Blog Archives - Page 19 of 24 - California Labor & Employment Law

New California Legislation Affects Employee Parental Activity Leave

October 26, 2015 by Beck Law P.C.

New California legislation affects employee parental activity leave. One of the many bills signed into law by Governor Jerry Brown on October 11, 2015 was Senate Bill 579. This bill amended Section 230.8 of the California Labor Code, which allows employees to take leave from work each year to participate in activities related to their children’s schooling or day care. The section, as revised, now applies to foster parents and stepparents, and it allows employees to take leave for a wider range of activities.

The Specifics of the Parental Activity Leave Bill

The basic provisions of Section 230.8 include:

Requiring California employers with 25 or more employees at a particular location to allow any employee who is a parent (or a guardian or grandparent with custody of a child) to take up to 40 hours of leave per year in order to participate in activities at their children’s schools and/or day care facilities.
An employee may not take off more than eight hours in a calendar month for these school or daycare activities, and the employee must provide his or her employer with reasonable notice.
An employee who decides to take leave for these activities must make use of any vacation time, compensatory time off, or personal leave to which he or she is entitled. In addition, if the employee is entitled to time off without pay, then he or she may make use of it for these activities.
The employee must provide the employer with written documentation from the school or daycare facility if the employer requests it.

SB 579 has amended the section in a number of ways relating to parental activity, including the following:

The term “parent” can now apply not only to a parent or a grandparent, but also to a stepparent, a foster parent, or someone who stands in loco parentis to a child. (“In loco parentis” refers to someone legally standing in the place of a parent.)
The term “licensed child daycare facility” has been replaced with the term “licensed child care provider.”
The time off may be used to find a school or child care facility, or to enroll or reenroll one’s child in a school or child care facility.
The time off may also be used to address an emergency related to a school or a child care provider. The statute explains that the term “emergency” refers to when the child of the employee is unable to remain at his or her school or child care facility. (The possible reasons for this include closure of the facility, behavioral problems, natural disasters, and a request from the school or child care provider that the child be removed.)

SB 358: Equal Pay for Substantially Similar Work

October 20, 2015 by Beck Law P.C.

The concept of paying men and women equal pay for equal work should be familiar to California employers but under new legislation, wage equality requirements no longer apply only to employees with identical job descriptions. Employers are now required to pay male and female employees equal wages for doing “substantially similar” work.

The legislation in question, California Senate Bill 358, was signed into law on October 6, 2015 by Governor Jerry Brown at the Rosie the Riveter National Historical Park in Richmond. The new legislation amends Section 1197.5 of the California Labor Code.

What Does the equal pay Bill Say?

SB 358 states that an employer may not pay any of its employees at lower wage rates than employees of the opposite sex for work that is substantially similar, when viewed “as a composite of skill, effort, and responsibility and performed under similar working conditions,” unless the employer can demonstrate that:

The wage differential is based upon one or more of the following factors: a seniority system, a merit system, a system that measures earnings by quantity or quality of production, and/or a bona fide factor other than sex (such as education, training or experience.)
Each factor is relied upon reasonably, and
The factor or factors relied upon account for the entire wage differential.

The legislation clarifies that if an employer cites a “bona fide factor other than sex,” it must not be based on, or derived from, a sex-based differential in compensation. In addition, the factor must be related to the job in question, and it must be consistent with a business necessity.

Other aspects of the legislation include:

The Division of Labor Standards Enforcement, which is in charge of administering and enforcing the legislation, may supervise the wages that are due to employees when a violation takes place.
Employers must maintain records of the wages and wage rates, job classifications, and other terms of employment of their employees. The records must be maintained for at least three years.
When an employee files a complaint with the Division of Labor Standards Enforcement, the name of the employee will be kept confidential until the Division establishes the validity of the complaint. (There is an exception to this, however, if abridging the employee’s confidentiality prevents the Division from investigating the complaint.) If the employee withdraws the complaint before his or her confidentiality is abridged, then the Division will maintain the employee’s confidentiality.

