0 comments on “San Diego Amends Its Paid Sick Leave Ordinance”

San Diego Amends Its Paid Sick Leave Ordinance

By Deborah H. Petito

Effective September 2, 2016, Employers Who Have Employees Working in San Diego Can Front Load and Cap Paid Sick Leave

There are now six cities with paid sick leave laws. San Diego’s paid sick leave law was effective on July 11, 2016, however, the law as adopted by the voters in June left a lot of unanswered questions.  On August 3, 2016, the City Council approved an implementing ordinance that answers most of those questions.  The main question that employers had was whether or not accrued paid sick leave could be capped.  Under the original ordinance, there was no cap which meant that employees could accrue unlimited paid sick leave.  The implementing ordinance allows a cap of not less than 80 hours.  This means that once an employee subject to an 80 hour cap accrues 80 hours of paid sick leave, the employee cannot accrue any additional paid sick leave until the employee uses some paid sick leave.

The other question answered was whether employers could front load the 40 hours of paid sick leave required by the original ordinance. The answer is yes.  If front loaded, employers do not have to impose a cap because they may prohibit carryover of sick leave.  However, the 40 hours must be front loaded regardless of the employee’s status as full-time, part-time or temporary.  Employers who use the accrual method (not less than 1 hour for every 30 hours worked) must be permitted to carryover unused sick leave.

The original ordinance allows employees to cap sick leave usage at 40 hours of paid sick leave each year. That was left unchanged in the implementing ordinance.

Differences With Other California City Paid Sick Leave Laws

The San Diego 80 hour cap is higher than any other city in California. Four of the cities have a 72 hour cap for large employers.  Los Angeles and San Diego do not differentiate between large and small employers.  Some of the provisions are consistent, such as an employee is only entitled to paid sick leave if they work a minimum of 2 hours in the city per week and employees cannot use their paid sick leave until they have been employed for 90 days.  The challenge is for an employer who has employees working in more than one city with a paid sick leave law.  Such employers must decide whether to have separate policies or one policy that gives all employees the greatest benefits.  Each of the cities have separate posting requirements and they all have a required poster.  If employers have employees working remotely, how do they comply with the posting requirements?

Enforcement Provisions Added

The San Diego implementing ordinance also provides some teeth to ensure enforcement and compliance. The implementing ordinance establishes an Enforcement Office in the City which will eventually issue regulations.  However, employees are not required to complain to the City’s Enforcement Office and are allowed to sue their employers and to obtain attorney’s fees if they are successful.  The statute of limitations under the implementing ordinance is 2 years.

Under the implementing ordinance, any adverse action against an employee within 90 calendar days of the employee exercising their rights provided under the ordinance creates a rebuttable presumption that the employer retaliated. This puts the burden on the employer to prove that their actions were not retaliatory.

There are also penalties for employers who violate the law. Some of these penalties include:

  1. Liquidated damages up to $1,000 for a violation not resulting in termination;
  2. Liquidated damages up to $3,000 for a violation resulting in termination;
  3. Civil penalties of not more than $1,000 for each day that the employer fails to provide paid sick leave; and
  4. Penalties for failing to provide notice and posting.

If an employer ceases business operations, sells its business or transfers its interest any successor becomes liable for unpaid damages and penalties.

Steps for Employers

  1. Determine whether you have employees in any of the six California cities with paid sick leave laws.
  2. Make sure your paid sick leave policy complies with the paid sick leave laws that apply to you and make necessary revisions.
  3. Notify employees and post the appropriate notices.
  4. Monitor local ordinances.
  5. Monitor local governing boards and entities to ensure you are aware of new paid sick leave laws or changes to existing paid sick leave laws.

Thank you for joining us on CIarkTalk! We look forward to seeing you again on this forum.  Please note that views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you have any questions about the San Diego implementing ordinance or sick leave in California, please feel free to contact Deborah Petito by email at dpetito@clartktrev.com or Leonard Brazil at lbrazil@clarktrev.com or telephonically by calling the author at (213) 341-1359.

0 comments on “Employers Are Required To Post Two New Federal Posters Effective August 1, 2016”

Employers Are Required To Post Two New Federal Posters Effective August 1, 2016

By Deborah H. Petito

Employers are required to post two new federal posters effective August 1, 2016. One is the revised minimum wage poster and the other relates to polygraph tests.  These posters can be accessed by clicking here.

