Check Out How The New CA Wage & Hour Independent Contractor Ruling Affects You

14 May
A new wage and hour California State Supreme Court (CSC) ruling – defines persons to be employees and not independent contractors.  The groundbreaking CSC new decision reveals a significant change in independent contractor law that adopts a modified “A-B-C” test for determining whether an individual is an employee under the Wage Orders.  The new independent contractor test is modeled on Massachusetts’ independent contractor statute, which has been considered the strictest in the country.

New Independent Contractor Test

California courts and state agencies have long applied the Borello test for determining whether a worker was an independent contractor under the Industrial Welfare Commission Wage Orders.  This flexible, multi-factor approach determined whether the hiring entity had a “right to control” the manner in which the worker performed the contracted service, along with eight “secondary” factors whether: the worker was engaged in a distinct occupation or business the skill required in the particular occupation, or the worker or the hiring entity supplied the tools used to perform the work and the place where the work was performed.

Despite the Borello test being used for decades for Wage Order cases, the CSC rejected it in favor of a more rigid three-factor approach, called the “A-B-C” test.  Under this new test, a person is considered an independent contractor only if the hiring entity can prove all three of the following:

A.   That the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
B.   That the worker performs work that is outside the usual course of the hiring entity’s business; and
C.   That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
The “A” prong (freedom from control and direction) is similar to the common-law test used in Borello, asking whether the person is free from the “type and degree of control a business typically exercises over employees.”  The “B” prong (outside the usual course of the business) focuses on whether the person is “providing services to the business in a role comparable to that of an employee, rather than in a role comparable to that of a traditional independent contractor.”

But, the “C” prong (independent trade, occupation, or business) asks whether the person “independently has made the decision to go into business for himself or herself,” evidenced by things such as “incorporation, licensure, advertisements, or routine offerings to provide the services of the independent business to the public or to a number of potential customers.”  While presenting limited substantive guidance, the Court made it clear that it intended this new A-B-C test to be stricter than the previous Borello test.

This new independent contractor test only applies to Industrial Welfare Commission Wage Orders.  The CSC did not make any rulings about whether this test would also apply to other wage and hour laws – such as claims for reimbursement for business expenses, but the opinion suggests such laws will remain subject to the Borello standard.

The Narrow ‘B’ Prong

Many states use A-B-C independent contractor tests, often in their unemployment compensation statutes.  The A and C prongs that the CSC announced are comparable to these other tests.  However, the B prong deviates from the norm in an important way.  Most B prongs allow two different ways to prove that a worker is an independent contractor: either by showing that he or she works (1) outside the usual course of the business or (2) outside all the places of business of the hiring entity.  The CSC’s new test purposefully omits this second clause (i.e., “outside all the places of business”), meaning that the only way to satisfy the B prong – and, thus, the only way to be an independent contractor – is for one’s work to fall outside the usual course of the hiring entity’s business, regardless of where the work occurs.

The CSC explicitly copied the Massachusetts statute in crafting this new test.  To satisfy the B prong, the hiring entity must show that the person works in an “independent, separate, and distinct business from that of the employer.”  Said differently, the question is then “whether the service the individual is performing is necessary to the business of the employing unit or merely incidental.”  As a practical matter, for most companies, this narrow B prong works as a “de facto ban,” and prevents the use of independent contractors except where the person’s work has no tangible connection to the hiring entity’s business.

Exceptions

For some transportation companies, courts have held that the Massachusetts B prong is preempted by the Federal Aviation Administration Authorization Act (FAAAA) and is therefore unenforceable. Some Massachusetts courts have also held that “legitimate business-to-business” relationships can qualify for independent contractor status, even if the other “business” is a sole proprietor or one-person corporation.

Conclusion

It remains undecided how California courts will apply this new independent contractor test, or if the standard or its application will be limited by federal law when applied to certain arrangements involving motor carriers of property.  Companies should now expect more difficulty in proving that an individual is classified as an independent contractor under California wage and hour laws.

