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California Governor Signs Bill Restricting “ICE” Access to Worksites

Posted in Employee Privacy Rights, Labor Law, New Legislation and Regulations, Wage & Hour

On October 5, 2017, California Governor Jerry Brown signed Assembly Bill 450 into law.  This bill requires a warrant for employers to allow immigration enforcement agents to enter a worksite.

Background

Current law prohibits employers or individuals from engaging in an unfair immigration-related practice.  Existing law provides a substantial number of unfair immigration practices.

Summary of New Law

This bill prohibits public and private employers from granting voluntary consent to an immigration enforcement agent to enter nonpublic areas of a workplace unless the agent has a warrant.  Additionally, employers may not grant immigration enforcement agents consent to access, review, or obtain employee records without a subpoena or court order.  Employers are further required to provide notice to employees of an I-9 Employment Eligibility Verification inspection within 72 hours of receiving notice of inspection.  The notice must contain: 1) the name of the immigration agency conducting the inspection, 2) the date the employer received notice of the inspection, 3) the nature of the inspection, if known, and 4) a copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms.  The Labor Commissioner will develop a template for employers to use to comply with this notice requirement by July 1, 2018.

This law may only be enforced by California Labor Commissioner or Attorney General.  The penalties for failure to follow the above prohibitions are $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation.

California Employers Should

  • Train all managers, supervisors, and human resources department to ensure they are aware of the warrant, subpoena, and notice requirements imposed by the new law.
  • Ensure that proper notice is posted if a Notice of Inspection is received by the employer.
  • Keep a look out on the Labor Commissioner’s website for a notice form in the coming year. Until that time, employers must make their own notice and provide the required information.

Our Labor & Employment attorneys have extensive experience counseling and defending employers in all areas of employment law and are happy to assist employers in training, handbook revisions, and further compliance with this new law.  Please feel free to contact any of our Labor & Employment attorneys.

General Contractors Now Liable in Private Construction for Wage and Fringe Benefit Liabilities of Subcontractors

Posted in Labor Law, New Legislation and Regulations, Wage & Hour

On October 14, 2017, California Governor Jerry Brown signed AB 1701.  This law imposes liability on general contractors for wage and fringe benefit liabilities of its subcontractors.  This law applies to all contracts entered into on or after January 1, 2018, that require a direct contractor for construction, alteration, or repair of a building.

Background

Existing law allows workers to bring actions for nonpayment of wages and fringe benefits.  The new law specifically expands the liabilities of direct contractors for nonpayment of wages and fringe benefits of its subcontractors.

Summary of New Law

A direct contractor that enters into a contract to construct, alter, or repair a structure on or after January 1, 2018 will assume liability for any debt owed to a wage claimant incurred by a subcontractor.  The direct contractor is only liable for wages or benefits included in the performance of labor under the subject contract.  The direct contractor’s liability does not extend to penalties or liquidated damages.  The law allows direct contractors to pursue claims against subcontractors who generate liability or request contribution from such subcontractors.

The law provides a right of action by a third party who is owed wages or fringe benefits.  Such individuals may bring a civil action against a direct contractor to enforce the above liability.  The law also awards a prevailing plaintiff their reasonable attorney fees and costs.  Direct contractors may request, and subcontractors must provide, payroll records such that they apprise direct contractor of the payment of wages and benefits to its employees.

California Employers Should

  • Consider contacting counsel to determine whether indemnity, contribution, or contract provisions should be included in future construction contracts to address this additional liability.
  • Train supervisors, managers, and human resource personnel about the additional liability and create a procedure to obtain information about a subcontractor’s payment to its employees.

Our Labor & Employment attorneys have extensive experience counseling and defending employers in all areas of employment law and are happy to assist employers in training, handbook revisions, and further compliance with this new law.  Please feel free to contact any of our Labor & Employment attorneys.

California Governor Signs “New Parent Leave Act”

Posted in FMLA and Other Leaves of Absence, Labor Law, New Legislation and Regulations, Wage & Hour

On October 12, 2017, California Governor Jerry Brown signed Senate Bill 63 (“the New Parent Leave Act”).  Under the new law, employers may not refuse to allow certain employees to take up to 12 weeks of parental leave to bond with a new child.  When the leave is taken, the employer must guarantee the same or comparable position upon the employee’s return. 

Background

Existing law prohibits an employer from refusing to allow a female employee disabled by pregnancy, childbirth, or a related medication condition from taking leave for a reasonable time (up to 4 months) before returning to work.  Current law also prohibits employers from refusing to maintain heath care coverage for an employee who takes that leave.

