Below is a summary of many of the laws affecting employers and their business operations.
Employers should review their handbooks and policies to ensure such are up to date and comply with these news laws.
WAGE AND HOUR LAWS
• Minimum Wage Increase
• Damages for Minimum Wage Violations
• Heat Illness Recovery Periods
• Increased Protections for Employee Exercising Their Rights Under
the Labor Code
• Attorneys Fees to Employer/Prevailing Party
• Criminal Penalty for Failure to Remit Employee Wage Withholdings
• Domestic Worker Bill of Rights
HARASSMENT, DISCRIMINATION
AND RETALIATION ISSUES
• Sexual Harassment
• Military and Veteran Status
• Immigration and Employment Retaliation
• Criminal Penalty for Reporting Immigration Status Threats
• A Company’s Business License May be Revoked for Threatening to Report Immigration Status
• Whistleblower Protections
TIME OFF
• Paid Family Leave Benefits
• Time Off for Voluntary Emergency Personnel
• Time Off for Victims of Stalking and
Accommodation for Domestic Violence,
Sexual Assault and Stalking Victims
• Time Off for Crime Victims
WAGE AND HOUR LAWS
Minimum Wage
On September 25, 2013, Governor Brown signed into law an increase in the minimum wage in two increments. The increases are:
• Effective July 1, 2014: $9.00 per hour;
• Effective January 1, 2016: $10.00 per hour.
Employers should also review their exempt (salaried) employees’ compensation amount. To be classified as “exempt,” the salary must be at least twice minimum wage. So, with the increase in minimum wage, the salary of exempt employees may also need to be increased.
Damages for Minimum Wage Violations
Existing law provides that any employer who pays less than minimum wage to its employees can be penalized with a citation that includes a civil penalty and payment of restitution of wages to the employee.
Under the new law, an employer may be required to also pay liquidated damages to the employee in amounts equal to the amount of wages improperly withheld.
Heat Illness Recovery Periods
It is well settled law that employees who are required to work during any meal or rest period are to receive a premium penalty payment of one hour at their regular hourly rate of pay.
Governor Brown signed this new law which provides that the same one hour penalty payment must be made to any employee who works outdoors and is not provided a “recovery period.”
The law defines a “recovery period” as a “cool-down period afforded an employee to prevent heat illness.”
Specifically, the law now provides:
• An employer cannot require an employee to work during a “recovery period”
mandated by state law;
• An employer who does not provide an employee with a recovery period must pay
the premium penalty of one additional hour of pay for each recovery period denied.
Employers who are subject to Cal/OSHA’s heat illness standard must allow and encourage employees who work outside to take a cool down rest in the shade for a period of no less than five minutes at a time when they feel the need to do so to protect themselves from overheating. The recovery period is on an “as-needed” basis.
Increased Protections for Employee Exercising Their Rights Under the Labor Code
Existing law prohibits an employer from discharging, or discriminating against any employee or applicant because the employee or applicant engaged in protected conduct relating to the enforcement of the employee’s or applicant’s rights. In such a situation, the employee would be entitled to reinstatement and reimbursement for lost wages. Failure to do so is a misdemeanor.
The new law also prohibits an employer from retaliating or taking adverse action against any employee or applicant because the employee or applicant engaged in protected conduct. The employee would be entitled to reinstatement and reimbursement for lost wages and the person who violates these provisions would be subject to a civil penalty of up to $10,000 per violation.
The bill makes it clear that written and oral complaints regarding wages an employee believes are owed are protected activities for purposes of the prohibition on retaliation for engaging in protected activities.
Attorneys Fees to Employer/Prevailing Party Only on Showing of Bad Faith
Currently, in any legal action for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, the court is to award reasonable attorney’ s fees and costs to the prevailing party if any party to the action requests attorney’s fees and costs upon the initiation of the action.
In another anti-employer piece of legislation, this new law provides that the court will only award attorney’s fees and costs to the employer – prevailing party on a finding by the court that the employee filed the case in bad faith. This will be a very high and difficult standard to meet.
Criminal Penalty for Failure to Remit Employee Wage Withholdings
The Governor has also signed another piece of legislation imposing a criminal penalty upon any employer who fails to remit withholdings from an employee’s wages that were made pursuant to state, local or federal law.
Domestic Worker Bill of Rights
While other employees are entitled to overtime compensation for hours worked after 8 hours per day or 40 hours per week, most domestic (household) employees did not have the same entitlement to overtime wages. Under this law workers in many household occupations (such as personal attendants for the elderly or infirm) are to be paid overtime compensation at a rate of 1 ½ times their regular rate for all hours worked in excess of 9 hours per day or 45 hours per week.
This new law does not apply to “casual babysitters” whose work is intermittent or irregular as well as babysitters who are under 18 years of age.
HARASSMENT, DISCRIMINATION
AND RETALIATION ISSUES
Sexual Harassment
Currently, the law provides that all persons are protected in all aspects of employment from discrimination or harassment on the basis of “sex.”
