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

Berkeley Minimum Wage Increase

Berkeley Minimum Wage Increase

Minimum wage increases are all the rage. Berkeley, CA is no exception.  Effective October 1, 2017, Berkeley minimum wage increases to $13.75 per hour (from $12.53). It will increase again on October 1, 2018 to $15.00 per hour, and continue to increase each year. Because Berkeley has a higher minimum wage rate than the one set by California or the Federal government, the higher local minimum wage rate takes precedence and must be paid to all employees covered by the local minimum wage regulation. Berkeley’s minimum wage ordinance applies to any employee who “In a calendar week performs at least two (2) hours of work for an Employer within the geographic boundaries of the City.”

Employers must post the Berkeley Minimum Wage Poster, which you can download here. The same poster talks about Berkeley’s new Paid Sick Leave Ordinance and Berkeley’s Family Friendly and Environment Friendly Workplace Ordinance.

Berkeley Paid Sick Leave

In addition to the Berkeley minimum wage increase, Berkeley also has its own Paid Sick Leave Ordinance the becomes effective October 1st. The Paid Sick Leave Ordinance (PSL) requires all employees earn 1 hour of paid sick leave for every 30 hours worked. “Small Business” employers with fewer than 25 employees may cap an employee’s accrued paid sick leave at 48 hours and may cap the use of paid sick leave to 48 hours per year. Employers with 25 or more employees may cap an employee’s accrual of paid sick leave at 72 hours, but may not cap how much paid sick leave an employee uses in a calendar year. All Employers, regardless of where they are located, must provide paid sick leave to their Employees who perform at least 2 hours of work per week within the geographic limits of the City of Berkeley.

Berkeley Family Friendly and Environment Friendly Workplace Ordinance

The Family Friendly ordinance provides each employee the right to ask for a flexible or predictable work schedule. Employers must respond in writing within 21 days to any written request. The ordinance applies to employers who regularly employs 10 or more employees working in the City. Covered employers include the City but not any other federal, state, or local government entities. It applies to employees who regularly work at least 8 hours per week in Berkeley, and have worked for the same employer for at least three months. Eligible employees can request a flexible or predictable working arrangement.

A “Predictable Working Arrangement” means “a change in an Employee’s terms and conditions of employment that provides a consistent or reliable pattern of work assignment, including but not limited to days scheduled to work, start time and end time and work site location with at least seven (7) calendar days’ notice prior to the start of the scheduled shift.”

A “flexible working arrangement” means a change in an employee’s terms and conditions of employment that provides flexibility. Employees may request changes such as:

  • Modified work schedules.
  • Changes in start/end times for work.
  • Part-time employment.
  • Job-sharing arrangements.
  • Working from home.
  • Telecommuting.
  • Reduction or change in work duties.
  • Part-year employment.

Employees must request the changes in writing. Employers must respond to the request within 21 days.

As is common for local ordinances, employers cannot retaliate against employees under any of the new ordinances. If you work in Berkeley, or have employees working at least 2 hours per week in Berkeley, become familiar with these new laws.

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 San Francisco Employment Laws

San Francisco tends to be on the forefront of passing new employment laws to protect San Francisco workers. The following are two new San Francisco Employment Laws that companies and workers in San Francisco need to consider.

New San Francisco Employment Laws No. 1:

Mayor Lee signed the “Lactation in the Workplace Ordinance” on July 30, 2017.  This “first of its kind in the country” ordinance establishes new standards to ensure employers accommodate lactation.

The ordinance amends the Police Code to require employers to provide employees lactation breaks and a location for lactation. Employers must have a policy regarding lactation in the workplace that specifies a process “by which an employee will make a request for accommodation.” The ordinance defines minimum standards for lactation accommodation spaces and requires that tenant improvements or renovated in buildings designated for certain uses include lactation rooms. The ordinance also outlines lactation accommodation best practices.

The ordinance becomes operative on January 1, 2018. 

You can review the full ordinance here.

New San Francisco Employment Laws No. 2:

On July 14, 2017, Mayor Lee signed the “Employer Consideration of Applicant’s Salary History Ordinance,” also known as the “Consideration of Salary History Ordinance“.  This ordinance (which also becomes operative on July 1, 2018, applies to employers in San Francisco and to the City and County of San Francisco’s contractors and subcontractors. The intention is to “ensure that an individual’s prior earnings, which may reflect widespread, longstanding, gender-based wage disparities in the labor market, do not continue to weigh down a woman’s salary throughout her career.”

