2015 EMPLOYMENT LAW UPDATE

Daniel J. MullerSlater Hersey & Lierberman LLP

160 W. Santa Clara Street, Suite 1575San Jose CA 95112

dmuller@slaterhersey.com408-512-3025

NEW LEGISLATION - SICK LEAVE

The Healthy Workplaces, Healthy Families Act of 2014 requires employers to provide paid sick leave to any employee who worked in California for 30 days.

Applies to employers of any sizeAccrual rate of one hour for every 30 hours worked

Employers are allowed to limit an employee’s use of paid sick leave to 24 hours (or three days) in each year of employment

NEW LEGISLATION - SICK LEAVE

Employers may create a cap on total accrual of 48 hours.

Effective date for employers to begin providing paid sick leave benefit is July 1, 2015

Notice requirementsPoster from EDDNotice on pay stubs

Can use PTO policies as an alternative

NEW LEGISLATION - CHILD LABOR

The Child Labor Protection Act of 2014 expands the penalties applicable to violators of child protection laws.

Authorizes the award of treble damages to any person who suffers retaliation for filing a claim or civil action alleging child labor law violations.

NEW LEGISLATION - VOLUNTEERS & INTERNS

AB 1443 amends the California Fair Employment & Housing Act to provide protections against discrimination and harassment to volunteers and interns.

Prior law applied to “apprentice programs” and “training programs” that “led to employment.” The new amendments expressly apply the state’s anti-discrimination and anti-harassment provisions to unpaid intern and volunteer programs even if the programs are not designed to lead to employment.

Prior law applied to the “selection” and “termination” of unpaid interns. The new provisions expand protections of unpaid interns and volunteers to “training” programs and “other terms or treatment.”

NEW LEGISLATION - DRIVER’S LICENSES FOR UNDOCUMENTED PERSONS AB 1660 makes it a violation of the Fair Employment & Housing Act

for an employer to discriminate against an individual because he / she holds or presents a driver’s license issued to an undocumented person who can submit satisfactory proof of identify and California residency.

Discrimination on the foregoing basis will constitute national origin discrimination in violation of the FEHA.

AB 1660 also provides that it is a violation of the FEHA for an employer to require a person to present a driver’s license, unless possessing a driver’s license is (1) required by law; or (2) required by the employer and the employer’s requirement is otherwise permitted by law.

NEW LEGISLATION - UNFAIR IMMIGRATION PRACTICES

AB 2751 expands the definition of an “unfair immigration-related practice” to include threatening to file or filing a false report or complaint with any state or federal agency.

Prior law only applied to reports filed with the police.

AB 2751 also clarifies that an employer cannot discriminate or retaliate against an employee who updates his or her personal information “based on a lawful change of name, social security number, or federal employment authorization document.”

NEW LEGISLATION - INDEPENDENT CONTRACTORS

AB 1897 (Labor Code § 2810.3) provides that:

When a California business uses an independent contractor at the its job site

to perform any part of the business’ “usual course of business” and

the independent contractor has a total crew of six or more non-exempt workers at the jobsite

The business will be jointly responsible for the “wages” of the independent contractor’s workers and for their workers’ compensation insurance.

NEW LEGISLATION - INDEPENDENT CONTRACTORS

“Usual course of business” is defined as “regular and customary work.”

Small employer exemption – only applies to businesses with 25 or more employees.

NEW LEGISLATION – ABUSIVE CONDUCT TRAINING

AB 2503 requires that employers that are already required to provide sexual harassment training to supervisors (employers with 50 or more employees) must also provide training on “abusive conduct.”

“Abusive conduct” is defined as conduct that a “reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.”

“Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.

The new law provides that a single act shall not constitute abusive conduct, unless especially severe and egregious.

NEW LEGISLATION – LOCAL MINIMUM WAGE ORDINANCES

Local minimum wage ordinances are now commonplace. Be sure to check whether the places you do business have such laws!

San Jose – $10.30.

San Francisco -- $11.05 as of January 1, 2015. Increases to $12.25 in May 2015 and will increase every July until it reaches $15.00 in 2018.

Oakland -- $12.25 as of March 2015.

NEW LEGISLATION – SAFETY

AB 326 allows employers to report injuries to the Division of Occupational Safety and Health via email.

