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It's that time of year again! While there are some important changes to be aware of, this year's employment related legislation was not as overwhelming as in the past few years. Below is a summary of the most significant changes.
CHANGES TO YOUR HIRING & DISCIPLINE PRACTICES
When recruiting, hiring, and disciplining employees, please be aware of these new laws:
1. Minimum Wage Increase & Liquidated Damages: For those of you with minimum wage employees, the hourly rate is increasing from $8/hr. to $9/hr. effective July 1, 2014; and then to $10/hr. effective January 1, 2016. In addition, Labor Code sections 1194.2 and 1197.1 have been amended to allow the Labor Commissioner to award liquidated damages in an amount equal to the unpaid wages (doubling the amount due), if an employer violates California's minimum wage law. Action: (i) order and post the new Minimum Wage poster before July 2014; (ii) update payroll for minimum wage earners; and (iii) review and update other areas where minimum wage may come into play, for example, travel time policies and/or commission agreements for sales employees.
2. Driver's License for Undocumented Immigrants: A new law requires the DMV to issue a driver's license to an undocumented person who can prove identity, residence, and who passes the necessary exams. This card will not be acceptable for federal purposes, which will be noted on the driver's license. This license may not be used to verify eligibility for employment or for purposes of identification on the I-9 form.
3. Wage Withholdings: SB 390 creates a criminal penalty for employers who fail to remit withholdings from an employee's wages which were made pursuant to state, local or federal law. Action: Keep employee withholdings in a separate account and always make timely payments to federal, state and local agencies.
4. Protection Against Using Immigration Status Against an Employee: Several new laws were passed to protect employees from having their immigration status used to retaliate against them for exercising any employment related right. First, under new Labor Code §1019, if an employee complains about his/her wages or other conditions of employment, it would be unlawful for an employer, or any other person, to either directly or indirectly retaliate against the employee by engaging in an "unfair immigration related" practice. This includes: (i) requesting more or different documents than federal law requires for proof of employment; (ii) using the e-Verify system to check employment eligibility at a time not required by federal law; (iii) threatening to file, or filing, a false police report; (iv) threatening to contact, or contacting, immigration authorities; or (v) taking any adverse employment action against the employee. This new law creates a rebuttable presumption that an adverse action taken within 90 days of the employee exercising a protected right is retaliatory.
The second new statute, Labor Code 1024.6, prohibits an employer from discharging, discriminating, retaliating, or taking any other adverse action against an employee because the employee updates or tries to update his or her "personal information," unless the update is directly related to the skills, qualifications or knowledge required for the job. For example, if an employee presents a new name or social security number, this law would protect the employee from adverse action based on the change.
In addition, Labor Code §98.6 was amended to make it illegal for an employer to retaliate against an employee who has complained that he/she is owed unpaid wages, and creates a civil penalty of up to $10,000 per violation.
The last new law in this area, Labor Code §244, authorizes suspension or revocation of a business license if the licensee has reported or threatened to report the suspected citizenship or immigration status of an employee, former employee, or prospective employee, or a member of their family, because the person has exercised a right under the Labor Code or other laws. The law also makes it a cause for suspension, disbarment, or other discipline for any California licensed attorney to report, or threaten to report, the suspected immigration status of a witness or party to a civil or administrative action, if the person exercises or has exercised a right related to employment. Action: (i) be sure to only check on immigration status upon hire, or other times required by federal law; (ii) never use immigration status as a threat or reason to take action against an employee for lodging a complaint or exercising a legal right; (iii) carefully document all reasons for taking disciplinary action.
LEAVES OF ABSENCE
Some new leave entitlements have been added.
1. Stalking Victims: Labor Code sections 230 and 230.1 currently allow time off, and prohibit an employer from discharging, discriminating or retaliating against an employee who is a victim of domestic violence or sexual assault, for taking time off from work to attend court proceedings or to obtain medical or other services as a result of the crimes against them. These protections have been expanded to include employees who are victims of "stalking." An employer must also provide reasonable accommodations, including implementation of safety measures such as job transfer, modified schedule, installation of locks and safety procedures. Action: (i) if an employee confides that he/she is being stalked or is the victim of domestic violence or sexual assault, become familiar with these statutes to be sure you obtain the necessary documentation and are providing the required time off and accommodations; (ii) engage in the good faith interactive process; (iii) add this new leave to the next employee handbook update.
2. Crime Victims: Labor Code §230.5 has been added to provide protection for employees who are the victim of certain serious or violent crimes, or whose spouse, parent, child, sibling, or guardian is the victim of such a crime. These employees may take time off work (unpaid or using accrued time) to attend court proceedings, and cannot be punished for taking the time off. Action: the same as Section 1, above.