The ordinance amends the Police and Administrative Codes and ban employers from considering current or past salary of an applicant in determining whether to hire an applicant or what salary to offer the applicant. The ordinance prohibits employers from asking applicants about their current or past salary. Employers cannot disclose employee salary history without that authorization (unless the salary history is publicly available).

You can review the full ordinance here.

You can review some of my prior articles about some of the San Francisco Employment Laws passed over the years:

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, but we cannot answer questions about specific situations or provide legal advice. 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. 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, 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.

Minimum Wage and Paid Sick Leave Increases

As you get ready to celebrate the 4th of July, don’t forget that a number of local minimum wage increases across California will take effect July 1, 2017. Eligibility rules may vary among the locations listed below. Employers should review the individual city ordinances and follow posting requirements. Employee handbooks and policies, as well as new posters, may need updating.

The following cities and counties will increase their minimum wage July 1:

  • Emeryville: $15.20 an hour for businesses with 56 or more employees; $14 an hour for businesses with 55 or fewer employees.
  • City of Los Angeles: $12 an hour for employers with 26 or more employees; $10.50 an hour for employers with 25 or fewer employees.
  • Los Angeles County (unincorporated areas only): $12 an hour for employers with 26 or more employees; $10.50 an hour for employers with 25 or fewer employees.
  • Malibu: $12 an hour for employers with 26 or more employees; $10.50 an hour for employers with 25 or fewer employees.
  • Milpitas: $11 an hour
  • Pasadena: $12 an hour for employers with 26 or more employees; $10.50 an hour for employers with 25 or fewer employees.
  • San Francisco: $14 an hour.
  • San Jose: $12 an hour.
  • San Leandro: $12 an hour
  • Santa Monica: $12 an hour for employers with 26 or more employees; $10.50 an hour for employers with 25 or fewer employees.

The Economic Policy Institute has a very good, up to date, interactive website regarding minimum wage laws in California and around the United States.

Local leave law updates

Over the last several years, California and several cities and counties have implemented mandator paid sick leave laws. The City of Los Angeles’ Paid Sick Leave Ordinance now applies to all employers. Employers with 25 or fewer employees must provide increased accrual benefits (48 hours annually for use/72 hours for total accrual cap) for sick leave benefits July 1, 2017.

San Francisco’s Paid Parental Leave Ordinance was passed with a phased-in implementation. Employers with 35 or more employees must begin complying as of July 1, 2017.

Fox Rothschild has a very good table summary of the various paid sick leave laws in California. It was last updated in September 2016, so there may be additional changes.

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 Anti-Harassment Regulations

New Anti-Harassment Regulations In Effect

Effective April 2016, the Fair Employment and Housing Commission adopted new regulations regarding sexual harassment in the workplace. Employers have an affirmative duty to create a workplace environment that is free from sexual harassment and other employment practices prohibited by the Fair Employment and Housing Act. The new anti-harassment regulations provide clarity, but also create some ambiguity. Employers who have not modified their handbooks to comply with the new regulations could find themselves in trouble.

What Must Be Included in Policies Under the New Anti-Harassment Regulations?

In addition to distributing the Department’s DFEH-185 brochure on sexual harassment, all employers must develop a written harassment, discrimination, and retaliation prevention policy that lists all current protected categories covered under the Act. The list is ever-growing, so it is important to list all protected categories.

The anti-harassment policy must indicate that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the Act. The new anti-harassment regulations also require employers to create a complaint process to ensure that complaints receive:

(A) An employer’s designation of confidentiality, to the extent possible;
(B) A timely response;
(C) Impartial and timely investigations by qualified personnel;
(D) Documentation and tracking for reasonable progress;
(E) Appropriate options for remedial actions and resolutions; and
(F) Timely closures.

The regulations don’t define “qualified personnel,” but it likely refers to the same persons that can conduct sexual harassment prevention training, or other persons trained to conduct investigations. The new regulations beg the question of whether an existing employee can ever truly be “impartial.”

Anti-Harassment Complaint Process

The complaint mechanism cannot require an employee to complain only to his or her immediate supervisor. Other individuals, such as the following, must be available to receive complaints:

(A) Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or
(B) A complaint hotline; and/or
(C) Access to an ombudsperson; and/or
(D) Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.

