City of Santa Monica Increasing Minimum Wage Annually from 2016 to 2020

Continuing the trend in California and elsewhere in this country, the Santa Monica City Council has adopted an ordinance providing annual minimum wage increases for eligible employees to a maximum $15.00 per hour by 2020.

The measure covers any worker who performs at least two hours of labor within the city limits in a given workweek. While the ordinance thus applies to all companies employing such eligible individuals, those with no more than 25 persons on payroll need not implement the changes until July 1, 2017. The initial increase will be to $10.50 on July 1, 2016. This is $.50 higher than the current state minimum wage. See our previous blog, Amended Minimum Wage Notice Must Be Posted by July 1, 2014.

The Santa Monica minimum wage increases are the same as those recently passed by the City of Los Angeles and the County of Los Angeles. It provides for further annual increases each July 1, to:

$12.00 in 2017;

$13.25 in 2018;

$14.25 in 2019; and finally

$15.00/hour on July 1, 2020.

Employers who have 25 or fewer employees must begin implementing the increase in July 2017, and have until 2021 to reach $15.00/hour. An employer may pay specifically defined “learners” at 85 percent of minimum wage for up to 160 hours. Non-profits with more than 25 employees may apply for a waiver if they meet certain conditions.

After $15.00/hour is reached in 2020, Santa Monica will be following LA city’s and county’s lead, raising minimum wage annually based on consumer price index.

Santa Monica has also enacted a living wage ordinance for hotel workers, directing a $13.25/hour minimum wage starting July 1, 2016, then matching the City of Los Angeles hotel worker rate, starting at $15.37/hour as of July 1, 2017.

As discussed in our recent blog on the new state minimum wage law, if you have employees working in more than one municipality with its own minimum wage standard, this may mean different rates between them.

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

Helena Kobrin, May 10, 2016

New Changes on Employment Eligibility Verification Form I-9

All U.S. employers must complete and retain a Form I-9 for each individual hired for employment in the U.S., including citizens and non-citizens. You may have noticed, however, that the version in use reflects an expiration date of March 31, 2016.

U.S. Citizenship and Immigration Services (USCIS) is in the process of refining Form I-9 by the changes originally published November 24, 2015 in the Federal Register. The new form will be downloadable from the USCIS website for use on a company computer.

Until USCIS completes that final new form, the Office of Management and Budget approves it, and USCIS posts it online, employers should continue to use the existing version of Form I-9, available on USCIS’s online I-9 resource center.

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

Helena Kobrin, May 6, 2016

The City of Pasadena Approves Gradual Increases in Minimum Wage Starting July 1, 2016

On February 1, 2016, the Pasadena City Council enacted Ordinance No. 7278 to boost the city’s minimum wage to $15, following similar actions recently taken by Los Angeles and San Francisco. See, City of Los Angeles Minimum Wage Increasing Annually from 2016 to 2020 and San Francisco Minimum Wage. Also see UC Berkeley’s compilation of the growing number of California municipalities adopting minimum wage laws.

Commencing July 1, 2016, many employers (regardless of where located) must pay at least $ 10.50 per hour to all adult and minor employees who work two or more hours in Pasadena in a given workweek more specifically:

A) Employers with 26 or more employees shall pay:

1) From July 1, 2016, a $ 10.50 hourly minimum wage.

2) From July 1, 2017, a $ 12.00 hourly minimum wage.

3) From July 1, 2018, a $ 13.25 hourly minimum wage.

B) Employers with 25 or fewer employees shall pay:

1) From July 1, 2017, a $ 10.50 hourly minimum wage.

2) From July 1, 2018, a $ 12.00 hourly minimum wage.

By April 1 of each year, Pasadena shall publish a bulletin announcing the adjusted minimum wage rate to take effect on July 1 of that year. Employers in turn shall give written notification to each applicable current employee as well as each new employee at time of hire.

Any further increases depend on the City Council’s further review of local economic conditions, including costs of living.

