• Posts by Kelly O. Scott
    Partner

    Kelly Scott is a partner and head of the firm’s Employment Law Department.

    Mr. Scott is also a member of the Litigation Department and has practiced law since 1987. His areas of practice include representation of employers in all ...

National Labor Relations Board Adopts Stricter Employer Workplace Rule Standard

Under the National Labor Relations Act (NLRA), employees have “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  In Stericycle, Inc., 372 NLRB No. 113 (2023), the National Labor Relations Board (NLRB) adopted a new, stricter standard for assessing workplace policies for the purpose of protecting these employee rights.  Under the new standard, a work rule is ...

California Amends the Wage Theft Prevention Act to Add Additional Written Notice Requirements for Employees

Since 2011, the Wage Theft Prevention Act has required California employers to provide certain written information to new employees at the time of hiring and within seven days of any change. The Labor Commissioner provides a form Notice to Employee Labor Code Section 2810.5 for this purpose

Beginning January 1, 2024, Assembly Bill 636 will amend Labor Code 2810.5 to require employers to include in the 2810.5 Notice information regarding any federal or state emergency or disaster declaration issued within 30 days before hire that applies to the county or counties in which the ...

Employer Alert: SB 553 Requires Workplace Violence Prevention Plans for Most California Employers by July 1, 2024

Unfortunately, incidents of workplace violence are taking place with increasing frequency.  In an effort to give employers additional tools to combat these issues, the California Legislature has given us Senate Bill 553.  Effective January 1, 2024, SB 553 amends Code of Civil Procedure section 527.8 to permit any employer that employs someone who has suffered unlawful violence or a credible threat of violence from any individual that can reasonably be construed to be carried out or to have been carried out at the workplace to seek a temporary restraining order on behalf of the employee ...

California Enacts Further Protections for Marijuana-Using Workers and Job Applicants

Passed in 2022 and effective January 1, 2024, Assembly Bill 2188 creates Government Code section 12954 to make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, for either:

(1) The person’s use of cannabis off the job and away from the workplace; or

(2) An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their urine, hair, blood, urine, or other bodily fluids.

Now Senate Bill 700, which will also become effective ...

California Minimum Wage Increases

What goes up continues to go up!  As we pointed out here last year, the trend of increasing the minimum wage continues, as follows:

State:

On January 1, 2024, the California state minimum wage will increase from $15.50 per hour to $16.00 for employers of all sizes, reflecting a 3.5% increase, which is based on the expected rate of inflation.  The state minimum wage also governs the exempt employee threshold salary, which will increase accordingly.  The new minimum salary for employees who otherwise qualify to be exempt from overtime will be $66,560 annually for employers of all sizes.

Los Angeles Enacts Freelance Worker Protections Ordinance

With the stated purpose of providing protection to freelance workers who may struggle to receive timely and full payment for their services, the city of Los Angeles has established an ordinance which will require hiring entities to have a written contract with any freelance worker for services valued at $600 or more in a calendar year.  Titled the “Freelance Worker Protections Ordinance”, the legislation establishes specific rights and remedies for freelance workers which could prove costly to uninformed employers. 

As defined by the ordinance, a “hiring entity” is any ...

Employer Alert: Local Minimum Wage Increases on July 1, 2023

On July 1, 2023, a number of local municipalities and the County of Los Angeles will be raising their hourly minimum wage, based on changes to the consumer price index, and as required by local minimum wage ordinances. Beginning July 1, 2023, the following increases will apply to employers in the designated areas:

In addition, on July 1, 2023, all businesses in the City of West Hollywood, including smaller businesses and hotel employers, will be required to raise the hourly minimum wage to $19.08.  In the past several years, the City of West Hollywood’s minimum wage and corresponding ...

A Reminder: The IRS Mileage Rates Have Changed

The 2023 mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical, or moving purposes have increased or remained unchanged from mid-year changes in 2022, when rates were last modified. Specifically, as of January 1, 2023, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) are:

  • 65.5 cents per mile driven for business use, up three cents from the rate for the latter half of 2022;
  • 22 cents per mile driven for medical, or moving purposes for active duty members of the Armed Forces, unchanged from the ...
Employer Alert:  AB 2068 Requires Cal/OSHA Postings in Multiple Languages

Effective January 1, 2023, AB 2068 provides that employers posting a Cal/OSHA citation, special order or action must post the Cal/OSHA English version of the notice, along with multiple language versions of the notification that Cal/OSHA will have prepared, as applicable to the workplace. 

Cal/OSHA is required to prepare these notifications in English and the top seven non-English languages used by limited-English-proficient adults in California, as determined by the U.S. Census Bureau’s American Community Census, which are currently Spanish, Cantonese, Mandarin ...

Employer Alert: SB 731 Will Expand Sealing of Criminal Records

Beginning July 1, 2023, SB 731 will provide for the automatic sealing of certain felony criminal records.  Arrests that do not result in conviction will also be sealed. This law also permits individuals with violent or serious felony records to petition courts to order their criminal records sealed.  Sealing of these records will make them unavailable to most employers through a background search, although school districts may still access these records for teacher credentialing or employment decisions.

Under SB 731, most defendants convicted of a felony are eligible to have their ...

Cal/OSHA Establishes Non-Emergency COVID-19 Preventive Regulations

Faced with the expiration of its COVID-19 Emergency Temporary Standards, Cal/OSHA voted to establish non-emergency standards. Once approved by the Office of Administrative Law, which is expected to take place in January of 2023, the new standards will remain in place for two years and will apply to most workers in California who are not covered by the Aerosol Transmissible Diseases standard. 

The regulations continue several key ETS requirements, including complying with California Department of Public Health rules regarding face coverings, and providing respirators to ...

Employer Alert: The U.S. Equal Employment Opportunity Commission and the California Civil Rights Department Issue Updated Mandatory Posters

The United States Equal Employment Opportunity Commission (EEOC) has released an updated “Know Your Rights: Workplace Discrimination is Illegal” poster that must be prominently displayed in the workplace. The poster summarizes various employee and applicant anti-discrimination protections that the EEOC enforces and also provides instructions on filing a workplace discrimination charge with the EEOC which include a QR code for quick digital access.  

The “Know Your Rights: Workplace Discrimination is Illegal” poster is available in English and Spanish:

California Minimum Wage and Salary Exemption Threshold Increases for 2023

What goes up does not come down! The trend of increasing the minimum wage continues in 2023 as follows:

State:

On January 1, 2023, the California state minimum wage will increase to $15.50 per hour for employers of all sizes. The state minimum wage also governs the exempt employee threshold salary, which will increase accordingly.  On January 1, 2023, the new minimum salary for employees who otherwise qualify to be exempt from overtime will be $64,480 annually for employers of all sizes.

Local:

Additionally, several California municipalities will raise their minimum wage rates on July ...

Employer Alert: SB 951 Will Increase Paid Family Leave and State Disability Benefits

Beginning January 1, 2025, Senate Bill 951 will increase from 60% to a maximum of 90% the percentage of wage replacement based on the individual’s wages earned for persons receiving benefits under the Paid Family Leave (PFL) and State Disability Insurance (SDI) programs for claims filed on or after that date. To pay for this increase in benefits, on January 1, 2024, SB 951 will repeal the wage ceiling for contributions into the SDI fund, thereby making all wages subject to the SDI contribution rate.

Employees can apply for PFL or SDI benefits, as applicable, during an otherwise unpaid ...

New Employment Law Expands Required CalSavers Retirement Savings Program

Effective January 1, 2023, Senate Bill 1126 expands California’s CalSavers Retirement Savings Program by requiring employers with at least one employee to register for CalSavers by December 31, 2025, if the employer does not sponsor a retirement plan for its employees, or register as exempt if a retirement plan is provided.  Any employer may also choose to have a payroll deposit retirement savings arrangement (such as an IRA) to allow employee participation in the program.  However, SB 1126 excludes from the definition of “eligible employer” any sole proprietorships ...

New Law Requires Bereavement Leave in California

Effective January 1, 2023, under Assembly Bill 1949, which amends the California Family Rights Act (CFRA), California employers with at least five employees must provide up to five days of bereavement leave to an eligible employee upon the death of a family member.  To be eligible for the leave, the employee must have completed at least 30 days’ service prior to the leave.  “Family member” means a spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. 

The leave is unpaid, but the employee may elect to use available vacation, personal ...

Just When You Thought It Was Over: New Covid Laws For California Employers

With the relaxation of some governmental COVID-19 measures, it may appear that employers need no longer be concerned with any of the requirements imposed in the last two years.  On the contrary, the California Legislature has created a number of new COVID-19-related laws that may California Employers: 

  • Assembly Bill 152 extends COVID-19 Supplemental Paid Sick Leave (SPSL), which had been set to expire on September 30, 2022, to December 31, 2022. That means that California employers with at least 26 employees must continue to provide, under specified COVID-19-related ...
Are You High?! AB 2188 Seeks To Protect Marijuana Users In The Workplace  

Assembly Bill 2188 has been sent to Governor Newsom for signature. If signed, AB 2188 will serve to further protect workers who use marijuana when off work from discrimination in the workplace. Specifically, AB 2188 will make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, for either:

(1) The person’s use of cannabis off the job and away from the workplace; or

(2) An employer-required drug screening test that has found the person to have nonpsychoactive cannabis ...

Employer Alert:  IRS Mileage Rates Will Increase on July 1st

Effective July 1, 2022, the mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical, or moving purposes will increase. 

In a rare move,  the IRS made this special adjustment for the final months of 2022 in recognition of recent gasoline price increases.  The IRS normally updates the mileage rates once each year in the fall for the next calendar year.  The last time the IRS made such a midyear increase was in 2011. 

Specifically, the new standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be:

  • 62.5 cents per ...
Employer Alert: Local Minimum Wage Increases on July 1st

On July 1, 2022, a number of local municipalities will be raising their hourly minimum wage, based on changes to the consumer price index, and as required by their minimum wage ordinances. 

Beginning July 1, 2022, the following increases will apply to all employers in the designated areas:

Municipality

Current Minimum Wage

Increased Minimum Wage on
July 1, 2022

City of Los Angeles

$15.00

$16.04

County of Los Angeles (unincorporated areas)

$15.00

$15.96

City of Pasadena

$15.00 $16.11

City of Santa Monica

$15.00 $15.96

Additionally, on July 1, 2022, businesses in the City of West ...

Employer Alert:  DFEH Updates Required Employment Posters and Pamphlets

The California Department of Fair Employment and Housing (DFEH) has updated a number of posters and pamphlets that California employers must post or distribute to employees. Employers should take note to use the most recent versions of these required documents.

All California employers are required to display the following poster, which was recently updated:  California Law Prohibits Workplace Discrimination and Harassment (PDF)

Additionally, California employers with at least five employees must display these three other posters, which were also recently updated:

    Cal/OSHA Standards Board Adopts New COVID-19 Prevention Emergency Temporary Standards

    On April 21, 2022, the Cal/OSHA Standards Board (Board) met and formally adopted a third version of the COVID-19 Emergency Temporary Standards (ETS) by a vote of 6-1.  

    The new ETS makes a number of changes to prior ETS rules, including: the significance of vaccination status, face-covering standards; testing requirements; cleaning and disinfection requirements; and the guidelines to follow for exclusion from and returning to work criteria.

    Vaccination status is no longer an aspect of the ETS, even in the event of a COVID close contact in the workplace. In fact, the definition of ...

    Cal/OSHA Standards Board Planning to Adopt New COVID-19 Prevention Emergency Temporary Standards

    The Cal/OSHA Standards Board has scheduled a meeting for April 21, 2022, to adopt a third version of the COVID-19 Emergency Temporary Standards (ETS). The proposed changes will serve to modify several portions of the ETS, including: face-covering standards; testing requirements for individuals returning to work after testing positive and not developing any symptoms; employer testing requirements; cleaning and disinfection requirements; and the guidelines to follow for exclusion from and returning to work criteria. If passed, the third readoption would be the final version ...

    The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 is Now Law

    President Biden has signed H.R.4445, known as the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021”, into law. The law amends the Federal Arbitration Act to state that, at the election of the person alleging conduct constituting sexual harassment or sexual assault, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver will be valid or enforceable with respect to such cases as filed under federal, tribal, or state law. The law further provides ...

    LA County Removes Outdoor Mask Requirements

    Consistent with last week’s announcement from the Los Angeles County Department of Public Health, at 12.01 AM today the county lifted the requirement that masks be worn outdoors at K-12 schools and childcare facilities as well as outdoor “mega” events, such as those held at the Hollywood Bowl and SoFi Stadium. The change is due to the drop in hospitalizations for COVID-19, as well as new COVID-19 cases, which have declined significantly over the last few weeks. 

    However, unlike most other areas of California and, indeed, the United States, Angelenos will still be required to wear ...

    Los Angeles County Department of Public Health Issues Mask Update

    Following Governor Newsom’s announcement that California’s indoor mask mandate would end on February 15, 2022 for all vaccinated persons, the Los Angeles County Department today issued a statement clarifying when the county’s own mask requirements would be eased. Specifically, when COVID daily hospitalizations drop below 2,500 for 7 consecutive days, masking will not be required at outdoor mega-events or in outdoor spaces at childcare facilities and K-12 schools. In addition, the masking requirement for indoor spaces will continue until:

    • Los Angeles County has two ...
    Governor Newsom To Revive COVID-19 Paid Sick Leave 

    Governor Newsom and the California Legislature have agreed to enact new legislation that will revive COVID-19 paid sick leave. The prior law created by Senate Bill 95, expired on September 30.  The new law is included in the state budget process and should be complete in a matter of weeks.

    The proposal is still being worked on, but it is likely that it will apply to all businesses with 26 or more employees. It is also probable that the bill will be retroactive to January 1, 2022 and will continue until September 30, 2022. The qualifying reasons will be the same as in SB 95 and will cover any ...

    SB 331 Expands Restrictions on Nondisclosure, Settlement and Separation Agreements

    In an effort to support the Me Too movement, California previously enacted Code of Civil Procedure section 1001 to prohibit any provision in a settlement agreement that prevents the disclosure of an act of sexual harassment, discrimination or assault related to a claim filed in a civil or administrative action.  In addition, Government Code section 12964.5 was created to make it unlawful to require an employee to sign a nondisparagement or nondisclosure agreement to deny the employee the right to disclose information about unlawful acts in the workplace, including sexual ...

    A Reminder: The IRS Mileage Rates Have Changed

    The 2022 mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical, or moving purposes have increased from last year or remained unchanged. Specifically, as of January 1, 2022, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) are:

    • 58.5 cents per mile driven for business use, up two and one-half cents from the rate for 2021;
    • 18 cents per mile driven for medical, or moving purposes for active-duty members of the Armed Forces, up two cents from the rate for 2021; and
    • 14 cents per mile driven in service of ...
    Isn’t it Grand? New Law Provides That Wage Theft Can Be Charged as Grand Theft

    Under Assembly Bill 1003, which becomes effective on January 1, 2022, the intentional theft of wages in an amount greater than $950 from any one employee, or $2,350 in the aggregate from 2 or more employees, by an employer in any consecutive 12-month period can be punishable as grand theft. Violations carry a possible prison sentence of up to three years. This criminal charge would be in addition to any attempt to recover wages, penalties, interest and attorneys’ fees and costs through a civil action.

    For purposes of the new law, “wages” include wages, gratuities, benefits or ...

    Employer Alert: New Compensation Requirement for Computer Software Overtime Exemption

    Effective January 1, 2022, the California Department of Industrial Relations issued a new compensation threshold for exempt computer software employees, reflecting an increase of 5.3% from last year. 

    To qualify for the overtime exemption, computer software employees must be paid a salary of at least $104,149.81 annually ($8,679.16 monthly), or an hourly wage of at least $50.00. In addition, a computer software employee must also meet the duties test set forth in California Labor Code Section 515.5, which are also included in all Wage Orders except Orders 14 and 16. 

    More ...