The new anti-harassment regulations require supervisors to report any complaints of “misconduct” to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally. Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training. The regulations do not define “misconduct,” but the term is arguably broader than complaints about sexual harassment.

Not surprisingly, when an employer receives allegations of misconduct, it must conduct a “fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.” The regulations do not, however, define what constitutes “due process.” Additionally, I guarantee there will be litigation over whether the conclusions reached are “reasonable,” and “based on the evidence collected.”

The policies must state that “confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential.” The policy must also state “that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.”

Finally, the policy must make it clear that “employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.” Again, note that the anti-harassment regulation is not limited to complaints about harassment. Arguably, employers cannot retaliate against an employee because the employee participates in any “workplace investigation.”

Disseminating Policies Under the New Anti-Harassment Regulations

The new anti-harassment regulations also dictate how the policy must be provided to employees:

(1) Printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return;
(2) Sending the policy via e-mail with an acknowledgment return form;
(3) Posting current versions of the policies on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies;
(4) Discussing policies upon hire and/or during a new hire orientation session; and/or
(5) Any other way that ensures employees receive and understand the policies.

Any employer whose workforce at any facility or establishment contains 10 percent or more of persons who speak a language other than English as their spoken language shall translate the policy into every language that is spoken by at least 10 percent of the workforce.

The new regulations can be found at Cal. Code Regs., tit. 2, § 11023

If you haven’t updated your handbook recently, now is a good time to review the policies to ensure your handbook complies with the new regulations.

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

IMDb Halts Age Discrimination Law

New Age Discrimination Law in the Entertainment Industry

In 2016, the California legislatures passed AB 1687, “to ensure that information obtained on an Internet Web site regarding an individual’s age will not be used in furtherance of employment or age discrimination.”  The statute prevents IMDb from publishing factual information (information about the ages of people in the entertainment industry) on its website for public consumption. Although Governor Brown signed the new age discrimination law, IMDb sued the government, arguing the statute violated its first amendment rights.

Injunction Prohibiting Enforcement of Age Discrimination Law

On February 22, 2017, U.S. District Court Judge Vince Chhabria issued an injunction prohibiting the government from enforcing the statute. According to Judge Chhabria’s order, “it’s difficult to imagine how AB 1687 could not violate the First Amendment.” Although the government established a valid “goal” of limiting age discrimination, the government failed to show that the restriction is “actually necessary” to serve a compelling government interest. The government “presented nothing to suggest that AB 1687 would actually combat age discrimination (much less that it’s necessary to combat age discrimination).” The court held “there is an exceedingly strong likelihood that IMDb will prevail in this lawsuit.”

So, for the time being, IMDb can continue to publish the ages of actors. I guess Hollywood will have to find another way to combat age discrimination in the entertainment industry. The judge’s order, although not the conclusion of the litigation, is a definite preview of how the court views this new age discrimination law.

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.

 

Fair Pay Act Investigations

California recently enacted new standards to combat discriminatory pay practices. California’s Fair Pay Act prohibits paying any employee less than the amount paid to employees of the opposite sex, race or ethnicity for doing “substantially similar work.” Employers have the burden of demonstrating that pay differential are based entirely and reasonably upon:

  • Seniority system, merit system, or system that measures earning by quantity or quality of production; or
  • Bona fide factor that is not based on or derived from sex-based differential compensation and that is job-related and consistent with business necessity.

Fair Pay Act Presentation

I recently attended a great presentation sponsored by the Alameda County Bar Association where Hillary Benham-Baker, Jamie Rudman and Carolyn Rashby did an excellent job describing the interplay between the various state and federal statutes, regulations and orders regarding equal pay. Jamie described a speaking engagement where Julie Su, California’s Labor Commissioner, discussed enforcing California’s Fair Pay Act. The Labor Commissioner discussed what questions Deputy Labor Commissioners would typically ask during Fair Pay Act investigations to determine what constitutes “substantially similar work.” I asked Jamie’s permission to share the information, as they represent excellent questions employers should ask themselves when evaluating whether they are complying with the law.

Fair Pay Act Questions To Determine What Constitutes “Substantially Similar Work”

·         What are the actual tasks performed for each job?  What percentage of time is spent on each?

·         What experience, training and education are required for each job?