Your Equal Pay Responsibilities Under the New Law

If you run a business in Sonoma County, Mendocino County or Lake County California, and you have not monitored whether there is a gender gap in your employee’s wages, it is time to start. Consulting an attorney to ensure your wages meet the standards of this legislation may be far less expensive than dealing with a gender discrimination lawsuit. [Read more…]

Filed Under: California Employment Law, California Labor Law, Gender Discrimination, Wage and Hour Law Tagged With: discrimination, equal pay, Petaluma Labor Lawyer, Santa Rosa Labor Lawyer, sexism, Ukiah Employment Lawyer

The NLRB Changes Joint Employment Standards

October 12, 2015 by Beck Law P.C.

The National Labor Relations Board (NLRB) has issued a ruling that adopts a new definition of joint employment. The case revolved around a California labor dispute – but the more expansive definition of joint employment laid out in the decision is expected to have a significant effect on labor cases around the country.

The labor dispute case involved Browning-Ferris Industries of California (BFI), which operates a recycling facility in Milpitas, and Leadpoint Business Services, which provides BFI with employees. A union, Sanitary Truck Drivers and Helpers Local 350, sought to represent the sorters, screen cleaners, and housekeepers who work at the facility. The Union argued that BFI and Leadpoint were joint employers of the employees in question.

A regional director of the NLRB issued a decision stating that Leadpoint was the sole employer of these employees. The ruling used the NLRB’s previous definition of joint employment, which focused on whether the employers exercised the right to control workers in a direct, immediate way (rather than a limited and routine way).

The NLRB’s Reversal on Joint Employment Standards

The NLRB overturned the Regional Director’s decision and found that BFI and Leadpoint are joint employers. The NLRB concluded that it is relevant whether a putative employer has the authority to control the terms and conditions of employment, even if the employer does not actually use that authority. The NLRB’s ruling clarifies that the correct test for whether joint employment exists is “whether one statutory employer possesses sufficient control over the work of the employees to qualify as a joint employer with another employer.”

Under the ruling, entities are considered joint employers if:

They are both employers within the meaning of the common law, and
They share or codetermine those matters governing the essential terms and conditions of employment.

The factors that the NLRB examined in order to determine the answers to these questions included hiring, firing, discipline, supervision, direction of work, hours, and wages. After considering these factors, the Board concluded that BFI shared and co-determined the terms and conditions of employment, and thus, was a joint employer along with Leadpoint.

Why the Joint Employment Standards Change?

The ruling states that the new standard was previously used by the NLRB and courts for years, and that it is based on the common-law definition of an employment relationship. According to the opinion, the common-law test for an employment is based on the right to control and not on whether that control is exercised.

The ruling argues that the previous standard was significantly narrower than the common-law standard. It also states that, under the old standard, employees could be deprived of their right to bargain effectively simply because there were two employing firms involved in their work arrangements instead of one. [Read more…]

Filed Under: Employee Rights Tagged With: employer, employment law, joint, mendocino county labor attorney, Petaluma Labor Attorney, Santa Rosa Labor Attorney, sonoma county labor attorney, Ukiah Labor Attorney

Will Mandatory Arbitration Agreements Become a Thing of the Past in California?

October 6, 2015 by Beck Law P.C.

In a previous blog post, we discussed a decision by the Ninth Circuit regarding mandatory arbitration agreements for employees. A major change to this area of law may be on the way in the state of California, if Assembly Bill 425 is signed into law. This bill would altogether prohibit employers from requiring their employees to sign arbitration agreements as a condition of their employment.

AB 425 was passed by the California Assembly and Senate in August 2015. If it is signed into law by Governor Jerry Brown, it will take effect on January 1, 2016. The bill would become Section 925 of the California Labor Code.

What Does the Bill Require?

AB 465, if enacted, will prohibit any employer from requiring an employee, as a condition of employment, to agree to the waiver of “any legal right, penalty, forum, or procedure for any employment law violations.” It also prohibits employers from threatening, retaliating against, or discriminating against employees for refusing to sign such waivers. In addition, it stipulates that if a waiver of this type will be unenforceable if it is required from an employee (or a potential employee) as a condition of employment or continued employment.

