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California Labor Commissioner and Attorney General Jointly Answer “Frequently Asked Questions” on Immigration Sweeps

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

In case you haven’t noticed, immigration has been a hot topic of discussion in the news lately. While debates over Dreamers and the wall have dominated those discussions, the workplace has been swept into it all as well. On the one hand, the federal government’s efforts to curb illegal immigration have reached the workplace via frequent raids of businesses suspected of employing undocumented workers.  On the other hand, California has deemed itself a “sanctuary state” and pushed back on these immigration sweeps via laws that punish employers who cooperate with federal authorities carrying out the raids.  The collateral damage in that fight may just be the employers who are stuck in the middle.  Employers who allow ICE agents into their business risk violating California law, but employers who turn the same agents away could find themselves in hot water with federal authorities.  What to do?   Fortunately, the state Labor Commissioner and Attorney General have jointly issued some guidance to aid employers in navigating these treacherous waters.

The Immigration Worker Protection Plan

As a brief reminder, beginning January 1, 2018, California’s Immigration Worker Protection Act, Assembly Bill 450, took effect.  We previously blogged about the Act here.  In a nutshell, the new law prohibits all California employers from (1) granting “voluntary consent” to an immigration enforcement agent to enter any “nonpublic area” of the workplace without a warrant and (2) voluntarily consenting to the agents’ accessing, reviewing, or obtaining employment records without a warrant or subpoena. The Act also requires employers to provide their workforce with 72-hours’ notice of any I-9 Employment Eligibility Verification Inspection. Employers who violate these laws can face fines up to $10,000.

While California’s Sanctuary State laws are well intentioned, they raise several questions for employers seeking to comply with both state and federal laws.  What does it mean to grant voluntary consent? Are employers required to take physical measures to stop an overbearing enforcement agent?  What constitutes a nonpublic area? How does an employer provide proper notice to employees of an upcoming 1-9 inspection?  These are just some of the questions employers are tasked with when digesting the new law. Continue Reading

Protected Leave For New Parents Now Applies to Mid-Size Employers in California

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

The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) have long required large employers with 50 or more employees to provide unpaid job-protected parental leave for employees to bond with a new child. Effective January 1, 2018, the New Parent Leave Act (NPLA) extends similar parental leave requirements to California employers with 20 or more employees within a 75-mile radius.

The NPLA adds section 12945.6 to the Government Code, requiring these mid-size employers to provide up to 12 workweeks of unpaid job-protected leave for employees to bond with a new child within one year of the child’s birth, adoption, or foster care placement.  As with the FMLA and CFRA, employees must have worked for the company at least 12 months, and at least 1,250 hours during the preceding 12 months, to qualify for NPLA leave.

Employees may take the leave intermittently or all at once. Employees taking NPLA leave are entitled to additional leave under California’s Pregnancy Disability Leave Act (PDL), if they otherwise qualify for PDL leave. If both parents are company employees, the employer is not required to grant simultaneous leave to both parent-employees and total leave for both parents can be limited to the amount a single parent could take—12 weeks.

While NPLA leave is unpaid, the NPLA permits employees to utilize accrued PTO, vacation or related paid or unpaid time off negotiated with the employer, during their parental leave. Employers must maintain and pay for employees’ health plan coverage throughout their NPLA leave, 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. However, employers can recover the cost of premiums they paid during the NPLA leave if the employee fails to return after the leave for a reason unrelated to the employee’s serious health condition or other circumstances beyond the control of the employee.

The employer is deemed to have refused to provide leave under the NPLA if, on or before the commencement of the parental leave, the employer does not guarantee full reinstatement in the same or comparable position. The NPLA specifically prohibits employers from retaliating or discriminating against individuals for exercising their rights to NPLA leave or for giving information or testifying about their rights, or another individual’s rights, to NPLA leave in an investigation or legal proceeding.

To help avert the negative civil litigation impact a new law like this would likely have on small businesses, the NPLA includes a two-year pilot mediation program. Under the pilot program, employers may request a mediation with the Department of Fair Employment and Housing within 60 days of receipt of a right-to-sue notice. The benefits of this pilot program are reduced by the fact that participation in the mediation is voluntary and either side can withdraw if they believe the mediation would be fruitless.  The mediation pilot program will cease altogether on January 1, 2020.

While this new law looks a lot like the FMLA and CFRA, it applies to thousands of California businesses that up until now have been largely free from, and unfamiliar with, parental leave regulation. Affected California employers should therefore carefully review their employment policies and materials to ensure compliance with this new law and consult experienced employment attorneys if necessary.

 

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.