Although technically this ruling only applies to Industrial Welfare orders – including minimum wage, rest breaks, meal periods and overtime – the impact
is really much broader.  Many CalWorkSafety clients will find it difficult to
sustain the idea of independent contractors as fulfilling their business operations.  We can and will assist in evaluating each instance for you. 
The Bottom Line:
From Now on It’s Going to Be More Limited & Dangerous to Try
to Claim Independent Contractor Status in California

CALL US TODAY – LET’S TALK ABOUT THIS
 AND DEVELOP REAL SOLUTIONS FOR YOU
Visit our website: www.calworksafety.com 

or Call:  949-533-3742
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US Department of Labor Publishes Two Opinion Letters This Month

16 Apr

On April 12, 2018, the United States Department of Labor issued opinion letters that provide guidance on how employees without “normal working hours” should be compensated for travel time involving an overnight stay and whether rest breaks provided as a reasonable accommodation are compensable.

Interpretations Under the Federal FLSA …
CA Companies Frequently Follow These Federal Policies

When Travel Time Is Compensable:

The first opinion letter, FLSA2018-18, confirms long-standing DOL positions regarding when travel time is compensable under the Fair Labor Standards Act (FLSA) (e.g., hotel to worksite travel is a normal non-compensable commute).

Handling Irregular Schedules:
The Dilemma: For employees with irregular schedules, how do you determine “normal work hours” during which they must be paid when travel requires an overnight stay?

Suggested Approach: Employers have two different methods to reasonably ascertain an employee’s normal work hours and determine whether travel time is compensable.

  1. The employer may review the employee’s time records during the most recent month of regular employment and use the average start/end times during that time.
  2. Employers may also negotiate with the employee or employee’s representative and agree to what constitutes the employee’s normal work hours.
  3. If employers use either of these methods, the DOL will not find FLSA violations when employees are not paid for travel time occurring outside these normal working hours on work or non-work days.

Rest Breaks:
A second DOL letter, FLSA2018-19, clarifies when:

  1. Rest breaks given by an employer to accommodate an “employee’s serious health condition” predominantly benefit the employee and are not compensable as a result.

This ruling provides an exception to the current FLSA regulations that allow that employees must be paid during rest breaks of 20 minutes or less.

  1. The DOL states that a 15-minute rest break each hour (certified by a health care provider) due to the employee’s serious health condition is and therefore covered by the Family and Medical Leave Act (FMLA) would not be compensable time under the FLSA.
  2. Notably, employees that take FMLA-protected breaks as an accommodation must still receive as many paid rest breaks as their coworkers

While these are only interpretations under the Federal FLSA, California usually follows these federal policies. These letters signal that the DOL will soon be issuing employers much-needed assistance and guidance for complying with the FLSA and other new regulations and laws.

The Bottom Line:

Even though the regulation is not effective these opinions apply to all California employers and their employees. CalWorkSafety welcomes the opportunity to assist all employers in preparing for the implementation
of these ‘opinions’ once they become law … which is likely.

CALL US TODAY – LET’S TALK ABOUT THIS AND DEVELOP REAL SOLUTIONS FOR YOU

Visit our website: http://www.calworksafety.com or Call: 949-533-3742

New Workplace Safety Rules for Hotel Housekeepers Effective July 1

23 Mar

This is the first ergonomic standard in the nation written specifically to protect hotel housekeepers from musculoskeletal injuries.

The Office of Administrative Law approved the new workplace safety and health regulation specific to housekeepers in the hotel and hospitality industry, which will become effective July 1, 2018. Cal/OSHA will enforce the new standard — the first ergonomic standard in the nation written specifically to protect hotel housekeepers from musculoskeletal injuries.

Musculoskeletal injuries are injuries of a muscle, tendon, ligament, bursa, peripheral nerve, joint, bone or spinal disc that can limit or prevent someone from working. According to Cal/OSHA, hotel housekeepers frequently suffer musculoskeletal injuries, lifting mattresses, pulling linens, pushing heavy carts, and slipping, tripping or falling while cleaning bathrooms — at a rate higher than workers in other industries.

This regulation requires employers in the hotel and lodging industry to identify, evaluate and correct housekeeping-related hazards with the involvement of housekeepers and their union representative.

Under the new rule, covered employers will be required to have a specific written Musculoskeletal Injury Prevention Program (MIPP).

