Effective January 1, 2015, California Assembly Bill 1443 plugs a gap that had left interns, trainees, and others lawfully involved in unpaid work experience unprotected from unlawful harassment and discrimination.

Since its enactment in 1980, California’s Fair Employment and Housing Act (FEHA) has prohibited employers from discriminating against “any person … in compensation or in terms, conditions, or privileges of employment” because of that person’s membership in a so-called “protected classification.” FEHA originally protected five such classifications: race, color, national origin, gender, and religious creed. That law now embraces some 15 protected categories, the rest added over the ensuing decades: ancestry, physical disability, mental disability, medical condition, genetic information, marital status, gender identity, gender expression, sexual orientation, age (40 or older), and military and veteran status. Government Code § 12940(c).

Unless a person’s inclusion in such a category has a direct bearing on job requirements (for example, a health club would obviously “discriminate” against men for a women’s locker room assistant position), FEHA deems an individual’s membership in a protected classification irrelevant to the hiring, promotion, pay level, benefits, discipline and termination of that person. The law is intended to level the playing field, confirming that businesses should base such employment decisions on competence and performance.

FEHA also prohibits workplace harassment to any of the above 15 protected categories against such employer behavior. Government Code § 12940(j)(l).

This law has varying definitions of “employer” obligated to comply with the above provisions. A company with five or more on its payroll over significant portions of the previous two calendar years is subject to FEHA’s discrimination provisions. Government Code § 12926(d). A company with but one employee is responsible for upholding FEHA’s harassment prohibitions. Government Code § 12940(j)(4)(A).

Until now, unpaid interns and trainees have fallen between the cracks, because such work experience programs were not included in the types of work covered by such FEHA protections. Government Code § 12940(c).

Beginning in 2015, a business employing five or more can no longer “discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person” based on his/her membership in a protected class. Government Code § 12940(c) (emphasis reflects amended language). Similarly, a business employing even one person cannot unlawfully harass such unpaid person interning or training with that company based on protected class membership. Government Code § 12940(j)(1) and (4)(A).

The new law separately requires that the religious observances of interns be protected and that they be free of any adverse actions – i.e., actions related to selection, termination, training, or other decisions – based on their religious beliefs. Government Code § 12940(l)(1).

While California businesses may not be legally obligated to pay interns or trainees and while such persons need not be included in all phases of operations, it has always been management’s safest course to afford them the same courtesies and protections extended to employees regarding discrimination and harassment. Now the law requires it.

If you need further information, please feel free to contact any of our attorneys – Tim Bowles, Cindy Bamforth, and Helena Kobrin.

Additional articles:
Who is an “Employee” Under California’s Anti-Discrimination Law?
Proving Workplace Discrimination is Now More Difficult in California
Age Discrimination in Employment
A California Employer’s Guide to New Laws 2012: Genetic Information Discrimination
Workplace Age Discrimination Laws Protect “Old People” Only

Minimum Hourly Pay Rate to Increase January 1, 2015

California Labor Code section 515.5 exempts certain employees in the computer software field from overtime compensation. The criteria include set minimum compensation. The California Department of Industrial Relations (DIR) recently increased this minimum, effective January 1, 2015.

To comply with the section 515.5 exemption, California employers will now have to pay otherwise qualified computer software employees a minimum hourly rate of $41.27, up from $40.38. The new rate translates to $7,165.12/month or $85,981.40/year.

While persons who qualify for this exemption need not be paid at “time-and-a-half” or “double time” rates for overtime hours, employers should accurately document the actual number of hours such qualified persons work. While companies commonly direct employees to track their hours worked, employers are primarily responsible for ensuring those records are truthful and complete.