    California Reinstates Indoor Mask Requirement 

    Citing the Omicron variant as a concern, the California Department of Public Health (CDPH) announced that it is requiring masks to be worn in all indoor public settings, irrespective of vaccine status, for the next four weeks (December 15, 2021 through January 15, 2022). Here is a link to the CA Department of Public Health's updated guidance (as of December 13, 2021) which reflect the latest masking state order.  The order specifies that masks must be worn in all California indoor public settings, irrespective of vaccine status, for the next four weeks (December 15, 2021 through January ...

    New Law Expands Cal/OSHA’s Enforcement Authority

    Senate Bill 606, which becomes effective on January 1, 2022, strengthens Cal/OSHA’s enforcement powers by creating two new categories of Cal/OSHA violations: “enterprise-wide” and “egregious”. A finding of an enterprise-wide violation may result in increased fines and penalties and requirements for abatement across multiple employer worksites, while an egregious violation permits increased fines and penalties per employee, per violation in certain circumstances. The new law also highlights the importance of compliant written health and safety policies.

    New Law Expands Employer Record Retention Requirements and DFEH Enforcement Powers

    Senate Bill 807, which becomes effective January 1, 2022, will extend the period in which employers must retain personnel records for applicants and employees from 2 years to 4 years from the date the records were created or received, or the date the employment action was taken. 

    In the event that a complaint with the Department of Fair Employment and Housing (“DFEH”) has been filed against an employer, the employer must retain any related personnel records until the employer has been notified that the action has been fully resolved, or the first date after the period for filing a ...

    New Law Permits Emailing of Employment Notices and Postings, But Posting Requirement Remains

    Senate Bill 657, a new law which becomes effective on January 1, 2022, in recognition of the prevalence of remote workers during the COVID-19 pandemic, permits employers to email required employment postings to employees. However, the law specifies that such email distribution “shall not alter the employer’s obligation to physically display the required posting.” Thus, notices requiring posting must still be physically displayed in the workplace, in a conspicuous and easily accessible location, such as an employee lunchroom or bulletin board.

    Although SB 657 does not ...

    California Bans Piece Rate Pay for Garment Workers

    On January 1, 2022, Senate Bill 62, the Garment Worker Protection Act, will become effective, making California the first state to ban piece rate pay for garment workers. SB 62 prohibits any “employee engaged in the performance of garment manufacturing” from being “paid by the piece or unit, or by the piece rate.” The law creates a compensatory damages penalty of $200 per employee against a garment manufacturer or contractor, payable to the employee, for each pay period in which each employee is paid by the piece rate. “Garment manufacturing” is defined to include sewing ...

    Judge Halts Centers for Medicare and Medicaid Services Rule Requiring COVID-19 Vaccination for Healthcare Workers

    In early November the Centers for Medicare and Medicaid Services (CMS) announced that it would be requiring applicable healthcare facilities to have a policy in place ensuring that eligible staff receive their first dose of a COVID-19 vaccine series by December 5, 2021 and to have completed the series by January 4, 2022. The failure to comply with the requirement would place an organization’s Medicare funding in jeopardy. On Tuesday, November 30, 2021, Judge Terry A. Doughty, a United States District Court Judge sitting in Louisiana, issued an injunction stopping enforcement of ...

    Update: Federal Court Halts OSHA Vaccine Requirement 

    This weekend a federal court in Louisiana issued a temporary stay effectively stopping enforcement of the Occupational Safety and Health Administration’s Emergency Temporary Standard requiring vaccination or weekly testing for all employers with 100 or more employees except for certain healthcare facilities and federal contractors. Following the announcement of the ETS by OSHA last week, at least 27 states filed lawsuits to challenge the rules. The Fifth Circuit Court of Appeals sitting in New Orleans issued the stay on the basis that there are “grave statutory and ...

    West Hollywood Establishes Highest Minimum Wage In The Nation 

    At a city council meeting which began on November 3, 2021, and ended on November 4, 2021, the West Hollywood City Council voted to increase the minimum wage for hourly workers in West Hollywood.  In response to significant pressure from local businesses, the council made last minute changes to the ordinance to require a phased-in approach for some businesses.  Specifically, large businesses with 50 or more employees will be required to raise the minimum wage from the current $14.00 per hour to $15.50 on January 1, 2022, with further increases scheduled for July 1, 2022 at $16.50, January ...

    Reminder: Businesses Must Enforce Reinstated Los Angeles County COVID-19 Mask Requirements

    Keeping current on the frequent changes to COVID-19 business requirements can be very challenging. The return to indoor masking requirements on July 17, 2021, in Los Angeles County has been widely publicized. Even so, Los Angeles businesses may not be aware that the county is currently enforcing the indoor masking requirements through onsite inspections of county businesses. 

    In fact, during the short period between July 17, 2021 and July 23, 2021, Los Angeles County reports that its Department of Public Health inspectors visited 1,013 restaurants, 9 bars, 222 food markets, 22 ...

    Employer Alert: Los Angeles County Revises Health Order to Reinstate Indoor Mask Requirement Regardless of Vaccination Status

    On July 16, 2021, the Los Angeles County Department of Public Health (LACDP) issued a revised health order available here (Order) requiring masks for everyone, regardless of vaccination status, in all indoor public settings, venues, gatherings and businesses. Examples of such locations include offices, retail, restaurants, theaters, family entertainment centers, meetings, etc.

    The Order also requires that individuals, businesses, venue operators or hosts of public indoor settings require all patrons to wear masks in all indoor settings, regardless of vaccination status ...

    Employer Alert: Los Angeles County Reinstates Indoor Mask Requirement Regardless of Vaccination Status

    Beginning Saturday, July 17, 2021, at 11:59 P.M., Los Angeles County will once again require all residents to wear masks in indoor public spaces, regardless of their vaccination status. The requirement will be reimposed due to rising Los Angeles County COVID-19 cases and the spread of the highly infectious Delta variant.

    Los Angeles County reported an average of 1,077 new cases daily during the 7-day period ending July 14, 2021, which is a 261% increase from the prior two-week period. An additional 1,537 cases were reported today, July 15th, representing an increase of over 80 ...

    EEOC Issues Updated COVID-19 Guidance Regarding Vaccination Incentives

    The Equal Employment Opportunity Commission (EEOC) has issued updated guidance regarding providing incentives to employees to encourage COVID-19 vaccination, examining various scenarios under the Americans with Disabilities Act (ADA) and the Genetic Information Discrimination Act of 2008 (GINA). The updated guidance can be found here under items K.16 - K.21.

    The guidance confirms that under the ADA, as long as the incentive is not so substantial as to be coercive, an employer may provide an incentive (which may include both rewards and punishments) to employees for ...

    FAST Act (AB-257) Narrowly Defeated

    On June 3, 2021, AB-257, the Fast Food Accountability and Standards Recovery Act (the “FAST Act”) was defeated in the California Assembly, coming up three votes short of the 41 votes needed. 

    The FAST Act would have established a Fast Food Sector Council (the “Council”), comprised of 11 members appointed by the Governor, Speaker of the Assembly and Senate Rules Committee. Under the proposed bill, that Council would have been tasked with conducting a full review of the adequacy of fast food restaurant health safety and employment standards, and establishing industry-wide ...

    Cal/OSHA Approves Modified COVID-19 Workplace Regulations

    On June 17, 2021, the California Occupational Safety & Health Standards Board (the Cal/OSHA Board) voted to approve a set of new modified COVID-19-related workplace emergency regulations, found here. The new modified regulations will need to be approved within ten days by the state Office of Administrative Law, which is expected to approve the rules. Governor Newsom has also indicated that he may approve the rules immediately. 

    These regulations replace more stringent regulations that were inconsistent with the latest guidance issued by the Centers for Disease Control and ...

    California Announces Rules for June 15 Reopening; Cal/OSHA Reconsiders Employer Requirements

    On June 9, 2021, the California Department of Public Health announced a new face coverings guidance that will go into effect statewide on June 15, 2021. In addition, Governor Newsom’s office announced that on June 15, 2021, California would be fully reopen with no capacity limits or distancing required by the state. The county-by-county color tier system will also be eliminated. However, individual county health departments may continue to impose restrictions under local public health orders.

    Under the State’s new guidance, fully vaccinated persons are not required to wear ...

    Cal/OSHA Issues Modified COVID-19 Regulations

    On June 3, 2021, the California Occupational Safety & Health Standards Board approved new modified COVID-19-related emergency regulations. The new modified regulations, which are found here, will need to be approved by the state Office of Administrative Law within ten days. The OAL is expected to approve the rules.

    When approved, the new regulations will become effective on June 15, 2021, the same day on which Governor Newsom announced California would reopen. These regulations may be further refined in the coming weeks to take into account changes in circumstances, especially as ...

    U.S. Court of Appeals Upholds CalSavers Program

    The United States Court of Appeals (9th Circuit) recently upheld California’s CalSavers Retirement Savings Program (CalSavers), which provides retirement savings accounts to employees without employer retirement benefit plans. The Howard Jarvis Taxpayers Association sued to challenge the law establishing the CalSavers program arguing that it was superseded by federal retirement law, specifically the federal Employee Retirement Income Security Act of 1974 (ERISA). However, the U.S. Appeals court upheld the CalSavers program holding that it was not preempted by ERISA.

    The American Rescue Plan Act of 2021 Provides COBRA Premium Subsidies

    Employers know that the Consolidated Omnibus Budget Reconciliation Act (COBRA) provides an opportunity for group health plan continuation coverage to covered employees and their families upon the occurrence of a qualifying event, such as a termination of employment or a reduction in hours. The recently enacted American Rescue Plan Act of 2021 (ARP) provides COBRA limited premium subsidies and new enrollment rights to certain Assistance Eligible Individuals. An Assistance Eligible Individual would not be required to pay COBRA premiums from April 1, 2021 through September 30 ...

    DFEH Updates COVID-19 Vaccination Guidance

    California’s Department of Fair Employment and Housing (DFEH) has updated its COVID-19 vaccination guidance, replacing its prior guidance issued July 24, 2020.

    The DFEH’s updated guidance, available here, permits employers to require employees to receive a vaccine approved by the Food and Drug Administration (FDA), subject to certain exceptions and requirements. 

    Specifically, in instituting such a mandatory policy, an employer’s policies or practices cannot discriminate or harass employees or applicants based on a characteristic protected by the Fair Employment ...

    California Enacts COVID-19 Right of Recall Law in Certain Sectors

    Governor Newsom has signed into law Senate Bill 93, a state-wide right of recall, intended to assist California workers in sectors that have been especially hard hit by the COVID-19 pandemic. This new law, which is similar to earlier Los Angeles County and Los Angeles City COVID-19 ordinances, goes into effect immediately and will remain in effect through December 31, 2024. 

    California’s new right of recall law applies to certain hotels, private clubs, event centers, airport hospitality operations and providers of janitorial, maintenance or security services to office, retail ...

    Employer Alert: California Labor Commissioner Issues New COVID-19 Supplemental Paid Sick Leave FAQ and Required Poster

    As reported here, on March 19, 2021, Governor Gavin Newsom signed into law Senate Bill 95. This new law requires all California employers (including those with collective bargaining agreements) with 25 or more employees to provide paid supplemental sick leave to employees who are unable to work or telework due to certain COVID-19 related reasons. In-home supportive service providers are also required to provide paid supplemental sick leave to their providers.

    The new COVID-19 supplemental sick leave must be provided on the oral or written request of the covered employee ...

    SB 95: California Provides Supplemental Paid Sick Leave for COVID-19

    On March 19, 2021, California Governor Gavin Newsom signed Senate Bill 95 providing a new form of COVID-19 related paid sick leave for many California workers. The law will become effective on March 29, 2021, and applies retroactively to sick leave taken beginning on or after January 1, 2021. All California employers with more than 25 employees and in-home supportive services providers are required to provide the supplemental sick leave benefits to employees. The law will remain in effect through September 30, 2021.

    SB 95 provides for COVID-19 supplemental paid sick leave for ...

    CalSavers Deadline Approaches for Mid-Sized Companies to Register or Certify as Exempt

    The CalSavers Retirement Savings Program (CalSavers) was established to assist the estimated 7.5 million California employees without employer retirement savings plans. Mandatory compliance is phased-in over time and depends on the size of the employer. The current phase requires all California employers with 51 to 100 employees to register with CalSavers or certify that they are exempt by June 30, 2021. More specifically, employers without employer-sponsored retirement plans must register to begin offering the state-mandated employer retirement plan to their employees ...

    Employer Alert: New Compensation Threshold for Computer Software Overtime Exemption

    Effective January 1, 2021, the California Department of Industrial Relations issued a new compensation threshold for exempt computer software employees, reflecting an increase of 2% from last year. 

    To qualify for the overtime exemption, computer software employees must be paid a salary of at least $98,907.70 annually ($8,242.32 monthly) or an hourly wage of at least $47.48.  In addition, a computer software employee must also meet the duties test set forth in California Labor Code Section 515.5, which are also included in all Wage Orders except Orders 14 and 16.

    More specifically ...

    A Reminder: The IRS Mileage Rates Have Changed

    The 2021 mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes have decreased from last year, or remained unchanged. Specifically, as of January 1, 2021, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) are:

    • 56 cents per mile driven for business use, down one and one-half cents from the rate for 2020;
    • 16 cents per mile driven for medical or moving purposes, down one cent from the rate for 2019; and
    • 14 cents per mile driven in service of charitable organizations, unchanged from ...
    Employer Reminder: Minimum Wage Increases for 2021

    On January 1, 2021, the California minimum wage increased to $14.00 per hour for employers with at least 26 employees and $13.00 per hour for smaller employers. The state minimum wage also governs the exempt employee threshold salary, which has increased accordingly. The new minimum salary for employees who otherwise qualify to be exempt from overtime is $58,240 annually for employers with at least 26 employees and $54,080 annually for employers with fewer than 26 employees. 

    Further, several California municipalities will raise their minimum wage rates on July 1, 2021. Employers ...

    Los Angeles County Issues Mandatory Self-Quarantine for Non-Essential Travel

    Effective beginning December 31, 2020, the Los Angeles County Department of Public Health published a Mandatory Directive on Travel (Appendix W) and issued a Revised Temporary Order, both of which require a mandatory quarantine of at least 10 days after non-essential travel outside the Southern California Region (the counties of Imperial, Inyo, Los Angeles, Mono, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara and Ventura). 

    The Order and Travel Directive apply to Los Angeles County residents and non-residents who enter Los Angeles County from ...

    New Lawsuits Challenge State COVID-19 Measures

    A lawsuit has been filed against Cal/OSHA regarding its recently instituted regulations requiring employers to adopt numerous COVID-19 measures. In addition, a separate suit was filed against Governor Newsom for the outdoor dining ban that is part of recent COVID-19-related regional restrictions. 

    Specifically, the National Federation of Independent Business (NFIB) teamed with the National Retail Federation and three NFIB small business owner members to sue the California Division of Safety and Health (Cal/OSHA), the California agency that recently instituted extensive ...

    Judge Issues Preliminary Injunction Against Los Angeles County Outdoor Dining Ban

    Yesterday Judge James Chalfant issued a preliminary injunction against Los Angeles County’s outdoor dining ban on the basis that the county acted arbitrarily and failed to perform the required risk-benefit analysis. The case was brought by the California Restaurant Association and Mark Geragos to challenge the outdoor dining ban imposed by the November 30th Los Angeles County stay-at-home order.

    The Court held that L.A. County was required to perform a complete risk-benefit analysis before enacting the ban and that it failed to do so. The Court’s ruling noted that the L.A ...

    Posted in Legal Bites
    Cal-OSHA Issues Mandatory Emergency COVID-19 Regulations

    On November 30, 2020, Cal-OSHA’s proposed temporary COVID-19-related emergency regulations became effective. The new regulations, which are found here, will remain in effect until October 2, 2021, unless they are extended.

    The new regulations apply to most California employees, only excluding employees working from home, an employee at a site where the employee does not have contact with others and employees covered by Cal-OSHA’s Aerosol Transmissible Diseases standard (applies to certain healthcare facilities and labs).

    Under the new regulations, employers must ...

