California Legislature Still Tinkering With Paid Sick Leave Law Prior to July 1, 2015 Effective Date

California’s Healthy Workplaces, Healthy Families Act of 2014 (the Act) will require almost all California employers regardless of size to provide paid sick leave to its workers starting July 1, 2015. See, “Mandatory Paid Sick Leave For California Employees” (Mandatory article).

As this new law fails to provide guidance in several important areas, even the Division of Labor Standards Enforcement (DLSE) has attempted to clarify employer requirements in a series of internet postings. See, Shall the Fog Be Forever Forsaken? California Labor Commissioner Again Attempts to Resolve Questions on New Paid Sick Leave Benefits Law.

Meanwhile, through Assembly Bill 304 (AB 304), the California Legislature has been working for several months to plug as many of the holes in the Act as possible. See, California Sick Leave “Clean-up” Legislation Introduced (Clean Up Article). Yet at this writing, less than two weeks before the July 1, 2015 activation date, Sacramento lawmakers are still changing AB 304, most recently on June 18. The bill has now been designated an “urgency” statute which allows changes to the Act up to the very last minute.

Revisions under consideration include:

● Expansion of Accrual Method Guidelines: A major feature of the Act is the set of methods an employer is permitted to calculate paid sick leave benefits, including the “advance” method and the “accrual rate” method. See, Mandatory article. In its current form, AB 304 would allow an employer which was using its own accrual method for paid sick days prior to January 1, 2015 to continue that method after July 1, provided it meets certain minimum standards. Those minimums are complex and require close study.

● Clarified Sick Pay Rate Calculations: The Act currently does not supply clear guidance on how sick pay rates are calculated when a worker has been receiving differing rates of compensation, including, for example, combinations of hourly pay, commissions and/or bonuses. AB 304 in its current form would permit the option of an averaging calculation to reach the sick pay rate.

● Delayed Application of the Law in Certain Industries: If passed into law as now drafted, AB 304 would not require employers in the broadcasting and motion picture industries (covered by Industrial Welfare Commission Wage Orders 11 and 12) to comply with the Act until January 21, 2016.

● Employee Rights to Legal Action: Our Clean Up Article reported an earlier version of AB 304 had taken away the rights of employees to sue companies directly for violations of the Act. AB 304 no longer carries that possible change to the Act. Thus, if this bill passes into law in its current form, workers will still have the right to bring legal action directly for paid sick leave violations.

Please stay tuned. We continue to monitor possible changes to the Act. For additional assistance understanding and implementing this new law, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin, June 19, 2015

Comply with California’s Paid Sick Leave Law July 1, 2015 Or Face the Fate of Heavy Penalties

Beginning July 1, 2015, all California employers must begin to offer paid sick leave (PSL) benefits under the Healthy Workplaces, Healthy Families Act, AB 1522 (the Act). See July 1, 2015 Deadline Is Approaching. Do You Know Where Your Company’s California-Required Paid Sick Leave Policy Is?

The Act gives the state Labor Commissioner power to determine violators and to “order any appropriate relief, including reinstatement, back pay, the payment of sick days unlawfully withheld, and the payment of an additional sum in the form of an administrative penalty.” Labor Code 248.5(b), (c). Those administrative penalties can include:

1. Three times the amount of sick pay that was withheld, up to $4,000; and

2. Daily penalties of up to $50/day/employee with a $4,000 maximum.
An employer that does not comply with a Commissioner’s orders to pay, etc., is subject to civil lawsuit that can include attorney fees, costs and additional penalties up to $50/day/employee with no ceiling on the maximum award. Labor Code 248.5(e).

Employers who fail to comply with the Act for their workers across the boards are also open to potential class action and Private Attorney General Act (PAGA) suits from current and former employees.

An employer who at least adopts and undertakes to apply a PSL policy compliant with the Act by July 1 may be able to avoid the above consequences for isolated and unintentional errors. Labor Code 248.5(h).

For any California employer lacking a PSL policy, the time is now to understand the Act and to choose among its several options to comply. If you have any questions or need assistance, contact one of our attorneys, Timothy Bowles, Cindy Bamforth, and Helena Kobrin.

Helena Kobrin and Tim Bowles, June 18, 2015

Comply with California’s Paid Sick Leave Law July 1, 2015 Or Face the Fate of Heavy Penalties

Beginning July 1, 2015, all California employers must begin to offer paid sick leave (PSL) benefits under the Healthy Workplaces, Healthy Families Act, AB 1522 (the Act). See July 1, 2015 Deadline Is Approaching. Do You Know Where Your Company’s California-Required Paid Sick Leave Policy Is?

