Don’t Ask About Employee Salaries

Beginning January 1, 2018, employers cannot ask about employee salaries. Governor Brown signed AB-168, prohibiting employers from asking applicants about their prior compensation. Over the last few years, California strengthened its gender and racial equality laws. Part of that shift includes forces employers away from compensation history as a basis for determining current pay.

New Rules for Employee Salaries

Under newly enacted Labor Code 432.3:

  • Employers cannot rely on past employee salaries to determine eligibility for employment or what salary to offer.
  • Employers cannot directly or indirectly “seek salary history information, including compensation and benefits, about an applicant for employment.”
  • If asked, employers must provide the pay scale for a position to an applicant applying for employment.

The law applies to “all employers, including state and local government employers and the Legislature.” Employees are free to disclose their past salary information. If an applicant “voluntarily and without prompting discloses” salary history information to a prospective employer, the employer can consider the information in determining the salary for that applicant.

I suspect we will see some lawsuits around whether an applicant “voluntarily and without prompting” disclosed employee salaries or if an employer “silently coerced” the disclosure.

Employers can take some solace because a violation of the new employee salaries law is not misdemeanor like other similar provisions in the Labor Code.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, contact an attorney.

Your use of this blog creates no attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm establishes no attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Berkeley, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

 

Baby Bonding Leave Basics

Earlier this month, Governor Brown signed AB 63, requiring employers with 20 or more employees to provide baby bonding leave. The new baby bonding leave law becomes operative on January 1, 2018. Employers with 50 or more employees already provide baby bonding leave under the CFRA. The new law has important twists to note.

Baby Bonding Leave Applies to Employers with 20 or More Employees

Employers must allow eligible employees to take up to 12 weeks of parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement.

Like the California Family Rights Act, the employee must have worked at least 1,250 hours during the previous 12-month period and must work “at a worksite in which the employer employs at least 20 employees within 75 miles.” The 20 or more employees includes part-time and full-time employees (not just “full-time equivalents”).

Employers must affirmatively guarantee employment in the same or a comparable position upon the termination of the leave on or before the leave begins. Otherwise “the employer shall be deemed to have refused to allow the leave.”  Employers should provide a written notice guaranteeing the employee’s position.

Employees may use “accrued vacation pay, paid sick time, other accrued paid time off, or other paid or unpaid time off negotiated with the employer, during the period of parental leave.” Employees may also be eligible for state disability benefit payments through the EDD as part of the Paid Family Leave. In San Francisco, some employers may have to subsidize the disability benefit payments.

Medical Benefits Under New Baby Bonding Leave

Like CFRA, FMLA and PDL, employers must “maintain and pay for” health insurance benefits “at the level and under the conditions that coverage would have been provided if the employee had continued to work in his or her position for the duration of the leave.” If the employer normally pays all or a portion of the health benefits, the employer must continue that coverage during the baby bonding leave. The employer can recover the cost of the health benefits if the employee does not return to work after the leave. However, if the employee does not return because of a “continuation, recurrence, or onset of a serious health condition or other circumstances beyond the control of the employee,” then the employee is not responsible for repaying the health plan costs.

The new law does not apply to employees covered by the federal Family Medical Leave Act or the California Family Rights Act. Given the similarities in the laws, cases interpreting FMLA and CFRA will be used in cases involving SB 63.

Employers with 20 to 49 employees should modify their handbooks to include information about the new paid parental leave law.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, contact an attorney.

Your use of this blog creates no attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm establishes no attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Berkeley, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

New Employment Laws for 2017

Once again the California Legislature has been hard at work passing new employment laws. The following is the “final” list of bills signed by the governor. All bills will take effect on January 1, 2018, unless otherwise specified in the bill.

Many of the bills are only applicable to specific industries. Others apply to all employers in California. With so many new bills, I can’t write an in depth analysis of all 84 bills. I will do my best over the upcoming weeks to discuss those bills that will impact the majority of employers in California–and those I find most interesting. For now, you just get the list with a link so you can read the bill yourself.

