California lawmakers, union supporters, and Governor Brown have come together to increase California minimum wage to $15.00 over the next several years.  Governor Brown signed the law only one week after he announced that legislators and labor leaders negotiated a deal behind the scenes.

The new law requires California employers with more than 25 employees to pay at least $15.00 per hour by 2022.  Employers will 25 or less employees have an additional year to increase their wages to at least $15.00 per hour.  The increase will be phased-in beginning next year when the minimum wage increases to $10.50 per hour.  Click here for a chart of the new minimum wage rates.

After January 1, 2023, the minimum wage will be increased annually from the adjusted U.S. Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W), but no more than 3.5% in a year, with the resulting rate rounded to the nearest $0.10.  CPI-W is generally seen as a cost-of-living index for working individuals and families.

The Governor has the authority to suspend the increases based on economic conditions, such as declining state revenues from sales tax, declines here in labor markets, or budget deficits.  However, the Governor can only suspend the increase twice and the Governor does not have the authority to suspend the minimum wage increase once the minimum wage reaches $15.00 per hour.

The state minimum wage increases affects more than just those paid minimum wage.  Employers should consider these new minimum wage obligations for employees paid commissions and piece-rate compensation, are exempt employees, or those employees that are required to provide and maintain their own tools and equipment.

For example, exempt employees must satisfy both the duties and salary test to be properly classified as an exempt employee.  Generally this means that the employee must earn at least two times the state minimum wage.   Click here for a chart of the new minimum wage rates (minimum exempt salary).

Employers need to ensure they increase the minimum salaries for those whose status is dependent on minimum wage.  Employers who do not increase employee’s wages may risk liability for improperly classifying employees or risk liability for back wages or reimbursements.

Employers will also need to update their written notices provided to minimum wage employees, pursuant to Labor Code § 2810.5, because otherwise the rate of pay and overtime rates listed on the notice will not reflect the new increases.  Employers should also ensure that they display workplace posters that include the new minimum wage rates.

 

By:  Darrell P. White

On April 5, 2016, the San Francisco Board of Supervisors unanimously passed an ordinance requiring local businesses to effectively provide their employees with six-weeks of fully-paid parental leave.  Click here to view.  Under existing California law, employees may receive up to 55% of their wages for six weeks through the California’ State Disability Insurance (SDI) program.  San Francisco’s new law would require employers to cover the pre-existing, 45% gap.

Subject to a final board vote next week and signature into law by Mayor Ed Lee, the new legislation will take effect on January 1, 2017, for companies with more than 50 employees.  In a likely response to the concerns of small businesses, the law would not take effect until January 1, 2018, for companies with 20 or more employees.

Stay tuned to hear the final parameters of the law and compliance information for your business.

By:  Labor and Employment Group

Don’t deny it: you scroll through your social media feeds past the mundane photos, click-bait, and “humble brags” in search of explosive drama. Eventually, you might land on a status update from one of the reliable “oversharers” on your friends list (we all have them). She was just terminated from her job and decided to air her grievances about her former employer in her status update. Would you be surprised if you saw the company shoot back at her from its own social media page? While it is pretty standard to hear about individual employees making poor choices with respect to their social media posts (an employee who is friends with his or her boss on social media is usually involved), it is less common to hear about employers oversharing on company social media pages.

The influence of social media is undeniable, and more companies are actively using it to market themselves. Last week, a well-known internet company that publishes crowd-sourced reviews and information on local businesses found itself in the midst of a social media fueled public relations nightmare. An ex-employee called out the company on a blog by alleging that the company was inflexible toward her situation as a single mother and that the company ultimately terminated her because she asked for leave to care for her boyfriend while he was recovering from a brain injury. Continue Reading Social Media Fail: Sometimes Even Employers Memorialize Bad Decisions on the Internet