An employee is an exempt computer professional only if he or she also meets each of the high-level skills and duties criteria for that exemption. An employer should ensure that any such worker meeting the very specific requirements laid out in Labor Code section 515.5. Among these, the employee must be “primarily engaged” (more than 50% of the time) in intellectual or creative work which requires “the exercise of discretion and independent judgment” applying systems analysis to determine the “functional specifications” of hardware, software or systems; designing computer systems or programs; and/or documenting, testing, creating or modifying computer programs related to computer systems software or hardware design.

If a computer professional meets all of section 515.5 requirements, he or she need not possess any particular academic degree to be eligible for this exemption.

Computer professionals also may be qualified for other exemptions, including the administrative or executive exemption. Each of those categories of course carries its distinct qualification rules.

For more information, please contact any of our office’s attorneys, Tim Bowles, Cindy Bamforth or Helena Kobrin.

“Private” Arbitrations No Longer Private In California

Effective January 1, 2015 in California, private arbitration companies, including the American Arbitration Association (AAA) and Judicial Arbitration and Mediation Services (JAMS), must publicly post certain previously-confidential information about their arbitrations. (Assembly Bill [AB] 802).

AB 802 amends California Code of Civil Procedure section 1281.96 to require AAA, JAMS and their competitors to publish detailed profiles on all consumer arbitrations, including employment-related matters. The legislation effectively eradicates confidentiality, previously one of the key advantages of arbitration over court proceedings.

The publicly available information must include:

1) Whether the arbitration was demanded pursuant to a written agreement and, if so, whether the agreement designated that particular company to administer the arbitration;
2) The employer’s business name and whether it was the initiating or responding party;
3) The nature of the dispute (e.g. employment) and the amount of the employee’s annual wages;
4) Whether the employer or employee was the prevailing party;
5) The total number of occasions the employer has been involved in mediations or arbitrations administered by that company;
6) Whether the employee was represented by an attorney and, if so, the attorney’s name;
7) The dates of the demand for arbitration, of the arbitrator’s appointment, and of the arbitrator’s disposition (decision);
8) The type of disposition (i.e., withdrawal, abandonment, settlement, monetary award, or dismissal without hearing);
9) The amounts of the claim, any monetary award, any attorney’s fees awarded, and details on any other relief granted; and
10) The arbitrator’s name and his or her fee amount.

These case-by-case disclosures must be made at least quarterly on the arbitrator’s website in a searchable format from a conspicuously displayed “consumer case information” link.

For more information about this recent development and how it might affect your workplace policies and practices, please contact any of our office’s attorneys, Tim Bowles, Cindy Bamforth or Helena Kobrin.

Abusive Conduct Prevention Training Now Required Every Two Years

Effective January 1, 2015, a California employer must include prevention of abusive conduct as a component of legally-mandated sexual harassment training and education. (Assembly Bill [AB] 2053).

Existing law requires employers with 50 or more employees to provide at least two hours of interactive training and education regarding sexual harassment to all supervisory employees in California once every two years. This training must include information and practical guidance regarding federal and state law prohibiting and preventing workplace sexual harassment and the remedies available to sexual harassment victims. As of January, 2015, such training must address workplace bullying.

California does not require the boss to be nice or that workers be nice to each other, but there is a line that cannot be crossed. The law defines “abusive conduct” as an employer or co-employee’s actions which a reasonable person would find hostile, offensive and unrelated to an employer’s business interests. Such conduct may include repeated verbal abuse, including derogatory remarks, insults and terms; verbal or physical conduct of a threatening, intimidating or humiliating nature; or the sabotage or undermining of another’s work performance. A single act shall not constitute abusive conduct unless especially severe and egregious.

Thus, it is not unlawful for a boss to yell or curse at someone simply for poor job performance so long as such conduct is not tied to established harassment and discrimination categories such as sex, religion or race. It is of course another question whether aiming anger at an employee for messing up is unwise in certain circumstances. One possible result of AB 2053’s training requirement will be to raise awareness and responsibility of supervisors and workers alike toward maintaining a productive workplace.