3. Peace Officers & Emergency Rescue Personnel: Currently, employers with 50 or more employees must allow volunteer firefighters to take up to 14 days off (either unpaid or using accrued time) per year to participate in firefighting training. Labor Code §230.4 was amended to extend this same right to peace officers and emergency rescue personnel to participate in law enforcement and emergency rescue training. All of these first responders have an unlimited right to unpaid time off as necessary to respond to emergencies. Action: add this extended leave to the next employee handbook update.
4. Paid Family Leave Benefits Extended: Currently, the Paid Family Leave Act provides employees with up to six weeks of partial pay replacement benefits when they take leave to care for a seriously ill family member or to spend time with a new baby, adopted child, or foster child. The Act has extended these benefits to employees who take time off to care for a seriously ill grandparent, grandchild, sibling, or parent-in-law. This does not create a leave entitlement; it just provides partial pay replacement if a leave is otherwise authorized. Action: (i) if an employee is taking a leave to care for a family member in this extended category, provide them with the information of filing for Paid Family Leave; and (ii) if your handbook leave policy addresses Paid Family Leave Act benefits, update this definition.
CHANGES TO YOUR EMPLOYEE HANDBOOKS
In addition to the new entitlements in the Leave of Absence section above, there are a couple of other handbook updates. None of these changes require an immediate update to your handbook, but put them in your "update" folder so they are accessible when it's time for your next update.
1. Protection for Military & Veterans: The Fair Employment and Housing Act was amended to add "military and veteran status" to the list of categories protected from employment discrimination. "Military or veteran status" is defined as an individual's membership in, or status as, a veteran of the U.S. Armed Forces, the Reserves, the National Guard or the Coast Guard. Action: Military and veteran status was already protected by federal law, so is probably covered by your handbook. However, check your policy and, if necessary, add this to the anti-harassment and anti-discrimination portions of your handbook during your next update.
2. Sexual Harassment Definition Clarified: The Fair Employment and Housing Act was amended to clarify that sexually harassing conduct does not need to be motivated by sexual desire, and that hostile treatment can amount to unlawful sexual harassment regardless of whether it is motivated by sexual desire. Case law was in conflict on this issue. Action: (i) treat complaints of harassment seriously, even when it's clear that sexual desire is not involved; (ii) review your anti-harassment policy to determine whether the definition of harassment needs updating.
WAGE CLAIMS
Should you face a wage claim filed with the Labor Commissioner, you should be aware of the following changes.
1. No Exhaustion Required: Under newly added Labor Code §244, it is not necessary to exhaust administrative remedies through the Labor Commissioner in order to file a lawsuit against an employer for violation of any law over which the Labor Commissioner has jurisdiction. This may result in a lot more civil claims, which take longer and are more expensive. Action: (i) be sure your exempt employees are properly classified; and (ii) be sure you are in compliance with overtime, meal, rest period, and other wage and hour laws.
2. Attorneys' Fees: Labor Code §218.5 has been amended to provide that an employer may only recover attorneys' fees and defense costs when it prevails in an action brought by an employee for unpaid wages if the employer can prove the employee brought the action "in bad faith." This will make it more difficult for an employer to recover its attorneys' fees and costs. Action: Make sure you are complying with overtime, rest and meal period, and other wage and hours laws to avoid facing a wage claim.
3. Labor Commissioner Lien: An employer has 10 days to appeal an adverse decision on a wage claim issued by the Labor Commissioner. Under a new law, once the time to appeal expires, a lien is automatically created and the Labor Commissioner can record it in any county in which the employer holds real property.
MISCELLANEOUS
1. Heat Illness Recovery Periods: For those of you with employees who work outdoors, Cal/OSHA's heat illness standards allow for cool-down periods in the shade of no less than five minutes at a time on an "as-needed" basis for employees to protect themselves from overheating. Labor Code 227.6, which requires employers to pay an additional hour of pay to employees who are required to work through a legally mandated meal or rest period, has been expanded to require the same extra hour of pay if an employer fails to provide required heat illness recovery periods. Action: (i) be sure you are familiar with, and complying with, Cal/OSHA laws; (ii) add a policy to your Handbook asking employees to report to Human Resources if they are not being allowed the necessary recovery time.
2. Successor Liability for Farm Labor Contractors: Newly added Labor Code §1698.9 holds a successor farm labor contractor liable for wages or penalties owed by a predecessor farm labor contractor under certain specified circumstances, including use of same facilities or workforce, or a relationship with the predecessor through shared ownership, employment or family relationship. Action: complete due diligence on this issue before taking over for a Farm Labor Contractor.
3. Good Samaritans: Health & Safety Code §1799.103 was added to prevent an employer from prohibiting an employee from providing voluntary emergency medical services, including CPR, in response to a medical emergency, unless the person in need has expressed the desire to forgo resuscitation or other medical intervention. This is most likely to come up in residential settings. Action: review your handbook to make sure you do not have such a policy.
For more information on any of these changes, please contact Dawn Ross – dross@cmprlaw.com
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