As regular readers of this blog know, we place a huge premium on being appropriate. And what is more appropriate than following up a Black Friday post with a Cyber Monday post?
Cyber Monday is supposedly the biggest internet shopping day of the year. So while people responsible for cyber security know that it’s a year-round concern, this seems like an appropriate (there’s that word again!) time to discuss steps companies can take to protect themselves.
But wait! Wouldn’t it be more appropriate for a California Employment Law blog to leave that highly technical subject to those with greater experience? Of course it would. Fortunately, our friend (and firm Chief Privacy Officer) Mark McCreary over at the Privacy Compliance and Data Security blog has that covered. In fact, he’s done a six-part series on the topic that starts here and continues here, here, here, here, and here. It takes you through everything from prevention to postmortem.
Now please excuse me while I figure out how to continue the holiday theme with a Pearl Harbor Day post.
In 2008, a 34-year-old retail worker was trampled to death when Black Friday shoppers in Long Island literally busted through the doors to claim their holiday bargains. Since then, OSHA has issued Crowd Management Safety Guidelines for Retailers.
- It’s wrong – perhaps illegal – to expect that shoppers will be able to control themselves enough to avoid destroying whatever stands between them and the best bargains.
- When counting your blessings this Thanksgiving, don’t forget to include the increased availability of online shopping, where the risk of getting trampled by Long Island shoppers at 5 a.m. is minimal.
For more concrete (i.e. less sarcastic) guidance, you can access the OSHA guidelines here. Happy Thanksgiving!
We recently updated a 15-page brochure that summarizes California’s unique employment law requirements. And it’s completely free. No postage and handling. No commitments to buy more. No need to provide your e-mail or credit card information. Just download the pdf and it’s all yours.
Spending a little time to determine if your company is sufficiently protected is a lot quicker and cheaper than waiting for a lawsuit, even if California has supposedly dropped to #2 on the list of judicial hellholes.
Special thanks to Tyreen Torner for her work updating this guide and Christina Armstrong for her work on prior versions.
I’ve just ordered my family’s holiday cards and started making my gift lists. I know that the holidays will creep up on us quickly and before I relax with a gingerbread latte, there is work to be done. I wanted to share my list of the five HR-related to-dos California employers should consider before the end of this year.
- Review Your Independent Contractors: This year’s numerous court decisions and administrative guidelines make it virtually impossible for companies to categorize workers as independent contractors. Now is a good time to review who you are still paying via Form 1099. January 1 is the best time to convert misclassified independent contractors to W-2 employees so that tax paperwork will be as clean as possible and hopefully not raise any concerns. When in doubt, classify workers as employees and talk to your attorney to help craft the appropriate communication. For classification criteria if you choose to continue to work with contractors, I invite you to read a Law360 article written by my colleague Colin Dougherty, entitled “Nothing New in DOL Worker Misclassification Memo.”
- Ensure Employees Are Properly Classified: While the DOL’s proposed amendments to increase the salary threshold for employee overtime exemptions are usually ignored by CA employers, if these amendments pass, they will indeed impact many CA workplaces. So, it is worth taking a look at questionably classified employees whose salaries are below the proposed threshold. Effective January 1, 2016, this amount in California will increase to approximately $800 per week ($41,600 per year) when California’s minimum wage increases to $10.00 per hour. The new federal proposal raises that amount to $970 per week ($50,440 annually). There is also a proposed increase in the “highly compensated” exemption from $100,000 to $125,148 annually. You may have a suspicion that some of your employees within this salary band should be earning overtime, in which case, the new year is as good a time as any to minimize overtime liability and reclassify those employees.
- Organize Personnel Files: Consider this a second chance at spring cleaning. At the end of each year, take the time to organize your employee files and I-9 Forms and separate the terminated employees from the active. Keep I-9 files separate from employee personnel files and maintain them for one-year post-termination. Keep terminated employee personnel files for three years after the date of separation. Once that retention requirement has been met, grab the shredder.
- Review Your Paystubs: Why start another year wondering if you might get hit with the PAGA suits that are plaguing other California employers? Don’t assume your third-party payroll provider has it covered. Especially with the new reporting requirements on paid sick leave, best practices demand that accounting, human resources and payroll administrators are collaborating to ensure compliance. Luci Li recently posted a go-to list of what must be included on every employee’s regular wage statement.
- Analyze Compensation Practices: The California Fair Pay Act goes into effect January 1st so your policies and practices need to be in compliance. Evaluate employees by job duties, not title, to ensure men and women are compensated equally. If you find disparity, either fix it or be sure you can justify it. Jeff Polsky recently posted a rundown on the Fair Pay Act and what factors can legitimately be used to justify pay disparities.
Well, until the year-end close-out phone calls start rolling in, I think I’ll head over and get that latte… in a red cup, of course.
The Bar Association of San Francisco is presenting a seminar: 2015 Disability Employment Law Updates. It will take place on December 8, 2015, from noon to 1:30, at the BASF Conference Center, 301 Battery St., 3rd Floor, San Francisco, CA 94111.
Krista Stone-Manista of Rosen Bien Galvan & Grunfeld LLP will present the plaintiff’s perspective and I’ll present the defense perspective. Jinny Kim, Director, Disability Rights Program, Legal Aid Society – Employment Law Center will moderate. The program is approved for 1.25 hours of of MCLE in Elimination of Bias.
You can register to attend the event in person here or to receive the webcast here. If you’d like a printable flyer, you can download it here (pdf). I hope to see you there!
