Employment Laws Update - 2014 What California Employers Should Know Presented by: Larry Kazanjian.

Employment LawsUpdate - 2014

What California Employers Should Know

Presented by:Larry Kazanjian

Palmer Kazanjian Wohl Hodson LLP

Introduction

Introduction (cont.)


January – February 2014 Superior Court, Sacramento County and U.S. District

Court, Eastern Dist. of CA:• Discrimination/Harassment/Retaliation – 51• Leaves of Absence - 16• Failure to Provide Meal and/or Rest Periods - 14

All of California:• Discrimination/Harassment/Retaliation – 1,193• Wrongful Termination – 754• Failure to Pay Overtime – 414

*Data via Courthouse News Service.

*

Overview


Contractual RelationshipsEqual Employment OpportunityIndependent Contractor IssuesCompensation and BenefitsLeaves of AbsenceQuestion/Answer


Summary: Written Policies and

Procedures At-Will Employment Arbitration

Agreements 2014 Update

Contractual Relationships

Written Policiesand Procedures


Federal or state law requirementsEmployee requestsManagement or supervisor reviewEvidence in case of litigationEstablish terms of the employment

relationship Ex) Via written employment handbook

Either party may terminate relationship

Without notice and/or cause

“Fully integrated” contract

Cannot terminate for “unlawful” reason


At-Will Employment

Separate agreement signed by parties

Necessary provisions include:

Impartial arbitrator Remedies

Benefits include: Avoid litigation costs Expedite dispute process


Arbitration Agreements

2014 Update

Compton v. American Management Services LLC (2013)

Arbitration agreement held unenforceable because it was unconscionably one-sided

Serpa v. California Surety Investigations, Inc. (2013)

Arbitration agreement contained in an employee handbook was not invalid simply because the employer could change the handbook in its discretion



Summary: Harassment Discrimination Retaliation Workplace Violations 2014 Update

Equal Employment Opportunity


Harassment

“Harassment” defined Unwelcome conductComplaint procedureInvestigation/

ResponseRemediesElectronic media

Ex) email, Internet


Discrimination

Protected classifications include race, sex, religion

Disparate Treatment vs. Disparate Impact

Keys to avoidance include: Consistency Legitimate, business-related

reasons for decisions


Retaliation

Form of unlawful discriminationMultiple potential “retaliators” Cannot change terms of employmentCannot terminate employeeProtect against via written policyExample(s):

Employee “blows the whistle on” safety violations or reported sexual harassment

Zero tolerance policy Threats, jokes, minor events

Appropriate response procedure

Legal tools, e.g. injunction


Workplace Violence

2014 Update

AB 263 – Immigration – Related Penalties Subjects employers who engage in unfair immigration-related practices to heavy

fines and allows for private enforcement actions; Defines unfair immigration practices.

SB 292 – FEHA - Sexual Harassment Sexually harassing conduct need not be motivated by sexual desire to qualify as

harassment; Clarifies that the FEHA does not require proof of sexual desire toward the plaintiff in a harassment suit.

SB 400 – Protections for Stalking An employer cannot discharge/discriminate/retaliate against an employee because

employee is a victim of domestic violence, sexual assault, or stalking; Employer must also reasonably accommodate the victim.

SB 666 – Retaliation An employer may lose its business or professional license for retaliating against an

employee/former employee/applicant on the basis of their citizenship and/or immigration status.


2014 Update (cont.) Vicente Salas v. Sierra Chemical Co. (2014).

The CA Supreme Court will rule on a dispute over whether an employer can successfully fight a discrimination suit by alleging a worker provided false information about his immigration status, giving the court an opportunity to clarify the scope of companies' affirmative defenses when workers lie to them, lawyers say.

The court heard oral argument on April 2, 2014. A state appellate court previously upheld the dismissal of the

employee’s disability discrimination case under FEHA, because of Sierra Chemical’s after-acquired evidence defense – in which it claimed that it found out during litigation that Salas had used someone else’s Social Security number to obtain employment and that it would never have hired Salas had it known about the misrepresentation.



Summary: Independent Contractor

or Employee? Wage and Hour Issues 2014 Update

Independent Contractors


Employment Status Independent Contractor or

Employee? Employee presumption

Cal. Lab. Code § 3357 Differing definitions utilized

Cal. Code Regs. tit. 22, § 4304-1 The Employment Development

Department (“EDD”) administers California’s employment tax laws

Do not use single factor to classify S. G. Borello & Sons, Inc. (1989)


Wage and Hour Issues

“Employee” determinationMinimum wageOvertime wagesMeal and rest periodsReimbursementOther issues:

Tax Workers’ Compensation Unemployment Insurance

2014 Update

SB 168 – Farm Labor Contractors Existing law requires farm labor contractors to be

licensed with the California Labor Commissioner and comply with applicable law.