·         What knowledge is required to perform each job?

·         What kinds and amounts of physical and/or mental effort are required for each job?  Is one job more physical difficult or stressful?

·          What programs, equipment, tools or products are required for each job? What training is needed to use the programs, equipment, tools or products?

·         What is the working environment?  Does one job involve an exposure to hazards or damages?

·         Does one job require supervision of other employees?

·         What is the difference in terms of the job obligations, levels of authority and/or degrees of accountability?

·         What are the programs, equipment, tools or products used for each job?

·         What kinds and amounts of physical and/or mental effort required for each job?

Employers need to understand what constitutes substantially similar work so they can properly evaluate whether or why employees should be paid the same. Pay disparities must be justified by legitimate business reasons.

If you have questions about equal pay, fair pay or any other employment-related issues, contact me at your convenience.

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.

Celebrate the New Year

As we enter the new year, I want to thank my colleagues, clients, friends and family who made 2016 such a success. I opened my Pleasanton office a little more than a year ago. With your support and encouragement, I continue to help my clients resolve their workplace issues. It has been a great year, with lots of opportunities. I’m thankful I get to work with such a wide variety of clients in such diverse industries.

New Year, New Laws

We saw a lot of changes in 2016. New decisions regarding arbitration agreements continue to shape how employers and employees resolve their disputes. Legislative changes now make it more difficult for employers to force employees to use arbitration in California.

Employers must now separately track and report rest and recovery periods and non-productive time for piece-rate workers.

More cities and counties adopted higher minimum wage requirements. California followed suit increasing minimum wage to $10.50 per hour effective January 1, 2017, for employers with 26 or more employees. For employers with 25 or fewer employees, the minimum wage is still $10.00 per hour until 2018.

The Domestic Workers Bill of Rights became permanent, which secures the right to overtime for caregivers (aka personal attendants).

Workplaces with single-user restrooms must now be gender-neutral, and California’s Equal Pay Act saw a significant overhaul.

Companies cannot prohibit employees from discussing their wages, and security guards now have to be paid weekly. Employers also face tougher penalties if they fail to pay Labor Commissioner judgments.

Many will struggle with drug policies now that marijuana is legal for recreational purposes, and there are tougher restrictions regarding what employers can ask about criminal convictions.

State Disability and Paid Family Leave benefits were increased to make them more meaningful to low-wage workers.

I hope 2017 brings prosperity to you and yours. Remember to take the time to appreciate what you have. Wishing you a very Happy New Year.

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.

San Jose Employers Must Provide More Hours to Workers

More Hours for San Jose Employees

San Jose employers will need to offer more hours to existing part-time workers before hiring new workers in 2017.  San Jose voters approved Measure E, which will take effect sometime in the first quarter of 2017. Businesses with less than 36 employees are exempt, and other businesses can apply for a “hardship” exemption. The full text of Measure E is here.

Impartial Analysis of Measure E

The following excerpts are from the “impartial analysis” prepared by the office of the San Jose City Attorney:

  • An employee is any person who has performed at least 2 hours of work for an employer and is entitled to the State minimum wage.
  • An employer is any person that employs or exercises direct or indirect control over wages, hours or working conditions of any employee, and either is subject to San Jose’s business tax or maintains a place of business in San Jose which State law exempts from San Jose’s business tax.
  • The offer of additional work requirement does not apply where the part-time employees would be paid a premium rate or when an express waiver of the additional work requirement has been agreed to in a collective bargaining agreement.
  • It applies to welfare-to-work programs except participants may opt out.
  • Businesses with 35 or fewer employees would be exempt from the ordinance.
  • The number of employees of a chain business is determined by the combined number of employees at every location of the business, whether or not located in San Jose.
  • For a franchisee, the total number of employees would be determined by the combined total number of employees at every location owned by the franchisee, whether or not located in San Jose.
  • [T]he City may grant hardship exemptions for up to 12 months at a time to employers who demonstrate that they have exercised reasonable steps to comply and full and immediate compliance would be impracticable, impossible or futile.
  • Employers would be required to annually post a bulletin of the additional work hour requirement in various languages at the workplace.
  • The City would be authorized to issue administrative fines and penalties for noncompliance.
  • A civil action based on a violation of the ordinance can be brought by any person harmed, any person on behalf of the public, or the City.