You may be wondering how, under those regulations, an employee’s agreement to arbitrate would be legally valid. The statute stipulates that any waiver of employment rights (such as an agreement to arbitrate) must be “knowing and voluntary and in writing, and expressly not made as a condition of employment.” If the employer seeks to enforce the waiver, then the employer would have the burden of proof to show that the waiver was knowing and voluntary.

There are several other important aspects of AB 465:

If the bill is enacted, it will apply only to waivers that were signed on or after January 1, 2016 – so you do not have to worry that this legislation will render any current contracts invalid.
It authorizes reasonable attorney’s fees to the prevailing claimant.
It exempts organizations that are considered self-regulatory under the Securities Exchange Act of 1934, and it does not apply to regulations adopted under that Act pertaining to any requirement of a self-regulatory organization that a person arbitrate disputes between an employer and an employee.
It does not apply to employees who were individually represented by legal counsel when negotiating the terms of an agreement to “waive any right, penalty, remedy, forum or procedure for a violation of this code.”

Binding Arbitration and Preparing for the Future

If AB 465 is passed into law, it will have major ramifications for employers who require their employees to sign arbitration agreements. If you are an employer in California, and you would like your employees to commit to arbitration, it may be in your best interests to begin thinking now about how you will revise your policies if the bill is enacted. [Read more…]

Filed Under: Binding Arbitration, California Employment Law Tagged With: arbitration, employment law, Petaluma Labor Lawyer, Santa Rosa Labor Lawyer, Ukiah Labor Attorney

Target Hiring Discrimination Complaint Resolved – $2.8M Settlement

September 29, 2015 by Beck Law P.C.

Target hiring discrimination complaint has been resolved by Target agreeing to a $2.8 million dollar settlement deal. The complaint involved several employment assessments used by Target in its hiring practices that the Equal Employment Opportunity Commission (EEOC) found to be discriminatory. One of these assessments, which was performed by psychologists, was determined by the EEOC to be a violation of the Americans with Disabilities Act (ADA).

Neither EEOC nor Target has disclosed exactly what this psychological assessment consisted of. However, the EEOC stated that the test was a “pre-employment medical examination,” which violated a provision of the ADA that prevents employers from subjecting applicants to medical examinations before they have received job offers.

Medical Questions and Examinations – What is Allowed and What is Not

The ADA states that its prohibition against discrimination “shall include medical examinations and inquiries.” It also states that, prior to employment, “a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability, or as to the nature or severity of such disability.”

It should be noted that the ADA also has a provision stating that a covered entity may make pre-employment inquiries into an applicant’s ability to perform job-related functions. The EEOC’s finding of discrimination in this case suggests that a psychologist’s assessment of a prospective employee’s response to questioning is not considered an acceptable inquiry into his or her ability to perform job-related functions.

An employer may require a medical examination after a job offer has been made, and it can even make the offer conditional on the results of the examination. However, this is only possible if:

All entering employees are subjected to such an examination, regardless of disability
The results of such examination are only used in accordance with the ADA
Information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files, and is treated as a confidential medical record (There are several exceptions to this confidentiality, as there are some specific circumstances in which supervisors, managers, first aid and safety personnel, and government officials can be given access to information about employees’ health.)

Acceptable Questions

The EEOC has enforcement guidelines on pre-employment disability-related questions and medical examinations, and these guidelines specify certain types of questions than an employer is allowed to ask an applicant prior to a job offer. These include:

Questions about an applicant’s ability to perform specific job functions – such as stating the physical requirements of the job, and asking if the applicant can satisfy these requirements
Questions about an applicant’s non-medical qualifications
Questions asking an applicant to describe or demonstrate how he or she would perform job tasks

[Read more…]

Filed Under: Employment Discrimination Tagged With: discrimination, employment, medical, Target

Does Your Policy on Employee Meal Breaks Violate California Law?

September 25, 2015 by Beck Law P.C.

California’s Labor Code lays out the requirements for when employees must receive meal breaks. Under Section 512(a), an employee with a work period of more than 10 hours per day must be allowed two meal periods that are at least 30 minutes long. If the employee has worked fewer than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee.

