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A wider lens on workplace law

LEGAL UPDATE:New Employment Laws 2017

AOA Annual ConferenceJanuary 9, 2017Richard E. Bromley, Esq.

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OUTLINE

New Laws in 2017: Minimum Wage increase Fair Pay Act expansion Criminal History Inquiries All-Gender Bathrooms Notice of Domestic Violence Leave Wage Statements Immigrant investigations Cell Phone restrictions Marijuana: Prop 64 Choice of law & choice of forum provisions

in employment contracts2


New California EmploymentStatutes for 2017


MINIMUM WAGE INCREASE

California’s current minimum wage rate of$10.00 per hour increased to $10.50 per houron January 1, 2017.

Also impacts the pay of exempt employees.

Employees classified as exempt (under theadministrative, executive, or professionalexemptions) must receive a monthly salary ofat least twice the minimum wage for full-timeemployment.

That minimum salary amount increased to$3,640.00 per month ($43,680 annually) onJan. 1, 2017.

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MINIMUM WAGE INCREASE -- LOCAL

Various California cities have passedminimum wage ordinances:

• Los Angeles: $10.50/hr;

• Long Beach: $10.50/hr;

• San Diego: $11.50/hr;

• San Francisco: $13.00/hr on July 1, 2016;and

• San Jose: $10.50/hr.

• And others cities that don’t have CSUcampuses, e.g., Berkeley, Cupertino,Oakland, etc.

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MINIMUM WAGE INCREASE -- LOCAL

What affect do these local minimum wageordinances have on the amount that exemptemployees must be paid?

Nada, nothing, not at all.

The amount that must be paid to exemptemployees is based on the state minimumwage, not on local ordinances.

Employers must pay the minimum wagerequired by the local ordinance, but it onlyaffects the lowest paid employees.

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MINIMUM WAGE INCREASE

Practical Effects:

• May cause other employees to seek raises.

• May cause increase in union wages amongCSU employees, which may impact auxiliaryemployees.

• Will affect budgets. Need to account forhigher labor costs.

• Some employers looking at potential lay offs toreduce labor costs.

• Retail employees who are exempt fromovertime must be paid at least one and one-half times the minimum wage and must receivemore than half of wages in commissions.7


FAIR PAY ACT

Last year, the Fair Pay Act – Labor CodeSection 1197.5 -- was revised.

As revised, the 2016 law prohibits employersfrom paying employees at wage rates lessthan the rates paid to employee of theopposite sex “for substantially similar work,when viewed as a composite of skill, effort,and responsibility, and performed under similarworking conditions.”

It also raised several questions: What is“substantially similar?” What are “similarworking conditions?” What is a “composite?”

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FAIR PAY ACT -- DEFENSES

Defenses under the 2016 amendment: Section1197.5 provides that, it is up to the employer todemonstrate that the wage differential is basedon one or more of the following:

• A seniority system;

• A merit system;

• A system that measures earnings by quantity orquality of production; or

• A bona fide factor other than sex, such aseducation, training, or experience. But . . . . . .

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But that last factor “shall apply only if theemployer demonstrates” that it is not based onor derived from a sex-based differential incompensation, is job related with regard to theposition, and is consistent with business necessity.

“Business necessity” means “an overridinglegitimate business purpose” that fulfills thebusiness purpose it is supposed to serve.

That last factor shall not apply if the employeedemonstrates that an alternative practice existsthat would serve the same business purposewithout producing a wage differential. 10



And all of the factors have to be applied“reasonably.”

And all of the factors have to “account for theentire wage differential.”

So what if you hire a male manager and had topay him more to convince him to leave hiscurrent employer? How are you going to justifypaying him more than other female managers?

He may have more education, training, orexperience, but what business purpose does itfulfill?

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FAIR PAY ACT – 2017 CHANGES

This year the Legislature amended Section 1197.5again.

First, SB 1063 expanded the protectedcategories from just sex to include also race andethnicity.

Second, AB 1676 limited the defenses so that“[p]rior salary shall not, by itself, justify anydisparity in compensation.”

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FAIR PAY ACT

Practice pointers:

• Need to conduct wage/salary audits.

• Need to examine criteria for wage/salaryaudits and make sure they reflect the samekind of criteria required by the statute –make composites, examine similar workingconditions, etc.

• Need to be creative in consideringemployees from different departments anddifferent areas.