The MIPP must include:

  • Procedures to identify and evaluate housekeeping hazards through worksite evaluations;
  • Include employees in the evaluation process;
  • Procedures to investigate musculoskeletal injuries to housekeepers;
  • Methods to correct identified hazards; and
  • Training of employees and supervisors on safe practices and controls, and a process for early reporting of injuries to the employer.
  • The initial evaluations, written plan and training all must be completed by September 29, 2018.

When evaluating worksite hazards, investigating injuries and identifying corrective measures, input from the housekeepers and their union representatives is required.

CalWorkSafety, LLC already has a draft MIPP and welcomes the opportunity to assist all hotel, motel and bed and breakfast employers in complying with this new regulation. While the rule does not take effect until July 1, 2018, at that time, employers will have only 90 days to take all the steps to comply and there is no reason to delay preparations and assessing how this will effect your operation. CalWorkSafety works with our clients to develop effective plans which meet your compliance obligations, and will assist you if Cal/OSHA conducts an inspection or issues citations.

The standard will be added to Title 8 of the California Code of Regulations as section 3345, Hotel Housekeeping Musculoskeletal Injury Prevention.

More information on the standard can also be found on Cal/OSHA’s website.

Changes in CA Immigrant Worker Protection Act

16 Feb

California’s Immigrant Worker Protection Act (AB 450) provides California workers with protection from immigration enforcement while on the job. This law applies to all California employers and was effective January 1, 2018.

One of the requirements of this new law is that employers must provide notice to all current employees when a federal immigration agency intends to inspect the employer’s Forms I-9 or other employment records.

Law Mandates Employee Notice Forms When ICE Plans I-9 Audits

Required Notice to Employees
If an employer receives a Notice of Inspection from a federal immigration agency, the employer must post a required notice to employees in the workplace within 72 hours of receiving the Notice of Inspection.

The Labor Commissioner released an official notice for employers to use. The Notice to Employee (Labor Code section 90.2) is available in English and Spanish.

  1. The notice must be posted in the language normally used to communicate with employees. A copy of the Notice of Inspection and any accompanying documents must be posted along with the required notice.
  2. In addition to posting the notice in the workplace, employers must give the notice to the employees’ collective bargaining representative(s), if any.

Additional Notice Requirements
Employers also have notice obligations once the inspection is over. Within 72 hours of receiving the inspection results, employers must give each “affected employee” a copy of the results and a written notice of the employer’s and employee’s obligations arising from the inspection.

An “affected employee” is one identified by the inspection results as potentially lacking work authorization or having document deficiencies. There is not a template for this notice; it must be specific to the affected employee.

Preparation Is Essential
Employers only have 72 hours from the time they receive a Notice of Inspection to generate and post the required notice to employees, and only 72 hours from receipt of the inspection results to notify affected employees. Employers who violate the notice requirements can face penalties of up to $10,000 per violation, depending on whether it’s a first or subsequent offense.
The Bottom Line:
Because the timing is so short, preparation is key to meeting the notice requirements. Employers should have a process in place to respond to Notices of Inspection. Employers should identify who in their organization would likely receive a Notice of Inspection and confirm that person knows how to respond.

CALL US TODAY – LET’S TALK ABOUT THIS
AND DEVELOP REAL SOLUTIONS FOR YOU
We’re Here To Help!

Visit our website: http://www.calworksafety.com
or Call: 949-533-3742

Remember to Post Your OSHA  Injury Illness Summary Log 300 No Later Than April 30th 

31 Jan
Remember to Post Your OSHA 
Injury Illness Summary 
Log 300 No Later Than April 30th 

Cal/OSHA and Federal Occupational Safety and Health Administration (OSHA) require employers with more than 10 employees to keep a record of serious work-related injuries and illnesses. Minor injuries requiring first aid only do not need to be recorded.

All Employers Must Maintain a Log 300 &  
Post Last  Year’s Summary Page Logs   

What Is An OSHA 300 Log?
The OSHA injury and illness record keeping forms are: The Log of Work-Related Injuries and Illnesses (OSHA Form 300), the Summary of Work-Related Injuries and Illnesses (OSHA Form 300A), and. the Injury and Illness Incident Report (OSHAForm 301).  View Form.  