The new law provides clarification that sexual harassment does not need to be premised upon an allegation that it was due to or motivated sexual desire but merely based on the sex or gender of the person. This new law will impact potential same sex sexual harassment claims.
Military and Veteran Status
This bill adds “military and veteran status” to the list of categories protected from employment discrimination under the Fair Employment and Housing Act. Currently military status is a protected classification and under this new law the scope of the protection is expanded to include “veteran status.”
Immigration and Employment Retaliation
This new law prohibits employers from engaging in any conduct which would be considered to be an “unfair immigration-related practice” when an employee seeks to assert their protected rights under the Labor Code.
For example, an employer cannot use the immigration status of an employee (or their family members) to retaliate against the employee, such as threatening to report the employee (or a family member) to the immigration authorities after the employee complained about not being paid proper wages.
The bill defines “family member” as a spouse, parent, sibling, child, uncle, aunt, niece, nephew, cousin, grandparent, or grandchild related by blood, adoption, marriage, or domestic partnership.
Criminal Penalty for Reporting Immigration Status Threats
A potential penalty of criminal extortion may be assessed against any employer that threatens to report the immigration status or suspected immigration status of an employee or their family member.
Business License May be Revoked for Threatening to Report Immigration Status
This new law permits the state to suspend or revoke an employer’s business license where that employer reports, or threatens to report, the immigration status of any employee because the employee makes a complaint about employment issues.
The law covers reports, or threats to report, employees, former employees, prospective employees or family members, as defined, to immigration authorities.
This law does not preclude an employer from continuing to require a worker to provide proof of eligibility to work in the United States for purposes of completion of the USCIS I-9 form. Employers will not be subject to the suspension or revocation of a business license for requiring a worker to verify eligibility for employment under the Form I-9.
Whistleblower Protections
The Labor Code currently provides protections to employees who notify an appropriate government or law enforcement agency when the employee has reason to believe that their employer is violating a federal or state statute (the employee becomes a “whistleblower”).
New legislation expands such whistleblower protections to employees making a report of an alleged violation of a local rule or regulation.
The new law also provides protection to an employee who discloses, or may disclose, information regarding alleged violations “to a person with authority over the employee or another employee who has authority to investigate, discover or correct the violation.”
Employers are also prohibited from engaging in retaliatory action against an employee because the employer “believes the employee disclosed or may disclose information.”
TIME OFF
Paid Family Leave Benefits
California’s Paid Family Leave (PFL) program provides up to six weeks of wage replacement benefits to an employee who takes time off to care for a seriously ill child, parent or spouse or domestic partner or for bonding with a minor child within one year of the birth or placement of the child in connection with foster care of adoption.
Effective July 1, 2014, employees may also apply for PFL benefits if they need time off to care for a grandparent, grandchild, sibling, or parent-in-law.
(Employee handbooks will need to be updated to reflect this change in the scope of the PFL benefits).
Time Off for Voluntary Emergency Personnel
Currently, employers with 50 or more employees must provide a temporary leave of absence of up to 14 days per calendar year for employees who are volunteer firefighters for fire or law enforcement training.
This benefit has now been extended to provide that reserve peace officers and emergency rescue personnel are also eligible for the same time off for law, fire and emergency rescue training purposes.
Time Off for Victims of Stalking; Accommodation for Domestic Violence, Sexual Assault and Stalking Victims
Current law provides protections to employees who are victims of domestic violence or sexual assault. Employers are prohibited from taking adverse employment action against such persons if the employee (victim) takes time off to attend to issues arising as a result of the crime.
At present:
• All employers must provide time off to employees who are victims to appear at legal
proceedings.
• Employers with 25 or more employees have to provide time off to deal with
medical/psychological treatment, including safety planning.
The law has been extended to provide the same protections to stalking victims.
In addition, the expansion of the law makes it unlawful to discriminate or retaliate against an employee because of his/her status as a victim of domestic violence, sexual assault, or stalking if:
• The victim provides notice to the employer of their status as a victim of one of these
types of crimes; or
• The employer has actual knowledge of the status.
The employer must also provide a reasonable accommodation to any victim which may include undertaking certain safety measures, such as transfer or reassignment.
An employer that refuses to reinstate someone wrongfully fired under this law is guilty of a misdemeanor.
Time Off for Crime Victims
Because of the prevalence of crime and the need for employees to feel secure in their employment that they can take time off to testify, the Governor has signed another bill which adds new protections for crime victims so that they may attend court proceedings involving the alleged perpetrator of the crime.
Under this law, employers may not engage in any discriminatory or retaliatory action against an employee who is a victim of a serious crime and takes time off from work to appear in any proceeding in which a right of the victim is at issue.
Crimes include such offenses as vehicular manslaughter while intoxicated.
The law defines a “victim” as any person “who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or a delinquent act,” and a victim also includes the person’s “spouse, parent, child, sibling or guardian.”
Employers can implement procedures for an employee to comply with for requesting the leave.
Violations of the law will be enforced by the Labor Commissioner.
Further, if an employer is found to have refused reinstatement to someone wrongfully fired under this law, it will be considered a misdemeanor.
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This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2013.