New Employment Laws for 2017

  • AB 20  – Public employee retirement systems: divestment: Dakota Access Pipeline.
  • AB 31  – Whistleblowers: California State Auditor.
  • AB 46  – Employers: wage discrimination.
  • AB 55  – Hazardous materials management: stationary sources.
  • AB 83  – Collective bargaining: Judicial Council.
  • AB 168  (D-Stockton) Employers: salary information.
  • AB 199  – Public works: private residential projects.
  • AB 226  – Teacher credentialing: spouses of active duty members of the Armed Forces: expedited application process.
  • AB 260  – Human trafficking.
  • AB 317  – Napa County: farmworker housing.
  • AB 326  – Public works: prevailing wage rates: wage and penalty assessments.
  • AB 415  – CalFresh: employment social enterprises.
  • AB 450  – Employment regulation: immigration worksite enforcement actions.
  • AB 491  – California Civil Liberties Public Education Act.
  • AB 500  – Employee codes of conduct: employee interactions with pupils.
  • AB 512  – Public employees’ retirement: safety members: industrial disability retirement.
  • AB 563  – CalFresh Employment and Training program.
  • AB 579  – Apprenticeship: fire protection: firefighter pre-apprenticeship program.
  • AB 581  – Apprenticeships on public works projects.
  • AB 618  – Local Agency Public Construction Act: job order contracting: school districts: community college districts.
  • SB 658  – Jury selection.
  • AB 670  – Classified employees: part-time playground positions.
  • AB 699  – Educational equity: immigration and citizenship status.
  • AB 736  – State teachers’ retirement: executive positions.
  • AB 828  – Civil actions: fee recovery.
  • AB 848  – Public contracts: University of California: California State University: domestic workers.
  • AB 851  – Local agency contracts.
  • AB 978  – Financial institutions: Iran sanctions.
  • AB 1008  – Employment discrimination: conviction history.
  • AB 1066  – Agricultural workers: wages, hours, and working conditions.
  • AB 1102  – Health facilities: whistleblower protections.
  • AB 1111  – Removing Barriers to Employment Act: Breaking Barriers to Employment Initiative.
  • AB 1149  – Workforce investment boards: funding.
  • AB 1221  – Alcoholic beverage control: Responsible Beverage Service Training Program Act of 2017.
  •  AB 1222  – Vehicles: electronic wireless communications devices.
  • AB 1223  – Construction contract payments: Internet Web site posting.
  • AB 1243  – Public Employees’ Retirement System: replacement benefits plan.
  • AB 1325  – State teachers’ retirement.
  • AB 1424  – University of California: Best Value Construction Contracting Program.
  • AB 1455  – The California Public Records Act: exemptions.
  • AB 1687  – Customer records: age information: commercial online entertainment employment service providers.
  • AB 1692  – County employees’ retirement: Contra Costa County.
  • AB 1701  – Labor-related liabilities: original contractor. With a signing message.
  • AB 1710  – Prohibited discrimination against service members.
  • AB 1840  – State agencies: interns and student assistants: hiring preference.
  • AB 1875  – State teachers’ retirement: option beneficiaries: trusts.
  • AB 1918  – Teacher credentialing: temporary certificates.
  • AB 2025  – Barbering and cosmetology: labor law education requirements.
  • AB 2036  – Online child care job posting services: background check service providers: enforcement.
  • AB 2105  – Workforce development: allied health professions.
  • AB 2230  – Overtime compensation: private elementary or secondary academic institutions: teachers.
  • AB 2296  – Digital signatures (applicable to DFEH online right-to-sue requests).
  • AB 2337  – Employment protections: victims of domestic violence, sexual assault, or stalking.
  • AB 2375  – Public Employees’ Retirement System: omnibus bill.
  • AB 2376   – County employees’ retirement: Los Angeles County.
  • AB 2899  – Minimum wage violations: challenges.
  • SB 24  – California Public Employees’ Pension Reform Act of 2013: joint powers authority: employees.
  • SB 31  – California Religious Freedom Act: state agencies: disclosure of religious affiliation information.
  • SB 33  – Arbitration agreements.
  • SB 63  – Unlawful employment practice: parental leave.
  • SB 112  – State government.
  • SB 156  – Military and veterans: transition assistance: citizenship.
  • SB 179  – Gender identity: female, male, or nonbinary.
  • SB 201  – Higher Education Employer-Employee Relations Act: employees.
  • SB 225 – Human trafficking: notice.
  • SB 258 – Cleaning Product Right to Know Act of 2017.
  • SB 266 – Armed service members: consumer loans.
  • SB 282 – CalFresh and CalWORKs.
  • SB 285 – Public employers: union organizing.
  • SB 295 – Farm labor contractors: sexual harassment prevention.
  • SB 306  – Retaliation actions: complaints: administrative review.
  • SB 310  – Name and gender change: prisons and county jails.
  • SB 334  – Enhanced industrial disability leave.
  • SB 396  – Employment: gender identity, gender expression, and sexual orientation.
  • SB 418  – Public contracts: skilled and trained workforce.
  • SB 490  – Wages: Barbering and Cosmetology Act: licensees.
  • SB 514   – California Health Benefit Exchange.
  • SB 597  – Human trafficking: victim confidentiality.
  • SB 728  – State public employees: sick leave: veterans with service-related disabilities.
  • SB 731  – Public school employees: former or current members of the Armed Forces of the United States or California National Guard: leave of absence for illness or injury.
  • SB 776  – Corrections: veterans’ benefits.
  • SB 1015  – Domestic work employees: labor standards.
  • SB 1241  – Employment contracts: adjudication: choice of law and forum.
  • SB 1353  – State Teachers’ Retirement System: funding.