Since 2011, the Law Offices of Timothy Bowles has addressed abusive conduct in its sexual harassment prevention training, including a sample anti-bullying workplace policy. Our interactive seminar can be delivered in two ways.

• At your location: For larger companies, we can provide an on-site seminar at your place of business for a flat fee.

• Scheduled location: We periodically provide our own hosted seminar for individual supervisors to attend locally. The fee is per attendee. Online registration is available.

For more information about our harassment prevention training or workplace forms and policies, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin at (626)583-6600.

The Effect of an “Undocumented” Driver’s License On Workplace Policy and Procedure is Touchy

In 2013, Assembly Bill [AB] 60 created Vehicle Code section 12801.9 authorizing the California Department of Motor Vehicles (DMV) to provide driver’s licenses to undocumented individuals. AB 60 thus directs the DMV to accept alternative satisfactory forms of proof of identity and California residency other than a federally issued green card. DMV will start issuing so-called “AB 60 Driver’s Licenses” in January, 2015. By regulation, the department will now accept, for example, a California identification card (issued October, 2000 or after) or a valid, approved and verifiable foreign passport as valid ID to qualify the applicant for such a license. AB 60-Proof of Identity and California Residency.

These new licenses will require employers to handle applicants and employees who present them very deliberately.

On the one hand, and also effective January 1, 2015, AB 1660 amends the California Fair Employment and Housing Act (FEHA) to prohibit employers from discriminating against individuals for holding or presenting an “AB 60 Driver’s License.”

AB 1660(v) amends California Government Code section 12926(v) with an additional sentence: “’National origin’ discrimination includes, but is not limited to, discrimination on the basis of possessing a driver’s license granted under Section 12801.9 of the Vehicle Code.”

California Vehicle Code section 12801.9(h) is also amended. It will now be a FEHA violation for an employer “to discriminate against a person because the person holds or presents a driver’s license issued pursuant to this section, or for an employer…to require a person to present a driver’s license, unless possessing a driver’s license is required by law or is required by the employer and the employer’s requirement is otherwise permitted by law.” AB 1660(h)(2)(A).

AB 1660 also states any driver’s license information obtained must be treated as private and confidential and may not be disclosed to any unauthorized person or used for any purpose other than to establish identity and authorization to drive.

On the other hand, AB 1660 specifies that these discrimination protections shall not be construed to alter an employer’s rights or obligations to obtain documentation evidencing identity and authorization for employment as required by the federal Immigration and Nationality Act. Accordingly, any “AB 60 Driver’s License” will notate that it is not acceptable for federal purposes, such as verifying employment eligibility.

AB 1660 underscores the need for employers to understand how they may use an applicant’s or employee’s AB 60 driver’s license and how they may not. Obviously, an AB 60 license presents a potential red flag on an individual’s authorization to work in the U.S. since that person did not have to show a valid green card to obtain it. Yet, AB 1660 directs that terminating that person solely for his or her possession of an AB 60 license would be discriminatory. Thus, when faced with such a license, an employer might well be on notice that it must inquire further to confirm the person’s authorization under federal law to work in this country.

Just how these potentially competing rights and obligations will balance against each other in specific situations will likely be matters for the courts to decide. Regardless, an employer who is presented with an AB 60 license should probably consult with legal counsel to assist on any decision concerning the affected person’s subsequent job status.

If you need further information, please feel free to contact any of our attorneys – Tim Bowles, Cindy Bamforth, and Helena Kobrin.

Wage Theft Notice and Poster Template Now Available

As reported in “Mandatory Paid Sick Leave for California Employees” California’s Healthy Workplaces, Healthy Families Act (Assembly Bill [AB] 1522) requires nearly all California employers to provide paid sick leave to their employees. While affected employers do not need to provide paid sick leave until July 1, 2015, such employers must comply with AB 1522 notification requirements at the start of the year by prominently displaying a new template sick pay poster and by distributing individual notices to new hires.