Who Keeps Records?
Under OSHA’s record keeping regulation, certain covered employers are required to prepare and maintain records of serious occupational injuries and illnesses using the OSHA 300 Log. This information is important for employers, workers and OSHA in evaluating the safety of a workplace, understanding industry hazards, and implementing worker protections to reduce and eliminate hazards.

However, there are two classes of employers that are partially exempt from routinely keeping injury and illness records.  First, employers with ten or fewer employees at all times during the previous calendar year are exempt from routinely keeping OSHA injury and illness records.  OSHA’s revised record keeping regulation maintains this exemption.

Second, establishments in certain low-hazard industries are also partially exempt from routinely keeping OSHA injury and illness records. Due to changes in OSHA’s record keeping requirements that went into effect 1-1-15, certain previously exempt industries are now covered.

To learn if you are required to prepare and maintain records under the updated rule, first determine your NAICS code by: Using the search feature at the U.S. Census Bureau NAICS webpage.
NOTE: Establishments in companies with 10 or fewer employees in the previous year continue to be exempt from keeping OSHA records, regardless of their industry classification.

The partial exemption for size is based on the number of employees in the entire company.

What Do I Do With This Information?
  1. Post your 300A Summary Report on your safety board no later than February 1st through April 30th of the year following the year covered by the form.
  2. File you 300 Log and retain logs for a minimum of five (5) years on site.
  3. Start a new log for the coming year; repeat this process at the end of the year
Time Requirement For Keeping An OSHA 300 Log?
You must save the OSHA 300 Log, the privacy case list (if one exists), the annual summary, and the OSHA 301 Incident Report forms for five (5) years following the end of the calendar year that these records cover.
WE ARE HERE TO HELP YOU! 
Visit our website: www.calworksafety.com

or Call:  949-533-3742

New California Workplace Laws for 2018

4 Dec

Governor Brown has signed into law a number of significant employment-related bills that will impact California workplaces. Here’s a summary of key laws taking effect on January 1, 2018, along with best practices to get ready — and ensure compliance.

Salary history

California joins a growing number of jurisdictions in barring employers from using or seeking job applicants’ salary history. A.B. 168 will prohibit all employers, public and private, from relying on “salary history Information” as a factor in determining whether to offer employment and what salary to offer to an applicant. Also, an employer cannot, orally or in writing, personally or through an agent (such as a manager or even a third party), seek salary history information about an applicant. Salary history information includes information about compensation and benefits, but the bill does not apply to salary history information that is disclosable to the public pursuant to federal or state law, such as under the California Public Records Act. The law also requires employers to provide the pay scale for a position upon an applicant’s “reasonable” request.

If an applicant voluntarily and without prompting does disclose salary history information to a prospective employer, the law would not prevent the employer from considering or relying on that information to set the salary for that applicant — although the information still could not be used in determining whether or not to hire the individual. Employers should exercise caution in relying on this provision to consider salary history, as it could be difficult to demonstrate that a salary history disclosure was in fact voluntary. Employers should also bear in mind that under the California Fair Pay Act, salary history alone cannot justify a gender or race disparity in compensation.

On a related note, another new law, A.B. 46, will expand California’s Fair Pay Act to public employers. However, public employers are not subject to the Act’s misdemeanor provision for violations.

Getting Ready.  Employers should revise job applications and hiring forms and notices, whether hard copy or online, to remove questions that could seek salary history information.  Employers should also revise applicable hiring policies and procedures and interview/screening guidelines, to make clear that the organization does not request salary history and will not use salary history unless otherwise permitted by law. Procedures should be put in place to ensure delivery of pay scale information upon an applicant’s request. And, training should be provided to all personnel involved at any stage of the hiring process to ensure they understand the restrictions and obligations imposed by the new law. Employers in San Francisco should also take note that a similar city ordinance takes effect in July 2018.

Immigration Enforcement

In response to anticipated immigration-related actions by the Trump Administration, California has enacted strict new measures related to workplace immigration enforcement.

A.B. 450 will bar public and private employers, and anyone acting on their behalf, from voluntarily consenting to allow an immigration enforcement agent to enter nonpublic areas of a workplace, except if the agent provides a judicial warrant or as otherwise required by federal law. Employers can take an immigration agent to a nonpublic area in order to verify whether the agent has a judicial warrant, so long as no employees are present in the area and no consent to search nonpublic areas is given in the process.