The Department of Fair Employment and Housing (“DFEH”) recently issued new guidance for employers to prevent discrimination against transgender employees, who are protected under California’s Fair Employment & Housing Act (“FEHA”). Since 2012, FEHA protection has been extended to include gender identity and gender expression categories, and defines “gender expression” to mean a “person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” The DFEH’s new brochure, called “Transgender Rights in the Workplace” (available here), makes clear that employers must allow transgender employees access to restroom, shower, locker room and other such facilities that correspond with their gender identity. It also suggests that providing individual or unisex restrooms, where possible, can enhance privacy for all employees.
Continue Reading DFEH Releases New Guidance Regarding Transgender Employees

By:  Vida L. Thomas

Conducting workplace investigations is not easy.  The process is filled with land mines that can trip up even the most experienced investigator.  Although there are many mistakes I’ve seen investigators make, these are the three most common.

Trap #1: Failing To Define The Investigation’s Scope Before You Begin.

Investigations are tricky things, and can take many unexpected twists and turns.  The complaining employee often may make one allegation in his/her verbal complaint to a supervisor, an additional allegation in his/her written complaint, and more allegations to you in the interview.  That complainant, or one of the witnesses, may produce a “laundry list” of issues they wish you to look into.   Are you obligated to investigate every complaint raised by employees?  Doing so would certainly increase the time and cost of the investigation.Vida Thomas 04_final

This is why, before you begin the investigation, it is important that you establish the investigation’s scope.  It is just as important to know what you are not investigating as what you are investigating.  What issues does the employee wish you to investigate?  On the other hand, what issues is the employer hiring you to investigate?  You may need to confer with the employer’s legal counsel for direction on which issues to look into.  If you don’t go through this sorting process at the beginning of the investigation, you run the risk of learning much later (possibly after you turn in your written report) that you did not investigate the matters the employer hired you to look into.

Trap #2: Reaching A Conclusion Too Soon (Also Known As “Confirmation Bias”).

It happens to the best of us: after talking to the complaining employee and a few of the percipient witnesses, a pretty clear picture begins to emerge.  You have a reliable hunch about what occurred but, of course, you’ll talk to the accused to get his/her side of the story.  The problem is, although you think you’re withholding judgment until after your interview with the accused, you’re already leaning toward a particular outcome.  And that predisposition may influence how you question, perceive and assess the accused.  That is the essence of “confirmation bias”: the tendency to interpret new evidence as confirmation of one’s existing beliefs or theories.  We all engage in confirmation bias to some extent; indeed, taking mental shortcuts in decision making is efficient and sometimes necessary.  When conducting a workplace investigation, however, confirmation bias can lead us to an incorrect conclusion.  Without realizing it, we may overlook or discount evidence that contradicts our early hunch or gut instinct.

How can you minimize confirmation bias?  Keep an open mind throughout the investigation.  Accept, review and weigh all of the evidence.  When you reach a conclusion, ask yourself: Did I come across any evidence that contradicts this conclusion?  If so, what is the reason for discounting that contradictory evidence?  Taking these steps will go a long way to help ensure that your conclusion is based on the evidence, not your preconceptions.

Trap #3: Failing To Follow Up.

Investigations are almost always conducted under a tight timeline.  You will feel under constant pressure to “wrap things up” quickly.  So what do you do if the witnesses contradict each other on a key issue, or if the respondent gives you information that undermines the complainant’s credibility or raises further questions that need to be answered?  With looming deadlines in mind, you may be tempted to simply leave these contradictions or unanswered questions unresolved in order to reach a conclusion sooner.

Remember, however, that you have a legal obligation to conduct a thorough investigation.  This means that you may need to conduct follow-up interviews with witnesses to see if you can clear up the contradiction.  Or you may need to follow-up with the complainant, to give him/her the opportunity to respond to the new information.  Follow-up interviews can be a very helpful tool.  They can give you a deeper understanding of the evidence, and strengthen your findings.

Improve Your Investigation Skills

Delve into these three investigation traps, and much more, in our upcoming training class.  Attorneys from Weintraub Tobin’s Workplace Investigations Unit (Vida Thomas and Beth West) will conduct a one-day, in-depth training on conducting effective workplace investigations on March 3, 2016.  For more details and the cost of this training session, please click here.