Thank you for joining us on CIarkTalk!  We look forward to seeing you again on this forum.  Please note that views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you have any questions about minimum wage compliance in California, please feel free to contact Deborah Petito at dpetito@clartktrev.com or Leonard Brazil at lbrazil@clarktrev.com by email or telephonically by calling the author at (213)629-5700.

 

0 comments on “Complying with California Sick Leave Laws – Can it get any harder?”

Complying with California Sick Leave Laws – Can it get any harder?

By Deborah H. Petito

On July 1, 2015, California’s new paid sick leave law became effective.  It applies to almost all employers and requires that employers provide at least three (3) days OR twenty-four (24) hours of paid sick leave.  In August of 2015, the Division of Labor Standards Enforcement (the California Labor Commissioner) issued an opinion stating that employers must offer 24 hours or 3 days of paid sick leave, whichever is greater, meaning an employee who normally works 10 hours in a day would be entitled to 30 hours of paid sick leave at a minimum.  Employers who implemented a policy frontloading twenty-four hours are now at risk of not being in compliance.

The trend to localize minimum wages has extended to paid sick leave benefits.  Six California cities – San Francisco, Oakland, Emeryville, Los Angeles, San Diego and Santa Monica – have implemented their own sick leave laws and they provide greater benefits than California law.  This article does not discuss all of the differences and employers are encouraged to contact their employment counsel to make sure that, in their specific circumstances, their policy(ies) are in compliance.

This fragmentation of paid sick leave rules and regulations  at the local level has made compliance more difficult for employers, particularly those with employees who work in multiple cities.  In Oakland, employers were required to comply by March 2, 2015.  In Emeryville the effective date was July 2, 2015; in Los Angeles and San Diego the effective dates were in July of 2016; and San Francisco and Santa Monica are effective in 2017.  It does not matter that the employer does not have a facility in the city.  The standard is whether the employer has employees who work in the city.  With the exception of San Francisco, employers must comply with the local paid sick leave laws if any employees work in those cities at least two hours in a week.  Employees who drive and deliver product, make sales calls or even those who work from home and live in one of these cities must receive the required paid sick leave benefits.

This creates several issues for employers beyond making sure that employees working in those cities are receiving the required sick leave benefits because the amounts of sick leave required and the rules surrounding how the employer provides the sick leave benefits are different.  It may be possible to give a certain class of employees, e.g. drivers, greater paid sick leave benefits because they work in these cities, but in some cases defining the group of employees who might be entitled to greater benefits may be difficult  and employers face a decision of having various policies or giving all employees greater paid sick leave benefits to avoid an administrative nightmare.

The major difference between the state and local laws is how an employer provides paid sick leave benefits.  Under California law, an employer may use the frontload method by providing all of the sick leave at the beginning of each year or use the accrual method, allowing employees to accrue sick leave at the rate of not less than one hour for every thirty hours worked.  If the employer uses the accrual method, they can cap sick leave at six day or 48 hours each year, which means an employee does not earn any additional sick leave until he or she has taken some sick leave.  Not all cities allow frontloading.  Each of the cities are consistent in allowing employers to use the accrual method and provide one hour of sick leave for each thirty hours that the employee works.  Two of the cities – San Diego and Oakland, do not provide a frontload method.  Logically, one would think that if an employer frontloaded the required sick leave, an employer would be in compliance, however, the Oakland City Attorney has opined that use of the frontload method “may risk” a violation of Oakland’s law.  Most employers chose the frontload method for administrative efficiency.  However, those employers will have to revise their policies if they have employees in cities that do not allow employers to use that frontload method.

There are also several other major differences between the requirements of these cities.  The use increments vary.  California law states an employer cannot require an employee to use sick leave in increments larger than 2 hours and two of the cities, while Oakland and San Francisco have reduced the increment to one hour.  Sick leave under California law and these local laws allows sick leave to be used for family members but the definition of family member differs and Oakland allows employees to use sick leave to care for a service dog.  Certain of the cities have different sick leave caps depending on the employer’s size.  The cities also each have their own posters/bulletins that must be posted.  While the California law does not have a provision allowing an employee to sue their employer for violation of the sick leave law, each of the cities allows an employee to do so and certain cities have penalties for violations.

As varying regulations are imposed by more and more local governmental entities, employers are severely challenged to stay abreast of the new laws, how they differ from state law and how to comply with them.