That may sound fairly straightforward. However, Industrial Wage Commission (IWC) Order No. 5-2001 has a provision, Section 11(d),that states, “Notwithstanding any other provision of this order, employees in the health care industry who work shifts in excess of eight hours in a workday may voluntarily waive their right to one of their two meal periods.” (The order does not place any limitations on the length of the shift.) This has raised a question for employers in the health care industry – if an employee works for more than 12 hours, can the second meal break be waived?

Gerard v. Orange Coast Medical Center

A California Court of Appeal has weighed in with an answer. In Gerard v. Orange Coast Memorial Medical Center, the court ruled that a hospital violated the rights of its employees by directing them to work shifts in excess of 12 hours without two meal breaks. The court went on to declare that Section 11(d) of IWC order 5-2001 is partially invalid.

The ruling states: “We agree that the conflict between Section 11(d) and Section 512(a) creates an unauthorized additional exception to the general rule set out in Section 512(a), beyond the express exception for waivers on shifts of no more than 12 hours. ‘Under the maxim of statutory construction, expressio unius est exclusio alterius, if exemptions are specified in a statute, we may not imply additional exemptions unless there is a clear legislative intent to the contrary.’”

The court then points to the text of Section 516 of the Labor Code, which states that the IWC may adopt or amend working conditions with respect to meal periods, except as provided in Section 512. In light of this exception, the opinion states that the California legislature intended to prohibit the IWC from amending its wage orders in ways that would conflict with Section 512’s meal period requirements.

In partially invalidating Section 11(d), the court ruled that its decision would be applied retroactively. It held that the plaintiffs are entitled to seek premium damages for any failure by the hospital to provide mandatory second meals that took place within the previous three years. [Read more…]

Filed Under: Blog, California Employment Law Tagged With: california labor law, employment

Sexual Harassment Claims and Franchisor Liability

September 15, 2015 by Beck Law P.C.

Sexual harassment claims and franchisor liability. If you are a franchisor and you have franchises in the state of California, you should be aware that you may be found liable if a sexual harassment claim is filed against you based on the conduct of one of your franchisees.

The Supreme Court of California’s decision in the case of Patterson v. Domino’s Pizza, LLC has shed some light on the circumstances in which a franchisor can be held liable. The ruling states that a franchisor will be liable for sexual harassment if “it has retained or assumed the right of general control over the relevant day-to-day operations at its franchised locations.”

The Sexual Harassment Case

The harassment claim was filed by an employee named Taylor Patterson who worked at a Domino’s Pizza franchise owned by a company named Sui Juris. Patterson filed a sexual harassment complaint under California’s Fair Employment and Housing Act (FEHA) against Sui Juris, her supervisor, and Domino’s Pizza itself. Her complaint alleged that the supervisor groped her and made lewd comments and gestures. The complaint also alleged that she faced retaliation after her father reported the supervisor’s behavior to Domino’s human resources department and to the police.

Patterson argued that Domino’s Pizza was vicariously liable for her harassment because her supervisor was Domino’s “agent, employee, servant and joint venturer.” Her complaint also stated that her supervisor acted “within the course, scope, and authority of such agency, employment and joint venture, and within the consent and permission of” Domino’s Pizza.

At trial, Domino’s Pizza argued that it was not vicariously liable for the supervisor’s behavior because the Sui Juris franchise was a separate business, and thus Domino’s was not the supervisor’s employer. The trial court agreed and dismissed the action against Domino’s. An appeals court overturned the summary judgment, but the California Supreme Court ultimately agreed with the trial court’s original ruling.

What the Ruling Means For Future Franchisor Sexual Harassment Cases

In the opinion, the California Supreme Court held that Domino’s Pizza could not be held responsible for sexual harassment by a franchisee because Domino’s never assumed “the traditional right of general control” that an employer would typically have over its employees. The court emphasized that Sui Juris, rather than Domino’s, provided the employees with sexual harassment training, and that Domino’s was not involved in Sui Juris’s hiring process.