• Train managers and supervisors.13


FAIR PAY ACT

Practice pointers:

• Need to evaluate whether you have a “senioritysystem,” “merit system,” etc. for determining payamounts. Do you follow them?

• Need to have someone who will conduct FairPay Act reviews for new hires – especially ofsenior employees where the potential for liabilityis the greatest.

• Need to look at categories of positions thatprimarily employ one kind of gender, race orethnicity and evaluate them as compared toother categories. (Catering department vs.dining service vs. accounting.)

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CRIMINAL HISTORY INQUIRIES

AB 1843 amends Labor Code Section 432.7:

Existing law prohibits employers from asking anapplicant for employment, or from making anyemployment decisions, concerning an arrestthat does not result in a conviction.

The amended statute also prohibits an employerfrom asking an applicant, or from making anyemployment decisions, based on any arrest,detention, conviction, or any court disposition“that occurred while the person was subject tothe process and jurisdiction of juvenile courtlaw.” 15


CRIMINAL HISTORY INQUIRIES

Practice pointers:

• This amended law means that even crimesof murder, rape, or mayhem may not bedisclosed to an employer and may not usedby an employer if those crimes wereadjudicated by a juvenile court of law.

• Make sure that outside background checkcompanies are not providing informationabout juvenile court proceedings of anykind.

• Train supervisors, managers, recruiters, andhiring committees.

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ALL GENDER BATHROOMS

AB 1732 –adds Section 118600 to the Health andSafety Code:

Beginning March 1,2017, all single-user toiletfacilities in any business establishment, place ofpublic accommodation, or state or localgovernment agency “shall be identified as all-gender toilet facilities by signage” and that thefacility is designated “for use by no more thanone occupant at a time or for family or assisteduse.”

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ALL GENDER BATHROOMS

Practice pointers:

• Identify all single-user toilet facilities.

• Order new signage that complies.

• Have new signage installed and make anyother modifications necessary.

• Inform employees about the change to avoid“mistaken entries” and to avoid complaintsfrom surprised employees.

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NOTICE OF DOMESTICE VIOLENCE LEAVE

AB 2337 – Amends Labor Code Section 230.1

Labor Code Section 230.1 requires employerswith 25 or more employee to provide up to 12weeks of leave for employees who are victims ofdomestic violence, sexual assault, or stalking inorder to seek medical attention, obtain servicesfrom a shelter or rape crisis center, to obtainpsychological counseling, and to participate insafety planning.

Prior to 2017, Section 230.1 had no noticerequirements.

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AB 2337 – Amends Labor Code Section 230.1

AB 2337 requires notice to employees.

The Labor Commissioner must post a sampleform on its website by July 1, 2017.

Once the sample form is posted by the LaborComm, employers must begin complying withthis notice requirement by providing a noticewith “substantially similar” content and clarity.

Employers must “inform each employee” inwriting of his or her rights under Section 230.1.

It must be provided to new employees upon hireand to other employees upon request.

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Practice pointers:

• Consider including a sample policy in youremployee handbook. (See attachedsample policy.)

• No need to issue new handbooks to currentemployees just for this policy. Not required.

• Make sure all new hires receive the writtenpolicy.

• Train supervisors and managers about thistype of leave to make sure employeesreceive it when needed.

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WAGE STATEMENTS FOR EXEMPT EMPLOYEES

AB 2535 – Amends Labor Code Section 226:

Labor Code Section 226 requires wagestatements to include nine pieces of information:

• Gross wages earned;

• Total hours worked except for employeeswhose pay is based solely on salary and whoare exempt from overtime;

• Number of piece rate units earned and anyapplicable piece rates;

• All deductions;

• Net wages earned;22




Nine pieces of information (cont’d):

• The inclusive dates of the period for which theemployee is paid;

• The name of the employee and only the lastfour digits of his or her social security numberor an employee identification number;

• The name and address of the legal entity thatis the employer; and

• All applicable hourly rates in effect during thepay period and the corresponding number ofhours worked at each hourly rate.

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Amended Section 226 now states that totalhours are not required if any of the followingapply:

• Employee’s compensation is solely based onsalary and the employee is exempt fromovertime;

• The employee is exempt from minimum wageand overtime under any of the following:

The executive, administrative or professionalexemption;

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• The employee is exempt from minimum wageand overtime under any of the following(cont’d):

The exemption for outside salespersons;

The exemption for computer softwareprofessionals who are paid a salary;

A parent, spouse, child, or legally adoptedchild of the employer; and

Exemptions that apply to incarcerationrehab programs, commercial fishing boats,and the national service program.

