Posts in Staff Infection.
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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 ...

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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 ...

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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 ...

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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 ...

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Kelly O. Scott, Partner and head of Ervin Cohen & Jessup’s Employment Law Department, was recently quoted in the Law360 article entitled, “Hair Bias Bans Mean Employer Grooming Rules Need Review.” The article takes a closer look at the CROWN Act (Create a Respectful and Open Workplace for Natural Hair), which was signed into California law on July 3, 2019, by Governor Gavin Newsom. California and New York, which enacted a similar law, became the first two states to recognize the connection between racial discrimination and policies that limit appearances, including natural ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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.

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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 ...

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Q: I am a federal receiver. One of the assets in the estate is a small office building. I want to list it with a broker and sell it. My attorney told me that before I can sell the property through a broker I have to have the court appoint three (3) appraisers to appraise the property and then the sales price has to be at least two-thirds (2/3) of the appraised value. This is madness. Is there any way around this? Do I need a new attorney?

A: No, you don’t need a new attorney. Your attorney correctly informed you of some of the requirements for a federal receiver to sell real property at a private sale ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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In light of the substantial media attention given to sexual harassment issues in recent months, employers should anticipate new legislation on this topic. Senate Bill 396, however, was drafted before the increased focus on these issues began.  As of January 1, 2018, the enactment of the Transgender Work Opportunity Act (SB 396) makes California the first state to require that harassment trainings cover the topics of gender identity, gender expression and sexual orientation.

The Department of Fair Employment and Housing (DFEH) already required sexual harassment training for ...

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Most employers have heard of the Tax Cuts and Jobs Act, signed into law on December 22, 2017, and have contemplated what it may mean for them.  What has been largely overlooked, however, is a denial of deduction buried deep in section 162(q) of the Internal Revenue Code, which may have a significant impact on employers’ ability to settle lawsuits based on sexual harassment or sexual abuse.  Referred to as the “Harvey Weinstein Tax” (even though it is not a tax), section 162(q) provides:

  • No deduction shall be allowed … for (1) any settlement or payment related to sexual harassment or ...
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For periods of disability commencing on or after January 1, 2018, Assembly Bill 908 will increase the benefits provided to individuals in the Paid Family Leave and State Disability Insurance programs.  AB 908 raises the level of benefits from the previous level of 55 percent of an applicant’s wages to 60 or 70 percent of the applicant’s wages depending on the applicant’s income.  Low income employees are eligible for the maximum benefit level of 70 percent.  AB 908 also removes the prior seven-day period that employees had to wait in order to gain eligibility for family temporary ...

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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

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Effective as of January 1, 2018, Senate Bill 63 provides that employers with 20 or more employees within a 75-mile radius must grant an employee’s request to take up to 12 weeks of unpaid parental leave to bond with a new child within one year of the child’s birth, adoption or foster care placement.  In addition, employers must provide continuance of group health coverage during the leave period on the same basis as would have been provided had the employee continued to work.  These coverage costs can be recovered if the employee fails to return from the leave and the failure is for a reason ...

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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 ...

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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 ...

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Senate Bill 621 will become effective on January 1, 2018.  The bill amends Labor Code section 515.8 and is intended to address the ambiguities in Assembly Bill 2230 which was enacted last year.  AB 2230 had set a new earnings standards for designating private school teachers as exempt from overtime which were based on the employee earning a monthly salary equivalent to the greater of no less than the lowest salary offered by any school district or the equivalent of no less than 70% of the lowest schedule salary offered by the school district or county office of education in which the private ...

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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 ...

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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 ...

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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 ...

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

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 ...

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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.

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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 ...

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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 ...

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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 ...

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

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.

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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 ...

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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 ...

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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, which can be found at this LINK, 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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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We’ve written here 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 ...

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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 ...

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At the beginning of every year, the Equal Employment Opportunity Commission reports statistics on types of charges filed by employees and former employees over the course of the preceding year. These statistics help employers self-audit and focus on policies and practices they need to revisit to avoid becoming part of the following year’s statistics. The charge numbers released by the EEOC for 2014 show the following breakdowns by bases alleged in descending order.

  • Retaliation under all statutes: 37,955 (42.8 percent of all charges filed); nearly half of all charges filed!
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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 ...

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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 ...

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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 ...

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In order to comply with employment notice requirements under state and federal law, employers must be sure that all notices and posters they display for their employees are current and that they post any newly required notices. In 2014, a number of required notices and posters changed and a new requirement regarding a paid sick days’ notice went into effect, requiring that it be posted by January 1, 2015.

Attached are the following notices that changed in 2014, and the new paid sick day posting:

  1. California Minimum Wage Notice (updated in ...
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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

Posted in Staff Infection

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 ...

Posted in Staff Infection

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 ...

Posted in Staff Infection

I have noted some confusion among employers about what information must be given to employees regarding California State Disability Insurance (SDI) and when it must be provided. Employers are currently responsible for providing information on SDI to their employees through the following publications and on the following occasions: (1) “Notice to Employees: Unemployment Insurance/Disability Insurance Benefits” (form no. DE 1857A), a poster which advises employees of their right to claim Unemployment Insurance, SDI, and Paid Family Leave benefits and must be posted in ...

Posted in Staff Infection

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.

Posted in Staff Infection

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 ...

Posted in Staff Infection

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 ...

Posted in Staff Infection

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 ...

Posted in Staff Infection

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 ...

Posted in Staff Infection

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 ...

Posted in Staff Infection

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 ...

Posted in Staff Infection

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 ...

Posted in Staff Infection

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 ...

Posted in Staff Infection

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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