    CDC Announces Alternatives to 14-Day COVID-19 Quarantine

    Today, December 2, 2020, the United States Centers for Disease Control and Prevention (CDC) announced alternatives to the 14-day recommended quarantine for those exposed to COVID-19.

    For individuals exposed to COVID-19 who have not experienced symptoms, the CDC advises that quarantine can now end after 10 days if no COVID-19 test is taken, or after 7 days with a negative COVID-19 test.

    However, the CDC advises continued monitoring of symptoms for the full 14 days after exposure to the virus "especially if quarantine is discontinued early."  The CDC also recommends the full 14-day ...

    More Reopening Rollbacks in California

    On November 16, 2020, California officials pulled an “emergency brake” and announced that the state would be rolling back reopenings in 28 counties across the state. These changes will go into effect on Tuesday, November 17. Los Angeles County has consistently remained in the purple tier, which prohibits indoor dining, closes bars and breweries, and allows malls and retail at 25% capacity.  However, San Diego County, Ventura County and Orange County were in Tier 2 and have now moved into a more restrictive tier.

    Under California’s COVID-19 tier system, Tier 1 ...

    CDC Redefines “Close Contact” with COVID-19 Infected Individual

    On Wednesday, October 22, 2020, the Centers for Disease Control and Prevention (CDC) expanded the definition of a “close contact” with a COVID-19 infected person to include brief interactions over a 24-hour period. This expanded definition has important implications for the workplace and impacts all COVID-19 state and county health orders.

    Previously, the CDC defined a “close contact” to mean spending at least 15 minutes within six feet of an infectious person.  The new definition states that cumulative contact of 15 minutes or more within six feet of an infectious person ...

    #MeToobin? When Home and Work Collide

    Within hours, the sad story of Jeffrey Toobin became common knowledge. For those of you just emerging from a yoga retreat or a Dodgers-only-World-Series media frenzy, Jeffrey Toobin is (or was, as it remains to be seen what will ultimately happen with his employment status) a legal analyst for CNN and a writer for the New Yorker magazine. Highly respected and knowledgeable, Toobin’s comments on current legal events and issues were often both enlightening and insightful. Until Monday, when Jeffrey Toobin took the occasion of a Zoom call populated with numerous other New Yorker

    AB 1281 Extends Employee Personal Information Exemption from Consumer Privacy Act

    Assembly Bill 1281 extends to January 1, 2022, the exemption for employee personal information from most requirements of California’s Consumer Privacy Act.  Under last year’s AB 25, this exemption was set to expire on January 1, 2021.  Having been signed by Governor Newsom, AB 1281 will effectively replace AB 25 commencing on January 1, 2021.

    The exemption allows businesses to collect and use a person’s information within the context of that person’s role or former role at the business. Employers still have the obligation to provide the employee or applicant with ...

    Employer Alert: SB 1383 Requires Small Employers to Provide Family, Medical and Child Bonding Leave and Expands Family Member Care Leave

    Effective January 1, 2021, Senate Bill 1383 will significantly expand the California Family Rights Act (CFRA) to cover employers with at least 5 employees.  Previously, CFRA leave was required only of employers with at least 50 employees within a 75-mile radius.  Further, SB 1383 expands the CFRA with respect to purposes for which leave may be taken.

    With the enactment of SB 1383, employers with only 5 employees or more will have to provide employees who meet certain minimum service requirements with up to 12 workweeks of unpaid protected leave during any 12-month period for a number of ...

    A Win For Employers: Governor Newsom Vetoes AB 3216

    Despite significant pressure from labor groups and others, Governor Gavin Newsom vetoed Assembly Bill 3216 yesterday.  If it had been signed, AB 3216 would have created a right of recall for laid-off employees of hotels and event venues, as well as those working in building maintenance.  The bill was criticized by the Chamber of Commerce and others who felt that the legislation sought to further burden industries who were already struggling as a result of the pandemic. Although AB 3216 is now off the table, employers should not forget that certain right to recall ordinances have already ...

    AB 2257: California Rewrites Independent Contractor Law…Again

    As promised, Governor Newsom signed Assembly Bill 2257 which effectively rewrites Assembly Bill 5, the flawed law which sought to codify and clarify the California Supreme Court’s ruling in Dynamex Operations West, Inc. v. Superior Court and took effect on January 1, 2020.  AB 2257 became effective upon signature.

    At approximately 14 pages in length, neither employees nor employers are likely to find AB 2257 any less confusing than its predecessor.  It does, however, make it easier for several categories of professions to work as independent contractors if certain conditions are ...

    New Law Extends Workers' Compensation Benefits To COVID-19 Victims

    Governor Newsom has signed Senate Bill 1159, a law that effectively codifies and expands his earlier Executive Order N-62-20, which had expired on July 5, 2020. Effective immediately, this bill defines “injury” for an employee to include illness or death resulting from COVID-19 under specified circumstances. In particular, the employee must have tested positive for or was diagnosed with COVID-19 within 14 days after the employee performed services at the employee’s place of employment and the work must have been performed on or after March 19, 2020, and on or before July 5 ...

    Reminder: Certain COVID-19-Related Layoffs and Shutdowns Require Cal-Warn Act Notice

    When considering an employee layoff or business shutdown, as we reported here, employers should keep in mind that longer layoffs in California will trigger Cal-WARN Act rules. Unlike its federal counterpart, California’s WARN Act has no exception for unforeseen business circumstances and requires every facility that employs or employed 75 or more persons within the last 12 months to give 60 days’ written notice to the employees and certain government officials before any mass layoff that will result in a loss of employment for 50 or more people in any 30 day period. Cal-WARN also ...

    Posted in Legal Bites
    California Enacts COVID-19 Reporting Requirements for Employers

    On September 17, 2020, California Governor Gavin Newsom signed AB-685, which creates new COVID-19 reporting requirements for employers, increases mandatory public disclosure of COVID-19 outbreaks, and expands the powers of Cal/OSHA to cite and shut down employers with worksite infections in a streamlined process.

    The law requires all public and private employers that find out about workplace exposure to COVID-19 to provide written notification to employees and contractors who were on the premises at the same worksite during the infectious period within one business day of ...

    California’s DFEH Issues Online Harassment Prevention Training for Supervisors

    By January 1, 2021, all California employers with five or more employees are required to have provided interactive harassment prevention training to all employees in California, both supervisory and non-supervisory. 

    Recently, California’s Department of Fair Employment and Housing (DFEH) released supervisory on-line harassment prevention training, which can be found here. Supervisory employees must receive at least two hours interactive harassment prevention training, which must be provided every two years, and within six months of hire or promotion to supervisory ...

    Employer Alert: U.S. Department of Labor Issues New FMLA Forms

    The U.S. Department of Labor has issued new, revised model Family and Medical Leave Act (FMLA) forms and notices.  The new FMLA forms and notices are intended to be more streamlined and convenient, and they include more explanatory language on various FMLA rights and requirements. 

    As an examples of the new explanatory language, the Rights and Responsibilities Notice adds information on the substitution of paid leave, the medical certifications of a serious health condition define the term “serious health condition,” and the Eligibility Notice defines the terms “spouse” ...

    President Trump Issues COVID-19 Executive Orders Impacting Employers

    On August 8, 2020, U.S. President Donald Trump signed a series of executive orders regarding the COVID-19 pandemic, which may impact certain employers: 

    Deferral of certain payroll tax obligations for the period from September 1, 2020 through December 31, 2020: The order directs the Secretary of the Treasury to defer certain employee payroll taxes for bi-weekly wages that are generally less than $4,000.00 (under approximately $104,000.00 annually).

    This order delays the 6.2% of wages that employers currently withhold from employee wages in every paycheck that is then paid to ...

    CalSaver Deadline Approaches for Large Companies to Register or Certify as Exempt

    By September 30, 2020, all California companies with more than 100 employees must register with the CalSavers Retirement Savings Program (CalSavers) or certify that they are exempt.

    Employers without employer retirement plans must register to begin offering the state-mandated employer retirement plan to their employees.  Those employers offering retirement plans to their employees need only certify as exempt.  

    The link to the CalSaver website to register or certify as exempt is here.

    Smaller employers have phased-in deadlines to register or certify as exempt. Employers with ...

    U.S. Department of Labor Issues New Model COBRA Notices and Extends COBRA Deadlines

    The United States Department of Labor (DOL) issued new model COBRA Notices primarily to highlight that an individual may enroll in Medicare instead of COBRA continuation coverage after his or her group health plan coverage ends. The new COBRA model notices point out that it may be advantageous to enroll in Medicare before, or instead of, electing COBRA. They also explain that if an individual is eligible for both COBRA and Medicare, electing COBRA coverage may impact enrollment into Medicare as well as certain costs to the individual. 

    The model general notice for single-employer ...

    Posted in Legal Bites
    California Closes Bars and Indoor Dining Statewide

    On July 13, 2020, Governor Gavin Newsom announced that restaurants across the state must cease indoor operations.  All bars, both indoor and outdoor, are ordered to close statewide. Restaurants may continue to offer outdoor dining and takeout.  Additionally, all indoor operations at wineries and tasting rooms are ordered to cease. Previously, indoor dining and bars were closed in many of the state’s most populous counties, including Los Angeles.

    In addition to restaurants, the state is ordering thirty counties to close indoor operations at fitness centers, malls, offices for ...

    California Issues Guidance For Restaurants Providing Outdoor Dining, Takeout, Drive-Through and Delivery 

    Adding to an already impressive list of industry specific guidelines, the California Department of Health and the Department of Industrial Relations/Cal-OSHA have issued an Industry Guidance for Restaurants Providing Outdoor Dining, Takeout, Drive-Through, and Delivery. Restaurants are instructed to consult the COVID-19 County Roadmap for more information on reopening in particular counties within the state. In addition, the guidance reminds all business owners that the guidance is not dispositive and that other state and local health orders and guidelines may apply ...

    Reopening Rollback!

    On July 13, 2020, Governor Gavin Newsom announced a significant rollback of California’s reopening and ordered 30 of the most populous counties in the state to cease indoor operations. The order includes closing indoor operations at malls, offices for non-critical sectors, places of worships, hair salons, fitness centers and personal care services. The affected counties as of July 13, 2020 include Los Angeles, San Diego, Ventura, Santa Barbara and Orange. A full list is available here

    Additionally, Newsom issued a statewide order closing indoor operations for restaurants ...

    Governor Newsom Closes Indoor Dining in Los Angeles County and 18 Other Counties

    In his press conference today, July 1, 2020, Governor Gavin Newsom ordered restaurants in Los Angeles County and 18 other CA counties to cease indoor dining operations for at least the next 3 weeks. The order was in response to a large increase in COVID-19 positivity and hospitalizations in these counties.

    Restaurants may remain open for outdoor dining, pick-up or delivery. On Sunday, June 28th, the State also ordered bars to close in Los Angeles and 6 other counties.

    In addition to indoor dining, wineries and tasting rooms, movie theaters, indoor family entertainment businesses ...

    California DFEH Online Harassment Prevention Training for Non-Supervisors Now Available—and It's Free!

    By January 1, 2021, California employers with five or more employees are required to have provided interactive harassment prevention training to all employees in California, both supervisory and non-supervisory. After considerable delay, California’s Department of Fair Employment and Housing (DFEH) recently released online training to meet the harassment training requirement for non-supervisors. The training is provided at no cost to employers. 

    The non-supervisory online harassment prevention training can be found here. Online training for non-supervisors is ...

    Los Angeles County Issues Reopening Protocols for Non-Essential Businesses

    Los Angeles County issued protocols that the non-essential businesses listed below must follow in connection with reopening. 

    Prior to reopening, each of these businesses must implement and complete the applicable protocol found below, and post a copy of the completed protocol at all public entrances to its facility.

    Additionally, each protocol requires certain signage be posted to alert the public about various COVID-19 safety measures that must be followed, and that similar information be included on the business website.  In some cases, businesses must communicate to their ...

    California Extends Paid Family Leave Benefit Period from 6 to 8 Weeks

    Beginning July 1, 2020, the maximum benefit period under California’s Paid Family Leave (PFL) program will increase from 6 weeks to 8 weeks during any 12-month period.  The PFL program, which is a part of California’s state disability insurance program, provides partial wage replacement benefits to workers who take time off from work:

    • To care for a seriously ill child, spouse, parent, grandparent, grandchild, sibling, or domestic partner; or
    • To bond with a minor child within one year of the birth or placement of the child through foster care or adoption.

    The PFL program does not ...

    California Issues Guidance To Reopen Schools

    Running out of things to do during the COVID-19 crisis? 

    You are in luck. Yesterday the California Department of Education released a lengthy, 55 page guidance on the reopening of public schools. You can find the guidebook for the safe reopening of California's public schools here. Enjoy!

    This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP. It is essentially the random thoughts and opinions of someone who lives in the trenches of the war that often is employment law–he/she may well be a little shell-shocked. So if you are thinking “woohoo, I just landed some ...

    California Insurance Department Issues Civil Unrest Insurance Coverage Fact Sheet

    To assist California business owners with insurance coverage questions concerning damages relating to the current civil unrest, the Department of Insurance issued a Fact Sheet, found here.

    The Fact Sheet includes the types of coverage that may apply to damages due to civil unrest and tips for businesses with claims.

    This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP. It is essentially the random thoughts and opinions of someone who lives in the trenches of the war that often is employment law–he/she may well be a little shell-shocked. So if you are thinking ...

    Los Angeles City and County Issue Dine-In Restaurant Guidelines for Reopening

    On Friday, May 29th, both the City of Los Angeles and the County of Los Angeles announced that dine-in restaurants are permitted to reopen. Both the city and county have also issued guidelines for restaurants to follow in the reopening of their dine-in operations.

    The County of Los Angeles’ protocols for the reopening of on-site dining for restaurants and other permanent retail food operations are found here.

    At this time, bars are not permitted to reopen except for food take-out orders, but they are covered in the city’s guidelines for planning purposes. Further, the State of ...

    Los Angeles County Enacts COVID-19 Worker Protection Ordinances

    The Los Angeles County Board of Supervisors has followed the lead of the Los Angeles City Council by passing COVID-19 right of recall and worker retention ordinances that are similar to the City of Los Angeles COVID-19 recall and retention ordinances passed on April 29, 2020. The county right of recall ordinance requires certain janitorial, maintenance, security service and hospitality employers, when rehiring, to offer jobs based on seniority to certain workers laid off during the COVID-19 pandemic. Both ordinances are intended to assist workers in unincorporated areas of Los ...

    Governor Newsom Relaxes California Guidelines for Business Reopening

    On Monday, May 18, 2020, Governor Gavin Newson announced relaxed state guidelines for Phase 2 reopening of dine-in restaurants, offices, outdoor museums, shopping centers and malls. The relaxed guidelines would permit 53 of California’s 58 counties to move into Phase 2 reopening. However, with its higher infection and death rate, it is not expected that Los Angeles County will be ready for Phase 2 in the immediate future. 

    Instead of the prior guideline of having no deaths within the last 14 days, under the new state guidelines, COVID-19 hospitalizations cannot increase more than ...

    In Case You Missed It: New State Guidelines For Reopening Dine-In Restaurants, Offices and Malls

    This week Governor Newsom announced new guidelines for the Phase 2 reopening of dine-in restaurants, offices, outdoor museums, shopping centers and malls. The date for reopening of these establishments will be determined by the COVID-19-related circumstances of the county in which the business is located. To reopen dine-in restaurants, offices and malls, a county must receive a variance from the state, through self-certification and state approval. 

    Specifically, a California county seeking to start Phase 2 must prove to the state: that it has no new COVID-19 case per 10,000 ...

    Los Angeles County Issues New Order Permitting Certain Businesses To Reopen

    On Wednesday, May 13, 2020, Los Angeles County issued an updated “Safer at Home” order that amends and supersedes prior Los Angeles County Health Officer orders. The new order is intended to partially move Los Angeles County into the second stage of reopening businesses.

    The businesses now permitted to reopen can do so only for curbside, door side, or other outdoor or outside pick-up, or delivery.  Members of the public cannot be permitted inside these businesses.  Businesses permitted to open on this basis are retailers not located in indoor malls or shopping centers, and ...