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

Helena Kobrin, May 2, 2016

New Regulations May Require Policy Overhaul

The California Fair Employment and Housing Council (FEHC) enacts regulations that protect employees from unlawful discrimination, harassment and retaliation, stressing the employer’s affirmative duty to prevent such workplace misconduct.

As previously covered in New California Pregnancy Disability Leave Poster Requirements Take Effect On April 1, 2016, the FEHC amended its Fair Employment and Housing Act (FEHA) regulations effective April 1, 2016, requiring for the first time all employers with five or more employees to develop and distribute a harassment, discrimination, and retaliation prevention policy containing these mandatory provisions:

• Protected Categories: List all current protected categories covered under FEHA, including but not limited to a person’s race, color, national origin, religion, and gender.

• Prohibited Conduct: Indicate the law prohibits supervisors, managers, co-workers and third parties from engaging in prohibited conduct.

• Reporting Options: State that in addition to registering a complaint to one’s immediate supervisor, the employee may also report directly to a designated company representative (such as an HR manager or other supervisor), a complaint hotline, an ombudsperson (intermediary), and/or directly to the Department of Fair Employment and Housing (DFEH) or the Equal Employment Opportunity Commission (EEOC).

• Complaint Process: Ensure complaints receive confidential treatment to the extent possible, a timely response, impartial and timely investigations by qualified personnel, documentation and tracking for reasonable progress, appropriate options for remedial actions, and resolutions and timely closures.

• Supervisor Duty to Report: Instruct supervisors to report such complaints to a designated company representative, such as an HR Manager, so the company can attempt to resolve the claim internally.

• Neutral Investigation: The employer shall conduct a fair, timely and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on collected evidence.

• Remedial Measures: If at the end of the investigation misconduct is found, the company shall take appropriate remedial measures.

• Anti-Retaliation: Make clear that employees shall not be exposed to retaliation for lodging a complaint or participating in any workplace investigation.

Language Translation: Translate the policy into any language spoken by at least ten percent of the workforce at any facility.

Distribution of Written Policy: The written policy must be distributed by hard copy or email with an acknowledgment form for the employee to sign and return. Alternately, the employer may disseminate the written policy in any other way that ensures employees receive and understand it.

Covered employers should update their policies to meet the new requirements. Full compliance with these revised FEHA regulations should help prevent or promptly correct discriminatory and harassing conduct and deter frivolous lawsuits.

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

Cindy Bamforth April 29, 2016

Employers Must Protect Workers from Outdoor and Indoor Heat Illness

As covered in our blogs New Heat Illness Prevention Measures Now In Place and Heat Illness Prevention Amendments Are Likely to Take Effect May 1, 2015, heat illness prevention regulations obviously apply to industries that require significant outdoor labor, including agriculture, construction, landscaping, oil and gas extraction, and transportation and delivery of agricultural and construction products or other heavy materials.

However, all California employers are responsible for ensuring their indoor workers are also protected from high heat hazards. The California Occupational Safety and Health Appeals Board (Appeals Board) recently ruled against two employers with Injury and Illness Prevention Programs that failed to effectively address such unhealthy inside conditions. The case stemmed from a warehouse operator who suffered heat illness while working inside a metal freight container with a temperature exceeding 100 degrees F.

The Department of Industrial Relations (DIR) “Frequently Asked Questions” (FAQ) section includes helpful discussion of various heat illness prevention issues. The DIR also offers a separate information page on the requirements.

Our attorneys, Tim Bowles, Cindy Bamforth, or Helena Kobrin can also address questions and concerns.

Cindy Bamforth, April 22, 2016

California’s Gradual Increases in Minimum Wage, to Reach $15.00 Per Hour by January 1, 2022

On April 4, 2016, California jumped on the “living wage” bandwagon when Governor Brown signed Senate Bill-3 (SB-3) making California one of the first two states in the country to enact a $15 minimum wage. The other was New York, the measure signed into law by Governor Cuomo on that same day.