While the court dismissed the action against Domino’s, it also affirmed that there are circumstances in which a franchisor will be liable for the conduct of franchisees. The ruling establishes that a franchisor can be liable for such conduct if “it has retained or assumed the general right of control over factors such as hiring, direction, supervision, discipline, discharge, and relevant day-to-day aspects of the workplace behavior of the franchisee’s employees.” [Read more…]

Filed Under: Sexual Harassment Tagged With: business, franchise, sexual harassment

How to File a California Fair Employment and Housing Act Discrimination Claim

September 10, 2015 by Beck Law P.C.

How can I file a California Fair Employment and Housing Act Discrimination Claim? If you work in the state of California and you believe that you have been the victim of employment discrimination, you do not have the immediate option of filing a lawsuit against your employer. You must first pursue a claim on the state level by filing a claim with the California Department of Fair Employment and Housing, also known as the DFEH, or the federal level by filing a claim with the Equal Employment Opportunity Commission, also known as the EEOC.

If you choose to file a complaint with the DFEH regarding a matter that falls under the jurisdiction of the EEOC, then your complaint will also be filed with the EEOC automatically.

Filing a Discrimination Claim with the DFEH

If you choose to pursue a claim on the state level, alleging a violation of California’s Fair Employment and Housing Act (FEHA), you should be aware of the steps involved in the complaint process.

The Interview

When you contact the DFEH, they will schedule a time to interview you about your case. The DFEH provides a written questionnaire and they ask that complainants fill it out and send it in prior to their interviews.

Filing the Complaint

After the interview is complete the consultant who conducted the interview will draft a formal complaint that may or may not be accepted for investigation. The respondent (that is, the employer you have filed a complaint against) will be required to answer the complaint.

The respondent will be given the opportunity to resolve the complaint voluntarily, and the DFEH will attempt to facilitate a voluntary settlement. If a respondent makes an offer that the DFEH feels is reasonable and the complainant rejects it, the DFEH may choose to take no further action on their complaint.

The Investigation

If your complaint has been accepted for investigation, the DFEH is required to perform the investigation in a standard, timely manner. If the investigation does not show that the respondent violated the law, then the case will be closed. If the investigation shows that the respondent violated the law, then the DFEH may issue an accusation of discrimination.

Conciliation

If the investigation shows that there was a legal violation, there will be formal conciliation conferences. At a conciliation conference, the DFEH will present its conclusion that the respondent violated the law and there will be an attempt to reach a settlement between the parties. If there is no settlement, then the complaint may reach the litigation stage.

Litigation

The DFEH may choose to prosecute the respondent. If this occurs, the respondent may choose to either have the case publicly litigated before the Fair Employment and Housing Commission or moved to civil court.

Remedies

When a complainant is successful in litigation, there are a wide array of remedies available to him or her, including back pay, emotional distress damages, and reinstatement to his or her job. [Read more…]

Filed Under: California Labor Law, Employment Discrimination Tagged With: complaint, discrimination, fair employment and housing act, lake county, legal process, mendocino county, petaluma, santa rosa, sonoma county, ukiah

Personal Cell Phone Reimbursement for Work Use?

August 26, 2015 by Beck Law P.C.

Personal cell phone reimbursement for work use? A California court has weighed in on the issue of whether employers must reimburse employees for work calls made on their personal cell phones. In the case of Colin Cochran v. Schwan’s Home Service, Inc., a state appellate court ruled that employers must compensate their employees for work-related phone calls.

The case involved a customer service manager who filed a putative class action suit against his employer, Schwan’s Home Service, Inc., on behalf of 1,500 of his fellow employees. He alleged that Home Service’s failure to reimburse the employees for the cost of their business calls violated Section 2802 of the California Labor Code. Section 2802 states that an employer must indemnify an employee for “all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer.”

The Trial Court’s Verdict on Cell Phone Reimbursement

When the case was first heard by a trial court, issues were raised regarding how damages would be tabulated. Would it matter if an employee had an unlimited data plan, and so the work calls didn’t actually add to the employee’s cell phone bill? And if an employee had an unlimited data plan, would it matter if the employee purchased that plan because of his or her work calls?