Thank you for joining us on CIarkTalk!  We look forward to seeing you again on this forum.  Please note that views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you have any questions about the new Los Angeles City Ordinance or sick leave in California, please feel free to contact Deborah Petito at dpetito@clartktrev.com or Leonard Brazil at lbrazil@clarktrev.com by email at or telephonically by calling the author at (213)629-5700.

 

0 comments on “Southern California Employers Beware – The City of Los Angeles Requires Employees Receive At Least 48 Hours of Paid Sick Leave”

Southern California Employers Beware – The City of Los Angeles Requires Employees Receive At Least 48 Hours of Paid Sick Leave

 

By Deborah Petito

Just when employers thought they had finalized their paid sick leave policies to conform to state law, a number of local communities (e.g., San Francisco, San Jose and Santa Monica) have passed their own sick leave laws which require more than three days of sick leave. The City of Los Angeles joined ranks and passed their own ordinance on June 1, 2016 (“City Ordinance”).  The effective date of the new sick leave (and minimum wage) ordinance is July 1, 2016, so the City of Los Angeles did not give employers much time to revise their policies to comply with the new sick leave requirements.  However, the City is allowing employers with less than 25 employees until July 1, 2017 to come into compliance.  The size of the employer’s workforce is determined by the average number of employees employed in the previous calendar year.  In addition, certain non-profit employers will be able to qualify for a deferral rate if they meet certain conditions.  The difficulty with complying with this City Ordinance, as detailed below, is that the City Ordinance can reach employers outside the City.

Sick Leave Frontloading and Carryover is Higher than State Law.

The City Ordinance requires that employers provide employees who work in the City of Los Angeles (even if the employer is not located in the City of Los Angeles) sick leave either by (1) providing at least forty-eight (48) hours of sick leave at the beginning of each calendar year, each year of employment, or selected twelve month period (frontload method); OR, by (2) allowing employees to accrue sick leave at the rate of one hour for every thirty hours worked with a cap of not less than 72 hours (accrual method).  This is an enhanced benefit when compared with the California sick leave law which requires only 24 hours to be frontloaded and allows an employer who uses the accrual method to cap the accrual at 6 days or 48 hours.

The Family Circle Has Widened.

The City Ordinance widens the family circle allowing employees to use sick leave for those individuals specified in the California sick leave law and to take care of “any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.”  The employer will be hard pressed not to accept the employee’s representation of individuals falling into these categories.

Employers Can Ask for Written Documentation

The City Ordinance also differs from the California sick leave law because it specifies that an employer may ask for reasonable documentation of an absence from work while the California sick leave law is silent on whether documentation can be requested, leading some to advise employers not to ask for documentation.

Employees Who Work For Employers Not Located Within The City Can Be Covered.

The most far reaching aspect of this City Ordinance is that it applies to any employee who performs at least two hours of work for any employer within the geographic boundaries of the City.  The definition of employer is not limited to an entity doing business in the City so all employers in Southern California can be affected, particularly those who employ sales or delivery employees who spend at least two hours a week in the City of Los Angeles.  In addition, the City Ordinance provides for individual liability because it defines “employer” to include “a corporate officer or executive, who directly or indirectly or through an agent or any other person, including through the services of a temporary service or staffing agency or similar entity, employs or exercises control over the wages, hours or working conditions” of employees.

Enforcement and Rule-Making Will Be Local.

The Office of Wage Standards of the Bureau of Contract Administration is the City agency designated to enforce and administer the City Ordinance. This agency is charged with promulgating guidelines and rules employers can rely upon and which will have the “force and effect” of law.  Hopefully, these new guidelines and rules will be promulgated in the near future to provide specific guidance to employers.  This is especially important because the City Ordinance is not clear on whether or not employees can carryover sick leave that has been frontloaded.

Action Needed

At this point, employers who have employees who work in the City of Los Angeles should revise their sick leave policies to provide the enhanced sick leave benefits.

Thank you for joining us on CIarkTalk! We look forward to seeing you again on this forum.  Please note that views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you have any questions about the new Los Angeles City Ordinance or sick leave in California, please feel free to contact Deborah Petito at mailto:dpetito@clarktrev.com or Leonard Brazil at lbrazil@clarktrev.com by email at or telephonically by calling the author at (213)629-5700.

 

0 comments on “You Can Be Fired For Your Political Beliefs, Except in California”

You Can Be Fired For Your Political Beliefs, Except in California

Heated debates over politics have become increasingly prevalent this election year.  Clark & Trevithick’s Leonard Brazil is quoted in MainStreet.com’s article, You Can Be Fired for Your Political Beliefs about the protections that California employees have that employees of many other states don’t.