You terminate an employee. Before you disable that employee’s login password, he downloads sensitive information to take with him. Ideally, that information is encrypted and can’t be read on any outside computer. But you never know what a capable hacker can do and once the information has been taken, the damage might be irreversible. The Computer Fraud and Abuse Act (CFAA) may be one way for employers to recover for their economic harm. Under the CFAA, an employee or former employee may be liable for obtaining information through intentional unauthorized access to the employer’s computer. Generally, if the person intends to defraud the employer and obtains any information worth $5,000 or more within a 1 year period, or causes damage or loss to the computer system, that person is liable for the employer’s economic harm.
Recently at least one California court recognized that CFAA liability does not require circumvention of any technological barriers (i.e. hacking). CFAA liability can arise when an employee or former employee’s log-in information is still functioning, but: 1) the employee has lost permission to access the employer’s systems (i.e. his employment ended), 2) knows he does not have permission, and 3) logs in to obtain information anyway.
The CFAA is not limited to employees or former employees. It extends to contractors and anyone who once had authority to access the employer’s computer system but no longer has that privilege.
Takeaway: The best way to avoid employee theft of data and digital information is to have sophisticated barriers to prevent unauthorized access. It is also a good idea to terminate a former employee’s log-in rights as soon as possible after their employment ends. While prevention is key, it is not uncommon for companies to suffer data breaches at the hands of their employees. If the employer suffers such an employee theft of proprietary information, the employer can recover damages from that employee under the CFAA.
To stay up to speed in this area, check out Fox Rothschild’s Privacy Compliance and Data Security Blog.
U.S. employers are, of course, required to verify that the workers they hire are authorized to work here. AB 622, which takes effect January 1, 2016, will make it harder for California employers to do so.
Three federal agencies (the Citizenship and Immigration Service, the Department of Homeland Security, and the Social Security Administration) administer the E-Verify system as a resource for employers. However, AB 622 will prohibit employers from using E-Verify to check the status of existing employees or employees who haven’t received an offer, unless doing so is required by federal law or as a condition of receiving federal funds. Employers can still use it to check the status of workers who’ve received a conditional offer of employment (i.e., an offer conditioned on the employee presenting proof of his or her right to work in the U.S.).
In addition, if an employer using the E-Verify system receives notice from Homeland Security or the Social Security Administration that the information from the employee doesn’t match what’s in the federal database, the employer must notify the employee of that fact as soon as practicable. The penalty for each violation of the new statute, which will be Labor Code § 2814, is a hefty $10,000.
Takeaways: Employers still need to verify the status of workers they hire and E-Verify provides a convenient mechanism to do so. But unless required by federal law or as a condition of receiving federal funds, employers can only check the status of applicants who’ve received an offer but have yet to start work. In addition, the employer needs to notify the worker promptly if the E-Verify system doesn’t confirm that an individual is authorized to work in the U.S.
Just what we needed: another legal hurdle for California employers to clear with excessive penalties for noncompliance.
Tomorrow is Halloween. So I’m rerunning this post about the employment rights of monsters. Some may say I’m being lazy. But in the blogging world, it’s called “repurposing content.” Speaking of Halloween, do you know what scares me? People who use bizspeak cliches like “repurposing content.” Know what else I find scary? According to this Above the Law item, employers in California are 42% more likely to be sued by their employees than employers in other states.
California’s Fair Pay Act has the potential to be a game-changer. Effective January 1, 2016, it will be illegal for an employer in California to “pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions ….”
As Elaine Reardon, Ph.D., explained in Law360 (subscription required), the fact that the statute calls for a “composite” of these variables implies that each won’t be examined separately. Analyzing a composite of variables requires statistics, and statistical analysis requires that employers quantify these factors. It won’t be enough to say candidate A works in harsher conditions than candidate B and that’s why A is paid more. The CFPA requires statistical analyses, not subjective comparisons. If anyone doubts that, just look at the requirement that employers prove that legitimate factors account for the entire wage disparity.
These are daunting challenges, especially since it will be years before the CFPA’s requirements are clarified through court rulings, amendment, or regulation. However, with the statute taking effect in just over 60 days, employers need to start tackling these issues now and it makes sense to protect that analysis with the attorney-client privilege.
If you’d like to review our earlier Fair Pay Act posts, I wrote here about whether the new law will open the proverbial floodgates of litigation and here about steps employers should take to prepare. In addition, Nancy Yaffe and Sahara Pynes wrote this alert explaining the new law’s requirements.
Equal pay for equal work is a principle that is easy to understand and apply. But California’s new Fair Pay Act requires equal pay for substantially similar work. How do you know what is “substantially similar”? You look at “a composite of skill, effort, and responsibility” and whether the work is “performed under similar working conditions.” That, dear reader, is a pretty vague standard. It’s impossible for an employer to know with certainty that the conclusion it reaches will be the same that a court will reach.
So will this new law open the proverbial floodgates of litigation? That threat gets made far more often than is warranted. It may be warranted here, however, for these reasons:
- Vague standards lead to more litigation. Quite simply, there’s more to argue about.
- Normally, an employee plaintiff bears the burden of proof. Yet the Fair Pay Act puts much of the burden of proof on employer defendants. The employer has to prove that a wage differential is based on one or more legitimate factors, that the factors relied on are applied reasonably, and that those factors account for the entire wage disparity. When employees don’t have the burden of proof, it’s much easier for them to get into court and stay there.
- The law provides for double damages (the wage disparity plus an equal amount for liquidated damages) plus attorneys’ fees.
What can employers do to prepare? I wrote a post on that topic and my colleagues Sahara Pynes and Nancy Yaffe wrote this Alert. While the new law takes effect January 1, 2016, the time to prepare is now, before the floodwaters get too high.