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WAGE STATEMENTS FOR EXEMPT EMPLOYEE

Practice pointers:

• Review and audit wage statements to makesure all nine pieces of information areprovided;

• Technical errors can become expensiveclass actions;

• Make sure non-discretionary bonuspayments include overtime adjustments,applicable pay rates, and dates; and

• Cure any problems detected.

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IMMIGRATION INVESTIGATIONS

SB 1001 – Adds Labor Code Section 1019.1:

Labor Code Section 1001 makes it unlawful for anemployer to:

• Request more or different documents than arerequired by federal immigration law;

• Refuse to honor documents that “on their facereasonably appear to be genuine;”

• Refuse to honor documents “based on thespecific status or term of status thataccompanies the authorization to work;” and

• Attempt to reinvestigate or reverify anincumbent’s authorization using an unfairimmigration practice.

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IMMIGRATION INVESTIGATIONS

Practice pointers:

• Audit and review immigration verificationprocedures.

• Before rejecting documents, have a seniorperson review the decision and thedocuments.

• Before reinvestigating or reverifying, have asenior person review the decision and thedocuments.

• Penalties up to $10,000 per violation.

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CELL PHONE RESTRICTIONS

AB 1785 – Revises Vehicle Code Section 23123.5:

Prohibits holding and operating a cell phone or“electronic communications device” whiledriving unless the device is designed andconfigured to allow voice-operated and hands-free operation, and it is used in that manner.

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AB 1785 – Revises Vehicle Code Section 23123.5:

A driver may only use his or her hand to operatethe device while operating the vehicle if bothconditions are satisfied:

• The device is mounted on a windshield ordashboard; and

• The driver’s hand is used “with the motion of asingle swipe or tap of the driver’s finger.”

Initial fine is $20 and subsequent offenses are$50. But they are usually more . . . . . .

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Practice pointers:

• Distracted driving is a problem on our roadsand companies are at risk when they requiredriving employees to respond to phone calls,e-mails, and texts.

• Issue a written policy to drivers and havethem sign off on it.

• Enforce the policy by issuing warnings toemployees who violate the policy.

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MARIJUANA: PROP 64

Prop 64 – Legalizes marijuana in California:

Allows adults who are 21 years old or older topossess and use marijuana for recreationalpurposes.

Creates two new taxes – one levied oncultivation and the other on retail price.Revenue to be spent on drug research,treatment, health and safety grants, youthprograms, etc.

Still illegal to use marijuana or be under theinfluence while driving.

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MARIJUANA: PROP 64

Prop 64 – Legalizes marijuana in California:

Section 11362.45(f) of the Health and SafetyCode states that Prop 64 shall not be construedor interpreted “to amend, repeal, affect, restrictor preempt” the rights of “private employers tomaintain a drug and alcohol free workplace orrequire an employer to permit or accommodatethe use, consumption, possession, transfer,display, transportation, sale, or growth ofmarijuana in the workplace, or affect the abilityof employers to have policies prohibiting the useof marijuana by employees and prospectiveemployees, or prevent employers fromcomplying with state or federal law.” 33


MARIJUANA: PROP 64

Practice pointers:

• Treat marijuana like alcohol or a legallyprescribed drug.

• OK to have drug-free policies at work.

• But must accommodate for medical usage,so get a doctor’s note.

• Drug tests not always effective becausemarijuana stays in the body for a long time.

• Involve trained professionals (e.g., campuspolice) when evaluating whether someone isunder the influence.

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CHOICE OF LAW AND FORUM PROVISIONS INEMPLOYMENT CONTRACTS

SB 1241 – Adds Labor Code Section 925

Section 925 prohibits an employer from requiringan employee “who primarily resides and works inCalifornia” to agree to a provision that would doeither of the following:

• Require the employee to adjudicate (i.e.,lawsuit or arbitration) outside of Californiawhen the claim arises in California; or

• Deprive the employee of the substantiveprotection of California law regarding anycontroversy arising in California.

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SB 1241 – Adds Labor Code Section 925

Any contract provision that violates Section 925is voidable by the employee.

