New California Labor Laws for 2015

2015There are a milieu of new labor laws this year.  Here’s the highlights of what California employers need to know about these new laws going into 2015:

Mandatory Paid Sick Time – this is probably the hardest hitting change.  Sick time has always been at the discretion of the employer, but starting July 1, 2015, it is now mandatory.  Any employee (part time, full time or temporary) who has worked at least 30 days, must earn one hour of sick time for every 30 hours worked.  What’s the impact?  Well, for the average employee who works 40 hours a week, year round, and takes 5 days vacation and 8 holidays, sick time calculates to 66 hours per year.  That’s more than a week and a half in just sick time.  For employers who offer PTO (paid time off) instead of sick and vacation time, the accruals must at least meet this minimum for the first year.  Also, this time is now considered earned, therefore the employee is entitled to pay once earned and it cannot be forfeited.  If at separation, the employee has earned, unused sick time, it must be paid out as does vacation pay.  Three days must be available immediately.  Employers may institute an accrual cap for sick time.  Although not effective until July 1, posting requirements are effective January 1.

What to do….Assure that each employee (including part time and temp) is accruing sick time at the required rate and track its use.  Institute an accrual cap.  Make sure earned, unused sick time is paid out at termination.  Assure all PTO plans meet this minimum requirement.  Employers may want to institute this policy effective January 1.  Make sure to replace/revise your required notices and postings by the 1st of the year.

Emergency Health Care Workers and Protected Leave – AB 2536 must add emergency health care workers to those who are covered in Volunteer Civil Service Leave.  They are now granted the same leave rights as volunteer firefighters, reserve peace officers and emergency rescue workers.

What to do…Add “emergency health care workers” to employees covered in this policy and make certain the revision is in your handbook.

Greater Liability for Employers Who Contract Labor – AB 1897 states that employers who contract labor are liable for wage and hour and workers’ compensation violations that occur while those employees are working on their behalf, even though the employee formally works for the contracted agency.  The law exempts companies with 25 employees or less, with 5 or less contracted employees at any given time and certain government employers.

What to do…Use reputable staffing firms and perform a thorough due diligence on any staffing agency to ascertain that they are compliant with California labor laws.

Heat Illness Rest and Recovery Periods – SB 1360 clarifies that breaks taken by employees as per current heat illness regulations are to be paid breaks and count as hours worked.

What to do…Ensure that you have a Heat Illness policy and that supervisors are well trained, as well as ensuring pay practices are compliant.  A nice tidbit…CalOSHA has a phone app that helps determine when to kick this regulation into action: https://www.osha.gov/SLTC/heatillness/heat_index/heat_app.html.

Foreign Labor Contractor Requirements to Combat Human Trafficking – SB 477 applies to companies who retain labor contractors outside of the United States to recruit for positions within California to comply with registration, licensing and bonding requirements and also requires California employers to use only agencies who meet these requirements.  Employers are also required to disclose which employees are working for a particular contractor.  Contractors are also required to disclose specific information to the worker in a language that they can comprehend regarding all terms and conditions.  This bill prohibits the employee from bearing any costs prior to commencement of work.

What to do…Again, deal with reputable firms and use diligence when selecting a contractor to ensure that they are compliance with all requirements of the law.

Services to Minors – This law requires a business that provides an extracurricular service or program of instruction and has adult employees who have supervisory or disciplinary power over a child or children to provide written notice to the parent or guardian of a youth participating in the service offered by the business regarding the business’s policies relating to criminal background checks for employees who provide services to minors.

What to do…For employers who provide such services, prepare a standard notification with respect to your background checking policy and provide it to the parents or guardians.  As an ongoing procedure, provide the notice before any services are rendered.  Make sure that your background checking policies are up to date and that procedures are followed.