 

0 comments on “Will Your Exempt Employee Still Be Exempt?”

Will Your Exempt Employee Still Be Exempt?

By Deborah Petito|

In March of 2014, President Obama asked the Department of Labor to update the overtime regulations under the Fair Labor Standards Act (FLSA).  On May 17, 2016, the Department of Labor released its Final Rule (“Final Rule”) which only provides changes for the minimum salary requirements for exempt (white collar) employees.  The Final Rule revises the federal regulations related to the FLSA.  The last time overtime regulations were revised for while collar workers was in 2004.  Normally, federal laws and regulations do not impact California employees because California’s laws are generally more stringent than federal laws and regulations, however, this new rule will impact California exempt employees.

New Federal Salary Minimum for Exempt Employees

Under both California and federal law, in order to classify an employee as exempt from overtime and other wage and hour requirements, the employee must meet both a salary and duties test.  The Final Rule provides that exempt employees must earn a minimum salary of $46,467 in order to be exempt.  The new federal salary requirement is effective beginning December 1, 2016.  In California, the salary minimum for an exempt employee is two times the minimum wage which is currently $41,600 (2 x $10 x 2080 hours).  As of December 1, 2016, California exempt employees will also need to be paid a minimum of $46,467.

Under both California and federal law, employees must also meet the duties test (executive, administrative, professional) to be exempt.  The duties test for an exempt employee has always been more stringent under federal law which requires that exempt employees spend more than 80% of their time on exempt duties as compared to California which only requires that exempt employees spend more than 50% of their time on exempt duties.  The Final Rule does not affect the duties test for exempt employees.

Many California employers took a business risk that their determination of which employees were exempt would never be reviewed by the Department of Labor.  Now that the federal salary minimum will be higher, California employers may see more Department of Labor complaints which may result in a review of whether not exempt employees are actually exempt under federal law.  This article does not discuss the specific duties test for each exemption, but they are similar under federal and state law and can be found in the California wage orders or in the federal regulations.
Under the Final Rule, exempt salaries will be automatically updated every three years based upon wage growth over time.  The Department of Labor anticipates that the minimum salary will rise to $51,168 in 2020 and will post new salary levels six months prior to their effective date with the first posting on August 1, 2019.

Non-Discretionary Pay and Catch Up Provisions

The Final Rule also allows employers to pay up to 10% of the increased salary in non-discretionary bonuses, commissions or other incentive payments.  The key word is “non-discretionary.”  Employers may pay any shortfall in the salary minimum if the employee does not earn the required amount in non-discretionary income at the end of any quarter.  Any shortfall must be paid by the employer in the first pay period following the quarter (the prior 13 weeks) and can only be used to catch up the amount paid to the employee in the prior quarter.

California law does not have a catch up provision and as the California or local minimum wage rises, the minimum salary for California exempt employees may be less than 10% of the newly established federal minimum of $46,467.  For example, in Los Angeles County the minimum wage will be $10.50 as of July 1, 2016 which means that an exempt employee will need to earn $43,680 as of that date under California law in addition to meeting the duties test for the exemption.  Therefore, employers in Los Angeles County would have to either pay a minimum salary of $46, 467 or pay non-discretionary bonuses, commissions, etc. in the amount of $2,787 to meet the federal minimum salary requirements.

Employers also need to be mindful of city ordinances regulating the pay of employees in specific cities.  Los Angeles, Santa Monica, San Francisco and San Jose have already established separate minimum wages for their cities and this trend will continue.  Thus an increased burden is placed on employers to keep track of what local governments are doing in cities where employers maintain their businesses or where employees perform work in those cities.

Highly Compensated Employees 

Under federal law, a highly compensated employee is exempt if they earn a minimum salary, have primarily office or non-manual duties and “customarily and regularly” perform at least one of the duties of the applicable exemption.  The Final Rule raises the minimum salary for highly compensated employees from $100,000 to $134,004.  California does not have a similar provision so any exempt employee would need to meet all requirements of the duties test to be exempt.