Summary of New Law

The “New Parent Leave Act” prohibits an employer from refusing to grant employees up to 12 weeks of parental leave to bond with a new child.  Employees are eligible if they have worked for their employer more than 12 months and have at least 1,250 hours of service in that 12 month period.  Further, the law only applies to employers that have at least 20 employees within 75 miles.  The employer is required to maintain health coverage under a group health plan during the employee’s leave.  The law specifically applies to employees who are not already covered by the federal Family and Medical Leave Act (FMLA).  Lastly, employers are required to guarantee employment for that employee in the same or comparable position at the end of their leave.

California Employers Should

  • Determine whether they are covered by the new law and which employees are eligible for this leave
  • Train all managers, supervisors, and human resources to ensure they are aware of the new provisions for parental leave

Our Labor & Employment attorneys have extensive experience counseling and defending employers in all areas of employment law and are happy to assist employers in training, handbook revisions, and further compliance with this new law.  Please feel free to contact any of our Labor & Employment attorneys.

State-Wide BAN THE BOX Law No More Criminal Conviction Questions on Employment Applications

Posted in Employee Privacy Rights, Labor Law, New Legislation and Regulations

On October 14, 2017, Governor Brown signed Assembly Bill 1008 (the “Fair Chance Act”).  The new law puts in place some protections for those individuals with criminal backgrounds seeking employment.  The new law will be contained in Section 12952 of the California Government Code.

Background.

Existing law prohibits an employer, whether a public agency or private individual or corporation, from asking an applicant for employment to disclose, or from utilizing as a factor in determining any condition of employment, information concerning an arrest or detention that did not result in a conviction, or information concerning a referral or participation in, any pretrial or post-trial diversion program, except in limited circumstances.

Existing law also prohibits a state or local agency from asking an applicant for employment to disclose information regarding a criminal conviction, except as specified, until the agency has determined the applicant meets the minimum employment qualifications for the position.

Summary of New Law.

The Fair Chance Act repeals the prohibition on a state or local agency from asking an applicant for employment to disclose information regarding a criminal conviction, as described above. Instead, the law now provides that it is an unlawful employment practice under California’s Government Code (in the “Fair Employment and Housing Act”) for an employer with 5 or more employees to do the following:

  • Include on any application for employment any question that seeks the disclosure of an applicant’s conviction history.
  • Inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer of employment.
  • Consider, distribute, or disseminate any of the below information while conducting a conviction history background check in connection with an employment application:
    • Certain arrests not followed by a conviction;
    • Referrals to or participation in a pretrial or post trial diversion program; and
    • Convictions that have been sealed, dismissed, expunged, or statutorily eradicated.

Further, the new law requires that an employer who intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history to do the following:

  • Make an individualized assessment of whether the conviction history has a direct and adverse relationship with the specific duties of the job—considering the nature and gravity of the offense, the time passed since the offense and completion of the sentence, and the nature of the job held or sought.
  • Notify the applicant in writing of a preliminary decision to deny employment based on that individualized assessment, including disqualifying convictions forming the basis for rescission of the employment offer, a copy of the applicant’s conviction history report, and explanation of the applicant’s right to respond to the preliminary decision before it is final.
  • Allow the applicant five business days to respond to the notice. If within five business days of the notice, the applicant notifies the employer in writing that the applicant disputes the accuracy of the conviction history report that was the basis for the preliminary decision to rescind the offer and that the applicant is taking specific steps to obtain evidence supporting that assertion, then the applicant shall have an additional five business days to respond to the notice.

Ultimately, if an employer makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the employer must notify the applicant in writing of all the following:

  • 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.
  • Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration.
  • The right to file a complaint with the California Department of Fair Employment and Housing (DFEH).

The Fair Chance Act does not apply in any of the following circumstances:

  • To a position for which a state or local agency is otherwise required by law to conduct a conviction history background check.
  • To a position with a criminal justice agency, as defined in Section 13101 of the Penal Code.
  • To a position as a Farm Labor Contractor, as described in Section 1685 of the Labor Code.
  • To a position 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.

California Employers Should do the Following:

  • Review and update all employment application and hiring materials to ensure there are no questions requiring an applicant to disclose criminal conviction history.
  • Train all managers, supervisors, human resources, and other individuals involved in the recruitment and hiring process to ensure they are aware of the requirements under the new law.
  • Take other reasonable steps (e.g. periodic audits of recruitment and hiring practices) to ensure that they are in compliance with the law.

The Labor & Employment attorneys at Weintraub Tobin have extensive experience counseling and defending employers in all areas of employment law and are happy to assist employers in auditing their recruitment and hiring practices to ensure compliance with California law.  Please feel free to contact partner, Beth West, or any of the other Labor & Employment attorneys.