The new law also prohibits employers and anyone acting on their behalf from providing voluntary consent to an immigration enforcement agent to access, review, or obtain employee records without a subpoena or judicial warrant. This provision does not prohibit an employer from challenging a subpoena or judicial warrant in a federal court, nor does it apply to inspection of I-9 records or other documents for which the employer has received a Notice of Inspection.

A.B. 450 also imposes several new notification requirements on employers, as follows:

  • Within 72 hours of receiving a Notice of Inspection from an immigration agency to inspect I-9 forms or other employment records, the employer must post a workplace notice to employees and provide written notice to a collective bargaining representative. The Labor Commissioner will develop a template that employers can use for this purpose. Also, upon reasonable request, an employer must provide an affected employee a copy of an I-9 Notice of Inspection.
  • Within 72 hours of receiving an immigration agency notice that provides results of the I-9 or records inspection, an employer must provide each current affected employee and the collective bargaining representative a copy of the notice. Also the employer must provide to each “affected employee” and their representative written notice of the employer and employee’s obligations arising from the inspection results. An “affected employee” is one identified by the inspection results as lacking work authorization or whose work authorization documents have been identified by the agency inspection to have deficiencies. The notice must relate to the affected employee only and must be delivered by hand at the workplace if possible, or by mail and email if hand delivery is not possible.

Violations of any of the above provisions carry hefty civil penalties of $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation.

Finally, A.B. 450 prohibits employers from reverifying employment eligibility of a current employee at a time or in a manner not required by federal law.  Violations carry a civil penalty of up to $10,000.  This law does not restrict an employer’s compliance with a memorandum of understanding regarding the use of E-Verify.

Getting Ready.  Employers should ensure that management is familiar with the new prohibitions on granting voluntary access and understands proper procedures when faced with a visit or inspection request from immigration authorities. Employers should be prepared to promptly comply with the new posting and notice requirements when a Notice of Inspection or inspection results are received. Also, employers should review their I-9 processes to ensure that they are in full compliance with the law and are not engaging in reverification practices that are not strictly required by federal law.

Ban the Box

The new California Ban-the-Box law, A.B. 1008, amends the Fair Employment and Housing Act (“FEHA”) to make it an unlawful employment practice for employers with five or more employees to:

  • include on any application for employment any question that seeks the disclosure of an applicant’s conviction history;
  • inquire into or consider an applicant’s conviction history before the applicant receives a conditional offer of employment; and
  • consider, distribute, or disseminate information related to arrests that did not result in convictions, diversion program participation, and/or convictions that were sealed, dismissed, expunged or eradicated.

The new law exempts from its coverage only a handful of positions: positions for which government agencies are required by law to check conviction history; positions with criminal justice agencies; farm labor contractors; and positions for which the employer is required by federal, state or local law to check criminal history or to restrict employment based on criminal history.

The law provides that covered employers may only consider an applicant’s conviction history after the applicant has received a conditional offer of employment. If an employer intends to deny hire solely or in part because of conviction history, the employer must conduct an individualized assessment to determine whether that history has a direct and adverse relationship with the specific duties of the job. Moreover, when making that assessment the employer must consider the nature and gravity of the offense and conduct, the passage of time since the date of the offense/conduct and completion of any sentence, and the nature of the position held or sought. Employers may, but are not required to, record the results of their individualized assessments in writing.

If the individualized assessment leads to a preliminary decision that the conviction history is disqualifying, the employer must then follow a specific procedure, sometimes referred to as a “fair chance” process, as follows:

  • First, the employer must provide written notice to the applicant. The written notice must identify the conviction on which the preliminary decision is based, include a copy of the conviction history report, if any, and explain the applicant’s right to respond to the notice within at least five business days. The notice must also explain the applicant’s right to submit evidence challenging the accuracy of the conviction record, or evidence of rehabilitation, mitigating circumstances, or both. Employers are prohibited from making any final determinations based on conviction history during the minimum five day business period.
  • Second, if the applicant timely notifies the employer in writing that the applicant is disputing the conviction history and is taking steps to obtain evidence to do so, the employer must provide the applicant an additional five business days to respond. Any additional evidence the applicant provides in response must be taken into consideration by the employer before a final decision is made.
  • Finally, if after receiving the response from the applicant the employer makes a final decision to deny employment based on conviction history, the employer must again notify the applicant in writing. This final notification must include: the final denial; information relating to any existing procedure to challenge the decision or request reconsideration; and the right to file a complaint with the Department of Fair Employment and Housing. The employer has the option to include an explanation for making the final denial.