New law makes a successor farm labor contractor liable for any wages or penalties owed to a former employee by the predecessor employer, whether or not the predecessor was a licensee.

The criteria for determining whether the farm labor contractor is a successor is enumerated in Labor Code § 1698.9.


2014 Update (cont.)

Baumann v. Chase Investment Services Corp. (March 13, 2014)

9th Circuit Court of Appeals held that the federal district does not have original jurisdiction under the federal Class Action Fairness Act (CAFA) over wage and hour suits brought under California’s Private Attorneys General Act (PAGA).



Compensation and Benefits

Summary: Overtime & Minimum

Wage Obligations Meal and Rest Periods Other Compensation

Overtime & Minimum Wage

Overtime Exemptions: Executive Administrative Professional

Use of Alternative & Flexible SchedulesLimits on Hours of WorkRegular Rate of PayRelated Record-Keeping Requirements


Meal and Rest Periods

Brinker Restaurant Corp. (2012)Employee can contest up to four (4) years

after a missed meal periodEmployers’ compliance objective:

Create best evidence possible that meals were provided, regularly taken and accurately recorded


Other Compensation

ExpensesVacation

No statutory definition; only DLSE Opinion LettersSick Leave

Only includes a right to take time off that accrues periodically with the passage of time.

BonusesCommissions

Employers who pay commissions are required to enter into written commission contracts with employees


2014 Update

AB 10 – Minimum Wage On and after July 1, 2014,

minimum wage is $9.00 per hour.

On January 1, 2016, minimum wage will increase again, to $10.00 per hour.


2014 Update (cont.) SB 390 – Employee Wage Witholdings

Existing state law made it a crime for an employer to fail to make agreed- upon payments to health and welfare funds, pension funds, or various benefit plans.

As of 2014, it is a crime for a California employer to fail to remit withholdings from an employee’s wages that were made pursuant to state, local, or federal law.

SB 435 –Recovery Periods California employers are prohibited from requiring an employee to work during

any meal or rest period and must provide one hour of pay as a penalty for failure to comply.

This law expands the prohibition to cover meal, rest, or recovery periods mandated by applicable statutes, regulations, standards, or orders of applicable government agencies.

A “recovery period” is defined as a cool down period afforded to an employee to prevent heat illness.

OSHA mandates a recovery period of not less than five minutes for employees who work outside when the temperature exceed 85 degrees.


2014 Update (cont.)

Kilby v. CVS Pharmacy, Inc. (2013); and Henderson v. JPMorgan Chase Bank NA (2013).

In March 2014, the 9th Circuit Court of Appeals asked the California Supreme Court to clarify how the state law requiring employers to provide workers with “suitable seating” should be applied.

California’s IWC wage orders require most employers to provide their employees with suitable seating “when the nature of the work reasonably permits the use of seats.”

This has been the law for decades, but the suitable seating requirement was little noticed until after the enactment of the California Labor Code Private Attorneys General Act of 2004 (the “PAGA”).



Leaves of Absence

Summary: Family Medical Leave Act (“FMLA”) Disability Leave &

Reasonable Accommodation Pregnancy Leaves and Other Leaves 2014 Update

The FMLA

FMLA/CFRAADA/FEHAWorkers CompensationPDL and other state lawsSeparate analysis for

eachConsistent applicationPaid sick leave for family

medical conditions


Disability and Accommodation

Employee Qualifications “Disability” defined “Reasonable Accommodation” “Undue Hardship”

Certification RequirementsReinstatement ObligationsCollective Bargaining Obligations


Pregnancy and Other Types of Leaves

Pregnancy LeaveIndustrial Injury LeaveVacation LeaveSick LeaveMilitary LeaveOther Leaves

Civic duty, election, religious leave, holiday leave, bereavement leave


2014 Update

SB 770 – Expansion of Paid Family Leave Under existing law, the California Family Rights

Act (“CFRA”) provides up to six (6) weeks of wage replacement benefits to workers who take time off to care for a seriously ill child, spouse, parent or domestic partner, or to bond with a minor child.

The scope of this program will now be expanded to include time off to care for a seriously ill grandparent, grandchild, sibling, or parent-in-law.


2014 Update (cont.)

California, AB 1522 – Paid Sick Days Under proposed legislation, workers would accrue one (1)

hour of paid sick leave for every 30 hours worked, and employers could cap the leave at 24 hours, or three (3) work days each year.

Unused sick leave would be carried over into the following year, a provision representing a significant change to existing law.

The Patient Protection and Affordable Care Act Businesses with 50+ full-time employees will be subject to

fines if they do not provide healthcare coverage for workers after this January 1, 2015.


Questions?


Thank You

Employment Laws Update - 2014What Employers Should Know

Employment Laws Update - 2014 What California Employers Should Know Presented by: Larry Kazanjian.

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Transcript of Employment Laws Update - 2014 What California Employers Should Know Presented by: Larry Kazanjian.