The Act gives the state Labor Commissioner power to determine violators and to “order any appropriate relief, including reinstatement, back pay, the payment of sick days unlawfully withheld, and the payment of an additional sum in the form of an administrative penalty.” Labor Code 248.5(b), (c). Those administrative penalties can include:

1. Three times the amount of sick pay that was withheld, up to $4,000; and

2. Daily penalties of up to $50/day/employee with a $4,000 maximum.
An employer that does not comply with a Commissioner’s orders to pay, etc., is subject to civil lawsuit that can include attorney fees, costs and additional penalties up to $50/day/employee with no ceiling on the maximum award. Labor Code 248.5(e).

Employers who fail to comply with the Act for their workers across the boards are also open to potential class action and Private Attorney General Act (PAGA) suits from current and former employees.

An employer who at least adopts and undertakes to apply a PSL policy compliant with the Act by July 1 may be able to avoid the above consequences for isolated and unintentional errors. Labor Code 248.5(h).

For any California employer lacking a PSL policy, the time is now to understand the Act and to choose among its several options to comply. If you have any questions or need assistance, contact one of our attorneys, Timothy Bowles, Cindy Bamforth, and Helena Kobrin.

Helena Kobrin and Tim Bowles, June 18, 2015

Do You Know Where Your Company’s California-Required Paid Sick Leave Policy Is?

We have been blogging for some months about California’s new mandatory paid sick leave requirements. Choosing from one or more of several options, all employers in this state must adopt a policy by July 1, 2015. See, Mandatory Paid Sick Leave For California Employees; California Labor Commissioner Provides the FAQs on New Paid Sick Leave Benefits Law; and California Sick Leave Benefit “Clean-up” Legislation Introduced.

These are common client questions and our answers.

1. When does the new sick leave law take effect?
Under California’s Healthy Workplaces, Healthy Families Act of 2014 (the Act), the requirement to begin providing paid sick leave takes effect on July 1, 2015. The Act also required each employer to post a notice on the particular features of that company’s sick leave policy starting January 1, 2015.

2. Does the new paid sick leave law apply only to large employers?
No. With exceptions for collective bargaining agreements and a few other limited circumstances, the Act requires that every California employer provides paid sick leave to all employees, whether temporary, part-time, or full-time.

3. Do I need to give a notice of the new law to employees?
Yes. In addition to prominently posting notice in a spot accessible to all employees, each employer must provide each of its employees a “Notice to Employees” that specifies his/her paid sick leave rights.

4. If we have an existing sick leave policy, can we assume it is fine or should we seek review of the policy to ensure it complies?
Every employer with an existing paid sick days policy should have it reviewed by employment counsel to ensure it complies with the new law. The Act is in many respects complicated and vague in others. Competent employment attorneys should know the law’s nuances and interpretations, while watching for new developments that may break right up to the July 1 effective date.

5. How much sick leave do I need to give?
Each employee, even a part-timer on a short schedule, is entitled to 3 days, or 24 hours, of paid sick leave annually under current interpretations by the California Division of Labor Standards Enforcement (DLSE). See the DLSE frequently-asked questions.

6. Is there a simple method to comply with the law?
“Simple” depends on a good understanding of the options available. There are three separate methods for compliance. First is the “advance method” where the employer provides all of the sick leave at the beginning of the year (i.e., on July 1, 2015, for purposes of commencing compliance under the law this year). Second is the “accrual method” where an employee gradually earns sick leave based upon the number hours he or she works for a company beginning July 1, 2015 or, if employed later, beginning on the first day of employment. The third is any “paid time off” method which includes sick leave at a minimum of three days or 24 hours annually among the reasons for such benefit. To select one of these methods (or more than one, each applicable to certain kinds of workers) requires understanding and analysis of the detailed factors that go into each such method, including how employers may cap the amount of sick leave actually accrued and taken.

7. Do I have to notify employees about how much sick leave they have available?
Yes. Each employee pay stub or a separate paper accompanying an employee’s pay needs to show how much sick leave the person currently has.

8. Can we rely on the current state of the sick leave law?
Probably not. Amendments to the Act intended to clarify vague aspects and eliminate potential contradictions are pending in the Legislature. We will promptly blog any such amendments that pass into law.