    Los Angeles Enacts COVID-19 Right of Recall and Retention Ordinances

    On Wednesday, April 29, 2020, the Los Angeles City Council passed a COVID-19 Right of Recall Ordinance requiring certain hospitality, janitorial, property management and tourism employers, when rehiring, to offer jobs based on seniority to certain workers laid off during the COVID-19 pandemic.  At the same time, the council also passed a COVID-19 Worker Retention Ordinance. Both ordinances are intended to assist workers in sectors which have been especially hard hit by the coronavirus crisis and both ordinances had been approved in concept in the prior week subject only to ...

    Large Food Sector Employers Must Provide Supplemental Paid COVID-19 Sick Leave

    To address fears that food sector workers are more likely to work when sick, Governor Gavin Newsom recently issued Executive Order N-51-20, which requires large food sector employers (500+ employees in U.S.) to provide up to 2 weeks of supplemental paid sick leave to workers, including independent contractors, who are unable to work due to the following COVID-19-related reasons:

    • the worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
    • the worker is advised by a health care provider to self-quarantine or self-isolate due to concerns ...
    Action Alert: Los Angeles County Right of Recall and Worker Retention Ordinance

    On Tuesday, May 12th, the Los Angeles County Board of Supervisors will be considering a countywide Right of Recall and Worker Retention ordinance. As with the Citywide Right of Recall and Worker Retention ordinances, these policies would negatively impact businesses, prevent them from making decisions based on their financial situation, and lengthen our road to recovery after the COVID-19 pandemic.

    Click here to read the coalition letter from the Valley Industry & Commerce Association.

    Call and email the Board of Supervisors

    Supervisor Hilda Solis: First District; ...

    Los Angeles County Expands Paid Sick Leave Requirements For COVID-19

    In a move which largely mirrors the steps taken by the City of Los Angeles, the Los Angeles County Board of Supervisors has voted to extend certain paid sick leave requirements of the Families First Coronavirus Response Act to employees working within Los Angeles County for private employers that employ 500 or more persons in the United States. The ordinance is effective immediately and will expire on December 31, 2020. 

    The ordinance applies to all persons who perform work for a covered employer within the County of Los Angeles and specifies that all such persons are presumed to be ...

    Los Angeles City Council Votes for Worker Retention and Recall Rules

    On Wednesday, April 22nd, the Los Angeles City Council voted to have a right of recall ordinance drafted that would require certain hospitality, janitorial, property management and tourism employers when rehiring to notify workers laid off during the COVID-19 pandemic.

    Under the proposed ordinance, a business would be required to provide notices to laid-off workers that it is rehiring, and to rehire based on seniority. Workers would have a 10-day period in which to respond, and an employer would have 15 days to respond to employee claims that they had inadequate opportunity to be ...

    Taking Employees’ Temperatures During the COVID-19 Pandemic

    Employers can take employees’ temperatures to respond to and manage the COVID-19 pandemic. The Equal Employment Opportunity Commission has stated in its updated guidance that the COVID-19 crisis permits employers to measure employees’ body temperatures before allowing them to enter the worksite. Indeed, the Centers for Disease Control recommends in its community mitigation framework that workplaces in areas with “minimal to moderate risk” implement regular temperature and respiratory checks. 

    How to Conduct Temperature Checks

    As for the precise temperature to ...

    Action Alert - The LA City Council Is Attempting to Place Unprecedented Hiring Rules on the Private Sector

    As we recently reported, the Los Angeles City Council is considering implementing hiring restrictions and requirements on the private sector.  If passed, these ordinances with exponentially increase the difficulties already faced by businesses throughout Los Angeles as a result of the COVID-19 crisis.  There are several motions pending, each of which will adversely impact employers.  Given the importance of the issue, we are reposting the following from the Beverly Hills Chamber of Commerce:

    Action Alert! On Wednesday, April 22 at 10 am, the Los Angeles City Council is meeting to ...

    Action Alert: Los Angeles City Council Wants to Assert Control Over Businesses

    The message below has been reposted from the Valley Industry & Commerce Association.

    On Wednesday, April 22, the Los Angeles City Council will be considering a Right of Recall ordinance that is exclusively directed towards businesses in the hospitality industry - including hotels, janitorial, stadiums, airport services and event centers.

    Hospitality Right of Recall and Worker Retention Ordinance

    The Hospitality Recall Ordinance would:

    • Require businesses that have discharged employees to offer those discharged employees all positions which become available for which the ...
    Coronavirus And The Reluctant Employee

    You have a business that is permitted to continue operations and is not subject to a “stay at home” order.  You have informed employees of this fact.  You have even provided employees with a letter setting forth specific information on why they are allowed to continue working and traveling to and from work to show authorities or anyone else who might ask.  Nevertheless, you have one or more employees who do not want to work because of COVID-19 and are asking to stay home.  What do you do?

    If you are a business with 500 or fewer employees, you first need to find out why these employees are asking to ...

    Calculating Paid Leave Under The Families First Coronavirus Response Act

    To calculate the amount to be paid for employee leave under the Families First Coronavirus Response Act, it is clear that employees who take advantage of FFCRA paid leave must be paid what they would ordinarily earn in a workweek. Their ordinary workweek earnings are based on their regular rate of pay, including the base rate for any overtime hours worked, but not any premium pay. An employee should only receive paid leave for the hours they are normally scheduled to work. Accordingly, an employer must first determine both the regular rate of pay and the appropriate work schedule in order ...

    What Small Businesses Need To Know About The Families First Coronavirus Response Act

    If your business has fewer than 50 employees, you may qualify for the small business exemption to a portion of the Families First Coronavirus Response Act (FFCRA).  Specifically, small businesses with fewer than 50 employees may be exempt from the requirement to provide leave due to school closings or childcare unavailability if those FFCRA leave requirements would jeopardize the viability of the business as a going concern.  In other words, the small business exemption only excuses the employer from providing paid leave for reason no. 5 on the official FFCRA Notice, which all ...

    City Council Approves Expansion Of Paid Sick Leave Requirements For COVID-19

    The Los Angeles City Council has voted to extend the requirements of the Families First Coronavirus Response Act to employees working within the City of Los Angeles for employers that employ 500 or more persons in the United States. The ordinance applies to all employees who have been employed with the same employer from February 3, 2020 through March 4, 2020, and provides up to 80 hours of paid sick leave benefits to full-time workers calculated based on the employee’s average two week pay over the period of February 3, 2020 through March 4, 2020. Employees who work less than 40 hours per ...

    My grandmother used to say that one of the biggest lies told in America was the statement: “I’m from the government, and I’m here to help”. Grandma was a bit of a pessimist. But the Department of Labor has issued, and continues to add segments to, a very helpful and rather lengthy question and answer page that provides guidance for employers on implementing the paid sick and family leave requirements under the new Families First Coronavirus Response Act, set to take effect on April 1, 2020. This information is particularly useful in light of the fact that the DOL has not yet provided ...

    CARES Act Provides Relief For COVID-19 Individuals and Businesses

    At 880 pages in length, “comprehensive” does not seem to do it justice. But the Coronavirus Aid, Relief and Economic Security Act is, in a word, comprehensive. Coming on the heels of the Families First Coronavirus Response Act which focused primarily on relief for employees, the CARES Act seeks to provide both individuals and businesses with immediate relief, and a path forward, as we look to a future following the COVID-19 pandemic.

    Individual Relief

    Many individuals will receive a check directly from the government. Specifically, individual adults making less than $75,000 in ...

    Special Action Alert  - Oppose LA City Council's Attempt to Require Companies to Hire and Layoff Based on Seniority

    The below message has been posted with permission from the Beverly Hills Chamber of Commerce. 

    Tomorrow, Friday, March 27th, the Los Angeles City Council is having an emergency remote meeting to consider a new policy to require businesses to lay-off and rehire employees businesses based on seniority.  Under this proposal, businesses need to have “just cause” to terminate an employee, businesses must lay off employees based on seniority and if businesses recall employees it must be done based on seniority.

    Click here to see Item No. 2 on the LA City Council ...

    To assist California employers in understanding the possible application of benefits available to workers in response to the COVID-19 crisis under both state and federal law, we provide the following handy chart:

    Click Here to view a print-friendly version of the chart. 

    COVID-19: How to Determine If Your Business Should Remain Open 

    There is a fair amount of confusion among California businesses regarding Governor Newsom’s “stay home” order and which facilities should remain open.  Unfortunately, Executive Order N-33-20 does not provide much guidance. It does, however, refer to the list of federal government's critical infrastructure sectors posted by the Department of Homeland Security and except those individuals “needed to maintain the continuity of operations” of those sectors. In addition, the state’s website clarifies that critical government services, schools, childcare, and ...

    Coronavirus And The Magic Of The Furlough

    As employers struggle to cope with the impact of coronavirus 2019 (COVID-19), we have encountered a surprising number of employers who have been led to believe that a “furlough” is an employer option that can be implemented without regard for various laws that might otherwise apply. It is not. To be blunt, while the term “furlough” seems to be a more employee-friendly word for what many employers are doing, there is no magic to it. Indeed, until the California Legislature or Congress pass more comprehensive COVID-19 relief legislation, employers must still comply with all ...

    Urgent: Governor Newsom Issues Executive Order to Address Cal-Warn Concerns In Coronavirus Crisis 

    In an effort to address some of the issues presented by California’s WARN Act in connection with the COVID-19 crisis, Governor Newsom has issued Executive Order N-31-20 partially suspending certain provisions of Cal-WARN.  As we reported here, the wording of California’s WARN Act exposes employers temporarily closing or engaging in layoffs due to COVID-19 to liability for back pay, the value of benefits, penalties of $500 per day and attorneys’ fees.  Unlike the federal WARN Act, California’s version has no exception for unforeseen business circumstances and requires ...

    What Employers Should Know About The Coronavirus 

    Given the level of concern regarding the coronavirus, providing employees with reliable information and establishing both a prevention plan and a plan to follow if illness occurs is a good way to avoid panic and help ensure a healthy workplace. 

    The Centers for Disease Control (CDC) recently held a press conference to provide an update on the current status of the coronavirus (COVID-19). The CDC published a fact sheet as well as steps to follow if you are sick with the coronavirus. Both publications can be distributed to employees along with a memo outlining steps for prevention and ...

    Proposed Fair Scheduling Act of 2020 Will Impose Fines and Additional Pay for the Failure to Provide Advance Notice of Worker Schedules

    Senate Bill 850, also referred to as the Fair Scheduling Act of 2020, would require grocery stores, restaurants and retail stores to provide employees with 21-day work schedules, at least seven calendar days in advance.

    Employers must pay a worker not exempt from overtime a “modification pay” for each previously scheduled shift that the employer cancels or moves to another date or time, each previously unscheduled shift that the employer requires an employee to work, and for each on-call shift for which an employee is required to be available but is not called into work.  If less ...

    California Legislature Scrambles to Amend AB 5, The Independent Contractor Disaster

    Assembly Bill 5 became effective on January 1, 2020. The law purports to prevent the misclassification of employees as independent contractors by codifying the ABC test established by the California Supreme Court case of Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903, along with several other tests and requirements which apply to various types of business relationships. In short, the law is very confusing.  Indeed, by all accounts, AB 5 is flawed, perhaps seriously so. Several lawsuits have been filed to challenge its terms and the California ...

    New Law Requires that California Employers Provide Two Different Notices of Any Deadline to Withdraw Funds from A Flexible Spending Account

    Effective January 1, 2020, Assembly Bill 1554 requires that California employers notify employees who participate in a flexible spending account, including a dependent care flexible spending account, a health flexible spending account or adoption assistance flexible spending account, of any deadline to withdraw funds before the end of the plan year. More specifically, the law requires that two different forms of notices be delivered, one of which may be electronic. The forms of notice may include, but are not limited to the following: email, telephone, text message, postal mail ...

    A Reminder: The IRS Mileage Rates Have Changed

    The 2020 mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes have decreased from last year, or remained unchanged. Specifically, as of January 1, 2020, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) are:

    • 57.5 cents per mile driven for business use, down one half of a cent from the rate for 2019;
    • 17 cents per mile driven for medical or moving purposes, down three cents from the rate for 2019; and
    • 14 cents per mile driven in service of charitable organizations.

    The IRS ...

    Judge Orders Emergency Halt of AB 5 for Truck Drivers

    A federal judge issued a temporary restraining order on Tuesday, December 31st, to halt enforcement of California’s Assembly Bill 5 (AB 5), regarding truck drivers, only hours before the law went into effect on January 1, 2020.  AB 5, often referred to as the gig worker law, codifies and expands the “ABC” test set forth in Dynamex Operations West, Inc. v. Superior Court, making it much harder for companies to claim workers are independent contractors.

    Although AB 5 exempts a number of professions and services from the ABC test, truck drivers are not included among the exemptions ...

    SB 707: California Continues to Attack Arbitration Agreements

    Although popular with employers as a method to expedite the resolution of disputes and reduce costs, arbitration is unpopular with plaintiff’s lawyers and, apparently, the California Legislature. As we wrote about here, Assembly Bill 51 prohibits employers from requiring that employees submit disputes to binding arbitration as a condition of employment. The attack on arbitration agreements continues with Senate Bill 707, set to become law on January 1, 2020. 

    SB 707 applies to employment or consumer arbitration agreements and requires that the drafting party pay any fees and ...

    20 Steps To Avoid Employment Lawsuits

    I have been asked by more than one frustrated California employer how to avoid or reduce employment lawsuits. It is not an easy question to answer as there are many variables that go into generating employment law claims. However, in no particular order, what follows is a list of strategies and steps to consider to implement an effective claim reduction plan:

    1. Document, document, document: Documenting employee issues and the employer’s response is a big part of disproving claims. Indeed, a consistent practice of documenting issues can even be used to indicate that something did not ...
    AB 749: Because California Needs More Lawsuits

    Assembly Bill 749 is an unnecessary law that will only serve to incentivize more lawsuits between former employees and employers.  Effective on January 1, 2020, AB 749 will prohibit an agreement to settle an employment dispute from containing a provision that prohibits a settling party from working for the employer against which he or she filed a claim, or any parent company, subsidiary, division, affiliate, or contractor of the employer. The law states that provisions in settlements signed after January 1, 2020 will be void as a matter of law and against public policy.

    AB 749 seems ...

    Unlimited Vacation Policies: Are They Right For Your Business?

    I am frequently asked about the pros and cons of having an unlimited vacation policy. To begin, I do not think it works for every category of worker, nor does it work for every type of company. When it does work, it usually is applied only to executive or professional types of workers, and only then in an atmosphere where such workers are employed in situations where co-workers or clients depend on consistent performance, such that there is always pressure to perform and deliver services in a timely fashion. Workers who work autonomously for extended periods of time may not be as ...

    California Court of Appeal Concludes Premium Wage Must Be Paid at the Base Hourly Rate

    In Ferra v. Loews Hollywood Hotel, LLC, the California Court of Appeal considered the method for determining the amount of the one hour of pay at the employee’s “regular rate of compensation” for each workday in which an employer fails to provide a meal, rest or recovery period as required by Labor Code Section 226.7. In recent years, plaintiffs have argued in class actions that the method for determining the “regular rate of compensation” under 226.7 must be the same as that used for calculating the “regular rate of pay” for overtime purposes under Labor Code Section 510 ...

    California Bans Mandatory Employment Arbitration Agreements

    Effective January 1, 2020, Assembly Bill 51 will prohibit employers from requiring employees to waive forum or procedure rights under the Fair Employment and Housing Act or the Labor Code in favor of arbitration as a condition of employment, continued employment or the receipt of any employment-related benefit. AB 51 also prohibits an employer from retaliating against any employee who refuses to consent to the waiver of such rights. For the sake of clarity, the new law states that an agreement that permits an opt-out of a waiver or which requires any affirmative action on the part of the ...