Getting Ready. Covered employers should revise their paper and online employment applications to remove “boxes” or questions which seek criminal conviction information from applicants. They also should review interview guidelines and hiring processes to ensure compliance with the law, and train managers, hiring, and recruiting personnel that they may not seek or rely on conviction history before a conditional offer of employment is made. Employers should adopt procedures to comply with the individualized assessment and “fair chance” process requirements. Finally, employers should review and revise, as necessary, “adverse action” notifications to comply with federal and California fair credit reporting law requirements, as well as local ban-the-box or fair chance ordinance requirements such as in San Francisco and Los Angeles.

New Parental Leave Act

The New Parent Leave Act, S.B. 63, amends the California Family Rights Act (“CFRA”) to allow employees who work for an employer with at least 20 employees to take 12 weeks of unpaid leave for new child bonding purposes so long as the employee works at a worksite that employs at least 20 employees within a 75-mile radius. The new law is a significant expansion of the CFRA, which currently only applies to employers with 50 or more employees. It will provide parental leave rights to an estimated 2.7 million California workers who previously were not eligible for leave because of the size of their worksite. The law applies to private and public employers.

Similar to CFRA’s current requirements, it will be unlawful for a covered employer to refuse to allow an eligible employee to take up to 12 weeks of job-protected parental leave to bond with a new child within one year of the child’s birth, adoption or foster care placement. Eligible employees must have 12 months of service plus at least 1,250 hours of service with the employer during the 12-month period preceding the leave. Note that the law only expands CFRA’s bonding leave provision — it does not require employers with fewer than 50 employees to offer CFRA leave for other reasons such as for the employee’s or a family member’s serious health condition.

Before the start of a parental leave, the employer must provide the employee with a guarantee of reinstatement to the same or comparable position following the leave; failure to provide this guarantee will violate the law. Also, if both parents work for the same employer and are otherwise eligible for leave, the employer can require them to share the 12-week allotment between them.

Leave is unpaid, although employees may use accrued vacation, paid sick time, other accrued paid time off, or other paid or unpaid time off negotiated with the employer, and can apply for California Paid Family Leave benefits. Employers must maintain and pay for group health coverage during a parental leave at the level and under the conditions that coverage would have been provided had the employee continued working. The employer can recover coverage costs if the employee fails to return from leave after the leave entitlement period has expired and the failure to return is for a reason other than the continuation, recurrence, or onset of a serious health condition or other circumstances beyond the employee’s control.

The new law does not affect an employee’s right under California law to take up to four months of leave for pregnancy-related disability, in addition to the 12 weeks of parental leave. Also, the new law does not apply to employees who are already subject to the FMLA and CFRA.

Getting Ready.  For employers with at least 20 employees within a 75-mile radius of the worksite, promptly update employee handbooks and personnel policies, and create/update leave request forms and notices with respect to the new leave rights, reinstatement guarantee, and other requirements. Also, provide training to human resource employees and managers about the new leave rights and obligations.

Retaliation

S.B. 306 greatly expands certain employee retaliation and whistleblower claims. The law allows the Labor Commissioner to initiate an investigation of employers, with or without a complaint being filed, when it suspects the employer discharged or otherwise discriminated against an individual in violation of any law under the Labor Commissioner’s jurisdiction. In contrast, existing law authorizes such investigations only when an employee files a complaint.

Under the new law, complaints can be initiated by the Labor Commissioner when suspected retaliation occurs during the course of adjudicating a wage claim, during a field inspection, or in instances of suspected unlawful immigration-related threats. Moreover, the Labor Commissioner will now have authority to petition a court for relief, including injunctive relief, during the course of an investigation and prior to completing its investigation or concluding that retaliation has in fact occurred. This change means that employers could be forced to reinstate employees pending the months or years it takes to litigate a claim of unlawful retaliation.

