Happy Holidays and Predictions for 2018

Happy Holidays

Before I get into my employment law predictions for 2018, let me thank my friends, family, colleagues and clients. You’ve helped make 2017 so successful. I am so grateful and blessed to have so many wonderful people in my life. Practicing law gives me the opportunity to help others and change their lives for the better. I enjoy what I do, and I like helping my clients with their employment law issues.

Here are just a few of the highlights and milestones for me in 2017:

  • I, along with my co-counsel Patrick Kitchin, obtained a seven figure settlement on behalf of a class of hair stylists in the Bay Area.
  • I hiked the mountains in New Mexico at the Philmont Scout Ranch with my two sons and three other Boy Scouts.
  • I began bicycling and jogging, increasing my cardiovascular health so I can almost keep up with my three teenage children.
  • I celebrated 19 years of marriage to my beautiful wife.
  • I conducted several presentations regarding employment laws, with a specific emphasis on home care workers, including presentations to the Professional Fiduciary Association of California, the East Bay and the Golden Gate Enrolled Agents Associations, the California Society of CPAs and the Special Needs Symposium.

Thank you and may your holiday season be filled with warmth and love, and may you experience a prosperous 2018.

Rob’s Employment Law Predictions for 2018

A client asked about my 2018 employment law predictions.

There is a significant push toward more transparency in the workplace. Laws prohibiting employers from asking about prior salaries combined with protections for employees who discuss salaries with co-workers will make it more difficult for employers to justify pay differentials. I predict that more discussions about pay will result in more litigation regarding pay practices in 2018.

The media has recently focused on sexual harassment in Hollywood and politics. The increased media hopefully opens the door for more discussions about appropriate workplace conduct. I predict we will see an increase in sexual harassment claims in 2018. I also predict employers will take greater steps to ensure their workplace is free of unlawful harassment, including training managers and supervisors how to respond to complaints. Recent changes in the law regarding what must be included in mandatory sexual harassment prevention training will also increase the dialogue regarding treating persons with dignity and respect regardless of their gender or lifestyle.

I predict employers will struggle with proper hiring techniques. Beginning 2018, employers cannot ask about prior salaries and cannot ask about convictions until after the employer extends a conditional offer of employment [not true for all employers]. Many employers don’t know about the changes. Those employers may be targeted for individual or class actions for inappropriate questions during the hiring process.

I predict wage and hour lawsuits will continue to increase in 2018. We will see more class actions and PAGA claims. Now that PAGA actions are not subject to arbitration, means more plaintiffs attorneys will use PAGA claims to avoid arbitration. Additionally, recent cases expanded the scope of discovery in PAGA actions. Plaintiffs attorneys now have more tools to obtain information during litigation.

Those are my predictions for employment law related problems in 2018. We’ll have to wait and see whether my predictions come true.

If you have questions about employment laws, feel free to contact me in the New Year. I work with employees and employers to resolve workplace disputes.

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.

 

 

Horror Stories from Hiring Caregivers – Part 2

Horror Stories from Hiring Caregivers – Part 2

This is Part 2 in my series on cautionary tales taken from real caregiver cases I handled. As before, I left out the names to protect the parties, but the facts are real. Read on to learn how innocent mistakes when hiring caregivers can lead to dire consequences. Some have happy endings, others not. All have lessons for families hiring caregivers. You can read the first installment here.

Today’s story:

A Tale of Two Sisters

A year and a half after Mom died, the caregiver that was providing 24/7 care sued the two daughters for unpaid wages. The complaint alleged the two sisters were employers because, as trustees of Mom’s trust, they were responsible for supervising the caregiver and paying the caregiver. The caregiver claimed she was owed over $450,000 in unpaid wages and penalties.

The opposing counsel used the wage order and the FLSA to bolster her argument that the co-trustees “directly or indirectly” controlled the hours, wages or working conditions. Shortly after we resolved the case, the California Supreme Court adopted the same definition of employer.

A potential saving point in our case was the fact that the caregiver waited more than a year to file her claim. While most unpaid wage claims have a three-year statute of limitations (four-years if it constitutes and unfair business practice), we argued the shorter one-year statute of limitations for claims against a decedent applied. We resolved the case before the court heard our demurrer on the issue.

It took some time to convince the other side that the caregiver was a “personal attendant,” and therefore not entitled to overtime. Remember, this was before the Domestic Workers Bill of Rights was adopted in 2014. As a personal attendant, she also could not recover meal and rest break penalties. We resolved the case through private mediation. In exchange for a complete release of claims, my client paid $27,000 in back wages, $10,500 in penalties and $17,500 to the plaintiff’s attorney for costs and fees. This is in addition to over $30,000 my client paid my firm.

