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You Aren’t In Kansas Anymore, Dorothy: A Common Sense Method of Complying with California’s New Fair Pay Act

Posted in New Legislation and Regulations, Wage & Hour

 

Summary of Program

For decades the California Equal Pay Act has prohibited an employer from paying its employees less than employees of the opposite sex for equal work. On October 6, 2015, Governor Brown signed the California Fair Pay Act (SB 358), which strengthened the Equal Pay Act in a number of ways.  Then, on September 30, 2016, Governor Brown signed two other bills into law – SB 1063 which added race and ethnicity as protected categories under the Fair Pay Act, and AB 1676 – which prohibits employers from justifying a sex-, race-, or ethnicity-based pay differences solely on the grounds of prior salary.  California’s Fair Pay Act is now known as one of the strictest in the nation.Join Weintraub Tobin’s labor and employment attorneys as they discuss California’s Fair Pay Act and what this means for employers.

Program Highlights

  • The amendments to the Fair Pay Act
  • Recordkeeping requirements
  • What is “substantially similar work”
  • Justifications for pay difference
  • Bona fide factors other than sex, race, or ethnicity
  • How to comply with the Act
  • Strategies to defend against litigation

Date & Time:

February 15, 2018

9:30 a.m. – 11:30 a.m.

Seminar Program

9:00 a.m. – 9:30 a.m. – Registration & Breakfast

9:30 a.m. – 11:30 a.m. – Seminar

Location

Weintraub Tobin Office

400 Capitol Mall, 11th Floor | Sacramento, CA 95814

Parking Validation provided. Please park in the Wells Fargo parking garage, entrances on 4th and 5th Street. Please bring your ticket with you to the 11th floor for validation.

There is no charge for this seminar.

Webinar

This seminar is also available via webinar. Please indicate in your RSVP if you will be attending via webinar.

Approved for two (2) hours MCLE.  This program will be submitted to the HR Certification Institute for review.  Certificates will be provided upon verification of attendance for the entirety of the webcast. 

New Year, New Minimum Wage

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

Effective January 1, 2018, California’s minimum wage rate increased to $11.00 per hour (from $10.50) for employers with 26 or more employees and $10.50 per hour (from $10.00) for employers with 25 or fewer employees. The minimum wage will continue to increase yearly until it reaches $15.00 per hour on January 1, 2022 for employers with 26 or more employees and January 1, 2023 for employers with 25 or fewer employees.

In California, many cities and counties are increasing their minimum wages faster than the state. Click here for a chart of increases set to take place in 2018.

 

Settling Individual Labor Code Violations Kills PAGA Claims

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

On December 29, 2017, in Kim v. Reins International California, Inc., the Second District Court of Appeal in Los Angeles ruled that a plaintiff no longer has standing to assert PAGA claims once the plaintiff has settled and dismissed his individual claims against his employer. This decision could have far-reaching implications in PAGA litigation, changing the way both plaintiff’s attorneys and defense attorneys approach PAGA lawsuits.

PAGA Background

PAGA, officially known as the Labor Code Private Attorneys General Act of 2004, allows an “aggrieved employee” to act as a private attorney general and sue her employer for violations of the California Labor Code. PAGA allows one aggrieved employee to act on behalf of all aggrieved employees, which can multiply the number of violations, and the associated penalties, an employer faces tens or hundreds of times over. If the employee wins the lawsuit, the aggrieved employees collect 25% of the penalty imposed by the court, and the rest goes to the State of California.

PAGA says that “‘aggrieved employee’ means any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.” The Second District’s decision turned on this statutory definition of “aggrieved employee.”

Factual Background

The plaintiff, Justin Kim, started out as an aggrieved employee by alleging that his employer, Reins, had misclassified training managers like himself as exempt from overtime requirements, and therefore had failed to pay overtime wages, to allow proper meal and rest periods, to provide adequate wage statements, and to pay for waiting time. Kim had signed an arbitration agreement when he began working for Reins, so the trial court granted Reins’s request to send Kim’s individual claims under the Labor Code to arbitration and put the PAGA claims on hold until the arbitration was complete. While waiting for the scheduled arbitration, Reins offered to settle the case with Kim, and Kim accepted.

After settling Kim’s individual claims, Reins asked the trial court to decide, as a matter of law, that Kim could not maintain his PAGA claims because he was no longer an “aggrieved employee” under the law. The trial court granted judgment in Reins favor on the PAGA claims, saying that once Kim dismissed his individual claims pursuant to the settlement agreement, he “was no longer suffering from an infringement or denial of his legal rights,” and therefore was no longer “aggrieved.”

Kim’s Appeal

Kim appealed, but the Second District agreed with the trial court’s reading of the statute, stating “PAGA was not intended to allow an action to be prosecuted by any person who did not have a grievance against his or her employer for Labor Code Violations.” Despite this broad statement of policy, the Court of Appeal, likely foreseeing the upheaval its decision could cause, attempted to confine its decision to the “specific circumstances at issue in this case: Kim asserted both individual Labor Code claims and a PAGA claim in the same lawsuit, and he voluntarily chose to settle and dismiss his individual Labor Code claims with prejudice.” The consequences of this decision will be left for future litigants to fight out.