    Employer Alert:  AB 1804 Requires Immediate Reporting of Serious Occupational Injury, Illness or Death By Phone or Online

    On August 30, 2019, Governor Newsom signed into law AB 1804, which requires employers to immediately report any serious occupational illness, injury or death to the California Division of Occupational Safety and Health, by telephone or by an online mechanism to be established for this purpose.  Until the online mechanism is available, employers may report by telephone or email.  Failure to report is subject to a $5,000 civil penalty.  This new law becomes effective January 1, 2020.

    This requirement is in addition to the existing employer requirement to report any workplace injury or ...

    Great News for Employers: The Harassment Training Deadline Has Been Extended!

    On August 30, 2019, Governor Newsom signed into law SB 778, which delays by one year the new harassment training requirement imposed by last year’s SB 1343.  As a result, employers with five or more employees or independent contractors will have until January 1, 2021, rather than January 1, 2020, to provide harassment training to all managerial and non-managerial employees within six months of hire or promotion.  In addition, harassment training must be provided to temporary or seasonal employees, employees hired for less than six months, independent contractors, volunteers ...

    California Court of Appeal Agrees Employer Does Not Have To Pay For Shoes...This Time

    Krista Townley was a server at BJ’s Restaurants, Inc. As a server, Townley was required to wear black, slip-resistant close-toed shoes pursuant to company policy.  Townley purchased a pair of canvas shoes that complied with the policy.  She was not reimbursed by BJ’s. What happened next?  You guessed it: Townley filed a class and representative action under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) which sought civil penalties on behalf of herself and other "aggrieved employees" for Labor Code violations.

    In her lawsuit, Townley claimed that an ...

    Employer Reminder: California Employers Without Employee Retirement Plans Must Offer State Retirement Program

    Beginning as early as June 30, 2020, California employers with 5 or more California-based employees not already offering an employer-sponsored retirement plan will have to begin offering a retirement savings program, either through the private market or by facilitating access to CalSavers, the state-run program.

    The CalSavers program, established under SB 1234 in 2012, is intended to assist the estimated 7.5 million California employees without employer retirement savings plans. A pilot program was undertaken in late 2018, and beginning July 1, 2019, eligible ...

    Additional EEO-1 Data Must Be Submitted By September 30

    Employers with at least 100 employees, and federal contractors with contract of at least $50,000 and 50 or more employees, are well aware of the EEO-1 report requirement. EEO-1 reports are due on March 31 of each year and include data on employee race/ethnicity and gender, called “Component 1” data.  Component 1 data is submitted through a web portal maintained by the Equal Employment Opportunity Commission and is used by the EEOC and the Office of Federal Contract Compliance Programs to gauge compliance with federal equal opportunity laws. This year’s deadline was extended ...

    Employer Alert: New Law Prohibits Employment Discrimination Based on Natural Hairstyles

    On July 3, 2019, Governor Gavin Newsom signed into law Senate Bill 188, the Crown Act (Create a Respectful and Open Workplace for Natural Hair).

    The text of the law includes an explanation for its purpose. In pertinent part, SB 188 states that the “history of our nation is riddled with laws and societal norms that equated ‘blackness,’ and the associated physical traits, for example, dark skin, kinky and curly hair to a badge of inferiority, sometimes subject to separate and unequal treatment.” It goes on to state that the societal understanding of “professionalism was, and ...

    Employer Alert: City of Los Angeles Minimum Wage Increase on July 1st

    On July 1st, the City of Los Angeles will raise the minimum wage for employers with at least 26 employees to $14.25, and for employers with fewer than 26 employees to $13.25.

    In determining whether this increase applies to a particular employee, employers should know that it is not where an employee lives, nor where an employer is based, that determines the minimum wage that must be paid.  Rather, it is where the employee works that matters.  All employees working in a particular week for at least 2 hours within the City of Los Angeles are entitled to payment of the applicable minimum wage under ...

    Department of Fair Employment and Housing Issues New Family Leave Form

    The California Department of Fair Employment and Housing (DFEH) recently issued a new Certification of Health Care Provider form that employers may use for medical certification when an employee requests leave under the California Family Rights Act (CFRA) or the Family and Medical Leave Act (FMLA), due to the employee’s or the employee’s family member’s serious health condition.

    This form is particularly useful to California employers for the reason that, unlike the Department of Labor FMLA health care provider certification forms, the DFEH form excludes questions ...

    Employer Alert: Expansion of Reporting Time Pay Rule

    A recent California Court of Appeal ruling significantly expands the conditions under which the reporting time pay rule in California will apply. Skylar Ward v. Tilly’s, Inc. involved retail clothing store workers who were assigned on-call shifts, but did not know if they must report to work for each shift until they made a required call to the employer two (2) hours in advance of the shift.

    Under all California Wage Orders, including Wage Order No. 7 that applies to retail workers, reporting time pay must be paid for each workday an employee is required to report for work and does ...

    Department of Fair Employment and Housing Issues Harassment Training Toolkit

    Senate Bill 1343, which became effective on January 1, 2019, requires that every California employer with at least five employees or independent contractors provide two hours of interactive harassment and abusive conduct prevention training for their managers and supervisors, and conduct this training thereafter every two years and within six months of a person’s placement into a supervisory or management position. SB 1343 also requires that these employers provide interactive harassment training to their non-supervisory employees of at least one hour, and thereafter ...

    Good News for Employers: Express Consent Required for Class Arbitration

    Last year, the United States Supreme Court ruled that class action waivers in employment arbitration agreements are enforceable.  But, the ruling did not address an agreement that is silent or ambiguous regarding the intent to proceed as a class.

    This issue was recently resolved by Lamps Plus v. Varela, in which the United States Supreme Court held that under the Federal Arbitration Act, a court may not compel class arbitration unless the parties have expressed their clear consent.

    This case involved an arbitration clause that was ambiguous regarding the parties’ intent to ...

    Department of Labor Proposes New Minimum Salary Levels

    The United States Department of Labor (DOL) recently announced a proposal to increase the minimum salary required to qualify as exempt from overtime under the federal Fair Labor Standards Act (FLSA). The new rule would apply to the executive, administrative, and professional exemptions. Specifically, the proposed increase would raise the minimum annual salary required for exempt status from $23,360 to $35,308, and increase the weekly salary rate from $455 to $679.  Employers would be permitted to include “nondiscretionary bonuses and incentive payments” for up to 10% of the ...

    A Reminder: The IRS Mileage Rates Have Changed

    The 2019 mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical, or moving purposes have increased from last year, or remained unchanged. Specifically, as of January 1, 2019, the standard mileage rates for the use of a car (also vans, pickups, or panel trucks) are:

    • 58 cents per mile for business miles driven, up three and one-half cents from 2018;
    • 20 cents per mile driven for medical or moving purposes, up two cents from 2018; and
    • 14 cents per mile driven in service of charitable organizations.

    The IRS standard mileage rate for ...

    Employer Alert: Minimum Wage Increases

    On January 1, 2019, the state minimum wage increased to $12.00 per hour for employers with at least 26 employees, and $11.00 per hour for smaller employers.  The state minimum wage governs the exempt employee threshold salary, which has increased accordingly.  The new minimum salary for employees exempt from overtime is $49,920 annually for employers with at least 26 employees, and $45,760 annually for employers with fewer than 26 employees.

    Further, a number of California municipalities will raise their minimum wage rates on July 1, 2019.  Employers should take care to note these ...

    Employer Alert: New Compensation Threshold for Computer Software Overtime Exemption

    Effective January 1, 2019, the California Department of Industrial Relations issued a new compensation threshold for exempt computer software employees, reflecting an increase of 4.2% from last year.

    To qualify for the overtime exemption, computer software employees must be paid a salary of at least $94,603.25 annually ($7,883.62 monthly), or an hourly wage of at least $45.41.  In addition, a computer software employee must also meet the duties test set forth in California Labor Code Section 515.5, which are also included in all Wage Orders except Orders 14 and 16.

    More ...

    Employer Alert:  SB 1343 Extends Harassment Training Requirements to Small Employers and Non-Supervisory Employees

    Under current California law, organizations with 50 or more employees or independent contractors must provide two hours of interactive harassment and abusive conduct prevention training for their managers and supervisors every two years and within six months of placement into a supervisory or management position.  The training required must include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against, and the prevention and correction of, sexual harassment, as well as the remedies available to victims ...

    Employer Alert: New Fair Credit Reporting Act Summary of Consumer Rights Form Required for Background Checks

    Beginning September 21, 2018, employers must use the newly issued model Summary of Your Rights Under the Fair Credit Reporting Act form (or their own form based on the model) when providing the required written notice to an employee or a job applicant that a background check will be conducted. The revised federal form is also required if an employer plans to take adverse action against an employee or applicant based on the report.  

    The revised form includes notification of the newly granted right under the Economic Growth, Regulatory Relief and Consumer Protection Act passed by Congress ...

    National Labor Relations Board Proposes Relaxed Rule on Joint Employment

    On September 13th, the National Labor Relations Board (NLRB) announced that it will propose a new joint employer rule that represents a relaxation of the current standard for determining if businesses are joint employers.  Under the current rule, known as the Brown-Ferris rule, the definition of joint employer is expansive, so that an employer having only indirect or potential control over another employer’s workers can be found to be a joint employer. 

    Under the proposed rule, an employer may be found to be a joint employer of another employer’s employees only if it possesses and ...

    Employer Alert: U.S. Department of Labor Updates FMLA Forms

    The U.S. Department of Labor recently issued updated model Family and Medical Leave Act (“FMLA”) forms, with an expiration date of August 31, 2021.  Other than the expiration date, these forms are identical to the prior forms expiring on August 31, 2018. The newly issued forms with the August 31, 2021 expiration date should be used in place of the prior forms.  Note that the expiration date is found on the top-right corner of the forms. Note also that  the Certification of Health Care Provider for Employee’s Serious Health Condition should be modified by California employers to avoid ...

    California close to Banning Employment Arbitration Agreements 

    The California Legislature is poised to dispense with a cost-effective and expedient method of resolving employment disputes.  Specifically, Assembly Bill 3080 seeks to prohibit any person or business from conditioning employment, or any employment-related benefit, on any applicant for employment or employee agreeing to the binding arbitration of disputes that involve any alleged violation of any provision of the California Fair Employment and Housing Act.  The bill also includes a prohibition against arbitration agreements that would require an employee to opt out of ...

    Assembly Bill 2613 Seeks to Expand Personal Personal Liability for Individual Managers in California 

    Assembly Bill 2613 seeks to expand the persons potentially liable to any “person acting on behalf of an employer.” More specifically, liability would attach when an employee is not paid sums owed when due under Labor Code sections 201.3, 204, 204b, 204.1, 204.11, 204.2, 205, and 205.5, and the failure to pay is not the result of “an isolated or unintentional payroll error due to a clerical or inadvertent mistake.” AB 2613 would amend Labor Code section 210 to require an employer or person acting on behalf of an employer to pay a penalty of $200 to each and every affected employee for ...

    Employer Alert: Updated Affordable Care Act Notices Replace Earlier Versions

    The U.S. Department of Labor recently issued updated Affordable Care Act model notice forms (OMB No.1210-0149).  The new forms contain an expiration date of 5/31/2020, and replace all earlier versions.  Employers must provide these notices, which inform employees whether the employer offers a health plan, to all new employees within 14 days of hire.

    There are two versions of the model notice form: one is for employers who do offer a health plan to some or all employees, while the other is for employers who do not offer a health plan.  Both versions of the updated form can be found here.

    Proposed Law will Make it Easier to File Discrimination and Harassment Claims Against California Employers

    Senate Bill 1300 (Jackson) seeks to expand liability in discrimination and harassment by lowering the legal standard for legal claims.  Currently, only harassment that is “severe or pervasive” is actionable.  As such, the law is not designed to allow claimants to bring claims based on a single offensive remark or act.  SB 1300 creates a new private right of action for failure to prevent harassment or discrimination which is written to significantly lower that standard by providing that a claimant need only prove “that the conduct would meet the legal standard for harassment or ...

    Great News for Employers: U.S. Supreme Court Upholds Arbitration Class Action Waivers

    On Monday, May 21, 2018, in a 5-4 opinion, the United States Supreme Court issued a long-awaited decision in the case, Epic Systems Corp. v. Lewis, on the issue of the enforceability of class action waivers in arbitration agreements that bar employees from joining together in class action claims, holding such waivers to be enforceable.  Employers now have the benefit of including class action waivers in arbitration agreements without the uncertainty of the last several years, when jurisdictions differed regarding their enforceability.

    The challenge to enforceability in the case ...

    Are All Independent Contractors Now Employees? 

    Last week the California Supreme Court issued a decision that changes the way California employers do business.  In Dynamex Operations West, Inc. v. Superior Court,  the Court held that a three factor test called the “ABC test” must be applied to determine if an independent contractor is actually an employee subject to the California Wage Orders.  The Court described the test as follows: “Under this test, a worker is properly considered an independent contractor to whom a wage order does not apply only if the hiring entity establishes: (A) that the worker is free from the control and ...

    EEOC Extends EEO-1 Filing Deadline

    All employers with 100 or more employees, affiliated companies who collectively employ 100 or more employees, and government contractors with 50 or more employees are required to file EEO-1 reports annually with the Equal Employment Opportunity Commission or, in the case of government contractors, the Office of Federal Contract Compliance Programs.  The report requires company employment data to be categorized by race/ethnicity, gender and job category.  These reports are usually due by March 31st of the next calendar year.  For 2017, however, the filing deadline has been ...

    A Reminder: The IRS Mileage Rates Have Changed

    The 2018 mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes have increased slightly from last year, or remained unchanged. Specifically, as of Jan. 1, 2018, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) are:

    • 54.5 cents per mile for business miles driven, up one cent from 2017;
    • 18 cents per mile driven for medical or moving purposes, up one cent from 2017; and
    • 14 cents per mile driven in service of charitable organizations

    The IRS standard mileage rate for business is ...

    A Reminder: Home Care Workers Will Be Entitled to Paid Sick Leave Beginning July 1, 2018

    Under California’s Healthy Workplaces, Healthy Families Act of 2014, in-home supportive services (IHSS) workers were specifically excluded from eligibility to receive paid sick leave.  However, beginning July 1, 2018, Senate Bill 3, enacted in 2016, will end the exclusion and extend paid sick leave to IHSS workers. IHSS workers will initially not be entitled to reach the three days or 24 hours of paid sick leave other eligible California workers may receive.  Rather, SB 3 provides that IHSS workers may earn a “full amount” of paid sick leave in which will be increased as the state ...

    Assembly Bill 1710 Expands Military Personnel Employment Protections

    Effective January 1, 2018, AB 1710 amends Section 394 of the Military and Veterans Code by including protection against discrimination in all terms, conditions or privileges of employment due to membership or service in the military.  This applies to all military service and personnel including the National Guard, and expands existing anti-discrimination measures for military personnel.

    The new law also includes criminal and civil penalties for violations.

    Employers are reminded to train employees to comply with this law and other existing anti-discrimination laws ...

    Assembly Bill 2886 Extends SDI Appeal Deadlines

    Beginning March 1, 2018, Assembly Bill 2886 amends the Unemployment Insurance Code to extend the period that an individual may appeal a determination regarding eligibility to receive State Disability Insurance (SDI) benefits, a computation made regarding benefits, or a notice of overpayment of benefits,  from within 20 days from mailing or personal service of the determination to within 30 days of such date.  The 30-day period may be extended for good cause, which is defined to include mistake, inadvertence, surprise or excusable neglect.

    Further, prior to March 1, 2018, AB 2886 ...

    New Law Increases Cal/OSHA Penalties and Changes Division of Labor Standards Enforcement Rules

    Senate Bill 96, the California state budget bill, includes some employment-related “trailer bills” that accompany the main budget bill, including the following:

    Cal/OSHA Penalty Increases:

    SB 96 increases penalties for repeated Cal/OSHA violations from $70,000 to $124,709.  In addition, the civil penalty maximum is increased from $7,000 to $12,471 for each non-serious violation and each violation of posting, recordkeeping or notice requirements.

    The bill also permits those maximum penalty amounts to be increased on January 1, 2018, and each January 1st thereafter based ...

