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California Employment Law

Commentary on Issues Facing California Employers

Employer’s Guide to Doing Business In California – Newly Updated

Posted in Advice & Counseling, Discrimination, Wage and Hour

We recently updated a 15-page brochure that summarizes California’s unique employment law requirements. And it’s completely free. Not just free in terms of no cost, but also gluten free, which is a big deal here in the Golden State. Just download the PDF and it’s all yours.

The guide provides clear summaries of California’s unique requirements for meal and rest periods, the Fair Pay Act, paychecks and wage statements, the various leaves of absence, and more. Spending a little time to determine if your company is sufficiently protected is a lot quicker and cheaper than waiting for a lawsuit and learning first hand why California ranks as the number one judicial hellhole.

Special thanks to Sahara Pynes for her work updating this guide and to Cristina Armstrong and Tyreen Torner for their work on prior versions.

Santa Monica Adopts Final Version of its Minimum Wage Ordinance

Posted in Advice & Counseling, Wage and Hour

When the Santa Monica City Council passed a minimum wage ordinance slated to go into effect on July 1, 2016, it also appointed a working group to review and recommend changes to the law. Those changes were approved by the council last night and help clarify the existing draft of the ordinance. The amended law will go to the City Council for a second reading on May 10th and will be effective 30 days later.

imagesHighlights of the ordinance include:

  • Minimum wage of $12.00 per hour effective July 1, 2017 for all Santa Monica employees, increasing to $13.25 on July 1, 2018, $14.25 on July 1, 2019 and $15.00 on July 1, 2020.
  • Phased approach to sick leave providing one hour of paid sick leave for every 30 hours worked, up to 40 hours through 2017 and 72 hours commencing January 1, 2018 for businesses with more than 25 employees. Smaller businesses need only provide 32 hours of paid sick leave through 2017 and 40 hours of paid sick leave commencing January 1, 2018.
  • Explicitly permits front-loading of paid sick leave which the initial draft of the ordinance failed to do.
  • Removes the requirement for employees to provide reasonable notice of the desire to take paid sick leave.
  • Removes the definition and regulation of “surcharges” while clarifying and expanding what constitutes a “service charge” that must be paid to employees.
  • Changes the hotel worker minimum wage to reflect the Los Angeles City Ordinance rate effective July 1, 2017. Notably, the Santa Monica hotel worker minimum wage applies to all hotel workers, regardless of the size of the hotel, unlike the LA ordinance which only applies to workers in hotels with 150 or more rooms. It also leaves unclear whether the paid sick leave provisions of the Santa Monica ordinance or the more expansive PTO provisions of the LA ordinance will apply.

In adopting this minimum wage ordinance, Santa Monica joins a growing list of cities in California to enact their own paid sick and minimum wage provisions.

The Upside of Employment Arbitration

Posted in Employment Litigation

A recently completed five-day arbitration with twenty-one witnesses, reminded me of the upsides of employment arbitrations (especially when I compare my situation to that of my colleagues who are preparing for jury trials in similar cases).

While we have written a lot here about the enforceability of class action waivers in such agreements, there are also many upsides to arbitration for single plaintiff actions, including:

  • There is a lot less litigation activity.  In our case, we handled discovery disputes with one conference call to the arbitrator.  No motions.  No extensive hearings.  Just a conference call and a ruling.
  • Witnesses did not need to appear at the arbitration in person.  Instead the parties agreed that many witnesses could appear by video, and we simply linked to them on a computer (often through the employer’s internal system or facetime), and projected them on a large TV monitor.  The witnesses could see us with a mobile camera.  This resulted in a lot of cost savings (no travel, no witness time waiting in the court’s hallway), and a lot less hassle for the witnesses (although we did have to coordinate to get them exhibits ahead of time).
  • The proceedings were a lot less formal, and in fact, the arbitrator (someone both sides selected based on her experience in employment litigation and her temperament) took extensive notes on her laptop.
  • During the arbitration hearing, motion practice was limited, and briefed by simple emails to the arbitrator with bullet point arguments, with a ruling by email the next morning.
  • There was no jury, which meant a lot less grandstanding and pandering, and a lot more focus on the disputed issues.

I don’t know what the outcome will be. And if it goes against my client it will be much harder to appeal.  That is certainly a risk.  But even so, the process was much more streamlined and efficient than litigation in the California court system.  I suspect the same case would have cost twice as much and lasted at least twice as long if it had been litigated in court.

All the more reason to consider arbitration agreements for your California workforce.

 

San Francisco Changes Compliance Schedule for Paid Parental Leave

Posted in Advice & Counseling

We told you already that San Francisco will require employers to provide eligible workers with fully paid parenting leave for up to six weeks. State benefits pay roughly 55% of the employee’s wages. Employers will be required to make up the difference.