Posting Requirements: The California Labor Commissioner has issued a template poster for employer compliance, to be displayed by January 1, 2015 where employees can easily read it. The poster describes which employees are entitled to AB 1522 paid sick leave and how and when they may use their available benefits. The poster reiterates that retaliation or discrimination against an employee who requests or uses paid sick time is prohibited.

Notice Distribution Requirements: As reported in “California Wage Theft Protection Act,” California employers must provide written notice to newly hired non-exempt hourly workers concerning rates of pay, payday, employer’s workers’ compensation insurance carrier, and related information. Beginning January 1, 2015, employers must use an expanded version of that notice specified by the California Labor Commissioner’s office (“Notice to Employee – Labor Code section 2810.5”).

The revised notice’s new subsection on paid sick leave advises that an employee: may accrue and use sick leave; has a right to request and use accrued paid sick leave; may not be terminated or retaliated against for using or requesting the use of accrued paid sick leave; and has the right to file a complaint against an employer who retaliates.

An affected employer should closely review and understand the revised notice before January 1 as one of four alternative ways of providing sick pay benefits must be selected and checked off on the form prior to its distribution to new hires.

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

Abusive Conduct Prevention Training Now Required Every Two Years

Effective January 1, 2015, a California employer must include prevention of abusive conduct as a component of legally-mandated sexual harassment training and education. (Assembly Bill [AB] 2053).

Existing law requires employers with 50 or more employees to provide at least two hours of interactive training and education regarding sexual harassment to all supervisory employees in California once every two years. This training must include information and practical guidance regarding federal and state law prohibiting and preventing workplace sexual harassment and the remedies available to sexual harassment victims. As of January, 2015, such training must address workplace bullying.

California does not require the boss to be nice or that workers be nice to each other, but there is a line that cannot be crossed. The law defines “abusive conduct” as an employer or co-employee’s actions which a reasonable person would find hostile, offensive and unrelated to an employer’s business interests. Such conduct may include repeated verbal abuse, including derogatory remarks, insults and terms; verbal or physical conduct of a threatening, intimidating or humiliating nature; or the sabotage or undermining of another’s work performance. A single act shall not constitute abusive conduct unless especially severe and egregious.

Thus, it is not unlawful for a boss to yell or curse at someone simply for poor job performance so long as such conduct is not tied to established harassment and discrimination categories such as sex, religion or race. It is of course another question whether aiming anger at an employee for messing up is unwise in certain circumstances. One possible result of AB 2053’s training requirement will be to raise awareness and responsibility of supervisors and workers alike toward maintaining a productive workplace.

Since 2011, the Law Offices of Timothy Bowles has addressed abusive conduct in its sexual harassment prevention training, including a sample anti-bullying workplace policy. Our interactive seminar can be delivered in two ways.

• At your location: For larger companies, we can provide an on-site seminar at your place of business for a flat fee.

• Scheduled location: We periodically provide our own hosted seminar for individual supervisors to attend locally. The fee is per attendee. Online registration is available.

For more information about our harassment prevention training or workplace forms and policies, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin at (626)583-6600.

Effective January 1, 2015, California Assembly Bill 1443 plugs a gap that had left interns, trainees, and others lawfully involved in unpaid work experience unprotected from unlawful harassment and discrimination.

Since its enactment in 1980, California’s Fair Employment and Housing Act (FEHA) has prohibited employers from discriminating against “any person … in compensation or in terms, conditions, or privileges of employment” because of that person’s membership in a so-called “protected classification.” FEHA originally protected five such classifications: race, color, national origin, gender, and religious creed. That law now embraces some 15 protected categories, the rest added over the ensuing decades: ancestry, physical disability, mental disability, medical condition, genetic information, marital status, gender identity, gender expression, sexual orientation, age (40 or older), and military and veteran status. Government Code § 12940(c).