9. Do I have to provide paid sick leave benefits to employees hired after July 1, 2015 and, if so, how?
Yes. Just how a business provides the benefit to new hires depends on the method it adopts. Under the advance method, a newly hired worker will have the minimum three days/24 hours of paid sick leave assigned to him or her on the first day of employment. Under the accrual method, that person starts to earn such benefits on his/her first day at the rate specified in company policy. However, under any method, a business is not required to begin actually paying for sick time off until the person has been employed over 89 calendar days.

If you have questions about the new law or what policy you should implement, you may contact any of our attorneys, Tim Bowles, Cindy Bamforth, or Helena Kobrin.

Helena Kobrin, June 11, 2015

Do You Know Where Your Company’s California-Required Paid Sick Leave Policy Is?

We have been blogging for some months about California’s new mandatory paid sick leave requirements. Choosing from one or more of several options, all employers in this state must adopt a policy by July 1, 2015. See, Mandatory Paid Sick Leave For California Employees; California Labor Commissioner Provides the FAQs on New Paid Sick Leave Benefits Law; and California Sick Leave Benefit “Clean-up” Legislation Introduced.

These are common client questions and our answers.

1. When does the new sick leave law take effect?
Under California’s Healthy Workplaces, Healthy Families Act of 2014 (the Act), the requirement to begin providing paid sick leave takes effect on July 1, 2015. The Act also required each employer to post a notice on the particular features of that company’s sick leave policy starting January 1, 2015.

2. Does the new paid sick leave law apply only to large employers?
No. With exceptions for collective bargaining agreements and a few other limited circumstances, the Act requires that every California employer provides paid sick leave to all employees, whether temporary, part-time, or full-time.

3. Do I need to give a notice of the new law to employees?
Yes. In addition to prominently posting notice in a spot accessible to all employees, each employer must provide each of its employees a “Notice to Employees” that specifies his/her paid sick leave rights.

4. If we have an existing sick leave policy, can we assume it is fine or should we seek review of the policy to ensure it complies?
Every employer with an existing paid sick days policy should have it reviewed by employment counsel to ensure it complies with the new law. The Act is in many respects complicated and vague in others. Competent employment attorneys should know the law’s nuances and interpretations, while watching for new developments that may break right up to the July 1 effective date.

5. How much sick leave do I need to give?
Each employee, even a part-timer on a short schedule, is entitled to 3 days, or 24 hours, of paid sick leave annually under current interpretations by the California Division of Labor Standards Enforcement (DLSE). See the DLSE frequently-asked questions.

6. Is there a simple method to comply with the law?
“Simple” depends on a good understanding of the options available. There are three separate methods for compliance. First is the “advance method” where the employer provides all of the sick leave at the beginning of the year (i.e., on July 1, 2015, for purposes of commencing compliance under the law this year). Second is the “accrual method” where an employee gradually earns sick leave based upon the number hours he or she works for a company beginning July 1, 2015 or, if employed later, beginning on the first day of employment. The third is any “paid time off” method which includes sick leave at a minimum of three days or 24 hours annually among the reasons for such benefit. To select one of these methods (or more than one, each applicable to certain kinds of workers) requires understanding and analysis of the detailed factors that go into each such method, including how employers may cap the amount of sick leave actually accrued and taken.

7. Do I have to notify employees about how much sick leave they have available?
Yes. Each employee pay stub or a separate paper accompanying an employee’s pay needs to show how much sick leave the person currently has.

8. Can we rely on the current state of the sick leave law?
Probably not. Amendments to the Act intended to clarify vague aspects and eliminate potential contradictions are pending in the Legislature. We will promptly blog any such amendments that pass into law.

9. Do I have to provide paid sick leave benefits to employees hired after July 1, 2015 and, if so, how?
Yes. Just how a business provides the benefit to new hires depends on the method it adopts. Under the advance method, a newly hired worker will have the minimum three days/24 hours of paid sick leave assigned to him or her on the first day of employment. Under the accrual method, that person starts to earn such benefits on his/her first day at the rate specified in company policy. However, under any method, a business is not required to begin actually paying for sick time off until the person has been employed over 89 calendar days.

If you have questions about the new law or what policy you should implement, you may contact any of our attorneys, Tim Bowles, Cindy Bamforth, or Helena Kobrin.

Helena Kobrin, June 11, 2015

EMPLOYERS MUST TAKE THE HINT AND TAKE INITIATIVE

U.S. Supreme Court Decision Warns that Companies Ignore at Their Peril Possible Need to Permit Religious Exceptions to Workplace Policies

The U.S. Supreme Court’s June 1, 2015 decision in Equal Opportunity Employment Commission v. Abercrombie & Fitch Stores, Inc. requires employers to take special initiative to accommodate religious practices that may conflict with office policies. The decision illustrates the particularly delicate and potentially conflicting duties of management to deal with such issues.

Retailer Abercrombie maintains multiple and distinct clothing lines, dictating that employees comply with a “Look Policy” governing dress, including a prohibition on “caps.” Job applicant Samantha Elauf is a practicing Muslim who wears a headscarf in public as her faith directs. She was otherwise qualified for an Abercrombie position. However, when informed that Ms. Elauf wore the scarf because of her Muslim faith, the district manager directed her application be denied because all headwear, regardless of its purpose, violates the Look Policy.

The Equal Employment Opportunity Commission (EEOC), responsible for enforcing the Civil Rights Act of 1964 (“Title VII”) and other federal workplace anti-discrimination laws, sued Abercrombie on Ms. Elauf’s behalf.

Abercrombie contended that it had no duty to consider an accommodation of Ms. Elauf’s religious practice of a headscarf because she had not actually informed the company of her need for such an accommodation. A seven justice majority disagreed. Observing that the store’s assistant manager had informed the district manager that “she believed Elauf wore the headscarf because of her faith,” the Court ruled Abercrombie would be in violation of Title VII for the district manager’s refusal to hire her over her potential need for accommodation.

Abercrombie asserted that it had done nothing wrong – and was thus not liable for intentional discrimination — because the district manager had not treated a religious adherent any less favorably than any applicant who sought to wear a headscarf on the job on non-religious grounds. Yet, the Court observed that management’s “mere neutrality” toward religious practices is not enough. Federal Title VII gives religious practices “favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual … because of that individual’s’ ‘religious observance or practice’.”

Thus, where an applicant or employee makes some indication that his or her actions contrary to policy may be based on religious faith – articles of clothing or personal appearance contrary to a company dress code perhaps the most obvious example – the Abercrombie decision directs business to originate communication to determine if such a religiously based conflict actually exists.

However, as illustrated by the several views Supreme Court justices expressed during Abercrombie’s February 25, 2015 oral argument, just how an employer may broach the subject of possible religiously based conflict is delicate. Asking straight out, for example, whether a headscarf or a hat is a person’s religious practice may violate state or federal standards barring probing questions about an applicant’s or employee’s religion. Thus, Justices Sotomayor and Alito suggested neutral questions that would in effect invite the applicant or employee to bring up any religious conflict at his/her option. Thus, an employer could properly inform an applicant of a company dress or grooming code and ask the person if he/she could comply or possibly had any problem. The question makes no mention of religion and puts it to the applicant to raise religion if, of course, it was important enough to the person to do so.

If and when the applicant or employee puts a religious objection on the table, it is then appropriate and required for management to seek to find a reasonable accommodation for the religious practice. This is what makes the Abercrombie decision so touchy. Ms. Elauf did not actually put out the religious objection. Yet, when there was at least indication of a potential conflict, the Court directs that Abercrombie should have found out if she actually had one.

On the ensuing inquiry to find reasonable accommodation, only where accommodation choices would impose undue economic or operational hardship is the company justified in requiring the worker to forgo the religious practice as an employment condition. See also, Employer Duties to Fight Religious Prejudice and Religious Dress and Grooming and Employers’ Increased Duties to Accommodate.

For more information on this subject, contact attorneys Tim Bowles, Cindy Bamforth, or Helena Kobrin.

Helena Kobrin, June 10, 2015

EMPLOYERS MUST TAKE THE HINT AND TAKE INITIATIVE

U.S. Supreme Court Decision Warns that Companies Ignore at Their Peril Possible Need to Permit Religious Exceptions to Workplace Policies

The U.S. Supreme Court’s June 1, 2015 decision in Equal Opportunity Employment Commission v. Abercrombie & Fitch Stores, Inc. requires employers to take special initiative to accommodate religious practices that may conflict with office policies. The decision illustrates the particularly delicate and potentially conflicting duties of management to deal with such issues.

Retailer Abercrombie maintains multiple and distinct clothing lines, dictating that employees comply with a “Look Policy” governing dress, including a prohibition on “caps.” Job applicant Samantha Elauf is a practicing Muslim who wears a headscarf in public as her faith directs. She was otherwise qualified for an Abercrombie position. However, when informed that Ms. Elauf wore the scarf because of her Muslim faith, the district manager directed her application be denied because all headwear, regardless of its purpose, violates the Look Policy.

The Equal Employment Opportunity Commission (EEOC), responsible for enforcing the Civil Rights Act of 1964 (“Title VII”) and other federal workplace anti-discrimination laws, sued Abercrombie on Ms. Elauf’s behalf.

Abercrombie contended that it had no duty to consider an accommodation of Ms. Elauf’s religious practice of a headscarf because she had not actually informed the company of her need for such an accommodation. A seven justice majority disagreed. Observing that the store’s assistant manager had informed the district manager that “she believed Elauf wore the headscarf because of her faith,” the Court ruled Abercrombie would be in violation of Title VII for the district manager’s refusal to hire her over her potential need for accommodation.

Abercrombie asserted that it had done nothing wrong – and was thus not liable for intentional discrimination — because the district manager had not treated a religious adherent any less favorably than any applicant who sought to wear a headscarf on the job on non-religious grounds. Yet, the Court observed that management’s “mere neutrality” toward religious practices is not enough. Federal Title VII gives religious practices “favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual … because of that individual’s’ ‘religious observance or practice’.”

Thus, where an applicant or employee makes some indication that his or her actions contrary to policy may be based on religious faith – articles of clothing or personal appearance contrary to a company dress code perhaps the most obvious example – the Abercrombie decision directs business to originate communication to determine if such a religiously based conflict actually exists.

However, as illustrated by the several views Supreme Court justices expressed during Abercrombie’s February 25, 2015 oral argument, just how an employer may broach the subject of possible religiously based conflict is delicate. Asking straight out, for example, whether a headscarf or a hat is a person’s religious practice may violate state or federal standards barring probing questions about an applicant’s or employee’s religion. Thus, Justices Sotomayor and Alito suggested neutral questions that would in effect invite the applicant or employee to bring up any religious conflict at his/her option. Thus, an employer could properly inform an applicant of a company dress or grooming code and ask the person if he/she could comply or possibly had any problem. The question makes no mention of religion and puts it to the applicant to raise religion if, of course, it was important enough to the person to do so.

If and when the applicant or employee puts a religious objection on the table, it is then appropriate and required for management to seek to find a reasonable accommodation for the religious practice. This is what makes the Abercrombie decision so touchy. Ms. Elauf did not actually put out the religious objection. Yet, when there was at least indication of a potential conflict, the Court directs that Abercrombie should have found out if she actually had one.

On the ensuing inquiry to find reasonable accommodation, only where accommodation choices would impose undue economic or operational hardship is the company justified in requiring the worker to forgo the religious practice as an employment condition. See also, Employer Duties to Fight Religious Prejudice and Religious Dress and Grooming and Employers’ Increased Duties to Accommodate.

For more information on this subject, contact attorneys Tim Bowles, Cindy Bamforth, or Helena Kobrin.

Helena Kobrin, June 10, 2015

New heat illness prevention regulations have been adopted by the California Office of Administrative Law. They are in effect as of May 1, 2015. Our earlier blog, Heat Illness Prevention Amendments Are Likely to Take Effect May 1, 2015 provides details of what the new regulations require.

The new regulation applies to all outdoor places of employment, but the high heat (over 95 degrees) requirements apply only to the following industries: agriculture, construction, landscaping, oil and gas extraction, and transportation and delivery of agricultural and construction products or other heavy materials, such as furniture, cargo, lumber, freight, cabinets, and other industrial or commercial materials. We recommend that you review the Department of Industrial Relations FAQ dated May 14, 2015 for a discussion of the various issues under the heat illness prevention regulation. Other resources for help in implementing the requirements can be found at CA.gov.

If you have any questions about this, you can contact our attorneys, Tim Bowles, Cindy Bamforth, or Helena Kobrin.

Helena Kobrin, May 29, 2015

New heat illness prevention regulations have been adopted by the California Office of Administrative Law. They are in effect as of May 1, 2015. Our earlier blog, Heat Illness Prevention Amendments Are Likely to Take Effect May 1, 2015 provides details of what the new regulations require.

The new regulation applies to all outdoor places of employment, but the high heat (over 95 degrees) requirements apply only to the following industries: agriculture, construction, landscaping, oil and gas extraction, and transportation and delivery of agricultural and construction products or other heavy materials, such as furniture, cargo, lumber, freight, cabinets, and other industrial or commercial materials. We recommend that you review the Department of Industrial Relations FAQ dated May 14, 2015 for a discussion of the various issues under the heat illness prevention regulation. Other resources for help in implementing the requirements can be found at CA.gov.

If you have any questions about this, you can contact our attorneys, Tim Bowles, Cindy Bamforth, or Helena Kobrin.

Helena Kobrin, May 29, 2015