No California employer is obligated to provide paid vacation time to its workers. However, such benefit is a common practice, promoting morale and productivity. Once a company grants paid vacation (say, one week annually), it is considered an accruing benefit, i.e., an employee earns it gradually throughout the working year. See, Vacation Pay in California, and Requiring Use of Paid Vacation for Unpaid Leaves.

While California employees are entitled to their vacations under such policies, business does not necessarily go on vacation during the prime months for such time off. In order to ensure continued production and service to their publics, employers have the right to manage their vacation pay responsibilities, including control over scheduling and the number of vacation days a given worker may take at any particular time.

Manager thought and care are required. For example, an employer may not deny vacation time to a worker simply because that person recently returned from a medical disability leave. Such grounds – unrelated to business production demands -- could constitute unlawful retaliation. In the event management must deny a proposed vacation period or suggest alternative dates, written confirmation of the actual work-related reasons is a very good idea.

Thus companies need to specify the scheduling ground rules into any policy providing such benefits, including written requests well in advance of planned vacations and a clear statement that it is ultimately management’s prerogative when and how the company will schedule vacation time.

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

Cindy Bamforth
July 20, 2016

The City of Los Angeles (City) recently increased minimum wage and doubled California’s paid sick leave requirements (ordinance no. 184320) For “employees,” i.e., workers performing Labor within the City for a given employer for at least two hours in a particular week.  (see below for City limits maps.)

As we previously noted, Ordinance no. 184320 did not clearly state whether small businesses with 25 or fewer “employees” were allowed to wait until 2017 to comply with these City paid sick leave standards.

The City’s newly-issued official notice answers this question.  Starting July 1, 2016, all Employers with 26 or more Employees must receive the City’s paid sick leave.  Employers with 25 or fewer Employees do not have to provide these sick leave benefits until July 1, 2017.

The official notice also summarizes the City’s minimum wage increases and describes when and how sick pay is earned and used.  The notice reiterates that Employees are protected from any discrimination or retaliation for exercising their rights to receive the City’s paid sick leave.

As stated in the City’s companion ordinance (Ordinance No. 184319), every Employer (presumably regardless of size) must post in a conspicuous place at any workplace or job site the City’s official notices in English, Spanish, Chinese (Cantonese and Mandarin), Hindi, Vietnamese, Tagalog, Korean, Japanese, Thai, Armenian, Russian and Farsi, and any other language spoken by at least five percent of the Employees at the workplace or job site.  Employers may download the official notices at http://wagesla.lacity.org/.

Click here or here to find out if a particular address is located within City limits.

If you would like further, more detailed information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth
July 12, 2016

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 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 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 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 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:

• 48 hours of sick leave to the employee at the beginning of each year of employment, calendar year, or 12-month period (choice is the employer’s and will partly depend on an employee’s start date); or
• one hour of sick leave for every 30 hours worked.

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, 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.

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:

• Maiden name
• Questions regarding owning or renting a place of residence
• Date of birth
• Date of attendance/completion of school
• Birthplace of applicant or applicant’s relatives
• Religious days observed
• Questions regarding pregnancy, childbirth or birth control
• Eye or hair color
• General health or medical condition (if not job-related and consistent with business necessity)
• General questions regarding organizations, clubs, societies and lodges
• Contact information of a relative to be notified in case of accident or emergency (okay to ask for name and address of person to be notified)
• Requiring a photograph at any time prior to employment

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.

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:

• Job application and resume
• Background and reference checks
• Job description
• Job-related testing results
• Orientation checklist
• Emergency contact
• Signed receipts of company handbook and other company policy
• Attendance and absence records
• Education and training records
• Payroll authorization or modification paperwork
• Employment agreement and/or non-disclosure agreement
• Arbitration agreement
• Disciplinary records
• Performance evaluations and commendations
• Termination records

However, employers should store the employee’s more private confidential information in separate files, including:

• Medical records, such as family medical leave documentation, doctor’s notes, workers’ compensation claims, and any other medical information
• Private financial records
• Equal employment opportunity records, such data regarding the workers’ racial or ethnic identity if the employer is legally required to prepare an equal employment opportunity report (the EEO1-Report)
• Investigative files or litigation documents, such as those pertaining to harassment, discrimination, retaliation and whistleblower claims

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