The California law follows a trend of minimum wage ordinances now in place for 18 cities and counties in this state. See our blogs, City of Los Angeles Minimum Wage Increasing Annually from 2016 to 2020, Oakland Minimum Wage Escalates to $12.55, San Francisco Minimum Wage Escalates to $12.25 on May 1, 2015 and Be Prepared for Statewide and Local Minimum Wage Increases. Also see UC Berkeley’s compilation of California municipalities with minimum wage laws.

SB-3 will increase the statewide minimum wage 50 cents per hour to $10.50 beginning January 1, 2017 and to $11.00 on January 1, 2018. The rate then increases $1.00/hour each year from 2019 until $15.00 in 2022. The minimum will then adjust annually by the cost of living with a maximum increase of 3.5%.

Businesses with under 25 on payroll do not need to begin complying with the state minimum wage hikes until 2018, but will need to follow any applicable local minimum wage in the interim.

A business operating in more than one city with a minimum wage ordinance is responsible for tracking all these individual laws, potentially obligated to pay employees working in one such city a different wage than in another. Even sending a single employee into an applicable city for one service call could affect his or her minimum wage requirement in the applicable pay period. Such municipal ordinances differ on the minimum numbers of hours worked within city or county boundaries for local law to apply.

These minimum wage hikes may create other new costs for California employers. For instance, minimum salaries for exempt-from-overtime employees will also increase annually, geared at double the minimum wage for a 40 hour week. Each hike will also raise the overtime premium, set at 1.5x or 2.0x a worker’s regular rate of pay. For instance, as of January 1, 2017, employees receiving minimum wage must be paid at least $15.75 for every 1.5 overtime hour and $21 for double time. Those overtime rates will be higher for any worker also receiving commissions, certain bonuses and/or piece work in addition to hourly compensation. See our blog Working Overtime in California.

These rising costs may require businesses to increase the costs of goods and services or to lay off employees or reduce hours to remain viable.

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

Helena Kobrin, April 20, 2016

Time Is Running Out for Caregiver Agencies to Meet July 1, 2016 Licensing Deadline

The Home Care Services Consumer Protection Act (HCOCPA) requires Home Care Organizations (HCO) to receive a license from the California Department of Social Services (CDSS) by July 1, 2016. Health & Safety Code 1796.61(b) and (c).

The law mandated that HCOs file licensing applications, as well as registration applications for all their caregivers – dubbed Home Care Aides (HCA) by the law – with the Home Care Services Bureau (HCSB) of the CDSS by March 1. See “Caregiver Agencies Must File License” (concerning March 1 filing deadline) and “Caregiver Agencies Must Comply with Home Care Services Consumer Protection Act or Cease Operation” (containing an overview of law).

For those that procrastinated and have not yet filed their applications, there is both good and bad news.

First, the good news. The HCSB is accepting applications from late filers. The Bureau is providing technical assistance to all applicants to help them complete their applications and obtain their licenses. Up through July 1, the HCSB will notify applicants of any errors or deficiencies and give them reasonable deadlines to comply, but will not engage in enforcement actions.

Unfortunately, the HCSB cannot guarantee that it will be able to process late applications by July 1. If an HCO does not receive its license by then, it will be in violation of the law. If the HCSB receives a complaint about an HCO after July 1, it will investigate. At some time after that date, the HCSB also will begin to send inspectors into the field to do routine inspections of HCOs for compliance with the HCSCPA.

If you operate an agency providing caregivers for people in their homes and have not filed your license application, you should not delay any longer. Find out now if you are subject to this law, and if so, get your license and registration applications in immediately. There is also another business model – a domestic referral agency (DRA) – that you may be able to adopt if the requirements for obtaining a license do not work for you. If you decide to do that, you should begin steps immediately to switch over to a DRA.

Our office has been working with owners of caregiver agencies on the requirements of this new law and on opening domestic referral agencies. Contact Tim Bowles, Cindy Bamforth, or Helena Kobrin for more information.