Since it’s adoption, the City has already changed when the requirements take effect. Currently, the ordinance applies to employers with 50 or more employees on January 1, 2017. It applies to employers with 35-49 employees on July 1, 2017 and those with 20-34 employees on January 1, 2018.

In determining the size of the employer, don’t just count employees in San Francisco. An employer with a single, San Francisco employee will be covered if it has the necessary number of employees anywhere.

Are you thinking that six weeks’ paid time off is a good reason to have a baby? Don’t be too hasty. As of 2014, it supposedly cost $402,112 to raise a child in San Francisco.

You can read more about the ordinance here.

Fully Paid Parenting Leave Coming to San Francisco

Posted in Advice & Counseling

Earlier in the week, Jaemin Chang gave us this post that provided a historical perspective on San Francisco’s new paid parenting leave ordinance. Here’s some practical advice on the ordinance that appeared in our latest Labor & Employment Alert:

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On April 5, 2016, San Francisco adopted a Paid Parental Leave Ordinance. California already offers Paid Family Leave that provides up to six weeks of wage replacement benefits to workers who take time off to care for a seriously ill family member; or to bond with a newborn or a child recently placed through adoption or foster care. The existing state benefit, paid for with deductions from employees’ wages, covers approximately 55% of the employee’s wages, up to maximum benefit amount of $1,129 per week.

Under the new San Francisco ordinance, businesses with 20 or more employees (including part-time and temporary workers) will be required to pay the remaining 45% for employees taking the leave to bond with a newborn or recently placed child. The law takes effect January 1, 2017 for employers with 50 or more employees. Those with 35 to 49 employees join the party on July 1, 2017 and those with 20 or more employees on January 1, 2018.

To be eligible, employees must have worked with the employer for at least 90 days before the leave starts, must work at least 8 hours per week in San Francisco, and must spend 40% or more of their work time for the employer in San Francisco. The employee may take the time off anytime within the first year after the child is born or is placed through foster care or adoption.

Employers seeking more information on this new ordinance are encouraged to contact any of the labor and employment attorneys in our San Francisco office and to monitor further developments on this California Employment Law Blog.

New SF Paid Parental Leave Law & A Historical Retrospective

Posted in Advice & Counseling, Articles

The following post was contributed by Jaemin Chang.

We have come a long way!

I had the pleasure of attending the dedication of former SF Mayor and State Assembly Speaker Willie L. Brown, Jr.’s archive to San Francisco State University Library on April 4, 2016.  One of his manila folders was labeled “Labor/Employment,” and an article from 1974 entitled “California Upheld on Denial of Disability Pay for Pregnancy” sat on the top.

Archive article

This article, written by Linda Mathews, discussed the U.S. Supreme Court case, Geduldig v. Aiello, 417 U.S. 484 (1974).  U.S. Supreme Court Justice Ruth Bader Ginsburg (a law professor at Columbia at the time) was quoted as saying, “This decision has terrible implications” for working women, especially low income earners.

The Geduldig case challenged California’s disability insurance system which denied temporary disability pay to women with normal pregnancies. It is difficult to imagine that our State championed denial of coverage to pregnant women, but that was the convention of our thinking back in 1974.

Fast forward to the present. California has some of the most expansive laws covering pregnancy disability and paid family leaves.  San Francisco being at the forefront passed an ordinance on April 5, 2016, requiring employers to pay up to 6 weeks of fully paid time off for new parents.  California is already one of the few states that offer paid parental leave, where workers receive 55% of their pay from the state’s Worker’s Compensation insurance program. Under the new ordinance, San Francisco employers are required to fund the remaining 45% of the pay for up to six weeks.

This new law will take effect January 2017:  employers with 50 employees or more must comply by January 1, 2017, and employers with 20 or more employees must comply by July 1, 2017.

 

JC WB Photo

CA High Court Declares that “Suitable Seating” Is Whatever’s “Reasonable”

Posted in Advice & Counseling, Class Actions, Wage and Hour

With the same clarity as the Sacramento River delta at high tide, the California Supreme Court ruled yesterday that employers must provide suitable seating for all employees in California when it is “reasonable” to do so.

In Kilby v. CVS Pharmacy, Inc. (pdf),*  the Court was called upon to interpret language in the Industrial Welfare Commission wage orders saying that: “working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” That language was largely ignored for decades until the Private Attorneys General Act created a vehicle for plaintiffs to bring representative actions for enforcement. The cases have worked their way up in the appeals process, and we now have what purports to be  the final word:

If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for.