Although we were confident in our arguments, the client still had potential liability. If we lost the statute of limitations argument, the caregiver had a valid minimum wage claim. She received a salary that did not cover 24-hour care. Although Mom did not necessarily require 24-hour care, there were no time records to confirm the actual hours worked. Even if we defeated the claims, the client likely would have spent close to the settlement amount defending the case.

What lessons did we learn regarding caregivers?

1.     Make sure the employment agreement is in writing.

2.     Be sure to designate the capacity in which you are acting (e.g., conservator, trustee, etc.) in the employment agreement.

3.     Maintain a record of the hours worked.

4.     Do not hire a single caregiver to provide 24/7 care (we learned this one before, but it’s one that repeatedly comes up).

More stories will follow.

If you, or someone you know, has questions about employing or hiring caregivers, feel free to contact the Nuddleman Law Firm. I represent caregivers, families, fiduciaries, attorneys, care agencies, home health agencies, residential care facilities and others involved in the circle of care.

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.

Hiring Caregivers Horror Stories – Part 1

Horror Stories from Hiring Caregivers – Part 1

I help a lot of families, trustees, conservators and other fiduciaries resolve disputes with caregivers. I also represent a number of caregivers in disputes with the families that hired them. I frequently educate those in the circle of care regarding the common pitfalls when hiring caregivers. I encourage families to use reputable care agencies or 3rd party employers because most families are not prepared to become employers.

The following real case is a cautionary tale to show how innocent mistakes can lead to dire consequences. I left out the names to protect the parties, but the facts are real.

Sleeping with the Enemy

My first venture into what can happen when hiring caregivers was in 2007. A colleague represented a trustee who, along with the conservator, wanted to terminate the caregiver. Not only had the caregiver moved her entire family into the home, the caregiver was sleeping with the successor trustee who was trying to undermine the current trustee. The caregiver and her family damaged the home, and were treating the employer’s credit card as their personal bank. In order to ease the transition, they offered the caregiver a fairly generous severance, which the caregiver rejected. We suspect the successor trustee helped her in that decision.

The trustee had to initiate an unlawful detainer action to remove the caregiver and her family. When she finally left, the trustee discovered burned cabinets, rat feces in the kitchen, missing furniture, and soiled clothing strewn about the home.

The caregiver hired an attorney, who demanded $350,000 in unpaid wages. The attorney claimed the caregiver worked 24-hours a day, 7 days a week. Because the caregiver only received $750 per week, the wages did not cover all hours worked, even at minimum wage. At that time, caregivers were not entitled to overtime. We spent significant time, money and resources convincing the opposing counsel that the caregiver was not owed the wages she claimed. Unfortunately, when you added the various penalties, the claim was worth more than $350,000 . Fortunately, the opposing counsel didn’t figured that out before we settled the case.

We agreed to early mediation and with the help of a very good mediator, resolved the case without litigation. My client paid the caregiver $94,500 in back wages, and paid her attorney $63,000 in attorneys’ fees and costs.

It is important to note that this case took place over 10 years ago, when caregivers were not entitled to overtime. Had this case occurred today, the liability would have been significantly greater.

What lessons did we learn regarding hiring caregivers?

  1. It’s never a good idea to let the caregiver’s family move into the residence.
  2. Hiring a single caregiver to provide care to an elderly or disabled person increases the chance of elder or dependent-adult abuse.
  3. Hiring a single caregiver to provide 24/7 care is costly.
  4. Allowing an employee to sleep with a family member can get expensive.

More stories will follow.

If you, or someone you know, has questions about employing or hiring caregivers, feel free to contact the Nuddleman Law Firm. I represent caregivers, families, fiduciaries, attorneys, care agencies, home health agencies, residential care facilities and others involved in the circle of care.

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 DFEH E-Filing System Launched

New DFEH E-Filing System

California’s Department of Fair Employment and Housing is rolling out a new DFEH e-filing system on Tuesday November 21, 2017. The new online case filing and case management system is called the Cal Civil Rights System (CCRS). It replaces the Houdini case filing system, which goes away as of 6 p.m. tomorrow. Users must create an account in the new system.

The DFEH promises the system is “designed to guide users through the filing process.” People can use If you would like to become familiar with the system before it launches, use this link to access the CCRS portal user guide.

CCRS allows filers to schedule an intake interview at the time of filing. Complainants, respondents, and representatives who create accounts in the system can:

  • View the status of cases they are involved in,
  • Send notes to DFEH staff, and
  • Upload documents directly into the case file.