An employee can recover his/her attorneys’ feesfor enforcing this statute.

This statute does not apply to a contract with anemployee who is individually represented bylegal counsel in negotiating the terms of anagreement that includes a choice of law orchoice of forum provision.

This statute applies prospectively.36



Practice pointers:

• Identify if you have any employmentagreements that have choice of law orchoice of forum provisions that select a stateother than in California. Do you want any?

• Existing contracts are OK but may not bemodified or amended without losing thechoice of forum or choice of law provisions.

• Consider changing templates ofemployment agreements that have suchprovisions.

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A wider lens on workplace law38

Questions?

A wider lens on workplace law39

Thank You Richard E. Bromley, [email protected]

Constangy, Brooks, Smith& Prophete, LLP1800 Century Park EastSuite 600Los Angeles, CA 90067

By Richard BromleyLos Angeles-Century City Office

and

Kacy CobleMemphis Office

The California Legislature and Governor Jerry Brown were busy in 2016. The state legislature sent 1,059 bills to Governor Brown to sign, and he signed 898 of them, leaving him with a veto rate of about 15 percent. Of the 898 bills that he signed, many will directly affect California employers and employees. Below is a summary of some of the key employment-related legislation that will go into effect in 2017.

Forum Selection Clauses and Choice of Law Provisions in Employment Contracts Are Voidable (Effective January 1, 2017)

SB 1241 adds Labor Code Section 925, which prohibits employers from requiring employees who primarily reside and work in California to sign forum selection or choice of law provisions as a condition of employment. The law applies to claims that arise primarily in California and to agreements entered into, modified, or extended on or after January 1, 2017.

Any provision of a contract that violates the new law is voidable by the employee. Thus, if a California employee signs an agreement containing either a forum selection clause that designates a forum outside of California or a choice of law provision designating a law other than California law, those provisions are not enforceable unless the employee agrees to them during the course of the subsequent lawsuit, and the employee can recover attorneys’ fees regarding the dispute over such provisions. Nonetheless, the law does permit an exception for employees who are individually represented by counsel while negotiating employment contract terms and conditions. In other words, when negotiating an employment agreement for a high level management position, it would be advantageous to have the signature of the employee’s attorney on the agreement, or a similar attestation if possible, to have an enforceable forum selection clause or choice of law provision.

Fair Pay Act Protections Expanded to Prohibit Wage Discrimination on Account of Race and Ethnicity And To Limit The Use of An Employee’s Prior Salary History (Effective January 1, 2017)

The Fair Pay Act, which became effective last year (January 1, 2016), prohibits an employer from paying any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions, unless the employer demonstrates that specific, reasonably applied factors account for the entire wage differential. SB 1063 amends Labor Code Sections 1197.5 and 1199.5 to expand the Fair Pay Act’s protections to employees who are paid less than other employees of another race or ethnicity.

AB 1676 modifies the Fair Pay Act by prohibiting an employer from using an employee’s prior salary, by itself, to justify any disparity in compensation. Employers Prohibited From Asking Applicants About Criminal History While a Juvenile (Effective January 1, 2017)

Two bills limit an employer’s ability to inquire about an applicant’s criminal history while the applicant was a juvenile. AB 1843 amends Labor Code Section 432.7 by prohibiting employers from asking applicants to disclose information concerning or related to “an arrest, detention, process, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law.” That means that even crimes of murder, rape, or mayhem may not

CALIFORNIA CORNER

2017 CALIFORNIA LEGISLATIVE UPDATE

www.constangy.comToll free 866.843.9555

December 22, 2016

HEAD, LOS ANGELES-CENTURY CITY OFFICE

EDITOR IN CHIEFRobin SheaWinston-Salem, NC

Kenneth Sulzer

HEAD, LOS ANGELES-ENCINO OFFICEAl Landegger

be disclosed to an employer if those crimes were adjudicated by a juvenile court of law.

Similarly, AB 1843 prohibits employers from seeking from any source, or using as a factor in determining any condition of employment, any record concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of a juvenile court law. Minimum Wage Increases (Effective January 1, 2017)

SB 3 increases California’s minimum wage each year on January 1, from 2017 to 2022, for employers with 26 or more employees (or 2018 and thereafter for employers with fewer than 26 employees). Beginning January 1, 2017, the state minimum wage for employers with 26 or more employees will be $10.50 per hour. Because most exempt employees in California must earn no less than 2 times the state minimum wage for full-time employment (defined as 40 hours per week) to be exempt, employers with 26 or more employees must pay their exempt employees at least $3,640 per month ($43,680 annually) to maintain those overtime exemptions.