Prior law required notice by either telegraph or telegram.

COURT DECISIONS – WRONGFUL TERMINATION

Mendoza v. W. Med. Ctr. Santa Ana (2014) 222 Cal. App. 4th 1334

To show public policy wrongful discharge under the FEHA, a plaintiff must prove that his report of sexual harassment by a supervisor “was substantial motivating reason” for his termination.

Vasquez v. Franklin Mgmt. Real Estate Fund, Inc. (2014) 222 Cal. App. 4th 819

Employer’s failure to reimburse expenses allowed past employee to allege constructive discharge claim.

Although the failure to reimburse expenses will not normally cause intolerable conditions, the employee had no option but to resign because the expenses were very high compared to his pay.

COURT DECISIONS – WRONGFUL TERMINATION

Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal. App. 4th 144

Plaintiff may bring an action for wrongful termination where he complained about criminal activity—in this case, the employer’s alleged warranty scam—and was then terminated in retaliation for his complaints.

COURT DECISIONS – HARASSMENT & DISCRIMINATION

Taylor v. Nabors Drilling USA, LP (2014) 222 Cal. App. 4th 1228

Workplace verbal attacks on a male employee’s heterosexual identity were deemed harassment under the FEHA even though the remarks were not motivated by sexual desire.

Consistent with recent FEHA amendment

Weaving v. City of Hillsboro (9th Cir. 2014) 763 F.3d 1106

Police officer with a history of interpersonal conflicts with coworkers was not substantially limited in his ability to work or interact with others by his attention deficit hyperactivity disorder within the meaning of the ADA since he had a successful career as a police officer.

COURT DECISIONS – HARASSMENT & DISCRIMINATION

Kao v. The University of San Francisco (2014) 229 Cal. App. 4th 437

An employee’s termination from employment was not wrongful when he refused to participate in a fitness for duty examination after colleagues complained about his unusual and threatening behavior.

Examination was permitted because it was “job related” and “consistent with business necessity.”

Serri v. Santa Clara University (2014) 226 Cal. App. 4th 830

Former employee was lawfully terminated for failing to perform her primary job duties.

COURT DECISIONS – HARASSMENT & DISCRIMINATION

Robert v. Stanford Univ. (2014) 224 Cal. App. 4th 67

Attorneys’ fees may be awarded to an employer in a FEHA case where Plaintiff’s evidence of discrimination consists solely of subjective opinion and speculation.

Plaintiff’s case was based solely on his personal opinion.

COURT DECISIONS – INDEPENDENT CONTRACTORS

Alexander v. FedEx Ground Package Sys. Inc. (9th 2014) 765 F.3d 981

Drivers for defendant were misclassified as independent contractors where defendant controlled the manner and means in which drivers delivered packages to defendant’s customers.

White v. County of Los Angeles (2014) 225 Cal. App. 4th 690

Ordering further medical evaluation of employee who has been reinstated to original position after returning from medical leave does not violated FMLA, especially when position pertains to public safety.

COURT DECISIONS – EXPENSE REIMBURSEMENT

Cochran v. Schwan’s Home Serv., Inc. (2014) 228 Cal. App. 4th 1137

Labor Code section 2802 requires employer to reimburse employee for reasonable expense of mandatory use of personal cell phone, even if business use of phone did not cause employee to incur additional charge.

DISABILITY LAW – THE INTERACTIVE PROCESS

Successful implementation of the “interactive process” is critical to avoiding and / or resolving disability discrimination claims.

The employee is entitled to the process even if the employer “knows” or suspects that no reasonable accommodation is available.

Documentation is key. Be sure to show that the employer is trying to find a solution.

Ask this question if there is an actual or possible disability claim: “Is there anything we can do so that you can perform the essential functions of your job?”

Remember that an unpaid leave of absence can be a reasonable accommodation in some circumstances.

MANAGING LEAVES OF ABSENCE

Documentation is critical. Be able to show that notices were given and appropriate leaves were offered.

Know your own policies. If an employer is not careful, it can create leave obligations when they otherwise would not exist.

Train your supervisors. Leave laws are complicated. Supervisors who “freelance” regarding leaves of absence can create problems for employers.