Criminal History Information in Public Contracts – This law requires any organization submitting a bid to the state on a contract involving onsite construction-related services to certify that the organization does not ask an applicant for such employment to disclose information concerning the conviction history of the applicant on or at the time of an initial employment application.  This law does not apply to a position for which the person or the state is otherwise required by state or federal law to conduct a conviction history background check or to any contract position  with a criminal justice agency.

What to do…It’s becoming a common practice to eliminate all arrest and conviction questions from an initial application for employment and bring those up later in the interview process, so as not to inadvertently discriminate against a candidate who has satisfactorily served time and completed a sentence.  Employers must have a bona fide reason to refuse a candidate with an arrest or conviction record.  We may see this as a new protected class in the future.  However, an employer still has an obligation to do their due diligence when hiring to protect the workplace from potential violence.

New Requirements for Sexual Harassment Training – SB 1097 requires employers to add “prevention of abusive conduct” to their Sexual Harassment policies and training.  Abusive conduct, sometimes referred to as “bullying” is defined as “such conduct as repeated, health-harming mistreatment, verbal abuse or conduct which is threatening, humiliating, intimidating or sabotage that interferes with work or some combination of the three”.

What to do…Add prevention of “bullying/abusive conduct” to your policies and training.  Ensure supervisors understand and recognize such behavior, as well as how to handle infractions. Provide explicit examples and allow staff to ask questions.  The best thing to do is to conduct a revised training in early 2015 and restart the two year clock for mandatory training.

Discrimination Prohibited Against Public Assistance Recipients – AB 1792 is two pronged…one side is great, the other is being highly criticized.  What’s great is that employers are prohibited from discriminating or retaliating against employees or candidates receiving state assistance (Medi-Cal).  What’s irritating to a lot of folks is that the State will issue a public report of the top 500 companies (of 100 or more employees) who employ people on state assistance.  It’s been referred to as the “public shame” law.

What to do…Add “state assistance recipients” to the ever-growing list of protected employees.  Train managers to recognize, understand and remediate possible infringements.

Harassment Protection Extended to Unpaid Interns and Volunteers – AB 1443 extends the harassment protection provisions already in place to cover unpaid interns and volunteers.  In addition, employers may not discriminate or retaliate against unpaid interns and volunteers and must provide religious accommodations if applicable.

What to do…Add “unpaid interns and volunteers” to “employees” in all applicable policies.  Be certain that an “unpaid” internship is legitimate; certain conditions must be met for the internship to be unpaid.  Also, make sure that you are providing workers’ compensation coverage for interns and volunteers.

Immigration-Related Retaliation Prohibited – AB 2751 expands “retaliation” to include threatening to file or filing a false report or complaint with any state or federal agency; formerly, the law stated filing a report to the police.  Additionally, the new law prohibits discrimination or retaliation against individuals who legally change their name, social security number or federal employment authorization document.

What to do…Make sure that managers are aware of the change and institute this “non-practice” into your operations.

Discrimination Prohibited re: Licenses for Undocumented Workers – AB 1660 makes it unlawful for an employer to discriminate against an individual who holds a driver’s license issued to an undocumented person (called an AB 60 driver’s license) who presents valid proof or identity and California residency.  The law also stipulates that any action taken by an employer to comply with Federal I-9 requirements does not violate California law.  Furthermore, an employer cannot require an individual to present a driver’s license unless it is required by law.  And lastly, driver’s license information obtained by an employer must be treated confidentially.

What to do…Again, assure that all managers are aware of the new requirements.  Keep such information obtained from licenses in a secure and confidential place where access is on a “need to know” basis only.  Go through your existing employee files and make certain current information is secure and confidential as well.  Never require or suggest that a new employee provide a driver’s license as documentation needed for completion of Form I-9.

 

Good news from CalOSHA!  Employers may now email reports of a work-related injury to the Division of Safety and Health.

 

Other tidbits…

There are other laws that increase penalties for workplace violations, laws specific to farm labor and hospitals and are specific to municipalities.  Oakland, San Francisco and Berkeley all have new minimum wage laws.  Contact Golden State HR http://www.goldenstatehr.com for specifics.