All-Gender Bathrooms Required (Effective March 1, 2017)

Effective March 1, 2017, business establishments are prohibited from labeling any “single-user toilet facility” as either “male” or “female.” AB 1732 defines “single-user toilet facility” as a “toilet facility with no more than one water closet and one urinal with a locking mechanism controlled by the user.” The law authorizes inspectors, building officials, or other local officials responsible for code enforcement to inspect for compliance with these provisions during any inspection.

Employers Required to Provide Written Notice of Domestic Violence Leave and Accommodation Rights (Effective July 1, 2017)

Pursuant to AB 2337, employers with 25 employees or more must provide written notice of the time off and accommodation rights afforded by Labor Code sections 230 and 230.1 to victims of domestic violence, sexual assault and stalking. The written notice must be provided to all new employees and any current employee upon request. The law also requires that, on or before July 1, 2017, the Labor Commissioner shall develop a form that employers may elect to use to comply with these provisions. Employers are not required to comply with the notice requirement until the Labor Commissioner makes such form available to employers online.

Employers Not Required to List “Total Hours Worked” on Itemized Wage Statements for Certain Exempt Employees (Effective January 1, 2017)

Existing law requires that employers provide employees written, itemized wage statements containing the nine pieces of information specified in Labor Code Section 226, which includes stating the “total hours worked.” AB 2535 clarifies that itemized wage statements need not state the “total hours worked” for any employee who is exempt from overtime by any applicable Wage Order, including outside sales representatives, computer professionals, and other exemption categories. Employers Required to Post Bond Before Contesting Citation for Failure to Pay Minimum Wage (Effective January 1, 2017) AB 2899 amends Labor Code Section 1197.1 by requiring an employer to post a bond before appealing a Labor Commissioner’s citation for failure to pay a minimum wage. The employer must post the bond with the Labor Commissioner in an amount equal to the unpaid wages assessed under the citation (excluding penalties). The bond must also be issued in favor of the unpaid employee, as it will be forfeited to the employee if the employer loses the appeal, withdraws the appeal, or settles the dispute and fails to pay the amounts owed within the time periods specified in the statute or settlement agreement.

New Unlawful Employment Practice Related to Immigration and Work-Authorization Documents (Effective January 1, 2017)

SB 1001 adds Labor Code Section 1019.1, which makes it an unlawful employment practice (1) to request more or different documents than required under federal law; (2) to refuse to honor documents tendered which on their face reasonably appear to be genuine; (3) to refuse to honor documents or work authorization based on specific status or terms that accompanies the authorization to work; or (4) to attempt to reinvestigate or re-verify an incumbent employee’s authorization to work using an unfair immigration-related practice.

Job applicants and employees who suffer any of these unlawful practices may file a complaint with the Division of Labor Standards Enforcement. The applicant or employee, or the Labor Commissioner, may recover a penalty of up to $10,000 for violation of this statute.

Tougher Cell Phone Restrictions While Driving a Vehicle (Effective January 1, 2017)

AB 1785 amends Vehicle Code Section 23123.5 to prohibit anyone from operating a cell phone, or similar device, while driving a motor

CALIFORNIA CORNERDecember 22, 2016

vehicle unless the cell phone is used in a voice-operated and hands-free mode. Additionally, a driver may use his or her hand to operate a cell phone while operating the vehicle only if both of the following conditions are met: (1) the cell phone is mounted on a windshield, dashboard, or center console in a manner that does not hinder the driver’s view of the road; and (2) the driver’s hand is used to activate or deactivate a feature or function “with the motion of a single swipe or tap of the driver’s finger.” Violations are subject to a $20 fine for the first offense and a $50 fine for each subsequent offense.