A special Thank You goes out to Phyllis Cheng for her tireless work throughout the year putting together notices of the new employment laws and the cases interpreting the laws. She does a great job and I truly appreciate her work on behalf of the State Bar of California’s Labor and Employment Section.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

 

New Health Care Expenditure Rates for San Francisco Employers

San Francisco updated its Health Care Expenditure rates for 2018. Under San Francisco’s Health Care Security Ordinance (HCSO), covered employers must make qualifying Health Care Expenditures on behalf of all covered employees every quarter. Covered employees are those who have been employed for more than 90 days and who regularly work at least 8 hours per week in San Francisco.

2018 Health Care Expenditure Rates for San Francisco Employees

The rates change depending on the size of the employer. A “Large” employer employs 100+ employees. “Medium” employers are non-profits with 50 to 99 employees and other companies with 20 to 99 employees. “Small” employers are non-profits with less than 50 employees and other companies with less than 19 employees.

Effective January 1, 2018, Large Business must spend $2.83/hour and medium-sized Businesses must spend $1.89/hour. Small businesses are still exempt from the Health Care Expenditure requirements.

Employers must also:

  1. Maintain compliance records.
  2. Post an HCSO Notice in all workplaces with covered employees.
  3. Submit an Annual Reporting Form to the OLSE by April 30th of each year.

 

You can download the HCSO Compliance Form here. You can review the updated “Rules” here.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties

Retaliation Claims Get Stronger

Governor Brown just signed SB-306, which significantly strengthens retaliation claims. Employers cannot discharge, discriminate, retaliate, or take adverse action against employees because they engaged in specified protected conduct. Aggrieved employees can seek reinstatement and reimbursement for lost wages and work benefits. Employees can file claims with the Labor Commissioner or pursue a case in court.

Retaliation Claims by Labor Commissioner

Under amdned Labor Code 98.7, the Labor Commissioner can pursue retaliation claims even if no one complains.

The division may, with or without receiving a complaint, commence investigating an employer, in accordance with this section, that it suspects to have discharged or otherwise discriminated against an individual in violation of any law under the jurisdiction of the Labor Commissioner.

The Labor Commissioner can petition the court for injunctive relief, including reinstatement. The court must order injunctive relief if “reasonable cause exists to believe that an employee has been discharged or subjected to adverse action for raising a claim of retaliation or asserting rights under any law under the jurisdiction of the Labor Commissioner.” The court must consider the “chilling effect” on other employees when determining the appropriate injunctive relief.

An employer that refuses to comply with the injunctive relief can be fined “one hundred dollars ($100) per day for each day the employer continues to be in noncompliance with the court order, up to a maximum of twenty thousand dollars ($20,000)

Retaliation Claim Process

New Labor Code section 98.74 describes specific timelines and processes for retaliations claims by the Labor Commissioner. The Labor Commissioner issues a citation in writing, describing the nature of the violation and the amount of wages and penalties due. The citation must also include any and all appropriate relief, such as cease and desist orders, rehiring or reinstatement, reimbursement of lost wages and interest thereon, and posting notices to employees.

Employers have 30 days to request  hearing, or the citation becomes final. The hearing must proceed within 90 days. There is no mechanism for conducting discovery before the hearing, and no limit on how short or how long a hearing can last. The decision must be issued within 90 days of the conclusion of the hearing. The decision must contain a statement of findings, conclusions of law, and an order.

Employers dissatisfied with the results can file a writ of mandate with the superior court within 45 days. Employers must also obtain a bond “equal to the total amount of any minimum wages, liquidated damages, and overtime compensation” owed.  The bond does not have to include penalties. The order becomes final when no writ is filed.

Employers refusing to comply with a final order are subject to penalties of $100 per day per employee, up to $20,000. The affected employees receive the penalties.

Retaliation Claims by Employees

SB-306 allows employees bringing retaliation claims to include requests for injunctive relief. Courts are directed to issue injunctive relief (i.e., reinstatement) when “reasonable cause exists to believe a violation has occurred.”

The court is must consider the “chilling effect” on other employees.

The new law will go into effect January 1, 2018. You can read the full text of the bill here.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties