborn baby bonding.

Eligible workers may receive up to six weeks of PFL benefits – part of California State Disability Insurance (SDI) – while taking approved time off to bond with a newborn baby, newly adopted child, new foster child, or to care for a seriously ill family member.

Under San Francisco’s PPLO, covered employers will have to provide “Supplemental Compensation” to cover the difference between California’s PFL benefits and the employee’s weekly gross pay for such “baby-bonding” leave, up to a maximum of $924.00 per week.

To be eligible to receive Supplemental Compensation, an employee must:

• Begin employment at least 180 days prior to the start of the PPLO leave period;
• Work in the geographic boundaries of the City and County of San Francisco for his or her employer a minimum of eight hours per week and at least 40% of his or her total weekly hours; and
• Be eligible to receive PFL benefits to bond with a new child.

Covered employers must begin to comply with the PPLO on varying dates depending on payroll size:

• Employers with 50 or more employees by January 1, 2017
• Employers with 35 or more employees by July 1, 2017
• Employers with 20 or more employees by January 1, 2018

The San Francisco Office of Labor Standards Enforcement is expected to publish a notice for covered employers to post conspicuously at the workplace in English, Spanish, Chinese and in all languages spoken by more than 5% of the employees at the workplace or job site.

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

Cindy Bamforth
November 17, 2016