In recent years, California and federal agencies have highly scrutinized independent contractor status.  While that scrutiny may be abating somewhat on the federal level, it is still alive and well in our golden state.  In fact, the issue has been popping up quite a bit lately in the context of audits by the Employment Development Department (EDD).

Copyright conceptOne issue that trips up many employers involves a standard provision many companies include in their independent contractor agreements to protect their intellectual property rights.  The standard language involves a statement that any work product developed by the contractor is deemed a “work made for hire“ under the meaning of the US Copyright Act, and is therefore owned exclusively by the company.  In lay terms that means that the company retains the intellectual property rights to works developed under contract.

Unfortunately, under California Unemployment Insurance Code Section 686, that language also means that the contractor is presumed to be an employee.  Yes, that’s right.  Even if the contractor meets none of the common law factors of an employee (i.e. works independently, the company doesn’t control how they do the work, they are paid by project, etc.), and wants or even requests to be a contractor, California’s EDD requires that the contractor be deemed an employee for purposes of unemployment and state disability taxes.

When and if the company is audited, the EDD will ask for copies of all independent contractor agreements, and if those four words are in there, “work made for hire,” the EDD will find the contractor (or group of contractors) should be taxed as employees.  That translates into back taxes, penalties and interest, as well as the potential of a pretty unhelpful precedent for related legal claims.

There is a work-around for this language — to use very specific assignment language instead.  Companies can also be proactive and remind departing contractors that they are not entitled to unemployment, which might dissuade a contractor from inadvertently triggering an audit.

For companies that rely on independent contractors, including consulting and entertainment businesses, it is especially important to review your contractor agreements for those four “work made for hire” words.  Oh, and if you use independent contractors and don’t have a signed contractor agreement on file, well you have much more risk than just an EDD audit on this one four-word technicality!

 

Just over a month ago, I had the pleasure of presenting a webinar entitled: “2017 Update: Accommodating Employees With Disabilities.” You can download the slides from my presentation. There were over a hundred attendees (mostly HR professionals) and I wasn’t able to answer everyone’s questions. Since other readers of this blog may have similar questions, let me answer them now.

  • Q: If an employee needs a reasonable accommodation to work reduced hours (under 30 hours/week), are we required to keep them on our company-sponsored group benefit plans since the contract with our benefit providers states employees working a minimum of 30 hours/week are eligible to participate in the company-sponsored group insurance plans?
    A: No. An employee receiving a part-time schedule as a reasonable accommodation is entitled only to those benefits that other part-time employees receive. But if they lose medical coverage because of reduced hours, they may be entitled to continue benefits at group rates at their own expense pursuant to COBRA (for employers with 20 or more employees) or, if you’re in California, Cal COBRA (for two to 19 employees). Your benefits provider can give you details on the notice.
  • Q: Does a doctor’s note have to include a specific diagnosis of a certain condition? What if it is a chiropractor treating neck & shoulder pain. Is that a condition? Do they need to be more specific?
    A: No. If the need for accommodation is not obvious, and the applicant or employee hasn’t already provided “reasonable medical documentation confirming the existence of the disability and the need for accommodation,” the employer can require a doctor’s note addressing those issues. However, employers aren’t entitled to (and have no need to know) the specific diagnosis.
  • Q: What if the doctor says to provide an ergonomic chair and we already do that and the employee just doesn’t like the chair?
    A: Employees aren’t entitled to the accommodation of their choice. If the accommodation you offer (in this case, the chair) is adequate to accommodate the employee, you’ve met your obligations.
  • Q: Do we have to pay for parking that is closer when someone has a broken leg?
    A: This is a developing area of the law. Most courts have held that employers are not required to assist a disabled employee with getting to work. However, some courts have made exceptions, such as when an employee was able to get himself to work without assistance, but the employer transferred the employee to a location that is harder to get to because of a disability. If you’re not paying for other employees’ parking, I don’t see why you would have to pay for this one’s. But again, this is an unsettled area and the answer may depend on what jurisdiction you’re in.

I’ll be speaking on disability law again on December 4, 2017 – this time in a presentation intended for lawyers – at the Bar Association of San Francisco 2017 Disability Law Update. Krista Stone-Manista of Rosen Bien Galvan & Grunfeld LLP will provide the plaintiff’s perspective and I’ll provide the defense perspective on the last year’s developments in this area of law. You can get details, register for the event, or register for the webcast here.

The obligations to reasonably accommodate disabled workers and to engage them in the interactive process make this a unique area of law. If you practice in this area (or hope to), this is a great way to learn about the last year’s developments. See you there!

What a year it has been for harassment claims. The biggest year in the 22 years I have been practicing law. It seems that every day there is a big new headline or rejuvenated social media campaign, and someone else powerful losing their job over harassment allegations.