Case to Watch --> Christopher Mendoza v. Nordstrom, Inc. In Mendoza v. Nordstrom, Inc., the former employee accuses Nordstrom of violating California labor law by permitting employees to work seven or more days in a row. The case is pending in federal court, and the Ninth Circuit has asked the California Supreme Court to answer three questions: (1) California Labor Code section 551 provides that “[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.” Is the required day of rest calculated by the work-week, or is it calculated on a rolling basis for any consecutive seven-day period? (2) California Labor Code section 556 exempts employers from providing such a day of rest “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.” Does that exemption apply when an employee works less than six hours in any one day of the applica-ble week, or does it apply only when an employee works less than six hours in each day of the week? (3) California Labor Code section 552 provides that an employer may not “cause his employees to work more than six days in seven.” What does it mean for an employer to “cause” an employee to work more than six days in seven: force, coerce, pressure, schedule, encourage, reward, permit, or some-thing else? Most California employers have operated under the assumption that they could assign work to employ-ees for seven or more consecutive days so long as they paid the overtime premiums mandated by the applicable Wage Orders. For example, an employee who worked on the seventh consecutive day of a workweek was presumed to be entitled to overtime for the first eight hours worked on the seventh day and double time for any additional hours worked (in excess of eight hours) on the seventh day. The plaintiffs in Mendoza have challenged that assumption and postulate that any work on the seventh consecutive day constitutes a violation of the Labor Code, which triggers penalties under the state Private Attorneys General Act. We do not expect a ruling on this issue before 2018; however, the impli-cations of the Court’s decision will be significant for California employers, and employers may want to review their seven-day work practices to determine whether to avoid or reduce such schedules before a decision is issued. Stay tuned. The case is Christopher Mendoza v. Nordstrom Inc., Case No. S224611, pending before the California Supreme Court.

CALIFORNIA CORNERDecember 22, 2016

Constangy, Brooks, Smith & Prophete, LLPConstangy, Brooks, Smith & Prophete, LLP offers a wider lens on workplace law. We have counseled employers exclusively since 1946. With offices in 15 states, we are one of the largest labor and employment law practices in the U.S. Constangy holds a national Tier 1 ranking from the U.S. News & World Report/Best Lawyers Best Law Firms survey, and has been called a “go to” law firm by Corporate Counsel and Fortune magazine. Many of our more than 170 attorneys have been recognized by leading authorities such as Chambers & Partners, Best Lawyers in America and Martindale Hubbell. Find out more about us online

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This is a publication of Constangy, Brooks, Smith & Prophete, LLP. The information contained in this newsletter is not intended to be, nor does it constitute, legal advice. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers. No representation is made that the quality of the...performed by other lawyers. This email could be considered advertising under applicable laws.

SAMPLE LEAVE POLICIES FOR

VICTIMS OF DOMESTIC VIOLENCE AND CRIME VICTIMS

2017

TIME OFF FOR VICTIMS OF DOMESTIC VIOLENCE

The [Auxiliary] is concerned about those of its employees who may become victims of domesticviolence. For that reason, the [Auxiliary] permits employees who become victims of domesticviolence to take time off to obtain a restraining order, medical treatment, psychological counseling,assistance from a shelter or similar organization, or to obtain relief to help ensure the health, safetyor welfare of the employee or of the employee’s child, including time off to participate in safetyplanning. Employees may use their unused vacation or sick pay when taking time off due todomestic violence; otherwise the time off will be unpaid.

Employees who take time off under this policy must provide the [Auxiliary] with advance noticeof the need to take time off, including the date and length of time off that is required. Advancenotice may not be required but only if it is not feasible. Employees who are able to provide advancenotice should consult their supervisor and schedule their time off to minimize the effect of theirabsence on the [Auxiliary]’s business. The [Auxiliary] will maintain the confidentiality of anyemployee requesting time off under this policy. In addition to advance notice, the [Auxiliary] alsorequires certification of time off due to domestic violence. Certification may be in the form of apolice report, court order, or official documentation from a medical professional, counselor, orsocial services advocate. Failure to provide the required certification may result in a denial of therequested time off. The length of unpaid leave an employee may take under this policy is limitedto 12 weeks.

Employees who are victims of domestic violence also should be concerned about how theirdomestic situation might impact employees of the [Auxiliary]. That is why employees who obtainrestraining orders as the result of domestic violence should provide a copy of the restraining orderto Human Resources, as well as a photograph and a description of the individual who is beingrestrained.

CRIME VICTIM LEAVE

An employee who is a victim or who is the family member of a victim of a violent felony or seriousfelony may take unpaid time off from work. An immediate family member under this policyincludes: a spouse, domestic partner, child, stepchild, brother, stepbrother, sister, stepsister,mother, stepmother, father or stepfather.