Unless a person’s inclusion in such a category has a direct bearing on job requirements (for example, a health club would obviously “discriminate” against men for a women’s locker room assistant position), FEHA deems an individual’s membership in a protected classification irrelevant to the hiring, promotion, pay level, benefits, discipline and termination of that person. The law is intended to level the playing field, confirming that businesses should base such employment decisions on competence and performance.

FEHA also prohibits workplace harassment to any of the above 15 protected categories against such employer behavior. Government Code § 12940(j)(l).

This law has varying definitions of “employer” obligated to comply with the above provisions. A company with five or more on its payroll over significant portions of the previous two calendar years is subject to FEHA’s discrimination provisions. Government Code § 12926(d). A company with but one employee is responsible for upholding FEHA’s harassment prohibitions. Government Code § 12940(j)(4)(A).

Until now, unpaid interns and trainees have fallen between the cracks, because such work experience programs were not included in the types of work covered by such FEHA protections. Government Code § 12940(c).

Beginning in 2015, a business employing five or more can no longer “discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person” based on his/her membership in a protected class. Government Code § 12940(c) (emphasis reflects amended language). Similarly, a business employing even one person cannot unlawfully harass such unpaid person interning or training with that company based on protected class membership. Government Code § 12940(j)(1) and (4)(A).

The new law separately requires that the religious observances of interns be protected and that they be free of any adverse actions – i.e., actions related to selection, termination, training, or other decisions – based on their religious beliefs. Government Code § 12940(l)(1).

While California businesses may not be legally obligated to pay interns or trainees and while such persons need not be included in all phases of operations, it has always been management’s safest course to afford them the same courtesies and protections extended to employees regarding discrimination and harassment. Now the law requires it.

If you need further information, please feel free to contact any of our attorneys – Tim Bowles, Cindy Bamforth, and Helena Kobrin.

Additional articles:
Who is an “Employee” Under California’s Anti-Discrimination Law?
Proving Workplace Discrimination is Now More Difficult in California
Age Discrimination in Employment
A California Employer’s Guide to New Laws 2012: Genetic Information Discrimination
Workplace Age Discrimination Laws Protect “Old People” Only

“Private” Arbitrations No Longer Private In California

Effective January 1, 2015 in California, private arbitration companies, including the American Arbitration Association (AAA) and Judicial Arbitration and Mediation Services (JAMS), must publicly post certain previously-confidential information about their arbitrations. (Assembly Bill [AB] 802).

AB 802 amends California Code of Civil Procedure section 1281.96 to require AAA, JAMS and their competitors to publish detailed profiles on all consumer arbitrations, including employment-related matters. The legislation effectively eradicates confidentiality, previously one of the key advantages of arbitration over court proceedings.

The publicly available information must include:

1) Whether the arbitration was demanded pursuant to a written agreement and, if so, whether the agreement designated that particular company to administer the arbitration;
2) The employer’s business name and whether it was the initiating or responding party;
3) The nature of the dispute (e.g. employment) and the amount of the employee’s annual wages;
4) Whether the employer or employee was the prevailing party;
5) The total number of occasions the employer has been involved in mediations or arbitrations administered by that company;
6) Whether the employee was represented by an attorney and, if so, the attorney’s name;
7) The dates of the demand for arbitration, of the arbitrator’s appointment, and of the arbitrator’s disposition (decision);
8) The type of disposition (i.e., withdrawal, abandonment, settlement, monetary award, or dismissal without hearing);
9) The amounts of the claim, any monetary award, any attorney’s fees awarded, and details on any other relief granted; and
10) The arbitrator’s name and his or her fee amount.

These case-by-case disclosures must be made at least quarterly on the arbitrator’s website in a searchable format from a conspicuously displayed “consumer case information” link.

For more information about this recent development and how it might affect your workplace policies and practices, please contact any of our office’s attorneys, Tim Bowles, Cindy Bamforth or Helena Kobrin.