It is astounding to me that there are so many issues, even after AB 1825 was passed back in 2004 mandating harassment prevention training in California. That statute was expanded to require training on bullying and abusive conduct in 2015 (AB 2053). And now, as of January 1, 2018, it will need to include training on gender identity, gender expression and sexual orientation (SB 396).  With increased protections for transgender employees under California law, training to increase tolerance and understanding surrounding those issues will be particularly important.

Training certainly hasn’t fixed the harassment issue. But since training is mandatory for any business with over 50 employees, it might as well be meaningful. That is why I try to focus my training on real life stories and anecdotes that get people out of their own head (and point of view), and into the head of the victim. One of the main themes is always that harassment is based on perception, not intent; so it is possible to unintentionally harass someone, in fact it happens all of the time. For example, someone may think a compliment, sexual innuendo, or even a direct pass is flattery, but as the millions of “me too” posts reflect, that may not be how such conduct is perceived by the recipient.  Especially when there is a power differential at play.

David Schwimmer’s series of #that’sharassment videos provide realistic (and disturbing) examples of how harassment resonates in workplaces, and how it feels to the recipient.

In my career I have seen many talented and valuable managers lose their jobs due to inappropriate behavior that violated harassment policies. In my training, I tell all managers that doing a great job is not a defense to a harassment claim, and won’t protect them. That message certainly rings true based on recent headlines.

Illustration of a pot boiling overCalifornia employers can expect all of the news about harassment claims to keep bringing even more issues to the surface. The proverbial pot has been stirred.

And as current events have shown, taking prompt action to correct and prevent harassment is critical. There have been enough headlines about harassment in 2017, don’t let the next one be about your company.  Let’s put an end to the me too’s.

Governor Brown is in that final flurry of signing and rejecting bills sent to him at the end of the legislative session. Two of those bills that we have been following involved pay equity issues. The Governor approved one, and vetoed the other.

The Governor signed into law AB 168, which bars employers from asking job applicants about their previous salary. The stated goal of the legislation is to narrow the gender gap by preventing employers from basing offers on prior salary and thus, presumably, perpetuating historical discrimination. This will also remove the perceived gap in negotiating power between an employer and an employee who must disclose her (or his) prior salary.

The Governor used the veto pen on AB 1209 that would have required large employers (500 or more employees) to report “gender wage differentials” to the Secretary of State for publication. The legislation seemed to presume that a comparison of “mean wages” and “median wages” between men and women would result in a “differential.” This legislation would have been a powerful weapon in the hands of plaintiffs’ lawyers who are bringing cases under the California Fair Pay Act where employers bear the burden of proving that a “differential” is not the result of gender discrimination. The Governor expressed this very concern, explaining that ambiguities in the bill “could be exploited to encourage more litigation than pay equity.”

We will continue tracking and reporting on new legislation.

Starting January 1, 2018, new parents in California can rest a bit easier.  Governor Jerry Brown signed SB 63, officially titled the Parental Leave Act, into law yesterday which will impact employers with between 20 and 49 employees–in other words, employers who are not subject to the federal FMLA.  Mirroring the FMLA employee eligibility requirements, the new Act allows employees who work for a covered employer to take 12-weeks of unpaid, job-protected leave if they have worked a minimum of 1,250 hours in the 12-months prior to taking leave.  Employees can take leave only for the purpose of bonding with a newborn child, adopted child or foster child within a year of the birth or placement. Covered employers will also need to maintain health coverage under the same terms as an active employee. The Act also prohibits discrimination and retaliation against an employee for taking parental leave.

 

The Parental Leave Act does not require an employer to pay any portion of the leave but requires that employees be able to use accrued sick and vacation time.  Of course, a portion of the parental leave will be paid for employees who apply through the state’s Paid Family Leave program.  As previously blogged about by my colleague Jeff Polsky, San Francisco requires some employers to pay a remaining portion of parental leave and many companies are voluntarily choosing to enact paid parental leave policies. California joins New York and Rhode Island as the only states that require job-protected parental leave.

In 2009, a tragic accident occurred at a manufacturing plant in Orange County when a water heater exploded and killed two employees. The incident was duly investigated by Cal OSHA, and criminal charges were eventually brought against two individuals. Then the Orange County District Attorney decided to seek huge civil penalties against the employer under California’s Unfair Competition Law (“UCL”). The trial judge was prepared to allow the case to go forward, but the Court of Appeal issued a writ of mandate dismissing the case on the grounds that  federal OSHA law preempted, and did not allow an exception for, claims under the state UCL. The District Attorney appealed.