CA Labor Law Update for 2014

It’s a new year and there are new changes for California employers!  There are a variety of changes on the employment law landscape this year.  We have recapped the most significant to most employers…you can either read them or listen to them in our podcast.  Additionally, we are suggesting what steps the average employer needs to take to assure compliance. You’ll notice that a few new amendments focus on higher penalties for employers…the best advice is to manage risk, audit pay and employment practices, correct errors quickly and treat your employees like you’d like to be treated!  An employee who feels cared for and happy in their job is usually productive, loyal and a joy to work with.

These are the most significant labor law updates for 2014:

Minimum wage:  The California minimum wage will increase from $8 per hour to $9 effective July 1, 2014 and to $10 effective Jan 1, 2016.  The new minimum wage is part of a three year plan that will make California’s rate one of the highest in the nation.  In addition to paying the new rate to employees currently earning less than $9, employers will be required to change their posting notices to reflect the new law.  Since one of the requirements for deeming a job as “exempt” is to pay two times the minimum wage, employers should also review their pay rates.  All commission agreements should ensure that the employee is earning at least the new minimum wage. Employers of workers in San Francisco:  the new minimum wage is $10.74 per hour.

Expansion of “meals and rest periods” to include heat recovery periods:  Requirements for heat recovery periods will now follow those for meals and rest periods.  Employees are entitled to no less than 5 minutes of cooling off in hot outdoor conditions and employers cannot force them to work during this time.  For every day a heat recovery period is not provided, the employee is entitled to one extra hour of pay.  It is advised that employers with employees who work outside in hot conditions review the guidelines set by Cal OSHA: “ train, water, shade, plan”.  See the CalOSHA website for more details.

Protection for employees re: complaints of unpaid wages:  Previously, the law protected employees from discharge or discrimination if they submitted a complaint of unpaid wages.  AB263 expands this protection to employees who assert their rights under Labor Code, including an oral or written complaint, from retaliation or adverse employment action.  The amended law adds a $10K penalty per employee per violation.  Employers should regularly audit their payrolls and time sheets to assure compliance with wage and hour requirements.  Make corrections to errors promptly.  Prevention is the best policy in this case.

Expansion of “sexual harassment”:  The Fair Employment and Housing Act (FEHA) prohibits “harassment because of sex”.  SB 292 broadens the definition of “harassment because of sex” to include behavior that is sexually harassing but is not motivated by sexually desire.  Employers should review their policies and assure that managers and employees understand the new provision and are trained properly.

Expansion of Paid Family Leave:  SB 770 amends the Paid Family Leave program to include payments for employees who take leave to care for a seriously ill grandparent, grandchild, sibling or parent-in-law, effective July 1, 2014.  Previously, the program only covered workers who requested time off to care for a child, spouse, or registered domestic partner. The California Paid Family Leave program allows eligible employees to take up to six weeks of partially paid leave from their jobs each year. Employers should understand that this does not require them to approve leaves for employees to care for a seriously ill grandparent, grandchild, sibling or parent-in-law.  This change will most likely cause confusion for employees.  Be prepared to explain the difference.  Employers may choose to voluntarily broaden their policies to include these new groups.

New protections for immigrants: Under AB263, an employer is prohibited from reporting or threatening an undocumented employee who complains about Labor Code violations to Immigration and Customs Enforcement. This is considered an “unfair immigration-related practice” and businesses may lose their licenses and/or face charges of criminal extortion.

Military veterans as protected class:  This bill, AB 556, amends the Fair Employment and Housing Act to add “military and veteran status” to the list of categories protected from discrimination, bringing the total number of protected categories to 16.  “Military and veteran status” is defined as a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.  Employers may still identify military or veterans for the purpose of contract preference. The bill does not prohibit employers from identifying members of the military or veterans for purposes of awarding a veteran’s preference as permitted by law. It is suggested that employers review their discrimination policies and change their required postings to reflect inclusion of this new category.