Helena Kobrin, April 6, 2016

LABOR COMMISSIONER ISSUES FREQUENTLY-ASKED QUESTIONS ON WORKPLACE GENDER PARITY

California’s long-established Equal Pay Act (the Act) requires California employers to pay their employees of the opposite sex the same for equal work.

As previously covered in Fair Pay Act Aims to Level the Playing Field, the Act’s amendments effective January 1, 2016 make it harder to justify unequal pay between male and female co-workers. For example, the amended Act eliminates the requirement that the comparative jobs in question must be located at the same establishment and it replaces a comparison of “equal” work with a comparison of “substantially similar” work.

To help understand the amendments, on April 6, 2016, California’s Labor Commissioner’s Office prepared answers to frequently asked questions about the Act (FAQs).

The newly issued FAQs define the term “substantially similar work” as mostly similar in skill, effort and responsibility and performed under similar working conditions. “Skill” refers to required experience, ability, education, and training. “Effort” refers to the necessary amount of physical or mental exertion. “Responsibility” refers to the degree of accountability or duties required in performing the job. “Working conditions” mean the physical surroundings (temperature, fumes, ventilation) and hazards. A “bona fide factor other than sex” must be job related, consistent with business necessity, and not based on or derived from a sex-based factor. Examples include education, training or experience.

These FAQs also describe what an employer must do to defeat an Equal Pay Act claim; i.e., prove that a pay differential for “substantially similar work” was due to seniority, merit, a system that measures production, and/or a “bona fide factor other than sex.” Additionally, the employer must show that it applied the above factor(s) reasonably and that such factor(s) account for the entire difference in wages.

The FAQs also explain how, when and where an employee may file a claim to enforce the Act.

In addition to carefully studying the FAQs, employers should ensure they base all compensation decisions — including salary, bonuses and commissions — solely on objective criteria that comport with the amended Act. Employers should also consider reviewing their employees’ current or prospective pay structures with the help of a competent employment attorney.

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

NEW CALIFORNA PREGNANCY DISABILITY LEAVE POSTER REQUIREMENTS

Take Effect On April 1, 2016

Under the California Fair Employment and Housing Act’s (FEHA) Pregnancy Disability Leave Law (PDL), California employers with at least five employees must provide unpaid leave to an employee who is disabled due to pregnancy, childbirth, or a related medical condition. FEHA also requires employers to give employees notice of their rights and obligations.

California’s Fair Employment and Housing Council recently revised its FEHA regulations (the Regulations). Effective April 1, 2016, the Regulations require all California employers with at least five employees to post a new pregnancy disability leave notice, “Your Rights and Obligations as a Pregnant Employee” (New Notice).

In addition to eliminating existing Pregnancy Disability Notices “A” and “B,” the New Notice specifies:

Health Care Coverage During PDL: Currently, the employer must continue providing health group coverage to the employee on pregnancy disability leave. The New Notice further provides that such coverage must remain at the same level and under the same conditions during the leave.

Notification Requirements: To receive a reasonable accommodation, obtain a transfer to another job position or take pregnancy disability leave, the pregnant employee must provide advance notice to her employer. The New Notice requires that the employee provide such notice at least 30 days in advance of a foreseeable event (e.g., the expected birth of a child or planned medical treatment). For unforeseeable events, the employee must provide written or verbal notice as soon as practicable. If an employee fails to comply, the employer may defer the requested leave until the employee provides proper notice.

Additional Rights Under California Family Rights Act (CFRA) Leave: For California employers with 50 or more employees, certain eligible employees may also be entitled to unpaid CFRA leave for the birth, adoption, or for foster care placement of the child or for the employee’s or specified family member(s)’ serious health condition(s). The New Notice includes a CFRA rights summary and specifies that according to applicable law “employees may choose or employers may require use of accrued paid leave while taking CFRA leave.”

Employers should purchase an updated California and Federal Employment Notices Poster from the California Chamber of Commerce or other qualified vendor and be prepared to implement the new pregnancy disability leave regulations by the April 1 deadline.

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

Cindy Bamforth, March 29, 2016