The Court says that whether seating is “reasonably required” is always a question of fact involving a “totality of the circumstances approach.” The result in any given case will thus be entirely unpredictable, and summary judgment will be nearly impossible. To make things worse, “[a]n employer seeking to be excused from the requirement bears the burden of showing that compliance is infeasible….” This burden presumably also applies to “whether the physical layout [of the workplace] may reasonably be changed to accommodate a seat.” This amounts to “reasonable accommodation” to an entire class of employees (e.g., cashiers and bank tellers) who now have a “right” to sit.

The employer’s “business judgment as to whether a job requires standing” is but one factor to be considered, and it “does not allow employers unlimited ability to arbitrarily define certain tasks as ‘standing’ ones, undermining the protective purpose of the wage order.”

California employers must now brace for what may be an onslaught of class-like cases under PAGA, demanding “suitable seats” under the IWC wage orders, with potentially massive civil penalties, and, of course, attorneys’ fees awards. Few employers will be able to sit this one out.

*In the interests of full disclosure, Fox Rothschild LLP filed an amicus brief in this case on behalf of the California Retailers Association and the Retail Industry Leaders Association.

CA’s Fair Pay Act: Lessons from the US Women’s Soccer Team’s Lawsuit

Posted in Discrimination, Wage and Hour

The recent lawsuit by five members of the US Women’s National Team against U.S. Soccer has received considerable media attention. Today’s post looks at what the lawsuit teaches us about California’s Fair Pay Act.

Before the Fair Pay Act took effect on January 1, 2016, the law required equal pay for equal work. From a defense perspective, you can argue that the women couldn’t meet that standard. You could argue that the stars of the women’s team, as brilliant as they are, don’t have the speed and power needed to earn a spot on the men’s team.

With the Fair Pay Act, however, you don’t need equal work. You need substantially similar work. For that inquiry, you look at “a composite of skill, effort, and responsibility” and whether the work is “performed under similar working conditions.” I suspect the women would meet that standard.

Disclaimer No. 1: By saying they couldn’t make the men’s team, I’m not denigrating the accomplishments of the US Women’s National Team. They’ve been the best in the world. Those of us who still talk about how close we came to an intramural high school basketball championship are in no position to cast aspersions.

Disclaimer No. 2: I’m not saying the women don’t deserve better treatment and higher pay. I’m just using this to illustrate how the law has changed. While I suspect the dispute will be resolved through negotiation, perhaps in the collective bargaining process, I’m rooting for the USWNT to score this goal.

Tips From Millennials on How to Handle Baby Boomers at Work

Posted in Advice & Counseling

So much has been written by baby boomers about their frustration with the millennial workforce. At every Human Resources conference I attend, there are sessions to teach the boomers how to appropriately motivate, manage and reward millennials.

But what about how to handle the baby boomers? A recent Op-Ed in the Los Angeles Times by Ann Friedman addressed that very issue, and amused me considerably in the process.

In this article, Friedman had millennials (all under age 33) share their tips for “handling older employees’ fragile egos and hatred of technology” via Twitter. Some of my favorite tips included:

  • “If you find yourself demonstrating a new digital tool … NEVER say, this is so easy” because for boomers it isn’t.
  • “Ask them how they did it – baby boomers love to be heard and admired.”
  • Even if they point out they have children your age, “under no circumstances should you point out that you have parents their age.”
  • And my personal favorite “If you are tempted to roll your eyes, carefully fix your gaze on your computer until the feeling has passed.”

For me, in addition to providing several hearty chuckles, this article was a good reminder to always view things from someone else’s perspective. Instead of complaining about millennials (a favorite boomer pastime), maybe we should spend some time trying to understand the workplace from their point of view.

Unions Breathe Big Sigh of Relief Over Compulsory Dues

Posted in Labor Law

Public employee unions dodged a bulldozer yesterday when the U.S. Supreme Court announced that it had deadlocked 4 to 4 in Freidrichs v. California Teachers Ass’n, the case challenging the constitutionality of compulsory union dues for public employees. On January 12, we wrote that the Supreme Court was poised to end compulsory dues for California teachers, reversing the 9th Circuit decision in Freidrichs and overturning 40 years of the Court’s own precedent. That, of course, was before the death of Justice Antonin Scalia on February 13.

Oh, what a difference an empty chair makes. Scalia was certain to be the fifth vote in favor of ending compulsory dues on First Amendment grounds. Now, with a 4-4 tie, the 9th Circuit opinion stands, and in California (along with 20 other states) public employee unions can continue to force payment of dues under threat of firing.

The unions know that without government coercion, it will be impossible to maintain the cash flow and political influence they currently enjoy. In those states where compulsory dues have been abolished, union collections have dropped by as much as half when dues become voluntary. For now, however, the unions can breathe easy. It will take at least a few years for the issue to percolate back to the Supreme Court, and the result at that time will likely depend on which president fills the empty chair.