Ban the Box Goes Statewide

Over the last few years, we’ve seen an increase in “ban the box” legislation. Ban the box refers to employers forcing applicants to divulge information about criminal convictions before the employer even considers the applicant. Governor Brown recently signed legislation prohibiting employers from asking about criminal convictions before the employer makes an employment offer.

Why is Ban the Box Important?

According to AB 1008, “Roughly seven million Californians, or nearly one in three adults, have an arrest or conviction record that can significantly undermine their efforts to obtain gainful employment.” AB 1008 emphasizes the importance of employment in reducing recidivism, and the impact a job can have on formerly incarcerated persons and their families. The bill also cites experts who claim “that people with conviction records have lower rates of turnover and higher rates of promotion on the job.”

The EEOC previously determined that a blanket rule against hiring persons with criminal convictions has an adverse impact on persons of color.

Other Ban the Box Legislation

In 2013, the State of California passed a Ban the Box law passed that only applied to certain public employers. That same year five states have adopted fair chance hiring laws covering private employers. In 2015, President Obama directed all federal agencies to Ban the Box and refrain from asking applicants about their convictions on the initial job application.

Since then, 29 states and over 150 cities and counties have adopted a Ban the Box law. Over 300 companies have signed the White House Fair Chance hiring pledge. Nine states and 15 major cities, including Los Angeles and San Francisco, adopted fair chance hiring laws that cover both public and private sector employers. Over 20 percent of the United States population now lives in a state or locality that prohibits private employers from inquiring into an applicant’s record at the start of the hiring process.

California’s Ban the Box Law

Effective January 1, 2018, it is an unlawful employment practice for private employers with 5 or more employees “To include on any application for employment, before the employer makes a conditional offer of employment to the applicant, any question that seeks the disclosure of an applicant’s conviction history.”

Employers may not “inquire into or consider the conviction history of the applicant” until after the employer makes a conditional offer of employment.

Employers cannot “consider, distribute, or disseminate information” about arrests that did not result in a conviction, referral or participation in a diversion program, or “convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.”

What can an employer do? After making a conditional offer of employment, employers can conduct background checks. If the background check reveals a conviction, the employer can “make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” In making the assessment, the employer must consider all of the following:

  1. The nature and gravity of the offense or conduct.
  2. The time that has passed since the offense or conduct and completion of the sentence.
  3. The nature of the job held or sought.

The employer can, but does not have to, “commit the results of this individualized assessment to writing.” It will be easy enough to create a criminal conviction consideration form for employers to use in their assessment.

What if the Employer Decides Not to Hire?

If the employer decides not to hire the applicant based on the criminal history, the employer must “notify the applicant of this preliminary decision in writing.” The notification must contain all of the following:

  1. Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer.
  2. A copy of the conviction history report, if any.
  3. An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond.

The explanation must also advise the applicant that the applicant’s response can include evidence challenging the accuracy of the conviction history report. The applicant then has 5 days to respond to the notice. If the applicant notifies the employer in writing that the applicant disputes the accuracy of the conviction history report, then applicant gets an additional 5 business days to respond to the notice.

The employer has to consider the information submitted by the applicant before making a final decision. If the employer ultimately denies employment because of the applicant’s conviction history (even if that is only part of the reason), the employer must notify the applicant in writing of all the following:

  1. The final denial or disqualification. The employer may, but is not required to, justify or explain the employer’s reasoning for making the final denial or disqualification.
  2. Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration.
  3. The right to file a complaint with the Department of Fair Employment and Housing.

Exceptions to California’s Ban the Box Law

California’s Ban the Box law does not apply in any of the following positions:

  1. When a state or local agency is otherwise required by law to conduct a conviction history background check.
  2. Criminal justice agency positions under Penal Code Section 13101.
  3. Farm Labor Contractors under Labor Code Section 1685.
  4. Where an employer or agent thereof is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.

The latter category could include:

  • Home Care Organizations hiring home care aides;
  • Childcare and Education services such as daycare workers, school staff
  • Healthcare such as  nurses, doctors
  • Financial Services such as financial advisors, credit experts
  • Government Workers such as police officers, mayors
  • Some Information and Technology such as systems managers, computer analysts, that have access to private information.

Employers will need to rethink and modify their hiring practices and employment applications. The new law impacts every employer with more than 5 employees.

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.

 

 

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.

 

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.

 

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.