Happy New Year!   The new year frequently marks new changes in the law, and this year is no exception.  There are several important changes that went into effect on January 1st.  Here are some of the major changes that went into effect on January 1, 2017:

  • Minimum Wage Change: On January 1st, for employers with 26 or more employees, the California minimum wage will increase to $10.50/hour.   The minimum wage remains at $10.00 for employers with 25 or fewer employees.  Employers with 26 or more employees should use the $10.50 rate to determine the “salary basis” for exempt employees.Shauna Correia.standing
  • Arbitration Agreements: Beginning January 1st, California employees cannot be required to enter into agreements (including employment and arbitration agreements) requiring them to apply another state’s laws to their disputes, or agree to litigate in any venue outside of California, unless the employee had advice of counsel.
  • Immigration Verification: Existing law prohibits an employer for engaging in certain actions related to immigration, like refusing to honor immigration documents that appear to be genuine.  Under the new law, it is unlawful for an employer to refuse to honor documents based on the status or term of the person’s work authorization.  Additionally, it is unlawful to reinvestigate or re-verify an incumbent employee’s authorization to work.  For more information on this law, contact one of our attorneys to make sure you are in compliance.
  • Wage Discrimination: Existing law generally prohibits employers from paying an employee lower wages than those paid to employee of the opposite sex for the same job and requires the same skill, effort, and responsibility.  A pay difference can, however, be based on several factors including seniority, merit, quantity/quality of production, or a bona fide factor other than sex (like education, training, or experience).  This new law provides that, effective January 1, an employee’s prior salary alone cannot justify a difference in compensation as a bona fide factor.    Additionally, these requirements were expanded to include differences in race as well as sex.
  • Asking about Juvenile Proceedings on Job Application: The  new law prohibits an employer from asking an applicant for employment to disclose, or from utilizing as a factor in determining any condition of employment, information related to an arrest, detention, adjudication, or court disposition that occurred while the person was subject to juvenile court.  Some exceptions apply for certain employers, like health facilities.

If you have any questions about whether your particular business practices are compliant with these laws, or need assistance updating your employment and arbitration agreements, please contact one of our labor and employment attorneys.

The Labor & Employment attorneys at Weintraub Tobin specialize in training supervisors on various workplace issues, including preventing harassment, discrimination, and retaliation; workplace health and safety; and managing leave laws.  For more information, please visit our Trainings page here.

Puzzle 1- training

Liability arising from serious workplace injury can be divided into four general categories: (1) worker’s compensation; (2) administrative agency (OSHA); (3) criminal liability; and (4) other civil liabilities.

  1. Worker’s Compensation

    Worker’s compensation is, for the most part, a strict liability system -any bona fide workplace injury, regardless of cause – is covered.Chuck-Post-07_web

The worker’s compensation system provides medical treatment, wage replacement and, in some cases, vocational rehabilitation.  Civil claims against an employer as a result of a workplace injury are, with only a few narrow exceptions, prohibited. Those civil claims (negligence, etc.) are barred by the worker’s compensation exclusivity preemption rule, which makes the worker’s compensation system the exclusive forum for all claims resulting from worker injury – including serious injury and death.

In certain cases, an employee may seek an enhancement of these benefits by claiming that the injury resulted from the employer’s serious and willful violation of worker safety (“S&W claim”). If successful, the injured worker’s benefits will be enhanced up to 150 percent of the underlying worker’s compensation award. For example, three million in medical and wage replacement could result in up to $1.5 million in S&W liability. There is also a corollary provision allowing for some reduction in worker’s compensation benefits in cases where the injured worker engaged in serious and willful misconduct causing the injury.

Your worker’s compensation carrier will process and administer the claim and, if necessary, defend the company (and appoint counsel) in the event that its claim decisions are appealed or if there are other claim proceedings before the Worker’s Compensation Appeals Board (“WCAB”).

Worker’s Compensation Insurance Carriers are barred by law from defending employers in S&W claims or indemnifying them for any S&W award. This is like the rule that punitive damages and fines are not insurable.

If an S&W claim is brought against your company, the company will be required to defend itself (by retaining counsel) and cover any penalty from its own resources and revenues.

  1. Administrative Agency Liability (Cal-OSHA).

Cal-OSHA is responsible for worker safety regulation and enforcement.  Cal-OSHA is required to investigate all employer reports of workplace injury or death.

Cal-OSHA has specific regulations and permitting requirements for industries and hazardous activities. For an overview, see: https://www.dir.ca.gov.

Noncompliance with OSHA regulations can result in civil and criminal penalties. An explanation of the citation levels and civil and criminal penalties can be found on page ten of the following OSHA pamphlet: http://www.dir.ca.gov/dosh/dosh_publications/osha_userguide.pdf.