No More Questions About, Or Use Of, Prior Salary Information In Employment

Posted in Employee Privacy Rights, Labor Law, New Legislation and Regulations, Wage & Hour

On October 12, 2017, Governor Brown signed Assembly Bill 168.  Consistent with some other state laws and local ordinances passed by certain municipalities like San Francisco, the new law prohibits the inquiry and use of prior salary information except in limited situations.  The new law will be contained in Labor Code section 432.3 and becomes effective January 1, 2018.

The new law:

  • Prohibits an employer from relying on the salary history information of an applicant for employment as a factor in determining whether to offer an applicant employment or what salary to offer an applicant.
  • Prohibits an employer from seeking salary history information about an applicant for employment.
  • Requires an employer, upon reasonable request, to provide the pay scale for a position to an applicant for employment.

The new law does not prohibit:

  • An applicant from voluntarily (without prompting) disclosing salary history information.
  • An employer from considering or relying on voluntarily disclosed salary history information in determining salary, as specified.

The law applies to all employers, including state and local government employers and the Legislature.  However, it does not apply to salary history information disclosable to the public pursuant to federal or state law.

California employers should do the following before the January 1, 2018 effective date:

  • Review and update all employment application and hiring materials to ensure there are no questions requiring an applicant to disclose prior salary information.
  • Train all managers, supervisors, human resources, and other individuals involved in the recruitment and hiring process to ensure they are aware of the requirements under the new law.
  • Take other reasonable steps (e.g. periodic audits of hiring and payroll practices) to ensure that they are in compliance with this law and the California Equal Pay Act which requires equal pay for substantially similar work performed by employees of different genders, races, or ethnicities.

The Labor & Employment attorneys at Weintraub Tobin have extensive experience counseling and defending employers in all areas of employment law and are happy to assist employers in auditing their hiring and payroll practices to ensure compliance with California law.  Please feel free to contact partner, Beth West, or any of the other Labor & Employment attorneys.

US OSHA Opens Injury Tracking Electronic Portal

Posted in Employment Contracts and Agreements, Labor Law

By Charles L. Post

The U.S. Occupational Safety and Health Administration (U.S. OSHA) has established a new electronic portal for employers to file web based reports of workplace injuries or illnesses.

Read the full article at HRUSA here: http://blog.hrusa.com/blog/us-osha-opens-injury-tracking-electronic-portal/

Obama’s Overtime Rule Struck Down By Court

Posted in Labor Law, New Legislation and Regulations, Wage & Hour

A Texas federal court struck down a rule that would have expanded those eligible for overtime pay.  The Department of Labor’s rule would have required overtime pay to most salaried employees who earn less than $47,476 annually.  This would have been a dramatic increase from the current salary level of $23,660.  The rule was expected to have an extensive effect if implemented, to the tune of more than 4 million workers.  The same court had blocked the rule from being enforced in November 2016, but had not yet determined whether the rule was valid.  Over 55 business groups challenged the implementation of the rule, and were rewarded in the court’s August 31st ruling finding that the rule exceeded the Department of Labor’s authority.

ATTENTION EEO-1 EMPLOYERS –YOU DON’T HAVE TO REPORT PAY DATA TO THE EEOC IN MARCH 2018 AFTER ALL

Posted in Discrimination, Employee Privacy Rights, Labor Law, New Legislation and Regulations, Wage & Hour

On August 29, 2017, the Office of Information and Regulatory Affairs (OIRA) issued a memo to the EEOC advising that the Office of Management and Budget (OMB) is initiating a review and an immediate stay of the effectiveness of those aspects of the EEO-1 form that were revised on September 29, 2016. Those  revisions included new requirements for employers with 100 or more employees (and for employers who are federal contractors with 50 or more employees) to provide data on the wages and hours worked by their employees. The OIRA’s memo made clear that the EEOC may continue to use the previously approved EEO-1 form to collect data from covered employers on the race/ethnicity and gender of their employees during the review and stay period.

The memo explained that, among other things, the OMB is concerned that some aspects of the requirement to collect wage and hour information, lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.

Following receipt of the OIRA’s memo, the EEOC immediately issued a statement that advised covered employers that the previously approved EEO-1 form which collects data on race, ethnicity and gender by occupational category will remain in effect, and that “[e]mployers should plan to comply with the earlier approved EEO-1 (Component 1) by the previously set filing date of March 2018.”  Despite this current stay in the requirement to report pay data, the EEOC said that it remains committed to strong enforcement of federal equal pay laws and hopes the OMB’s decision “…will prompt a discussion of other more effective solutions to encourage employers to review their compensation practices to ensure equal pay and close the wage gap.”

The Labor & Employment attorneys at Weintraub Tobin will continue to follow the OMB’s review process and EEO-1 employers should stay tuned for further developments.

New Nevada Domestic Violence Leave Law Broader Than FMLA

Posted in FMLA and Other Leaves of Absence

Beginning January 1, 2018, a Nevada employee who has been employed for at least 90 days and who is a victim of an act of domestic violence or whose family member or household member is a victim of an act of domestic violence (provided the employee is not the perpetrator), is entitled to a maximum of 160 hours of leave in one 12-month period.