    New Law Phases In Overtime Increases for Agricultural Workers

    Beginning on January 1, 2019,  Assembly Bill 1066 phases in overtime for agricultural workers over a four year period, ultimately making these workers eligible for overtime pay at one and one-half (1-½) times their regular rate after eight hours per day, rather than the current ten hours. Employers who employ 25 or fewer employees will have an additional three years to comply with the phasing-in of these overtime requirements and will be required to meet the same phased in standards mentioned below commencing on January 1, 2022.

    More specifically, in 2019, employers with more than 25 ...

    New Law Holds Contractors Liable for Subcontractors’ Non-Payment of Wages

    Assembly Bill 1701 (AB 1701) provides a “direct contractor” is liable for the wages, benefits and contributions (plus interest) owed by its subcontractor(s), even if the subcontractor has been paid for the work.  A “direct contractor” is defined to mean a contractor that has a direct contractual relationship with an owner; a “subcontractor” is defined as a contractor without a direct contractual relationship with an owner.  The law applies to all private construction contracts entered into on or after January 1, 2018.  

    AB 1701 does not, however, provide wage claimants ...

    New Law Prohibits Prior Salary Inquiries and Requires Pay Scale Disclosure on Request

    Effective January 1, 2018, California Assembly Bill 168 (AB 168) prohibits asking job applicants about their salary history (including other forms of compensation and benefits), or otherwise seeking this information.  Further, employers may not rely on salary history as a factor in determining whether to offer employment to an applicant, or the salary the employer will offer an applicant.  Although the law permits employers to consider salary history if an applicant voluntarily and without prompting discloses this information, employers should proceed cautiously based on a ...

    Repealing DACA Comes at a High Price to Employers

    The Trump Administration’s termination of the Deferred Action for Childhood Arrivals (DACA) program could have a negative, costly impact on employers.  The DACA program protects nearly 800,000 undocumented immigrants who arrived as children from deportation and gives them legal status to work in the U.S.  Unless the employee can show some other valid form of employment eligibility, employers will need to terminate DACA recipients once their currently valid employment authorization document, Form I-766, expires.  Some estimates show that the end of DACA will cost employers ...

    Alert: Employers Should Distribute Updated Sexual Harassment Brochure or Poster

    The California Department of Fair Employment and Housing (DFEH) recently issued an updated sexual harassment brochure (DFEH-185), which replaces the prior version. The DFEH also provided this information in an easy-to-print poster form (DFEH-185P).

    Either the new poster or updated brochure will fulfill the employer’s obligation to provide employees with an information sheet regarding sexual harassment under state law.  Employers should provide all new employees with the updated brochure or new poster upon hire, and current employees should also be provided the newly ...

    Employer Alert: Reporting Requirements for All New or Rehired California Employees

    All California employers must report their newly hired or rehired employees who work in California to the California Employment Development Department (EDD).  Reporting is done using the EDD’s Report of New Employees form, which was recently updated and can be found HERE (along with instructions for completion).

    Reporting is aimed at locating parents not providing child financial support as obligated.  For general information regarding reporting requirements, including how to report, multi-state employers, etc., check the EDD’s New Employment Registry site found HERE.

    White House Suspends EEO-1 Pay Data Reporting

    Last week the White House Office of Management and Budget (OMB) announced the suspension and review of the new EEO-1 pay data reporting requirement for EEO-1 reports due on March 31, 2018.

    For years, employers with at least 100 employees have been required to complete and submit EEO-1 reports of their employees by race, ethnicity and gender.  Last year the EEO-1 report was expanded to include employee hours and pay data.  The intent of the pay data reporting requirement was to disclose pay gaps so that possible pay discrimination practices could be investigated.

    While the pay data ...

    Employer Alert: Department of Labor Withdraws Guidance on Independent Contractors and Joint Employment

    The U.S. Department of Labor (DOL) recently announced that the Obama-era administrative interpretations regarding joint employment and the classification of a worker as an independent contractor or employee has been withdrawn.

    The guidance regarding the independent contractor classification had indicated that most workers were employees, and not independent contractors.  As for the interpretation of joint employment, which can arise when people work for 2 or more entities which share control over the individuals’ work, the withdrawn guidance had reflected that the ...

    Reminder: Employers Must Provide Notice of Victim Rights to Employees

    As a reminder, all California employers must provide the newly issued Rights of Victims of Domestic Violence, Sexual Assault and Stalking notice to new employees upon hire and to current employees on request.

    You can find the new notice HERE in English, and HERE in Spanish.

    The notice informs employees who are victims of domestic violence, sexual assault, or stalking of various rights and protections, including the right to: unpaid time off to obtain legal relief (e.g., a restraining order); freedom from employer retaliation or discrimination due to their victim status; and ...

    Employer Alert: Must Use Newly Issued I-9 by September 18th

    On July 17, 2017, the U.S. Department of Homeland Security issued a revised version of Form I-9, Employment Eligibility Verification.  

    By September 18, 2017, employers must begin using this revised Form I-9 for all new hires, reverifications and rehires.  It is not necessary to redo previously completed I-9’s, unless an employee’s employment authorization or documentation of employment has expired.

    Until September 18, 2017, employers have a choice:  they may continue to use the I-9 form with a revision date of “11/14/16N”, or begin using the new, revised form.

    The new ...

    California Places New Limits on Employer Use of Criminal History

    New regulations issued by the California Fair Employment and Housing Council (FEHC) impose additional limitations on an employer’s use of criminal history information, and expand the types of criminal history that employers are prohibited from considering.  Effective July 1, 2017, these regulations prohibit an employer from considering criminal history in employment decisions if doing so would result in an adverse impact on individuals within a protected class, such as race, sex, or national origin.  An applicant or employee has the burden of proving adverse impact, but if ...

    Reminder: Los Angeles and Santa Monica Minimum Wage Increases on July 1st

    As a reminder, the minimum wage in the City of Los Angeles and in the City of Santa Monica will increase to $12.00 an hour on July 1, 2017, for employers with 26 or more employees.  The minimum wage for employers in these cities with fewer than 26 employees will increase to $10.50 an hour on July 1, 2017.

    There is another increase set for July 1, 2018, in the City of Los Angeles and Santa Monica that will raise the minimum wage to $13.25 an hour for employers with 26 or more employees. For smaller employers in these cities, the increase on July 1, 2018, will be to $12.00 an hour.

    Employers in the City of ...

    Fair Chance Initiative Posting Required 

    The recent Los Angeles Fair Chance Initiative for Hiring requires, among other things, that employers post a notice of the ordinance at job sites and workplaces.  The City of Los Angeles has now provided the notice that must be posted along with guidelines and other information regarding the ordinance.  The notice should be placed in a conspicuous location that employees and job applicants can access

    This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP.  It is essentially the random thoughts and opinions of someone who lives in the trenches of the war that often is ...

    McGill v. Citibank, N.A.

    I have received a few questions from employers about the recent California Supreme Court decision in McGill v. Citibank, N.A..  The McGill case isn’t an employment law case, but rather deals with a consumer class action.  In McGill, the California Supreme Court held that an arbitration provision that attempted to entirely waive an individual’s right to seek public injunctive relief (pursuant to the Consumers Legal Remedies Act (CLRA), unfair competition law (UCL), and false advertising law) is unenforceable. In so holding, the Court noted that CLRA expressly declares that the ...

    AB 2532 Eliminates the Requirement that Private Employers Contracting with State and Local Agencies Verify an Individual’s Status Before Providing Services

    Effective January 1, 2017, Assembly Bill 2532 eliminates the requirement that private employers contracting with state and local government agencies to provide specified employment services verify an individual’s legal status or authorization to work prior to providing services to that individual, as required by federal procedures.  AB 2532 also repeals posting requirements that notices be placed in prominent locations stating that only persons authorized to work in the United States be permitted to use the agency’s or the organization’s employment services. 

    This ...

    A Reminder: The Domestic Worker Bill of Rights is Permanent

    Effective January 1, 2017, Senate Bill 1015 removes the 2017 sunset provision of 2013’s Assembly Bill 241, the Domestic Worker Bill of Rights, which granted overtime protections to California’s privately hired domestic workers who are personal attendants.  The law is therefore permanent.  Under the Domestic Worker Bill of Rights, daily overtime is required after 9 hours worked in one day and weekly overtime after 45 hours are worked in one week.

    This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP.  It is essentially the random thoughts and opinions of ...

    New Law Requires Gender Neutral Restrooms

    Existing law requires businesses that serve the public or are open to the public and maintain toilet facilities to make those facilities available to the public free of charge. Existing law also states that publicly and privately owned establishments where the public congregates must maintain a sufficient number of temporary or permanent toilet facilities to meet the needs of the public at peak hours. These laws also require that each business establishment provide, within reasonable access, a sufficient number of toilet facilities for the use of the employees.

    Effective March 1 ...

    A Reminder: The IRS Requires Employers to Obtain Informed Consent to Email W-2s

    Unless you reside in a cave (in which case you likely will not be reading this), you are aware that we are moving towards a paperless society.  However, assumptions about providing documents electronically can be dangerous, and privacy rights must also be respected.  With respect to issuing Form W-2, IRS Publication 15-A provides the following:

    Furnishing Form W-2 to employees electronically. You may set up a system to furnish Form W-2 electronically. Each employee participating must consent (either electronically or by paper document) to receive his or her Form W-2 ...

    New Law Requires Written Notice to Employees on Hire (and Existing Employees upon Request) of Rights of Victims of Domestic Violence, Sexual Assault, or Stalking

    California law already prohibits employers with 25 or more employees from discriminating or retaliating against employees who take time off work for specified purposes related domestic violence, sexual assault, or stalking.  Assembly Bill 2337 (AB 2337) amends Labor Code section 230.1 to require that employers provide written notice of these rights to all new hires and, upon request, to current employees.  The bill also requires the Labor Commissioner to develop a form that an employer can elect to use to comply with this requirement, and when developed, to post it online.  The notice ...

    California Issues New Minimum Wage Poster 

    Employers should post California’s recently issued 2017 minimum wage poster found at   https://www.dir.ca.gov/IWC/MW-2017.pdf .  The new poster reflects that the state minimum wage for employers with 26 or more employees increases to $10.50 on January 1, 2017, and to $11.00 on January 1, 2018.  For employers with 25 or fewer employees, the minimum wage remains at $10.00 until January 1, 2018, when it increases to $10.50.

    The poster also contains 2017 and 2018 maximum lodging and meal credits that may be used to meet part of the employer’s minimum wage obligation for live-in ...

    New Law Bans the Box in Los Angeles 

    Effective January 22, 2017, the Los Angeles Fair Chance Initiative for Hiring will prohibit most employers in the City of Los Angeles from inquiring about a job applicant’s possible criminal history until an initial job offer is made.  Part of a national trend of “ban the box” laws, the ordinance bans the “check the box” or other questions on a job application regarding criminal convictions and prohibits employers from inquiring about such convictions by any other means until a conditional employment offer is made.  With limited exceptions, the ordinance applies to ...

    Important Update: Increased Exemption Salary Rule Blocked by Injunction

    On Tuesday, a U.S. District Court judge in Texas issued a nationwide preliminary injunction delaying the U.S. Department of Labor rule that would have dramatically increased the minimum salary threshold to qualify as exempt from overtime on December 1st.  The rule would have raised the annual salary required for exempt status from $23,660 to $47,476, which was expected to result in millions of employees becoming eligible for overtime pay because their salary would not meet the new threshold.   The judge’s decision stated that the Obama administration overstepped its authority by ...

    New I-9 Form Promises to be Fun for Everyone

    Just kidding.  It may not be fun, but the new Form I-9 issued by the United States Citizenship and Immigration Services (USCIS) may be used immediately. Finalized on November 14, 2016, the new version of the Form is available here https://www.uscis.gov/i-9 . Employers will not be permitted to use the old version of Form I-9 (dated 03/08/2013) as of January 22, 2017.   The new version asks for “other last names used” rather than “other names used,” and streamlines certification for certain foreign nationals.  Other changes include: the addition of prompts to ensure information is ...

    New Law Expands California’s Heat Illness Regulations to Include Indoor Employees

    Existing regulations establish heat illness prevention standards for outdoor workers.  The regulations include requirements for providing sufficient drinking water at no charge to the employee, allowing for recovery or “cool down” periods, providing shade when the temperature exceeds 80 degrees Fahrenheit, and creating written safety standards.Senate Bill 1167 expands California’s heat illness regulations to protect indoor employees.  The bill requires the Division of Occupational Safety and Health to propose by July 1, 2019, a heat illness and injury prevention ...

    Assembly Bill 1843 Prohibits Employers from Inquiring about Juvenile Convictions or Using Juvenile Proceedings In Employment

    Effective January 1, 2017, Assembly Bill 1843 prohibits hiring-related inquiries concerning juvenile convictions or from using information regarding juvenile court actions or custodial detentions as a factor in determining any condition of employment.  The new law expands upon recent legislation that restricted the use of expunged, sealed or dismissed juvenile convictions, and is representative of a nationwide trend of restricting inquiries regarding prior convictions.

    This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP.  It is essentially the ...

    Senate Bill 1001 Amends the California Labor Code to Expand Protection from Unfair Immigration-Related Practices

    Continuing a recent legislative trend, Senate Bill 1001 expands existing prohibitions regarding unfair immigration-related practices.  Specifically, this bill amends the California Labor Code to provide a civil remedy for an applicant or employee against any unfair immigration-related practice as defined by Labor Code section 1019.  Such “unfair immigration-related practices” include an employer requesting more or different documents than required under federal law for verification purposes, using the federal E-Verify system to check the status of a person at a time ...

    New Laws Expand California’s Equal Pay Act to Include Race and Limit Use of Prior Salary

    The Wage Equality Act of 2016 (Senate Bill 1063) expands California’s Equal Pay Act to target race and ethnicity-related wage differentials. This bill picks up where last year’s Equal Pay Act (which bolstered prohibitions on gender-based pay differentials) left off by adding a new Labor Code provision precluding wage differentials based on race or ethnicity.  Under the Wage Equality Act, employers will be required to demonstrate that a reasonably-applied factor accounts for any pay differential between employees of different races or ethnicities for doing substantially ...

    EEOC Issues First Retaliation Guidance in Almost 20 Years

    The Equal Employment Opportunity Commission (EEOC) recently issued its first enforcement guidance on employment-related retaliation in almost 20 years. The Final Guidance is in response to numerous court rulings on retaliation and the almost doubling of EEOC charges claiming retaliation, making retaliation the most frequently alleged basis of discrimination in the workplace.

    The Final Guidance applies to retaliation under Equal Employment Opportunity (EEO) laws including: the Americans with Disabilities Act (ADA), the Rehabilitation  Act,  the Age Discrimination in ...

    Los Angeles Moves Toward Prohibiting Criminal Conviction Inquiry Prior to Job Offer

    Consistent with a national trend, the Los Angeles City Council’s Economic Development Committee voted last week in favor of a new law prohibiting most employers from inquiring about a job applicant’s possible criminal history until an initial job offer is made and allowing applicants to appeal an adverse decision.  The proposed law, known as the Los Angeles Fair Chance Initiative for Hiring (Ban the Box), will next be heard by the Entertainment and Facilities Committee and if approved, would then be considered by the full City Council.

    Referred to as a “ban the box” law, the ...

    San Francisco First U.S. City to Require Fully Paid Parental Leave

    On January 1, 2017, the City of San Francisco’s paid parental leave ordinance becomes effective for employers with 50 or more employees.  These employers will be required to pay the difference between a new parent’s weekly wage and benefits paid from California’s Paid Family Leave Program for 6 weeks, almost doubling the amount they were eligible to receive under the PFL program.  The law becomes effective for employers with 35 or more employees on July 1, 2017, and on January 1, 2018 for employers with 20 or more employees.  A cap is placed on the employer-paid benefit ...

    New Law Combats Wage Theft by Granting Local Governments Subpoena Power

    In response to the increasing number of cities and counties that have enacted minimum wage ordinances setting wage rates at levels higher than state and federal requirements, last year Assembly Bill 970 was added to the Labor Code allowing the California Labor Commissioner the right to enforce local minimum wage and overtime provisions.  This year the California Legislature looked to enforcement at the local level and passed Senate Bill 1342. Specifically, SB 1342 increases local enforcement to combat wage theft by authorizing cities and counties to issue subpoenas in cases of ...

