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 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

Answers to “Day of Rest” Questions

I want my day of rest. It’s a story as old as the bible. Literally. Can an employer require, or even allow, an employee to work seven days a week without a day of rest? I get that question a lot. Until now, no cases directly addressed the point.

Court Tackles Day of Rest Question

Every once in a while a federal appellate court won’t know the answer to state law questions. When that happens, they can ask the California Supreme Court for answers. In Mendoza v. Nordstrom, the Ninth Circuit needed answers to some questions about California’s “day of rest” provisions. The California Supreme just answered those questions.

Labor Code sections 550–558.1 prohibit an employer from “caus[ing] his employees to work more than six days in seven.” (Labor Code §552) That doesn’t apply if the employee works less than 30 hours per week or less than 6 in a day. (Labor Code §556) Those statutes, however, don’t answer all the questions.

Mendoza worked as a barista and later a sales representative for Nordstrom in San Francisco and San Diego. On several occasions, Mendoza’s supervisor and co-workers asked him to fill in for another employee. This meant Mendoza had to work more than six consecutive days. Mendoza sued Nordstrom for allegedly violating California’s day of rest provisions. The trial court concluded:

(1) section 551 guarantees a day of rest on a rolling basis, for any seven consecutive days; but

(2) under section 556, the guarantee does not apply so long as an employee had at least one shift of six hours or less during the period, as Mendoza and Gordon did; and

(3) Nordstrom did not “cause” Mendoza to work more than six consecutive days because it did not force or coerce him to do so.

The court dismissed the action and Mendoza appealed. The Ninth Circuit asked the Supreme Court to answer a couple of questions.

Day of Rest Questions Answered

Here’s what the California Supreme Court said:

Question #1: Is the day of rest required by sections 551 and 552 calculated by the workweek, or does it apply on a rolling basis to any seven-consecutive-day period?

Answer: A day of rest is guaranteed for each workweek.  Periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited.

This means employees can work more than seven days in a row when those days span multiple workweeks. For example, the standard workweek is Sunday through Saturday. Employers can schedule an employee to work Wednesday through Wednesday. The seven consecutive days span multiple workweeks.

Question #2. Does the section 556 exemption for workers employed six hours or less per day apply so long as an employee works six hours or less on at least one day of the applicable week, or does it apply only when an employee works no more than six hours on each and every day of the week?

Answer:  The exemption for employees working shifts of six hours or less applies only to those who never exceed six hours of work on any day of the workweek.  If on any one day an employee works more than six hours, a day of rest must be provided during that workweek, subject to whatever other exceptions might apply.

This one is fairly straight-forward. Labor Code section 556’s exception for shorter shifts only applies if all the shifts are less than 6 hours.

Question #3. What does it mean for an employer to “cause” an employee to go without a day of rest (§ 552):  force, coerce, pressure, schedule, encourage, reward, permit, or something else?

Answer: An employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled.  An employer is not, however, forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest.

This, I think, is the most important part. If employers advise employees of their right to a day of rest, employees can work seven days in a row. To me, this makes sense, since the wage orders usually require employers to compensate employees at the overtime rate for the first eight hours worked on the “seventh consecutive day of work in a workweek.” See, e.g., IWC Order 4-2001, subs. 3(A)(1). Why require seventh day overtime, if the employer can’t let the employee work seven days in a row?

What does “Cause” mean?

Mendoza claimed an employer could not “allow,” “suffer,” or “permit” an employee to work a seventh day. Nordstrom argued “unless the employer requires, forces, or coerces seventh-day work, it has not caused the employee to work.” The court rejected both arguments, and substituted its own:

an employer‘s obligation is to apprise employees of their entitlement to a day of rest and thereafter to maintain absolute neutrality as to the exercise of that right. An employer may not encourage its employees to forgo rest or conceal the entitlement to rest, but is not liable simply because an employee chooses to work a seventh day.

The court specifically held, “[t]he payment of overtime is not an impermissible employer inducement; it is, instead, simply compliance with a federal- and state-imposed legal obligation.”

Employers with employees working without a day of rest should advise employees of their right to a day off. Even better, they should ask the employee if s/he wants to work seven days in a row and leave it up to the employee’s discretion. Getting it in writing helps, of course.

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 about wage and hour or other employment law issues, 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.

Happy Thanksgiving and Christmas Trees

As we get ready to spend time with the family, eat more than we should and fall asleep watching football, I want to wish everyone a Happy Thanksgiving. I treasure this holiday because I get to spend it with my immediate and extended family. This usually means 60+ people gathering on the farm and catching up on the past year. Not to mention skeet shooting in the cotton fields. Unfortunately, we have to leave our doberman at home this year, but we have someone staying with her to make sure she’s happy and fed.