Domestic violence is defined under Nevada Revised Statutes (NRS) 33.018 as follows:

Domestic violence occurs when a person commits one of the following acts against or upon the person’s spouse or former spouse, any other person to whom the person is related by blood or marriage, any other person with whom the person is or was actually residing, any other person with whom the person has had or is having a dating relationship, any other person with whom the person has a child in common, the minor child of any of those persons, the person’s minor child or any other person who has been appointed the custodian or legal guardian for the person’s minor child: (a) A battery; (b) An assault; (c) Compelling the other person by force or threat of force to perform an act from which the other person has the right to refrain or to refrain from an act which the other person has the right to perform; (d) A sexual assault; (e) A knowing, purposeful or reckless course of conduct intended to harass the other person; (f) A false imprisonment; or (g) Unlawful entry of the other person’s residence, or forcible entry against the other person’s will if there is a reasonably foreseeable risk of harm to the other person from the entry.

The new Nevada domestic violence leave law is broader than the Family and Medical Leave Act (FMLA), as it applies to all private employers in the state of Nevada, not just those with at least 50 employees within 75 miles of the worksite. If applicable, the Nevada domestic violence leave must be deducted concurrently from leave permitted under FMLA.

Read the full article at HRUSA here: http://blog.hrusa.com/blog/new-nevada-domestic-violence-leave-law-broader-than-fmla/.

San Francisco Passes “Lactation in the Workplace Ordinance”

Posted in Discrimination, Employee Privacy Rights, Labor Law, New Legislation and Regulations, Wage & Hour

On June 30, 2017, San Francisco’s Mayor Ed Lee signed an ordinance, providing employees in the City of San Francisco with additional lactation rights.  The “Lactation in the Workplace Ordinance,” will take effect on January 1, 2018 and applies to all City employees, including those who work part-time.  The ordinance is similar to existing state and federal law, but contains additional requirements.

What Does The Ordinance Require?

Location Specifics

Employers must provide a lactation location other than a bathroom that is in close proximity to the employee’s work area.  The location must be shielded from view and free from intrusion from co-workers and the public.   It must have the following features:

1)      Safe, clean, and free of toxic or hazardous materials;

2)      Contain a surface (e.g. a table or shelf) to place a breast pump and personal items;

3)      Contain a place to sit;

4)      Have a door that locks from within;

5)      Be at least 50 square feet; and

6)      Have at least one electrical outlet per lactation station.

The room must be located within 500 feet or two adjacent floors from the farthest employee it is designated to serve.  The employer must also provide a refrigerator where the employee can store breast milk and access to a sink with running water

The lactation location can be a room that is also used for other purposes, so long as the employer provides notice that the primary use of the room is for lactation which takes precedence over other uses.

An employer may be exempt from the ordinance’s requirements if it can establish that the requirements would impose an undue hardship (significant expense or operational difficulty in relation to the employer’s size, financial resources, nature, location, or physical space).

            Employer Policy

Employers must develop and implement a written Lactation Accommodation Policy.  The policy must:

1)      State that employees have a right to request lactation accommodation,

2)      Identify a process by which an employee may request lactation accommodation, (including how an employee may submit a request, a requirement that the employer respond within 5 business days, and a requirement that the employer and employee engage in an interactive process to determine the appropriate lactation breaks and location);

3)      If the employer is exempt from the ordinance’s requirements, the employer must state the basis for denial of the lactation accommodation; and

4)      Prohibit retaliation against an employee for exercising her rights under this ordinance.

The Lactation Accommodation Policy must be distributed to all employees upon hiring and offered to any employee who asks about or requests pregnancy or parental leave.  If the employer has an employee handbook or policies, the Lactation Accommodation Policy must be included.

Employer Record Retention Requirement

Employers are required to maintain specific records of requests for lactation accommodation made pursuant to the employer’s policy, for 3 years.

            Enforcement and Penalties

San Francisco’s Office of Labor Standards Enforcement (OLSE) is charged with enforcing the law and giving notices to correct.  After a one-year grace period, beginning January 1, 2019, the OLSE may impose administrative penalties up to $500 for each violation

Existing State and Federal Requirements

The ordinance combines and expands upon existing federal and state laws that already address lactation in the workplace.  (See 29 U.S.C §207(r); Cal. Labor Code 1030-1033.)  Among other expansions of the law, neither federal nor California law currently requires as many specific features of the lactation room, a formal written policy, or recordkeeping and retention.

Please consult legal counsel for details regarding the ordinance’s specific requirements.  We recommend reviewing and updating your existing lactation accommodation policies before January 1, 2018.