Victims of domestic violence protection:   The law currently prohibits employers from taking adverse action for victims of domestic violence and sexual assault to take time off from work to seek remedies and services related to such matters.  SB 400 extends protection to victims of stalking as well. An employer may nor discharge, discriminate or retaliate against an employee because of the employee’s known status as a victim of domestic violence, sexual assault, or stalking.  The employer must extend a reasonable accommodation for such a victim. Employers should amend their policies accordingly and assure managers are aware and understand the change.

Overtime rules for domestic work employees: Domestic workers will have to be paid time and a half if they work more than nine hours in a day or more than 45 hours in a week.  This law exempts parent, grandparent, spouse, sibling, child, or legally adopted child of the domestic work employer, casual babysitters or babysitters under 18.  This law is effective initially for the next three years, unless the legislature changes the provisions.  While this doesn’t directly affect employers, they may expect employees to request flexible work arrangements to handle the potential finanical impact.

Prevailing wage:  For employers required to pay employees prevailing wage, take note that there are seven changes for 2014. 

Successor farm labor contract liability:  SB 168 makes the successor or a farm labor contract liable for any wages owed by the predecessor contractor, as well as any penalties, under certain circumstances.  Successor contractors should perform a due diligence to identify this risk before the takeover.

Liquidated damages for wage order violation:  The law currently allows the Labor Commissioner to investigate and enforce  the  payment of wages.   The Labor Commissioner may impose civil and criminal Penalties for violations. The law grants a worker the right to recover, in a minimum wage claim hearing or lawsuit, restitution and liquidated damages.  However, currently the Labor Commissioner is not authorized to collect liquidated damages for the employee.   AB 442 extends the penalty and restitution provisions to include a citation requiring the employer to pay liquidated damages to the employee.  Employers should ascertain that their pay practices are compliant, audit their pay practices and take care that calculation of “regular rate” for overtime purposes is correct.  There has been an increase in class action lawsuits on this subject.

Employee complaints:  final orders:  AB1386 allows for a lien to be created and recorded on an employer’s real property once an award to an employee becomes final. The bill provides that the lien would continue on the employer’s real property for 10 years until satisfied or released.  Employers must take notices and citations seriously and act on them promptly.

Criminal penalties for employers who willfully fail to remit deductions:  SB390 makes it a crime to willfully withhold remittance of moneys deducted from employee checks in accordance with federal, state or local laws, with failure to remit over $500 constituting a felony.  This includes deductions for health insurance, pension funds, welfare funds or other benefit plans.   Employers should ensure that deductions are made and remitted properly and in a timely manner.

Employers who win wage claim lawsuits: Recovery of Fees only if Files in Bad Faith:  SB462 stipulates that employers who win wage claim lawsuits may only recover attorney fees if it is deemed that the employee filed the lawsuit in bad faith.  This places a burden on the employer for proof, which is often difficult to do.  Again, employers should audit their pay practices to assure compliance and deter any such claims in the first place.

 

For Businesses with employees working in San Francisco:

The Health Care Security Ordinance has published the new expenditure rate for 2014:  $2.44 per hour paid for large employers and $1.63 per hour paid for medium employers.  Small business (20 employees or less or nonprofits with 49 employees or less) are exempt.

The Family Friendly Workplace Ordinance takes effect January 1.  The Ordinance grants employees with six or more months’ of employment who regularly work as little as eight hours per week the right to request work modifications so that they may care for a child; a spouse, domestic partner, parent, sibling, grandchild, or grandchild with a serious health condition; or a parent age 65 or older. The modification can be a change in schedule, work hours, work assignment, location or the predictability of their schedule.  This ordinance is in effect for employers who regularly employ 20 or more employees and includes the employer’s agents.

New Minimum Wage:  The new minimum wage for San Francisco employees is $10.74 per hour effective January 14, 2014.