The new DFEH e-filing system conforms to existing confidentiality protections. It does not permit parties to view documents or notes submitted by others.

Existing cases transfer automatically into the new system. Next week parties can contact their investigator to link an existing case to a newly created CCRS account.

DFEH will continue modifying CCRS “to respond to changes in the law, advances in accessibility technology, and the needs of the public.”

Discrimination, Retaliation or Harassment Claims

If you have difficulty filing a case in CCRS and need to meet a statutory deadline, send paper inquiry form and email it to contact.center@dfeh.ca.gov. DFEH still accept complaints and inquiries filed by mail, by email (contact.center@dfeh.ca.gov), in person, or by phone at 844-541-2877 (voice), 800-700-2320 (TTY) or California’s Relay Service at 711. The DFEH also offers free and on-demand interpretation of more than 240 languages for callers who need language assistance.

Having used Houdini several times in the past, hopefully the new DFEH e-filing system will improve some of the bugs. Houdini always seemed a bit antiquated, particularly when compared to the EEOC online filing system.

If you need help filing or responding to a discrimination, retaliation or harassment claim with the DFEH, contact a knowledgeable attorney.

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.

Is My Electronic Signature Binding?

Is My Electronic Signature Binding?

Agreements may not be denied legal effect because they are in electronic form or have an electronic signature. California’s Uniform Electronic Transactions Act states,

[a]n electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.

Many companies require new employees to sign key documents and policies electronically. Former employees challenge these signatures as inauthentic—particularly when trying to avoid arbitration agreements. Employees claim they either never signed the documents or cannot remember signing the document. Judges take these challenges seriously and hold employers to high standards to properly authenticate the employee signatures.

For “wet” signatures, it is usually fairly routine to authenticate a document. You show the employee the signature and confirm it is their signature. Or, the employee confirms a signature on one document with a sufficiently similar signature. Or, someone testifies they witnessed the signature.

How do you Authenticate an Electronic Signature?

Although the CUETA does not require heightened scrutiny of electronic signatures, many courts sometimes apply a seemingly heightened standard. In Ruiz v. Moss Brothers Auto Group, the trial court refused to enforce an electronically signed arbitration agreement based on authenticity questions. The employee claimed he did not sign the agreement, and would never have signed the agreement. The employer submitted a declaration claiming each employee logged into the HR system with a unique username and password to review and sign the agreement. The court said this was insufficient evidence to authenticate the signature.

The court noted the declaration did not explain that the electronic signature could only have been placed on the agreement by a person using the employee’s unique username and password. The declaration did not explain that the date and time printed next to the electronic signature indicated the date and time when the electronic signature was made. The employer did not explain that all employees were required to use their unique usernames and passwords when they logged into the HR system and signed electronic forms and agreements.

In a more recent decision, Espejo v. Southern California Permanente Medical Group, the court clarified what an employer must show to authenticate an electronic signature. Contrasting Ruiz, the court noted the employer offered “the critical factual connection that the declarations in Ruiz lacked.” The court pointed out the employer’s declaration detailed:

  • The electronic review and signature process for employee agreements,
  • The security precautions regarding transmission and use of an applicant’s unique user name and password, and
  • The steps an applicant would have to take to place his or her name on the signature line of the agreement.

The court determined the employer had a sufficient process in place to enable the systems consultant to properly authenticate the signature.

Electronic Signature Best Practices

If you are going to use electronic signatures, make sure your IT department can authenticate the signature. Can IT to determine when and from what IP address the document the employee signed the document?

You must be able to confirm no one but the employee could have signed the document, and that the employee in fact signed the document. Employees should have unique usernames and passwords to access the documents, and should create their own employee-created password before signing documents.

The company’s e-signature policies must comply with the CUETA and the federal E-SIGN Act.

If you are going to require electronic signatures, inform employees they need to review every document. Allow the employees to print the documents and provide sufficient time for review and execution.

Electronic signatures may be the wave of the future, but if done improperly, the employer may not get a second byte of the apple.

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.

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.

 

Baby Bonding Leave Basics

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

Baby Bonding Leave Applies to Employers with 20 or More Employees

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

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

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

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

Medical Benefits Under New Baby Bonding Leave

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

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

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

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

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

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

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

New Employment Laws for 2017

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

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

New Employment Laws for 2017

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

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

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

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

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

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

 

New Health Care Expenditure Rates for San Francisco Employers

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

2018 Health Care Expenditure Rates for San Francisco Employees

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

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

Employers must also:

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

 

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

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

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

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

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