This may be the last year on the farm, and I remember fondly the summers spent on the farm in the blistering heat, and the comforting tule fog in the fall. Most of all, it’s about family. We have been blessed to have 5 generations gather for the feast and fellowship. Whether you join with a large group, or a small one, take a moment to remember those that are with us and those that have passed. Enjoy the day, and give thanks for all you have.

OK, now a shameless plug for my Boy Scout Troop’s Christmas Tree Lot. This is our annual fundraiser for Troop 999. We open on November 25th (the day after Thanksgiving). All proceeds help our scouts attend camp, buy camping supplies and engage in other scouting events. If you are in the area, and need a tree for the holidays, come on by. We just completed our Scouting For Food project where we collected thousands of canned goods for the Second Harvest Food Bank. The tree lot presents an opportunity to meet with those in my community and help them find the right tree for their home. I believe Troop 924 is still offering free tree pick up and disposal after the holidays. Donations are always welcome.

Tree Lot

Happy Thanksgiving from the Nuddleman Law Firm, P.C. Drink, be merry and count the blessing in your life.

PAGA Waiver in Arbitration Agreements

Arbitration Agreements

Plaintiffs attorneys and defense attorneys are waging a battle over arbitration agreements.  A new Ninth Circuit decision is considered a win for the plaintiffs’ bar.  A few years ago, it was difficult for an employer to enforce an arbitration clause in California.  Recently, the U.S. Supreme Court in AT&T v. Concepcion made it clear that the Federal Arbitration Act prohibits states (or courts) from creating special exemptions from arbitration.  As a result, more and more employers require employees to waive their rights to court trials in favor of arbitration.

Since Concepcion, state and federal courts have been more willing to require parties to use arbitration when they sign a valid arbitration agreement.  Many plaintiff attorneys don’t like arbitration for a number of valid reasons, and therefore try to find ways to keep their cases out of arbitration.  Many defense attorneys prefer arbitration, and therefore look for ways to ensure the case can be kept in arbitration.  I believe arbitration is an acceptable forum for the right case, but some cases need to be resolved by the courts.

A significant reason why employers like arbitration agreements is that they may limit an employee’s ability to bring a representative action (e.g., class action).  Most arbitrations are not currently set up to handle class action cases.  If an employee signs an otherwise valid arbitration agreement, the employee could be forced into arbitration without the ability to bring a class action.

PAGA Waiver in Arbitration Agreements

But what about PAGA claims?  Can an employer include a PAGA waiver in arbitration agreements? California’s Labor Code Private Attorney General Act is similar to a class action in that any aggrieved employee can sue an employer for any violation of the Labor Code, and the employee can bring the claim on behalf of himself/herself as well as “any other aggrieved employee.”  This is very similar to a class action.  PAGA claims, however, are not class action claims and therefore are not subject to the same strict procedures and guidelines governing class actions.

In Iskanian v. CLS Transportation, California’s Supreme Court said employees have an unwaivable right to bring representative PAGA actions, and refused to force an employee to litigate his PAGA claims in arbitration. This created a mad dash by Plaintiff’s lawyers to include PAGA claims in all litigation to avoid arbitration.  Some Plaintiff firms will only bring PAGA actions.  Many federal district court decisions refused to follow Iskanian, and continued to force employees to bring PAGA claims in arbitration.  Defense lawyers began looking for any reason to remove cases to federal courts to ensure the arbitration agreements would be enforced.  We ended up with a rift between the federal courts and California’s Supreme Court.

The Ninth Circuit recently concluded that the FAA did not bar the holding in Iskanian, and that an employer could not enforce a PAGA waiver in arbitration agreements with employees.  The Luxottica case is another blow to employers trying to avoid representative actions.

I expect we will continue to see several cases on this issue in the upcoming year.  If you use arbitration agreements, or are considering whether to use an arbitration agreement, speak with a knowledgeable attorney who can help you decide the best course of action.  If you are an employee contemplating litigation but are concerned about being forced into arbitration, you should consult with an employment attorney with experience representing employees in court and in other forms of alternative dispute resolution.

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.