Even more significantly, the law greatly diminishes the burden of proof for injunctive relief in retaliation or whistleblower cases under the Labor Commissioner’s jurisdiction, allowing an employee or the Labor Commissioner to obtain a preliminary injunction against an employer (most likely, restoring the employee to his or her position following termination or other disciplinary action) upon a mere showing of “reasonable cause” that a violation of the law occurred, and instructing courts to consider the “chilling effect on other employees asserting their rights under those laws” in determining if temporary injunctive relief or a permanent injunction is proper. The existing standard of proof for injunctive relief requires a showing of irreparable harm if the relief is not granted, likelihood of success on the merits of the claim, and that the foregoing interests outweigh the harm the defendant will suffer from granting injunctive relief.

S.B. 306 does provide that any temporary relief does not restrain an employer from disciplining or terminating an employee for conduct unrelated to the retaliation claim. However, as many employers know from experience, employees with performance issues who know that they are about to be terminated or disciplined will often attempt to file retaliation claims internally or with state and federal agencies in order to protect themselves from adverse action. Thus, it isn’t often that a discipline or termination claim will be deemed “unrelated” to a claim of retaliation.

The law also establishes a new citation process pursuant to Section 98.74 of the Labor Code for enforcement of whistleblower or retaliation claims. While current law requires the Labor Commissioner to bring a civil action for enforcement, S.B. 306 authorizes the Labor Commissioner to issue a citation directing the employer to cease the alleged violation and take actions necessary to remedy the violation, such as ordering reinstatement or back pay, thus placing the burden on the employer to challenge the citation through an administrative and court appeal. The law also requires any employer challenging the citation to post a bond with the Labor Commissioner’s office equal to the amount of back pay allegedly owed.

Getting Ready.  The new law necessitates that employers carefully analyze and make well-reasoned disciplinary decisions and that they document thoroughly the reason(s) for those decisions. Employers should familiarize themselves with the provisions of the new law and be aware that litigating retaliation and whistleblower claims under the Labor Commissioner’s jurisdiction, and opposing petitions for injunctive relief related to these claims, will be more difficult once the new law takes effect. Employers will also face a heavy burden when challenging citations under the new law.

Anti-Harassment Training

Employers in California with 50 or more employees currently are required to provide two hours of sexual harassment training to supervisors every two years.  Now, S.B. 396 will require that anti-harassment training also include a component on harassment based on gender identity, gender expression, and sexual orientation.  This training must include “practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation,” and must be “presented by trainers or educators with knowledge and expertise” in these areas.

The new law also requires employers with five or more employees to post a new workplace notice, to be developed by the Department of Fair Employment and Housing, regarding transgender rights.

Another new law, S.B. 295, requires that farm labor contractors comply with existing requirements to conduct sexual harassment training for certain employees by providing the training in the language understood by the employee.

Getting Ready. Employers should be certain to update their A.B. 1825 training to include information regarding gender identity, gender expression, and sexual orientation. Also, look for the new poster and ensure it’s up in your workplace by the first of the year.

Human Trafficking Notice

Existing California law requires certain types of businesses to post a notice regarding human trafficking and assistance hotlines. A.B. 260 will extend the posting requirement to hotels, motels, and bed and breakfast inns, and S.B. 225 will require new language in the notice to state that person can text a specified number for services and support.

Getting Ready. Employers covered by this posting requirement should ensure the notice is in place and that it is updated to incorporate the new language.

Construction Contractor Liability

Under A.B. 1701, general contractors will be responsible for any payments owed to a wage claimant (or third party on a wage claimant’s behalf) by their subcontractors if the claimant’s work is a subject of the contractors’ relationship. Liability extends to unpaid wages, fringe or other benefit payments and contributions, and interest owed, but it does not include penalties or liquidated damages. The new law also requires subcontractors to provide payroll records to general contractors upon request. Finally, general contractors may establish remedies by contract for liabilities incurred on behalf of subcontractors. This law applies to contracts entered into on or after January 1, 2018.

Getting Ready. General contractors should review all agreements with subcontractors to ensure appropriate indemnification provisions are included. They should discuss with subcontractors their practices regarding wages and benefits. Also, general contractors should take full advantage of the new payroll review provision and request to review subcontractors’ records where wage compliance may be an issue.