The California Supreme Court will now decide whether workplace safety issues can properly be characterized and challenged as “unfair competition”,  and, in any event, whether federal law preempts and prohibits state prosecutors’ attempts to extract monetary fines outside of the traditional OSHA enforcement mechanism. The case will be argued on November 7, 2017 in Sacramento. Fox Rothschild LLP is representing the employer.

In January of last year, we noted that the U.S. Supreme Court was poised to end compulsory union dues for California teachers and other public employees.  Then in February of last year, Justice Antonin Scalia died.  In March of last year, we blogged that the unions had breathed a big sigh of relief when the Supreme Court then split 4-4 in Friedrichs v. California Teachers Association, thus upholding the Ninth Circuit ruling denying the constitutional challenge to compulsory dues.  We say again, what a difference an empty chair makes.  Now, that chair is again occupied, and last week the Court announced that it will again take up the compulsory dues issue in Janus v. AFSCME, a case where the Seventh Circuit rejected an employee challenge to forced union dues. 

The Illinois plaintiffs in Janus argue that their First Amendment rights are violated when employers and unions take their money in the form of compulsory dues to fund political causes with which the employees may disagree.  Twenty states (including California) have allowed that practice for the past forty years since the Supreme Court decided Abood v. Detroit Board of Education.  Unions currently spend almost a billion dollars per year on their political agenda.  The consequences are thus huge as a five-Justice majority is now poised to sidestep or overrule Abood on the theory that almost everything a public sector union does is political, and that public employees cannot be forced  to put their money where their mouths aren’t.  A challenge to private sector compulsory dues in states that do not have right-to-work laws (e.g, California) cannot be far behind.

Tyreen Torner has just updated this CA State & Local PSL Chart. It summarizes the Paid Sick Leave laws for California and the eight cities that have their own rules (LA, SF, San Diego, Oakland, Berkeley, Santa Monica, and Emeryville).

Have you ever wondered how the accrual cap rules in Santa Monica compare to the accrual cap rules in San Diego? Of course you have! Don’t be embarrassed. Are you curious about how the definition of sibling in San Francisco compares to the definition of sibling in San Diego? Just look it up. It’s all right there at your fingertips. All thanks to Tyreen!

There are few things I love more in life other than dogs and beer. So when I saw this article I was delighted! A beer company, called BrewDog, has decided to pay its employees a week of new puppy leave dubbed “pawternity” or “mutternity” leave when an employee gets a new puppy or adopts a dog.

29893089 – dog drinking beer tosa inu cute puppy lying on the grass and drinking beer

In my adult life I have raised three puppies, and each time I took “puppyernity leave” for the first week the puppy was home. Many clients, colleagues, and even opposing counsel were super supportive (and requested pictures). For those who love pets, especially puppies, they understand how hard that first week can be, and how little sleep you get.  Raising a puppy (or adopting a dog) is a tremendously joyous time, but it is also a big time commitment!

On a related issue, many clients have asked me if the various paid sick leave statutes coming up in cities all over the country allow time off for sick pets. My answer has been “not yet.” Unless, of course, you live in the city of Emeryville, and need sick time to care for a guide dog, signal dog, or service dog.

So let’s give a shout out to San Francisco, the most liberal city in the US. Come on now. Get on the puppy train. Let’s get some puppy leave ordinance drafted and expand sick leave to include pets. Oh, and while you are at it, make it mandatory to allow pets into all work spaces! Ok, maybe that one can wait. But are you really going to let a beer company based in Glasgow do more for employees (and their canine babies) than a business in San Francisco?

 

The California Legislature has completed its work for this session, and three bills concerning employment issues survived the process and have been sent to Governor Brown for his consideration and possible signature. All three of these prospective laws have been labeled “job killers” by the California Chamber of Commerce which is lobbying heavily against the bills. Opposing the Chamber on these issues are the state’s unions and the organized plaintiffs’ bar.

AB 1209 would require employers to report wage payments by gender. Such reporting would fuel the fires of lawsuits under the state’s recent Fair Pay Act under which a “pay gap” is presumed to be a result of illegal discrimination.

SB 33 would outlaw arbitration clauses in certain consumer agreements. This legislation is another example of the hostility of the California courts and legislature to arbitration agreements, including in the employment context. This new bill seems contrary to binding U.S. Supreme Court precedent, and would likely not survive a judicial challenge.

SB 63 would extend employee parental leave protections to employers with 20 or more workers. Currently the law applies only to employers with 50 or more workers. This law would obviously be a burden on smaller employers.

We can expect many of the bills that did not pass the legislature this year – such as required predictive scheduling for retailers and restaurants (SB 878), and universal health care — to reappear in the next session. This ever-vigilant blog, of course, will keep you posted.