The absence from work must be in order to attend judicial proceedings related to a crime listedabove. Before you are absent for such a reason, you must provide documentation of the scheduledproceeding. Such notice is typically given to the victim of the crime by a court or government

agency setting the hearing, a district attorney or prosecuting attorney’s office or a victim/witnessoffice. If advance notice is not possible, you must provide appropriate documentation within areasonable time after the absence.

Any absence from work to attend judicial proceedings will be unpaid, unless you choose to takepaid time off, such as accrued vacation or personal holiday.

Richard E. BromleyPartner, Los Angeles

Richard is an experienced litigator in the area of employment and wage andhours laws on behalf of management clients. Not only does Richard representemployers in all state and federal courts throughout California, but he alsospeaks extensively to employer groups providing strategies for avoidingemployment lawsuits.

To help employers avoid employment lawsuits, Richard counsels them onhow to prepare and revise employment policies, agreements andcommission/bonus plans to comply with California’s myriad rules andregulations. He also advises employers faced with making difficult personneldecisions, and train managers and supervisors in the areas of sexualharassment prevention, leave of absence rules, workplace investigations,performance evaluations, employee counseling strategies and wage and hourlaws compliance.

Lawsuits often start with an agency claim, and Mr. Bromley has helpednumerous employers obtain dismissals of claims brought before the Labor Commissioner, the Departmentof Fair Employment and Housing and the Equal Employment Opportunity Commission. In court, he hasdefended large corporations and small nonprofits in lawsuits alleging harassment, discrimination, leave ofabsence violations and wrongful termination. In many of those cases, he was able to settle for less than$30,000.

Practice Areas• Employment Litigation Prevention and Defense

Practice Emphasis• Employment Litigation• Wage and Hour• Leaves of Absences• Class Actions• Employer Advice, Strategies & Policies• Social Media

Bar & Court Admissions• California• U.S. Court of Appeals, Ninth Circuit• U.S. District Court, Southern District of Texas• U.S. District Court, Central District of California• U.S. District Court, Eastern District of California• U.S. District Court, Northern District of California• U.S. District Court, Southern District of California

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Education• University of the Pacific, McGeorge School of Law, J.D., with distinction

Order of the Coif Traynor Honor Society American Jurisprudence Award (Remedies) Torts Award for Scholarly Performance)

• University of California, Los Angeles, B.A.

Professional Activities/Associations• Los Angeles County Bar Association, Labor and Employment Law Section• California State Bar Association, Labor and Employment Law Section

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We are a preeminent firm for labor and employment law in the U.S. Our clients tell us there is also “a soul toConstangy that is unique and refreshing, that’s not found with other firms.” For nearly 70 years, our clients haveappreciated our common-sense approach and our commitment to being a real partner in helping employers navigate theprickly legal and regulatory environments of the changing workplace.

Today we have more than 160 attorneys across 16 states, offering services ranging from the defense of single and multi-plaintiff employment discrimination, harassment and retaliation claims to complex wage and hour litigation, workplacesafety, and affirmative action compliance, as well as OSHA, workers’ compensation, ERISA and employee benefits,immigration, and labor relations. A “Go To” Law Firm in Corporate Counsel and Fortune magazine, Constangy representsFortune 500 corporations and small companies across the country. Our attorneys are consistently rated among the best bysources including Chambers USA, Martindale-Hubbell, and Best Lawyers in America, and we are ranked as a Tier 1 firm by theU.S. News & World Report/Best Law Firms survey.

A Wider Lenson Workplace Law

What Sets Us Apart

Our lawyers know each other. They like each other.Clients benefit from our agility and a financial structurethat does not pit offices against each other. Our structureallows for teams with the best mix of lawyers to serve

clients. The result is optimal responsiveness andconsistent service across all locations. Are we thebiggest firm? No—and that’s by design. We have thedepth and experience of our “Big Law” colleagues, witha roster of attorneys with exceptional experience. We area growing and vibrant firm, yet we respect the heritageand culture that has built us into a unified team providing

common-sense, practical, and out-of-the boxsolutions that mitigate risk and help you achieveyour unique objectives.