What Comes Next

After the Court of Appeal handed down its decision, Kim’s attorney was paraphrased predicting how plaintiff’s attorneys will respond to the decision: “the decision essentially tells plaintiffs’ lawyers to either not bring individual claims, which would raise various ethical concerns if the plaintiffs have authorized such claims, or not settle such claims to protect a PAGA claim.”  Of course, clients, not attorneys, have the final say as to whether to settle lawsuits, so this decision does seem to give employers the ability to fight off PAGA liability by buying off aggrieved employees. Note, however, that this process could take some time, as any aggrieved employee can seek the full amount of PAGA penalties, and each settlement will only remove one potential plaintiff.

Looking further ahead, even if a plaintiff does not bring an individual claim or refuses to settle their individual claims, defense attorneys can seek to challenge the plaintiff’s standing by challenging whether the underlying Labor Code violations actually occurred. This could allow employers to essentially bifurcate the proceedings, challenging Labor Code violations without having the immediate threat of PAGA penalties hanging over them. Given that a different district of the Court of Appeal recently issued a decision allowing employees bringing PAGA claims to bypass defenses available to employers for the underlying Labor Code violations, the Kim decision may offer employers a way to fight back by challenging the plaintiff’s standing.

Takeaways for Employers

It remains to be seen whether Kim will ask the California Supreme Court to review the Court of Appeal’s decision, but in the meantime, any employers facing PAGA lawsuits should consider challenging the employee’s standing. The Kim case also underlines the importance of arbitration agreements and of California’s “offer to compromise” law, which together can put some pressure on plaintiffs to accept settlement offers, even if plaintiff’s attorneys are pushing their clients not to settle to preserve the PAGA claims that are more valuable to the attorney. Talk to an employment lawyer to determine whether your employment agreement offers the sort of protection that Reins took advantage of in this case.

The NLRB Reverses Itself – Good News for Employers and Their Employment Policies

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

In its December 14, 2017 decision entitled Boeing Company and Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001 (“Boeing”), the National Labor Relations Board (“NLRB”) reversed itself and adopted a new and much more realistic standard for evaluating whether employment policies and rules violate the National Labor Relations Act (“NLRA”).

To read the full article, please click here.

DLSE Issues New Guidance on Rest Breaks – Is Your Handbook Up to Date?

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

The Division of Labor Standards Enforcement (“DLSE”) recently issued updated guidance regarding rest breaks that reverses its previous position, which permitted employers to require that employees stay on work premises during their rest periods. In this new guidance, the DLSE states that employers “cannot impose any restraints not inherent in the rest period requirement itself,” including forbidding employees to leave the premises. This guidance follows the California Supreme Court’s determination that rest breaks, like meal breaks, must be “duty free.” In Augustus v. ABM Security Services, Inc. (2016) 5 Cal.5th 257, the California Supreme Court determined that a company policy regarding security guards to keep their radios or pagers on during their rest breaks, and to respond if needed, violated the California Labor Code and Wage Orders. The DLSE has expanded this ruling to require that employers permit employees to leave the work premises during their rest break, while noting that “[a]s a practical matter … the employee can only travel five minutes from a work post before heading back to return in time.”

California employers should review their employment policies to ensure compliance with this updated guidance. Weintraub’s Labor & Employment attorneys have extensive experience counseling and auditing employee handbooks. Please contact any member of our team for assistance in updating your policies.

Now Available! Weintraub Tobin’s 2018 Labor and Employment Seminar and Training Schedule

Posted in Disability Discrimination, Discrimination, Employee Privacy Rights, Employment Contracts and Agreements, Harassment, Labor Law, New Legislation and Regulations, Reductions in Force, Retaliation and Wrongful Termination, Trade Secrets and Competition, Uncategorized, Wage & Hour

Weintraub Tobin’s 2018 Labor and Employment Seminar and Training schedule is now available.  Click here for a copy of the schedule.

If you have any questions on any of our seminars or would like to inquire on private, custom-tailored training, please contact:

Ramona Carrillo

(916) 558-6046

rcarrillo@weintraub.com

New Transgender Rights Poster Required for California Workplaces

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

On October 15, 2017, California’s Governor Jerry Brown signed SB 396 into law, requiring new training and posters for California employers.  Currently, California law requires employers with 50 or more employees to provide at least 2 hours of sexual harassment training to supervisors every two years.  This new bill requires those employers to also include training on harassment based on gender identity, gender expression, and sexual orientation.  Further, employers will be required to display a poster regarding transgender rights.  The poster can be obtained from the Department of Fair Employment and Housing or by clicking here.   The bill is set to go into effect on January 1, 2018.  Our Labor and Employment attorneys are available to ensure that your training materials and posters comply with these new requirements.

SAVE THE DATE – Mandatory AB 1825 Sexual Harassment Prevention Training

Posted in Discrimination, Harassment, Labor Law, New Legislation and Regulations, Retaliation and Wrongful Termination, Wage & Hour

Weintraub Tobin will be holding their final session of AB 1825 training for the year on December 14, 2017.  If you are an employer with 50 or more employees, and have supervisors who have not been trained, or are in need of a refresher course, then don’t miss out.

This training will comply with all the requirements of the regulations including Senate Bill 396 signed by Governor Brown on October 15, 2017, which requires training on policies that prohibit harassment based on gender identity, gender expression, and sexual orientation.

Training Date/Time:  December 14, 2017; 10:00 a.m. to 12:00 pm.

Cost:  $95/per person

More details will follow.   Reserve your spot now by emailing Ramona Carrillo, rcarrillo@weintraub.com.

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.