In sum, violations of OSHA regulations can result in issuance of a citation. These citations range from” regulatory” violation (least serious) through “general”, “serious”, “accident related serious, “willful” and “repeat” violations.  The last types of citation are the most serious.   If a citation is issued there is an opportunity to discuss the citation with the investigator and OSHA staff. Following citation issuance, the citation (and associated fines/penalties) may be appealed to a hearing before an administrative law judge within OSHA. In turn, those decisions may further appealed and reviewed on the record by the Cal-OSHA appeals board.

  1. Criminal Liability

A willful violation that results in death or permanent or prolonged impairment of the body of an employee may result in criminal liability. (This liability is also discussed on page ten of the OSHA pamphlet linked above.)  Both fines and imprisonment are possible.

There are also separate criminal liabilities for making false statements in the course of a workplace accident investigation.

  1. Civil Claims.

As stated above, almost all civil claims against an employer (for workplace injury) are preempted by the worker’s compensation remedy. This includes actions for negligence/wrongful death by a worker’s family against the employer.  Workers may sue non employer third parties for injuries. These non-employer parties can include manufactures of products that caused (or may have caused) the injury or (non workplace) operators of vehicles that cause injury.

The attorneys in Weintraub Tobin’s Employment Law Group assist employers in all areas of employment law.  Contact any one of us if we can be of assistance.

 

On August 6, 2016, the Arizona State Legislature enacted the “Declaration of Independent Business Status” law (“DIBS”). The DIBS added Chapter 10 to Title 23 of the Arizona Revised Statutes (Arizona’s “Labor” statute). In short, DIBS allows certain Arizona companies (referred to in the statute as an “employing unit”) to obtain a declaration from those individuals they deem “independent contractors” (rather than employees) so that a rebuttable presumption exists that the relationship is in fact one of independence. Obtaining a declaration under the DIBS is discretionary and the statute states expressly that compliance with the law and the execution of a declaration of independent business status are not mandatory in order to establish the existence of an independent contractor relationship. Further, the failure of a party to execute a declaration in compliance with the DIBS does not create any presumptions and is not admissible to deny the existence of an independent contractor relationship.

Read the rest of the blog post at http://blog.hrusa.com/blog/arizonas-new-independent-contractor-declaration-law/.

As an employment attorney and mediator, I believe mediation is a good alternative to protracted employment litigation.  Below are the top reasons why.

1. Mediation is a Voluntary Process.

Unlike litigation in which federal and state laws and court rules mandate the process (and often the outcome), mediation is a voluntary process. Thus, the parties choose to freely participate and are in control of – if and how – their dispute will be resolved.

2.  There is No Adjudicator to Determine Fault or Liability.

Mediation is about resolving disputes on terms the parties agree to.  Neither party admits fault or liability, nor is there a judge or jury who determines fault or liability.Beth-West-15_web

3.  Mediation Saves Money.

Employment cases can go on for years and even if the case is ultimately settled before trial, the parties will spend a significant amount of money on discovery, motion practice, and pre-trial expenses. This money will likely never be recovered by the employer and will only be recovered by the employee if he/she prevails. Alternatively, the cost of mediation is usually very reasonable; often a mere fraction of the costs of litigation.

4.  Mediation is Efficient and Saves Time.

Courts are impacted and trial dates are usually set out years into the future.  As such, parties will spend many years fighting their case before they ever get before a jury.  On the other hand, mediation can be scheduled at any time pre or post litigation and, when successful, can literally put the dispute to rest as soon as a settlement is reached and the mediation is concluded.

5.  Mediation is Confidential.

Civil lawsuits filed in federal and state courts are public record and, if a trial is ultimately held, it too will most likely be open to the public. However mediation is confidential and the information disclosed by the parties during mediation and any settlement reached, will not be made part of a public record.

6.  Mediation Allows for Candid Communication.

Because mediation is confidential and is held for the purpose of trying to reach a mutually acceptable resolution, the parties can openly discuss their views about the dispute.  They can also freely share their concerns (e.g. weaknesses) about their positions [in confidence with the mediator] without fear of making an admission against their interests.

7.  Mediation Allows for Creative Problem Solving.

Unlike a civil lawsuit where a judge or jury may be limited by applicable law in the types of remedies they can award a prevailing party, mediation allows the parties to engage in creative problem-solving so that they can structure unique settlement terms that may never be possible in court.

8.  Mediation Can Help Employers Avoid the Possibility of Paying the Employee’s Attorneys’ Fees.

In most federal and state employment law statutes, a prevailing party (but more often a prevailing plaintiff/employee) is entitled to reasonable attorneys’ fees.  Often the prevailing employee’s attorneys’ fees far exceed the monetary award received by the employee.  By submitting the dispute to mediation – earlier rather than later – employers can reduce the risk and uncertainty associated with these fees.

9.  Mediation is Final – No Appeals.

Unlike a jury verdict after trial which is subject to appeal and a further expenditure of time and resources, a settlement at mediation is final.

 

For more information, please visit my bio at http://www.weintraub.com/attorneys/lizbeth-beth-v-west.  For information on our Employment Mediation services, please visit our website at http://www.weintraub.com/practice-areas/labor-and-employment/mediation.