Our lawyers are not clones. We are parents, sports fans,former government officials and ex-HR managers. Weare real people just like you and your employees. Wecome from various geographic, ethnic and economicbackgrounds. Among our firm’s executive committee,45% are women and minorities. Of the 350 largest firms inthe U.S., we are the first to have an African-Americannamed partner.

Clients let us know that diverse teams are also importantto them, because it reflects their own evolvingworkforces—and, because lawyers looking through “awider lens” actually bring more innovative ideas to the

table. We’re proud that what’s being built on theinside of our firm is reflected on the outside of ourdoor.

What We Do

Our focus is labor and employment law, and we have

represented management exclusively since 1946.From Title VII to OSHA to ERISA and the NLRA attorneyscan help you keep policies up-to-date and yourworkplace running smoothly. We have a full range ofexperienced attorneys who can help you with everythingfrom developing harassment and workplace safetypolicies, or securing foreign worker visas, to protectingtrade secrets and defending against wrongful dischargeand discrimination claims.

From our roots in labor relations and manufacturing, to ourrecent work in helping employers understand theconvergence of digital technology in the modernworkplace – our capabilities cover all aspects of theemployer-employee relationship.

Employment LitigationWage and HourLabor Relationse-LawEmployee Benefits and ERISABusiness ImmigrationWorkers CompensationTrade Secrets and Noncompete AgreementsAffirmative Action and OFCCP ComplianceOccupational Safety and Health

National Presence

With more than 160 attorneys and a full complement ofparalegal and support staff, Constangy has the ability

to work wherever you need, whenever youneed. In addition to bar admissions in more than halfof the United States, our attorneys regularly appear withpermission of the court in jurisdictions nationwide. Wealso have strong relationships with local counsel inmany states, ensuring we can work with clients inlocations across the country.

Accolades & Awards

With Constangy has put together an outstanding team ofattorneys that distinguishes us. We focus on bringing in the

best and the brightest, and have recruited manyleading minds in employment and labor law.

29 attorneys ranked by Chambers USA in laborand employment categories.

44 attorneys currently named amongthe Best Lawyers in America®

Fortune magazine and Martindale Hubbell call us a“Top Firm” indicating that more than one out of threeof our lawyers have achieved the AV Preeminent®Peer Review designation.

We were named a “standout” firmin both complex and routineemployment litigation.

U.S. News/Best Law Firms ranked us as a nationalTier 1 firm . We also received 38 metropolitan tierrankings.

What makes Constangy different is our keen understanding of employment law, and what the subtle nuances involved mean foryour company:

• Employment litigation is one of the few areas where your motivation as an employer is on trial. In cases involving issuessuch as race discrimination, sexual harassment, or wrongful discharge, juries are looking at your intent or state of mind. Ourattorneys help employers realize that, as a practical matter, the burden is on companies to show that your motives were pure.

• Almost every juror is, has been, or will be an employee. Many have felt an employer may have mistreated them orwas unfair. We realize that jurors view your issues through the filter of their own experiences. We understand how to build yourdefense to demonstrate not only technical legal compliance, but also that you treated the plaintiff fairly.

• We realize the catch-22 that labor and employment laws can create for employers when they require companies to takeactions that appear to favor one group over another. For example, the laws on religious and disability-based accommodationssometimes require that the employer treat certain employees more favorably than others. Yet other labor and employmentlaws prohibit unequal treatment of employees. We help companies put appropriate policies and procedures in place to followthe laws while minimizing any perception of bias.

• Employment litigation does not happen in a vacuum. We understand the impact a settlement with a former worker or an

extended lawsuit involving current employees can have on your workplace morale and your company’s productivity,which in turn can affect the bottom line. We work with our clients to develop strategies to resolve issues that take into accountthe effect on your unique workplace environment.

• We know that sometimes a problem doesn’t end when an employee is gone. Ex-employees and like-minded co-workers can

become vindictive and may even conspire to fabricate allegations against your company. We work with employers to handleproblem employees and help employers put appropriate hiring procedures in place so those employees never get in thedoor.

• Employees generally spend more waking hours at work than anywhere else, and often have a vested interest in making surethey have control over their workplace and working conditions and that their rights are protected. We work with employers to

create better workplaces for employees, whether through policy development, training, union avoidance, or byresponding to administrative charges and lawsuits in such a way as to minimize impact on your workplace.

In California, contact Richard Bromley at 808.208.6767 or [email protected]

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