An expert witness submitted a brief on behalf of Cochran, and asserted that a survey could be used to determine the extent of Home Service’s liability. The witness submitted a draft survey with 22 questions regarding cell phone-related finances that could be distributed to each employee. The witness proposed that the answers to these surveys could be used to tabulate statistics that would indicate Home Service’s total damages.

The trial court refused to certify the employees as a class, holding that statistics from a survey could not be used to prove liability. The court also held that Home Service would be entitled to ask the employees about whether they had purchased their cell phone plans due to their work cell phone usage – and that these individual inquiries, asked of 1,500 employees, would “overwhelm the liability determination.”

The Appellate Court’s Ruling on Cell Phone Reimbursement

The Court of Appeal for the State of California, Second Appellate District, Division Two, reversed the trial court’s ruling and ordered the trial court to reconsider Cochran’s motion for class certification. The court held that an employer must always reimburse an employee for the reasonable expense of the mandatory use of a personal cell phone.

The ruling states that even if an employee does not incur an extra expense due to the cell phone usage, the employer still has the obligation to provide compensation for that usage, by paying a reasonable percentage of the employee’s cell phone bill. The court held that this is a necessary requirement because “otherwise, the employer would receive a windfall because it would be passing its operating expenses onto the employee.” [Read more…]

Filed Under: California Labor Law Tagged With: cel phone, employer, phone bill, phone calls

Social Security Disability and the Americans With Disabilities Act

August 21, 2015 by Beck Law P.C.

Social Security disability and the Americans With Disabilities Act. The Americans With Disabilities Act (ADA) requires many employers to provide reasonable accommodations for employees with disabilities. It also prohibits employers from discriminating against qualified individuals with disabilities. Many people are familiar with the basic provisions of the ADA, without actually understanding how it defines the term “disability.”

One likely source of confusion is the Social Security Disability program, which has a very different standard for determining who is disabled. Social Security Disability provides benefits for individuals who have worked in the past, but are no longer able to work because of disabilities. Anyone who has applied for Social Security Disability benefits can tell you that the Social Security Administration has extremely strict standards for qualification.

What many people don’t realize is that not all government agencies use the same standard for what constitutes a disability – and the ADA’s standards for a disability are far less strict than those of the Social Security Administration. In order to qualify for Social Security Disability benefits, an applicant must demonstrate that their disability is so severe that it prevents them from working altogether. The ADA, on the other hand, applies to people who are capable of working, so its definition is far broader.

The Language of the Americans With Disabilities Act

Under Section 12102 the ADA, the term “disability” means, with respect to an individual:

A physical or mental impairment that substantially limits one or more of an individual’s “major life activities”;
A record of such an impairment; or
Being regarded as having such an impairment.

The expression “major life activities” includes a wide variety of activities, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, thinking and working.

It can also refer to what the ADA calls “the operation of a major bodily function.” Section 12102 includes the following examples: “Functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

It is important to note that, as stated in the third bullet above, an individual can be protected by the ADA even if he or she does not have a disability that meets these requirements. The ADA prohibits discrimination based on the belief that an individual has a disability. This means that, for example, if an employer incorrectly assumes that an applicant for a typist position is HIV-positive, and refuses to hire him or her on that basis, this would violate the ADA, regardless of whether the employee actually is HIV-positive. If the applicant was regarded as having a disability, and was denied the job on that basis, then it does not matter whether the employer’s assumption was correct.

Violations of the Americans With Disabilities Act

If an employer has discriminated against you on the basis of a disability (or perceived disability), or is refusing to provide you with reasonable accommodations, you may have a valid ADA claim.

You may also have recourse at the state level. California has its own laws prohibiting discrimination, which are some of the strictest in the country. If you live or work in the Santa Rosa, Petaluma, Ukiah or Lakeport area, contact our experienced labor law attorneys at Beck Law P.C., to schedule a consultation and learn more about your legal options.

Filed Under: Americans With Disabilities Act Tagged With: Labor Attorney, Labor Law, Labor Lawyer, Lakeport Labor Attorney, Petaluma Labor Attorney, Santa Rosa employment law attorney, Santa Rosa Employment Lawyer, Ukiah Employment Lawyer