    AB 2535 Expands Exceptions to Tracking Hours Requirements on Itemized Wage Statements

    Prompted, in part, by a 2015 federal court decision which held that employers must state the total hours worked by outside sales persons, Assembly Bill 2535 amends Labor Code section 226 to further clarify the categories of workers whose wage statements need not show total hours worked.  The amendment specifies that salaried persons exempt from overtime under statute (Labor Code section 515) or an order of the Industrial Welfare Commission need not have hours included on wage statements.  In addition, the amendment lists the following categories of workers for which employers do not ...

    Safe Harbor for Violations of Disability Access Under the Unruh Act

    Senate Bill 269 provides a “safe harbor”  period for some businesses to correct certain violations related to construction-related disability access under the Unruh Act.  The bill reduces fines for certain technical violations corrected within 15 days of notice or service of the complaint, whichever is earlier, and where a business has had a Certified Access Specialist (CASp) inspect the property.  In addition, lower fines apply to smaller businesses which employed 25 or fewer employees on average over past 3 years, and which have averaged gross receipts of less than $3,500,00 ...

    New Law May Reduce Amount Subject to Wage Garnishment

    In case you missed it, Senate Bill 501, a law which became effective on July 1, 2016, may reduce the prohibited amount of weekly disposable earnings that may be garnished depending on where the employee works.

    Specifically, SB 501 adjusts the existing statutory scheme, which limits the amount of an individual judgment debtor’s weekly disposable income subject to garnishment to the lesser of 25% of the disposable earnings or the amount by which the individual’s disposal earnings exceed 40 times the state minimum wage, to now include the possibility of a higher local minimum wage ...

    Beginning January 1, 2017, Assembly Bill 1245 requires that employers with 10 or more employees must file all unemployment insurance reports and returns using the e-file system. Also, these employers must remit contributions for unemployment insurance premiums by electronic funds transfer. The law will extend to all employers on January 1, 2018. Businesses without the necessary technology may be exempted, but must request a waiver.

    This alert is intended to note current legal trends in commercial lending and risk management issues. No alert should be construed as representing ...

    Senate Bill 667 Extends Claim Period Under State Disability Insurance Program

    Effective July 1, 2016, Senate Bill 667 extends from 2 weeks to 60 days the period of time that an employee can reopen a disability insurance claim without having a new 7 day consecutive day waiting period of wage loss. This legislation is intended to assist employees returning to work after a 2 week or longer period of disability, who then suffer a recurrence of the same or related condition, and would have had to undergo a second 7 day waiting period before receiving benefits under current law.

    This alert is intended to note current legal trends in commercial lending and risk management ...

    New Workplace Smoking Prohibitions Include E-Cigarettes

    So you think vaping is the key to reducing workplace stress? Think again. Senate Bill 5 expands no smoking prohibitions to include e-cigarettes (vaping), vaporizer carts and expands the definition of “tobacco products” to include all forms of tobacco or nicotine, except for approved cessation products, such as nicotine gum. Assembly Bill 7 expands the prohibition on smoking in the workplace to include owner-operated business, including a business where the owner is the only employee. Even though vaping equipment such as cartridges from Hamilton Devices CCELL are readily ...

    EEOC Issues Final Rules on Wellness Programs

    The EEOC issued final rules under the Americans with Disabilities Act (ADA) regarding employer-sponsored wellness programs which require disability-related information or medical exams, as well as final rules under the Genetic Information Nondiscrimination Act (GINA), regarding all employer-sponsored wellness programs.  Employers should review the final rules, as the EEOC makes apparent that compliance with The Health Insurance Portability and Accountability Act (HIPAA) nondiscrimination rules does not necessarily place an employer in compliance under the ADA or ...

    EEOC Issues Guidance Regarding Leave as an Accommodation Under the ADA

    The U.S. Equal Employment Opportunity Commission (EEOC) recently issued a guidance to employers regarding an employer’s obligation under the Americans with Disabilities Act (ADA) to provide unpaid leave or extend a paid leave on an unpaid basis beyond its original term as a reasonable accommodation under the ADA, provided no undue hardship would result for the employer.

    The EEOC clearly views providing unpaid leave as an accommodation to be a significant issue that may require employers to change their usual practices when needed.  Specifically, the EEOC advises that if an ...

    Private Attorney General Act Amendment Permits More Government Oversight of Claims

    Buried in an appropriations bill designed to address no fewer than 42 separate issues is a small, but important item for California employers. In  response to requests for legislative restrictions on the Private Attorneys General Act of 2004 (PAGA), the legislature passed State Bill 836, the Governor’s budget bill.  SB 836 includes an amendment to PAGA which provides the Labor Workforce Development Agency (LWDA) with increased oversight of PAGA actions by allowing the LWDA additional time to review and investigate PAGA claims.  There are new requirements for online filing ...

    Employers Must Remember to Raise Minimum Wage in Los Angeles County

    Like the City of Los Angeles, Los Angeles County raised the minimum wage for employers with 26 or more employees to $10.50 starting July 1, 2016. The rule will apply to all workers who work at least 2 hours in the unincorporated areas of Los Angeles County in a given week.

    The Los Angeles County website provides a method to determine if a business is in an unincorporated area of the county.

    The Los Angeles County poster can be found here.

     

    This publication is published by the law firm of Ervin Cohen & Jessup LLP. The publication is intended to present an overview of current legal trends; no article ...

    New Minimum Wage For Pasadena Starting July 1, 2016

    In a move which matches its counterparts in Los Angeles and Santa Monica, the City of Pasadena is set to increase its minimum wage for employers with 26 or more employees to $10.50 on July 1, 2016, while smaller employers have until July 1, 2017.  The increase applies to employees who work at least 2 hours in a week in Pasadena, as follows:

    Employers with 26 or more employees shall pay a wage of no less than the hourly rates set forth:
    1. On July 1, 2016, the hourly wage shall be $10.50
    2. On July 1, 2017, the hourly wage shall be $12.00
    3. On July 1, 2018, the hourly wage shall be $13.25

    Employers with 25

    A Reminder: Increased Minimum Wages for Santa Monica and Los Angeles 

    An increase in temperatures will not be the only increase employers will see this July: employers in the City of Los Angeles and in the City of Santa Monica are reminded that minimum wages will increase starting on July 1, 2016.  Both the Santa Monica and Los Angeles ordinances apply to any employee who works at least two hours or more within the geographic boundaries of the city within a particular week.  Each ordinance includes a phased increase to reach $15.00 per hour in 2020 for most businesses, with a one year delay to 2021 for businesses with 25 or fewer employees and for qualifying ...

    Today President Obama signed the Defend Trade Secrets Act of 2016 into law, culminating a three year, bipartisan effort to create a federal trade secret law that can be used by private parties in civil litigation. Until now, federal trade secrets claims could only be brought by the Attorney General of the United States. Private litigants were subject to trade secret laws which vary from state to state, with 48 states enacting some form of the Uniform Trade Secrets Act (New York and Massachusetts were the hold outs).

    The DTSA creates a system which includes uniform standards for ...

    New Law Expands California's Paid Family Leave and State Disability Insurance

    Approximately 15 years ago California became the first state to provide paid time off to workers to care for a new child or ailing family member.  The law, which is funded by required worker contributions, provides for up to 6 weeks of wage replacement in connection with certain qualifying events, which events include the temporary disability of an individual worker, caring for certain family members, bonding with a minor child within one year of

    birth, or the placement of a child in connection with foster care or adoption.  This week Governor Jerry Brown expanded that law by signing ...

    Governor Brown Signs New Minimum Wage Increase Into Law

    On Monday Governor Brown signed Senate Bill 3, a bill which will gradually increase minimum wages in California in a manner that is very similar to the Los Angeles ordinance, except that the state increases will not be complete until 2023 (the Los Angeles increases begin on July 1, 2016 with a $10.50 per hour requirement for businesses with 26 or more employees and will continue until the rate reaches $15 per hour on July 1, 2020; Los Angeles allows that smaller businesses with 25 or fewer employees will have an additional year to match the increases).   The first increase starts next year on ...

    A trial set for January 26 will confront whether Sears should be held liable for emotional distress of customers and employees who allegedly suffered from a Sears employee installing peepholes and video cameras in women’s changing rooms in a North Hollywood Sears location. The Daily Journal reached out Kelly Scott, ECJ’s Employment Law head, to get perspective from an employer’s standpoint in the article titled “Sears faces liability for peeping tom employee.”

    This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP. It is essentially the random ...

    Don’t Put Away Those Party Supplies Just Yet: The New IRS Mileage Rates Are Here!

    For the first time in human history, or at least a very long time, the mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes have declined. Specifically, beginning on Jan. 1, 2016, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be:

    • 54 cents per mile for business miles driven, down from 57.5 cents for 2015
    • 19 cents per mile driven for medical or moving purposes, down from 23 cents for 2015
    • 14 cents per mile driven in service of charitable organizations

    The IRS standard ...

    As we start a new year, employers should check all of their employment practices to make sure they are compliant with current laws and regulations. One of the many changes made in 2016 were comprehensive amendments made by the Fair Employment & Housing Council to the California Code of Regulations regarding the California Family Rights Act (CFRA). The regulations took effect on July 1, 2015 and were intended to conform the CFRA more closely with its federal counterpart, the Family and Medical Leave Act (FMLA), and to clarify some areas of uncertainty. Among other things, the ...

    Wage Garnishment Rules Will Change in 2016

    Senate Bill 501 changes the amount of an employee’s weekly earnings that would be exempt from a wage garnishment order in California. Currently the amount subject to garnishment cannot exceed the lesser of 25% of the employee’s disposable earnings and the amount by which the individual’s disposable earnings for the week exceed 40 times the state minimum wage in effect at the time the earnings are payable. Beginning on July 1, 2016, the maximum amount subject to garnishment will change to the lesser of 25% of the employee’s disposable earnings for the week or 50% of the amount by ...

    New Law Extends Retaliation Protections to Family Members

    Assembly Bill 1509 amends sections 98.6, 1102.5, and 6310 of the California Labor Code by extending certain retaliatory protections afforded to employees to their family members who work for the same employer. Under existing law, employers are prohibited from discharging an employee or taking an adverse action against an employee or applicant for employment because the employee or applicant has engaged in protected conduct, such as filing a written complaint with a government agency based on employment conditions. Effective January 1, 2016, such retaliatory protections will ...

    New Law Gives Labor Commissioner Authority to Enforce Local Overtime and Minimum Wage Laws

    By amending sections 558, 1197, and 1197.1 of the California Labor Code, Assembly Bill 970 authorizes the Labor Commissioner to investigate and, at the request of local government, enforce local laws regarding overtime hours or minimum wage provisions. The Labor Commissioner may issue citations and penalties for violations, except when local government has already issued a citation for the same violation. In addition, AB 970 amends section 2802 of the California Labor Code by authorizing the Labor Commissioner to issue citations and penalties to employers for violating the ...

    AB 622 Restricts the Use of E-Verify

    Assembly Bill 622, which takes effect on January 1, 2016, adds section 2814 to the California Labor Code. Section 2814 prohibits employers from using E-Verify to check the employment authorization status of an existing employee or an applicant who has not been offered employment, except as required by federal law or as a condition of receiving federal funds. Furthermore, upon using the E-Verify system, if the employer receives a tentative non-confirmation issued by the Social Security Administration or the United States Department of Homeland Security which indicates the ...

    Effective upon signing, Assembly Bill 1506 amends the Private Attorneys General Act of 2004, commonly known as “PAGA”, in a manner that should benefit employers and employees alike and reduce lengthy litigation. Among other things, PAGA permits employees to bring civil actions for violations of California Labor Code section 226(a)(6) and (8), which require an employer to provide its employees with specified information regarding their wages, including the inclusive dates of the period for which the employee is paid and the name and address of the legal entity that is the ...

    Healthy Workplaces, Healthy Families Act Clarified

    Assembly Bill 304 was enacted on an emergency basis shortly after California’s paid sick leave law, known as the Healthy Workplaces, Healthy Families Act of 2014, became effective on July 1, 2015. There were good reasons for the amendment: the paid sick leave law was confusing and difficult to implement. Effective immediately, AB 304 seeks to clarify some aspects of the sick leave law and provides employers with greater options regarding implementation. Specifically, AB 304 permits employers to use a sick leave accrual rate other than the one hour for every 30 hours worked rate ...

    Senate Bill 579 expands Labor Code Section 230.8, providing additional circumstances under which employers with 25 or more employees must provide school or child care activities leave. Beginning January 1, 2016, employees may take leave of up to 40 hours per year, not to exceed eight hours per month, to find, enroll and re-enroll a child in school or with a licensed child care provider, and to handle certain child care emergencies and school emergencies that prohibit the child from attending or require that the child be picked up from school. The leave will extend to a parent ...

    Effective January 1, 2016, Assembly Bill 1513 establishes Labor Code Section 226.2, which requires that employers paying piece-rate compensation must pay employees for rest and recovery periods and other nonproductive time separately from any piece-rate compensation, and that wage statements reflect these payments. The hourly rate paid for rest and recovery periods must be the greater of the applicable minimum wage, or the employee’s average hourly wage for all time worked excluding rest and recovery periods or overtime, and the rate paid for other nonproductive time must ...

    New Law Targets Supervisors for Wage Liability

    Senate Bill 588, referred to as the wage theft bill, significantly expands individual liability for wage and hour violations by authorizing the Labor Commissioner to hold a hearing to recover civil penalties for wage and hour violations against not only the employer, but also a person acting on behalf of an employer, which includes an owner, director, officer, or managing agent of the employer. These persons may now be held liable for violating or causing a violation of any provision regulating minimum wages or hours and days of work in any Wage Order or the Labor Code. SB 588 also makes it ...

    The Fair Pay Act: An Equal Pay Game-Changer

    It was little commented upon as it worked its way through the legislature, being just one of thousands of laws proposed each year, but make no mistake about it—Senate Bill 358, The Fair Pay Act, is an important new law for California employees and employers. Prompted by the continuing wage gap between men and women, SB 358 is designed to improve a California law that has existed since 1949. Prior to the enactment of SB 358, employees claiming that they received unequal pay based on their gender had to demonstrate that they weren’t paid at the same rate as someone of the opposite sex at ...

    Effective January 1, 2016, Assembly Bill 987 prohibits an employer from retaliating or otherwise discriminating against a person for requesting accommodation of his or her disability or religious beliefs, regardless of whether the accommodation request was granted. This legislation was in response to the California Court of Appeal decision in Rope v. Auto-Chlor System of Washington, Inc., in which the court held that a request for reasonable accommodation was not a protected activity under the California Fair Employment and Housing Act, and therefore a claim of retaliation ...

    Senate Bill 600 expands the protections of the Unruh Civil Rights Act, a law designed to protect consumers. The Unruh Civil Rights Act already provides that all persons within the jurisdiction of this state are entitled to full and equal accommodations in all business establishments regardless of their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation. SB 600 extends these protections by prohibiting discrimination by businesses based on citizenship, primary language or ...

    Higher Wages for Computer Software Employees for 2016

    The Department of Industrial Relations recently announced an increase in the minimum hourly wage required for certain computer software workers who are exempt from overtime under California Labor Code section 515.5. Specifically, the DIR raised the computer software employee minimum hourly rate of pay exemption from $41.27 to $41.85, the minimum monthly salary exemption from $7,165.12 to $7,265.43, and the minimum annual salary exemption from $85,981.40 to $87,185.14. The increases become effective on January 1, 2016 and are based on the 1.4% increase in the California ...

    Minimum Wage Increases: Not a Simple Topic for Discussion

    On October 15th, 2015, I was part of a panel/roundtable discussion regarding minimum wages. The panel was presented by the Government Affairs Committee of the Beverly Hills Chamber of Commerce at the request of the City of Beverly Hills. The specific purpose of the panel was to discuss a potential increase in the minimum wage for the City of Beverly Hills in response to the recent ordinance passed by the City of Los Angeles, which ordinance will gradually increase the minimum wage for businesses with 26 or more employees to $15 an hour by July of 2020 (smaller employers and nonprofits have ...