Compliance Wrap-Up

With this new slate of workplace laws going into effect in January, employers have a lot to do to get ready, including reviewing and updating employee handbooks to ensure full compliance.

Ready For The 2018 New Employment Laws for CA Employers?

27 Nov
Not to worry, here is a summary …

For 2018, California employers must be watchful of many new laws, and most are very important, including:
  • Changes in minimum wages
  • Changes required for their employment applications as a result of new state laws including questions they can ask job applicants.
  • New ICE (Immigration and Customs Enforcement).
  • Required Changes including updating with their Employee Handbooks on topics about:
    • Dealing with equal employment policies
    • Their training for sexual harassment
    • Small employers with 20-49 employees – should prepare how to deal with “Baby Bonding” leave for employees with new children.
Below is a summary of some of the significant other topics employers MUST comply to next year.

Minimum Wage:

  • Large businesses with 26 or more employees began complying January 1, 2017. The current minimum wage for large businesses is $10.50 per hour; the rate will increase to $11.00 per hour on January 1, 2018. Large businesses will reach the $15 per hour minimum wage in 2022.
  • Small businesses with 25 or fewer employees had a one-year delay and will see their first minimum wage increase on January 1, 2018; the minimum wage will increase from $10.00 per hour to $10.50 per hour. Do not forget that many cities and some counties have local minimum wage ordinances as well – most of these call for increases on July 1, 2018.
When Hiring:

Salary History do not ask an applicant for employment their salary history, either on an application form or in an interview or otherwise; upon request you must provide the pay scale to an applicant for the position they are applying for.

When Hiring – Criminal History:
If an employer has five or more employees, it is unlawful to inquire about criminal or conviction history of an applicant until after a conditional offer of employment to the applicant; If you obtain or review information (which can only relate to conviction history, not juvenile criminal history or actions related to marijuana offenses more than two years old) and intend to deny an applicant employment based even in part on such conviction history, you must document that you have made an individual assessment whether the conviction history has a direct and adverse relationship with the specific duties of the job justifying denying the applicant the position. Consideration must include:
  • Nature and gravity of the offense
  • Elapsed time that has passed since occurrence
  • Nature of the job; If you have made a preliminary decision not to employ an applicant based on conviction history, the applicant must be notified of the decision in writing, given a copy of the history report, notice of a right to respond, and have five days to respond. If told by the applicant that he/she disputes the accuracy of the report, the applicant has five additional days to respond to the notice. Any final decision by the employer must be in writing.
Handling of Immigration I-9 Forms:

Do not allow any government entity, and specifically DO NOT ALLOW the Customs & Immigration Service, or U.S. Homeland Security to obtain or review your records UNLESS provided a Notice of Inspection. If you receive a Notice of Inspection for I-9 forms, you must post a notice for employees immediately informing them that the process will occur. If the I-9 review raises questions about any particular employee’s status, that employee must be informed and allowed to participate to clarify their status. Also, employers can only “reauthorize” a I-9 form as required by the process.

Employment Policies:
Reproductive Health Rights: Employees have the right to and freedom to make personal decisions regarding reproductive health including the timing of use of birth control drugs and devices, or medical services. These rights are now protected by the Equal Employment provisions of California law and employers may not discriminate on the basis of employee decisions. Employee handbooks must also contain a notice of employee rights and remedies regarding this matter.
New Parent Leave Act:

Employers who have from 20-49 employees as of January 1, 2018 are required to allow qualified employees to take unpaid leave for up to 12 weeks to bond with a new child within one year of a child’s birth, adoption or placement for foster care. There are qualifications defining that the employee must have completed 1,250 hours of work for the company within the past year, and work at a location where there are at least 20 employees within 75 miles of the worksite. NOTE: This leave is in addition to pregnancy leave, which can be for up to four months, and employees are entitled to continuation of health benefits during this leave.

Harassment Training Re: Gender Identity, Expression & Sexual Orientation:  Training which is required regarding prevention of sexual harassment and bullying behavior now must include training inclusive of harassment based on gender identity, gender expression and sexual orientation, in the training all employers with 50 or more employees must provide supervisors and managers for two hours every two years.

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