 

Wrongful Termination After Nurse Repeatedly Refused to Perform Nurse-Led Stress Tests

Nurse-Led Stress Tests

The Nursing Practice Act (Bus. & Prof. Code, § 2700 et seq.) regulates the practice of nursing in California.  The Nursing Practice Act permits nurses to perform certain functions that would otherwise be considered the illegal practice of medicine, when such functions are performed pursuant to a hospital’s “standardized procedures.”  (Bus. & Prof. Code, § 2725, subd. (c).)  The Nursing Practice Act Title 16 of the California Code of Regulations contains the guidelines promulgated implementing the NPA.  (See Cal. Code Regs., tit. 16, § 1470-1474)

In Nosal-Tabor v. Sharp Chula Vista Medical Ctr.Karen, a registered nurse repeatedly refused to perform nurse-led stress tests and made numerous complaints concerning the testing to Sharp’s management.  The nurse complained that stress testing constitutes the practice of medicine and that Sharp had not adopted sufficient procedures to allow nurses to perform such tests.  Sharp’s management disagreed and told the nurse to conduct the stress testing.  After the nurse continued to refuse to perform nurse-led stress testing and to complain about its implementation, Sharp disciplined her and eventually terminated her employment.

Wrongful Termination

Nosal-Tabor sued Sharp, alleging wrongful termination and two causes of action premised on claims of improper workplace retaliation.  Sharp filed a motion for summary judgment.  The trial court granted the motion, ruling that Nosal-Tabor presented “no credible evidence that the Standardized Procedures in place at the time of her termination were insufficient.”

On appeal, Nosal-Tabor claimed that the trial court erred in granting Sharp’s motion for summary judgment.  Her primary contention is that the trial court erred in concluding that there was no evidence upon which a reasonable juror could find that Sharp had failed to adopt standardized procedures that comply with the guidelines.  Nosal-Tabor contended that this error caused the court to improperly conclude that she would be unable to establish any of her causes of action.

The appellate court determined that the documents that Sharp maintained for its standardized procedures did not contain several elements required by the regulations.  “In light of these deficiencies, a reasonable juror could find that Sharp improperly retaliated against, and wrongfully terminated, Nosal-Tabor when she complained about, and refused to perform, nurse-led stress testing pursuant to Sharp’s legally deficient procedures.”

Employers should be cautious when disciplining or terminating an employee for complaining about potential violations of the law.  Even when the company believes it has fully complied with the law, an employee may still be able to allege a claim for wrongful termination or retaliation.  If you have questions about your termination or if you are considering terminating an employee for potentially protected conduct, contact a knowledgeable wrongful termination lawyer.

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.

Truck Drivers are Employees Not Independent Contractors

In Garcia v. Seacon Logix, Plaintiff truck drivers sued Seacon Logix, Inc. under Labor Code section 2802 for reimbursement of paycheck deductions, contending that they should have been classified as employees, not independent contractors.  The trial court agreed and awarded damages for specified paycheck deductions.  Seacon appealed contending the truck drivers are employees not independent contractors.

Seacon arranged for transportation of cargo from the Port of Long Beach and Port of Los Angeles to warehouses or other facilities. Although Seacon’s drivers initially used to own their vehicles, due to a clean air program, Seacon later provided the trucks to the drivers.  Seacon required the drivers to sign lease agreements for the use of the trucks and deducted lease and insurance payments from the truck drivers’ paychecks.

Employees Not Independent Contractors

The drivers were told when to arrive at work and had to let Seacon know if they were going to be absent. If the drivers declined a delivery for any reason, they would not receive work the following day. assigned deliveries to the drivers and occasionally provided them with maps showing the route to take. The drivers had to call Seacon when they arrived at their destination and completed their delivery, and check in with Seacon numerous times each day, particularly if they were going to be late with a delivery due to traffic or any other reason. The truck drivers did not have separate business licenses or any other source of income while driving for Seacon, and the drivers could not hire other drivers to use their trucks or use the trucks to work for other companies. The truck drivers were not involved with billing Seacon’s customers and did not believe they had the ability to negotiate their payments.

The appellate court agreed that the truck drivers are employees not independent contractors. Seacon controlled the manner and means of the work, despite the fact that the contracts defined the drivers as independent contractors.  In addition to right to control, the court also looked at secondary factors such as:

  • Right to discharge at will
  • The workers were “a regular and integrated portion of [the] business operation.”
  • The work was performed under principal’s direction or without supervision
  • Skill required
  • The employer supplied the instrumentalities, tools, and place of work
  • Method of payment (by the job versus hourly or weekly)
  • Work was part of the principal’s regular business
  • Parties’ belief

The Department of Labor takes the position that, “[t]he misclassification of employees as independent contractors presents one of the most serious problems facing affected workers, employers and the entire economy.”  Uber is currently facing several lawsuits for allegedly it  is misclassifying its drivers.  Employers misclassifying employees as independent contractors face serious consequences, oftentimes ignoring wage and hour laws created to protect employees.

If you or someone you know has a question about how to correct classify workers, contact Robert Nuddleman at 925-400-9052.

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.