    New NLRB Ruling is Indicative of Significant Change in Federal Employment Law

    Since last Thursday, the Internet has been buzzing with news of the National Labor Relations Board’s decision in Browning-Ferris Industries of California, Inc., which held that a Silicon Valley recycling center was a “joint employer” along with the staffing agency that provided the center’s workers. In so doing, the Board established a new standard for determining the existence of joint employers.

    The Board began by stating that two or more entities may be joint employers of the same employees if they “share or co-determine those matters governing the essential terms ...

    Global warming, a decaying infrastructure, budget problems, pollution, endangered species; these are all serious problems. In a world full of serious problems, lesser tragedies frequently go unnoticed. Like the plight of the American cheerleader. These men and women generally promote their teams for little or no pay, have no benefits, and are afforded none of the basic rights enjoyed by hourly employees. For a while it seemed as if no one would hear their choreographed cries for help. But fear not, readers, for the California Legislature has stepped in to save the day.

    Assembly Bill ...

    New FMLA Forms Issued by Department of Labor

    The US Department of Labor recently revised the model Family and Medical Leave Act notices and medical certification forms to be given to employees in connection with the FMLA. The forms are not substantially changed from the prior versions, but do make clear that the employer is not seeking information about genetic tests, genetic services or the manifestation of disease or disorder in an employee’s family members. The forms and notices are accessible on the DOL website here and are set to expire on May 31, 2018.

    California employers who use the form for employees requesting leave ...

    Supreme Court Denies Review of PAGA Waiver Case… Again

    In a move that will undoubtedly frustrate California employers, the United States Supreme Court has denied review of Bridgestone Retail Operations v. Milton Brown, a California Supreme Court case which held that Private Attorney General Act waivers in employment arbitration agreements are not enforceable. The refusal to review this case comes on the heels of the U.S. Supreme Court’s decision to deny review of Iskanian v. CLS Transportation, the first case which sought review by the Court of this issue. The petitions seeking review of the Bridgestone and Iskanian cases ...

    Another Bill Seeks To Increase California’s Minimum Wage

    For the third year in a row, the California Senate is seeking to increase California's minimum wage with automatic adjustments for inflation. Specifically, Senate Bill 3 proposes to raise minimum wage to $11 per hour on January 1, 2016, $13 per hour on January 1, 2017 and will automatically adjust thereafter commencing on January 1, 2019. The bill has already been approved by the senate and will now proceed to the State Assembly for review. Prior efforts to legislate automatic adjustments of the minimum wage have failed, although Assembly Bill 10 was signed into law after ...

    One of the more interesting laws to emerge from the 2014 legislative session was Assembly Bill 1792. AB 1792 amends and adds sections to the Government Code, Unemployment Insurance Code and Welfare and Institutions Code. Specifically, the law requires the State of California to compile information on the use of public assistance programs, including the average cost of state and federally funded benefits provided to each individual receiving benefits. “Public assistance program” is defined specifically as the Medi-Cal program. Beginning in January of 2016, the law requires ...

    A hot topic for legislators throughout the United States, last fall California became the second state to require paid sick leave. Effective July 1, 2015, California’s Healthy Workplaces, Healthy Families Act of 2014 provides that all employees working in California for 30 or more days within a year from the commencement of employment are entitled to paid sick leave, which means that temporary and part-time employees may be eligible. Sick leave must either (i) accrue at the rate of no less than one hour for every 30 hours worked, or (ii) total at least three days or 24 hours and be ...

    Wage Recovery Penalties Continue to Increase

    Continuing in a trend that started in 2013, the California Legislature focused considerable time and effort on expanding liability and increasing penalties under several existing laws for 2015. Assembly Bill 1723 amended Labor Code section 1197.1 by expanding the penalty for the failure to pay employees minimum wage to include penalties under Labor Code section 203 in addition to liquidated damages in the amount of the unpaid wages, recovery of the unpaid wages and pay period violations for each employee of $100.00 for the first pay period and $250.00 per pay period thereafter. AB ...

    Assembly Bill 1897 is essentially an effort to hold employers who contract for labor accountable for wage and hour violations, something the legislature has sought to do in various failed legislative attempts over the last several years. Specifically, AB 1897 adds section 2810.3 to the Labor Code and requires client employers to share all civil legal responsibility and liability with labor contractors. “Client employer” is defined to exclude businesses with a workforce of less than 25 workers and employers who employ five or fewer workers through a labor contractor at any ...

    Interns and Volunteers Protected from Workplace Harassment, Discrimination and Retaliation

    We’ve written about the abuse of interns previously. At the time, we were focused on the all-too-common practice of using unpaid interns to augment the workforce, a violation of labor law that occurs frequently in the entertainment industry. But whether paid or unpaid, it is clear that interns and volunteers must be treated with the same dignity and respect as are paid employees and independent contractors.

    Indeed, Assembly Bill 1443 recently amended the Fair Employment and Housing Act to prohibit discrimination in the selection, termination, training or treatment of unpaid ...

    A Reminder: Employers Must Train Supervisors on the Prevention of Abusive Conduct

    Assembly Bill 2053 expanded the existing requirement for sexual harassment training under Government Code section 12950.1 to include training on the prevention of abusive conduct. Effective January 1, 2015, the law applies to every California employer that employs 50 or more persons or receives the services of 50 or more persons pursuant to a contract. “Abusive conduct” is defined as conduct that a reasonable person would find hostile and offensive and is otherwise unrelated to legitimate business interests. Abusive conduct may include derogatory remarks, insults ...

    Most California employers know that they have to reimburse employees for business-related expenses. Indeed, California Labor Code section 2802(a) provides that an employer “shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties…” This requirement has led prudent employers to reimburse employees not only for such obvious costs as travel or mileage expenses, but for less obvious expenses such as the cost to dry clean a uniform that cannot be laundered. What California ...

    Fine, but make sure that you do so correctly. Many employers prefer to reimburse employees for healthcare insurance premiums rather than hassle with providing coverage under a group healthcare plan. In so doing, these employers assume that this payment is excluded from the employee’s gross income. However, this assumption is both incorrect and potentially expensive.

    In light of the Patient Protection and Affordable Care Act (ACA), the Internal Revenue Service (IRS) has determined that, unless ACA requirements are satisfied, such reimbursements for individual healthcare ...

    New Mileage Rates for 2015

    Oil prices may be going down, but reimbursement rates are going up. On January 1, 2015, the IRS standard mileage deduction rate increased from 56¢ to 57.5¢ per mile for business miles driven. However, the rate for medical or moving purpose mileage decreased from 23.5¢ to 23¢. The rate for miles driven in service of a charitable organization remained set at 14¢ per mile. The business rate is based on an annual study of the fixed and variable costs of operating an automobile. The medical and moving rate is based on the variable costs. The charitable rate is based on statute.

    Because ...

    Many businesses shut down for specific periods of time over the holidays. Often this is due to a reduction in the amount of available work and/or a reduction in available staffing. In some cases, such as the entertainment industry, it is a standard practice. However, most businesses are not aware that these types of temporary closings or layoffs can be a trap for the unwary employer. Indeed, the California Division of Labor Standards Enforcement (DLSE) generally maintains that a temporary layoff must be treated as a termination unless the employee is given a return to work date within ...

    Each year, the IRS issues contribution limits for Health Savings Accounts for the upcoming year. The 2015 contribution limits are outlined below.

    • The maximum contribution for individual coverage is $3,350;
    • The maximum contribution for family coverage is $6,650; and
    • In addition to the annual contribution, if you are 55 or older, you may add up to $1,000 in additional monies as part of a "catch up" contribution.

    This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP.  It is essentially the random thoughts and opinions of someone who lives in the trenches of the war ...

    The National Labor Relations Board (NLRB) recently ratified all the decisions made by the NLRB, including those made in administrative and personnel matters, during the period of time when it did not have a proper quorum. This was the period from January 4, 2012 to August 5, 2013, during which the United States Supreme Court held in NLRB v. Noel Canning, that the NLRB did not have a proper quorum due to improper recess appointments. The NLRB ratified its prior actions in an attempt to eliminate any questions concerning the validity of the decisions it made during this period. Will ...

    Ever wonder how your employees would handle a life-threatening situation? Well, four supervisors of the West Kern Water District apparently did. And they didn’t just wonder; concerned about robberies in the area and following staff training, on July 29, 2011, they decided to test their cashiers by staging an armed robbery of the District’s office.

    The supervisors put on quite a show. They kept their plans secret until one of the supervisors entered the District's office wearing a ski mask and sunglasses. He approached cashier Kathy Lee, slammed a paper bag on the counter in front ...

    That may be what the NLRB and others are thinking right now. Remember all those rather aggressive decisions made by the NLRB about a couple of years ago? It is as if they never happened. In a unanimous decision, the United States Supreme Court has invalidated all decisions of the NLRB since January 2012, when President Obama appointed 3 of the 5 member NLRB during a time when Congress was convening every 3 days, to July 2013, when the Senate confirmed a 5 member board. In National Labor Relations Board v. Noel Canning, the Supreme Court held that the president lacked authority to make the ...

    Finally! The California Supreme Court recently fell in line with the United States Supreme Court on the enforceability of class action waivers in arbitration agreements by upholding their enforceability. Previously, the California Supreme Court had held in Gentry v. Superior Court that class action waivers in employment agreements were invalid in certain circumstances. Subsequently, the United States Supreme Court decided the AT&T Mobility v. Concepcion case, which in effect upheld class action waivers, with the Court reasoning that a state procedure that is incompatible ...

    California Minimum Wage Increases July 1st!

    Any California employer that has been in hiding the last six months or more may not be aware that California’s minimum wage increases to $9 per hour from the existing minimum wage of $8 per hour on July 1, 2014. In addition to paying more money to minimum wage hourly workers, the increase will impact other employee pay requirements. Specifically, minimum salary requirements for the administrative, executive or professional exemptions from overtime will increase to $3,120 per month (or $37,440 annually), from $2,773.33 per month (or $33,280 annually). Further, inside sales ...

    Introductory Periods Must Be Reconsidered in Light of Insurance Waiting Time Rules

    Most employers have an “introductory” or “probationary” period for new full-time employees. This period is usually defined as a set period of time following the date of hire, usually 90 days in length, during which a new employee is considered to be on “introductory status” and the employee and the employer get acquainted. During the introductory period, new employees are eligible only for certain benefits, such as Workers' Compensation insurance and Social Security. Employers usually inform new hires that the period may be extended if the employer determines that ...

    We recently posted information concerning OSHA’s new training requirements that are designed to align its Hazard Communication Standard with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (see post here). Since that time, I have been asked if the requirements apply to office environments. The short answer is that the requirements apply to every employer that has hazardous chemicals in the workplace. OSHA estimates that this includes about 5 million employers in the United States, a figure which undoubtedly includes more than a ...

    One of the laws that was passed in California in 2013 that did not receive much media attention was Assembly Bill 1386. AB 1386 amended Labor Code section 98.2 to give the Labor Commissioner additional means to collect wages and penalties on behalf of workers. Existing law had authorized the Labor Commissioner to issue orders, decisions, or awards in connection with employee complaints governed by the Labor Code. As amended by AB 1386, Labor Code section 98.2 now provides that any amount due under a final Labor Commissioner order, decision, or award permits the Labor Commissioner to ...

    Money, that is. It is a motivation shared by employers and employees alike. It is the reason why employers are in business and why employees work for employers. And it is often the primary reason for a lawsuit.None of this will surprise savvy employers. But what often comes as a surprise to employers is that the plaintiff is not usually the person driving employment litigation. Whether it is a class action or a single plaintiff dispute, as the saying goes, if you “follow the money” more often than not it is the plaintiffs’ counsel that is in command of the lawsuit, from start to finish.

    Severance Pay As Wages: Business As Usual

    Confirming what most employers have long assumed to be true, this week the U.S. Supreme Court held that severance payments made to terminated employees are “wages” subject to the Federal Insurance Contributions Act (FICA) tax withholding requirements. Specifically, United States v. Quality Stores, Inc. was a bankruptcy case which involved an attempt by Quality Stores to claw back taxes paid in connection with severance to workers. The issue on appeal was whether supplemental unemployment compensation benefits, which was how both the taxing authorities and Quality Stores ...

    Secretary of Labor Directed to Update Federal Overtime Rules

    In a brief memorandum recently issued to the Secretary of Labor, President Obama directed the Department of Labor (DOL) to update federal overtime rules. As noted in the memorandum, the Fair Labor Standards Act (FLSA) provides basic rights and wage protections for American workers, including Federal minimum wage and overtime. Most workers covered under the FLSA must receive overtime pay of at least 1.5 times their regular pay rate for hours worked in excess of 40 hours per week (Alaska, California and Colorado have established additional requirements, including daily ...

    A Reminder: The Standard Mileage Rates for 2014 Have Changed

    On January 1, 2014, the IRS standard mileage deduction rate decreased from 56.5¢ to 56¢ per mile for business miles driven. The rate for medical or moving purpose mileage also decreased from 24¢ to 23.5¢. The rate for miles driven in service of a charitable organization remained set at 14¢ per mile. The business rate is based on an annual study of the fixed and variable costs of operating an automobile. The medical and moving rate is based on the variable costs. The charitable rate is based on statute.These rates impact all California employers because California requires that all ...

    When they are not properly paid. A number of law firms and corporate employers consider paralegals to be exempt from overtime. At the federal level, the Department of Labor (DOL) has stated that most paralegals lack sufficient specialized education to qualify for the learned professional exemption and are therefore not exempt from overtime. In this regard, the State of California generally applies more strict standards and will likely follow the DOL.Nor is it likely that paralegals could qualify as exempt from overtime under the other most common exemptions. Specifically ...

    The Department of Treasury and the Internal Revenue Service recently released final regulations for employer responsibility provisions of the Affordable Care Act (ACA) that will delay parts of the employer mandate that require businesses with more than 50 employees working 30 hours or more per week to provide affordable health insurance coverage to workers. The final regulations are designed to allow a gradual phase-in of certain responsibility provisions that will assist employers in complying with and providing coverage during the transitional year of 2015.Specifically ...

    When it’s a service charge. On June 25, 2012, the Internal Revenue Service (IRS) issued Revenue Ruling 2012-34 which provides guidance to employers and employees on the difference between tips and service charges as well as on certain reporting requirements. The ruling states, among other things, that service charges paid to employees are taxable as regular wages and not as tips. Although the IRS delayed enforcement of Revenue Ruling 2012-34 to allow businesses time to make adjustments to comport with the new guidelines, the IRS will begin enforcement of classifying service ...

    New Minimum Wage Poster Required

    All California employers should by now be using the new minimum wage law poster released by the California Industrial Welfare Commission. The poster serves to notify all employees of the planned minimum wage increases that will apply to most employees. Specifically, the poster states that the current $8.00 minimum wage will increase to $9.00 on July 1, 2014, and again to $10.00 on January 1, 2016, a 25% increase over 18 months. The poster also provides information on increased meal and lodging credits against wages that are available when an employer and employee voluntarily ...

    A few months ago I posted a blog article that outlined the basic rules on when a terminated or resigning employee must be paid his or her final wages in the State of California (“Payments Upon Termination of Employment: Is Anyone Still Confused?”).  However, while an employer may now understand when an employee must be paid, where and how should the payment take place? Should the payment be mailed to the employee who has abandoned his or her job or is it permissible for the employer to hold the final paycheck until it is contacted by the former employee? Can the final paycheck be delivered ...

    Over the next few years, the Occupational Safety and Health Administration (OSHA) will be phasing in certain safety requirements designed to align its Hazard Communication Standard with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals. These include new labeling elements and a standardized format for Safety Data Sheets (SDS) (formerly known as “Material Safety Data Sheets”). The changes will improve worker understanding of the hazards associated with hazardous chemicals in the workplace.

    The first compliance deadline ...

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