If you work in San Jose, you may find more opportunities to work additional hours. If you have employees in San Jose, you will need to offer more hours to existing employees before hiring new employees or giving the hours to contractors.

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.

Salary Requirement for Federal and California Overtime

UPDATE ON THE UPDATE: The Department of Labor filed an appeal on the injunction. The notice of appeal aims to lift a temporary injunction against overtime changes that were scheduled to take effect December 1. The appeal was filed in the U.S. Court of Appeals for the Fifth Circuit in New Orleans. Forbes wrote a decent article about the appeal.

UPDATE 11/22/16: A Federal Judge in Texas issued an injunction blocking the new salary requirement from going into effect. This means the new salary requirement will not go into effect on December 1st. We’ll have to wait and see if the Department of Labor intends on fighting the injunction. With the new administration taking over in January, it is unclear how the DoL will proceed.

I’m leaving the rest of the article intact because it still provides useful information about the difference between the federal and the state salary requirement and duties test for exempt employees, and the outcome of the litigation is still anyone’s guess.

Several clients ask the following question (or very similar questions) about the new federal overtime salary requirement:

I have a quick question. It looks like there is a change coming on December 1, 2016 regarding the minimum salary requirement for exempt employees. We currently have our office manager set up with a $46,000.00 annual salary. I think this may fall under the new federal minimum salary requirement. Can you confirm this and also tell me if there is a different amount for California?

Because this issue confuses a lot of employers and employees, I thought I’d share my typical response.

Federal Overtime Salary Requirement

Federal laws requires overtime compensation when a non-exempt employee works more than 40 hours in a week.  Effective December 1, 2016, in order to qualify as an exempt employee under the federal overtime laws,  the employee must receive a guaranteed salary of $913.00 per week or $47,476 per year. The employee’s primary duty must be to perform exempt duties as defined by the FLSA.

The exempt employee must regularly and customarily exercise discretion and independent judgment regarding matters of consequence. Many office managers qualify under the administrative exemption. Additionally, if the office manager supervises 2 or more people and can hire and fire employees, the office manager may also qualify under the executive exemption.  I’m going to assume for the moment that the office manager is primarily engaged in performing exempt duties. Many people misapply the exemption, thinking that because the “office manager” can decide which vendors to use that means the exemption applies. In order to ensure she remains exempt, you will need to give her a raise effective December 1st.

California Overtime Salary Requirement

California has a slightly lower minimum salary requirement. To qualify as an exempt employee under California laws, the employee must receive a guaranteed salary equal to two times the state minimum wage (currently $10.00 per hour). That comes out to $41,600 per year (2 x minimum wage x 40 hours per week x 52 weeks per year). The minimum wage will increase over the next couple of years according to the following schedule:

Rate (Jan. 1) 26 Employees or More 25 Employees or Less
2017 $10.50 $10.00
2018 $11.00 $10.50
2019 $12.00 $11.00
2020 $13.00 $12.00
2021 $14.00 $13.00
2022 $15.00 $14.00
2023 $15.00 $15.00
2024 Indexed* Indexed*

* Rate adjusted to changes in Consumer Price Index (if any) to a cap of 3.5 percent each year. (Source)

As the minimum wage increases, so does California’s minimum salary requirement. By 2019, barring any changes in the law, employers with 25 or more employees must employees more than the federal minimum wage. Employers with less than 25 employees can get away with paying the federal minimum wage until 2020. As I mentioned, this assumes no further changes to California or Federal law. With the recent election, it’s anyone’s guess as to what the future holds.

Required Duties

Other major differences exist between state and federal law overtime exemptions. To qualify as exempt under California law, the employee must be “primarily engaged in” exempt duties. That sounds similar to the federal “primary duty,” but differs significantly. “Primarily engaged in” exempt duties under California law means the employee spends more than 50% of her time performing exempt duties. An employee’s “primary duty” under federal law means the employee can perform other, non-exempt duties, so long as the primary purpose of the position is to perform exempt duties.

Take the classic fast food manager example. Her primary duty is to oversee and run the restaurant. Because the restaurant is understaffed, the manager spends most of her time running the cash register and flipping burgers. The manager might meet the federal overtime exemption because her primary duty is to oversee the restaurant’s operations. The manager is not exempt under state law because she is not primarily engaged in performing exempt duties.

I hope this helps.  Feel free to give me a call if you have any questions.

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

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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.