On May 4, 2016 California Governor Brown signed a series of legislative amendments effective June 9, 2016 which extend smoke-free workplace protections, re-define tobacco products to include e-cigarettes and vaping devices, and raise the legal minimum smoking age from 18 to 21.

Although current law prohibits the smoking of tobacco products at a place of employment or in an enclosed space, the new legislation broadens the definition of employer to include an owner-operated business (i.e., one without employees), eradicates the formerly lawful use of designated smoking breakrooms in the workplace, and defines “enclosed space” to include covered parking lots (in addition to lobbies, lounges, waiting areas, elevators, stairwells and restrooms).

Under newly amended Business and Professions Code sections 22950.5(c) and (d) “smoking” now includes the use of an electronic smoking device that creates an aerosol or vapor, in any manner or in any form, and “tobacco product” includes an electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah.

Employers should update their company policy and procedures to expressly prohibit e-cigarettes and vaping in the workplace and take steps to notify all employees of the above restrictions by the June 9 deadline.

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

Cindy Bamforth
May 18, 2016

Employers should take proper steps to generate and protect complete and accurate payroll records. In addition to being legally obligated to compile such records, employers can also use these documents to refute a worker’s claim for unpaid overtime, off-the-clock hours worked, and/or missed meal breaks. Under federal and California law, employers must maintain and preserve payroll records that include hours worked, wages paid, pay dates, and gross and net pay.

As more specifically described in the California wage orders record-keeping requirements and other state regulations, each employer must keep accurate employee information including:

• Full name, home address, occupation and social security number.
• Ages of all minors.
• Time records showing when the employee begins and ends each work period.
• Meal periods, split shift intervals and total daily hours worked except for (i) any meal periods during which all operations cease and (ii) any authorized paid rest periods.
• Total wages paid each payroll period, including value of board, lodging, or other compensation actually furnished to the employee.
• Total hours worked in the payroll period and applicable pay rates. This information must be readily available to the employee upon reasonable request.
• Total balance of sick pay benefits.
• As covered in our blogs Piece Work Compensation Is a Wreck Waiting to Happen and California’s Itemized Pay Stub Requirements, Ignoring the Needed Details Poses Trap for Unwary Employers, other details regarding piece rate production and compensation for all applicable employees.

The above-listed records must be in English; written in ink or other indelible form; and properly dated, showing day, month, and year. Payroll records should be kept either at the employee’s place of employment or at a central location within California for at least four years to comply with employment-related records retention requirements. Employers should consult with their tax advisors for any additional IRS-mandated retention periods.

Employers should safeguard all such employee records from unauthorized use, disclosure, removal or destruction. Restrict access to such files to trusted human resources and/or accounting personnel only and always keep the records in a secure, locked location. After all, when it comes to wage and hour claims, the best defense is a good set of payroll records.

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

Law Offices of Timothy Bowles
May 11, 2016

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.

Law Offices of Timothy Bowles
May 10, 2016

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 noncitizens. 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.

Law Offices of Timothy Bowles
May 6, 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.

Law Offices of Timothy Bowles
May 2, 2016

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.

Law Offices of Timothy Bowles
April 22, 2016

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.

Law Offices of Timothy Bowles
April 20, 2016

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.

Law Offices of Timothy Bowles
April 7, 2016

We welcome Pam Harder as a firm legal and administrative assistant.

Pam joins us with a solid background in personnel management. She is pursuing the ABA-approved paralegal studies program at Pasadena City College, with graduation and California paralegal certification slated for August, 2016.

Pam assists our attorneys with information compilation analysis and legal research. She also works with our office manager on administrative and personnel-related matters. Pam is also coordinating a project to convert the office to paperless operation.

She is also Clementine’s mom, named by many well-placed people as Most Adorable Child in Pasadena for 2014, 2015 and, so far, first quarter of 2016.

Law Offices of Timothy Bowles
March 29, 2016