Steps California Employers Should Take

All employers should make sure that their exempt employees are paid the highest applicable minimum salary (federal, California or local) as of December 1, 2016.  If employees classified as exempt do not meet the salary test, employers can do one of the following:

  1. Increase the salary of the employee to maintain their exempt status (assuming they also meet the duties test); or
  1. Reclassify the exempt employee as non-exempt and have that employee record their hours worked, including their meal breaks each day.  In this case, you need to pay the employee overtime for all hours worked over 8 in a day or 40 in a week.  The overtime requirements are also contained in the California Wage orders.   (The Wage Orders can be found on the California Division of Labor Standards Enforcement website – dlse.ca.gov.)

If you need assistance in determining whether or not an employee is exempt or whether they are being paid appropriately, please contact Deborah Petito or Leonard Brazil in the Clark & Trevithick Labor and Employment Department.

Thank you for joining us on ClarkTalk!  We look forward to seeing you again on this forum.  Please note that the views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  You should certainly consult legal counsel of your choice if you need assistance in determining whether or not an employee is exempt or whether they are being paid appropriately.  If you wish to consult with the author of this post or another attorney at Clark & Trevithick, please contact Debbie Petito dpetito@clarktrev.com orLeonard Brazil lbrazil@clarktrev.com by email at or telephonically by calling the author at (213) 629-5700.

0 comments on “Job Applicant’s Criminal Conviction: When Can it be a Reason to Deny Employment?”

Job Applicant’s Criminal Conviction: When Can it be a Reason to Deny Employment?

By Leonard Brazil 

Effective April 1, 2016, California Regulation 11017.1 was amended to further limit an employer’s policy to consider criminal convictions in rejecting a job applicant or take adverse employment action against an existing employee.  The amended regulation arose out of the California Legislature’s concern that reliance on criminal convictions has had a disproportionate and adverse impact on individuals on the basis of their gender, race, national origin or other protected classification.

Certain Criminal History Excluded from Consideration:  The following types of criminal history cannot be considered by an employer or requested of an applicant or employee:

  • An arrest or detention that did not result in a conviction;
  • Referral to or participation in a pre-trial or post-trial diversion program;
  • A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to applicable law; and
  • A non-felony conviction for possession of marijuana that is two or more years old.

Limitations on Employer Policies Regarding Other Criminal Convictions:  If an employer has a policy to rely on other criminal convictions in deciding whether to hire an applicant or take adverse employment action against an employee (e.g., deny a promotion), the company must be able to demonstrate the policy is job related, consistent with business necessity and appropriately tailored.  The amended regulation states that to satisfy this criteria, the policy must take into account at least the following factors:

  • The nature and gravity of the offense or conduct;
  • The time that has passed since the offense or conduct occurred and/or the completion of the sentence; and
  • The nature of the job held or sought.

The amended regulation indicates that if an employer has a “bright-line,” across the board policy that a criminal conviction disqualifies an applicant or employee, the employer must satisfy a very high standard to demonstrate that such a rigid policy is appropriately tailored  Alternatively, an employer who conducts an individualized assessment of the qualifications of the applicant or employee and the circumstances surrounding the criminal conviction in deciding whether to rely upon the conviction will typically find it easier to demonstrate that the policy is appropriately tailored.

For example, if a person applies to be a delivery driver, a criminal conviction for theft a year ago may be an improper basis to deny employment because it is not job-related, consistent with business necessity or appropriately tailored.  However, if the criminal conviction were vehicular manslaughter for driving under the influence, denial of employment would likely be deemed to be job-related, consistent with business necessity and appropriately tailored.  Yet, if that conviction were 20 years old, the decision to not hire the applicant may not be appropriately tailored because of the passage of time from the conviction to the application for employment.

Employer Notice of Reliance on Criminal Conviction:  If an employer refuses to hire an applicant or takes adverse employment action against an employee based on a conviction obtained through a third-party background report or employer generated internal report, the employer must notify the person of the disqualifying conviction and provide a reasonable opportunity for the individual to present evidence that the criminal conviction information is inaccurate.  If it is established that the employer has inaccurate information, the criminal history cannot be considered in the employment decision.

What You Should Do

  1. Ensure that your criminal conviction policy is (i) job-related, (ii) consistent with business necessity and (iii) appropriately tailored.
  1. Review your job application form to ensure it does not inquire about:

(a)        An arrest not leading to a conviction;

(b)        Referral to or participation in a pre-trial or post-trial diversion program;

(c)        A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to applicable law; or

(d)        A non-felony conviction for possession of marijuana that is two or more years old.

An application that states “Have you ever been convicted of a felony?” might be deemed a violation of the amended regulation because it would cause an applicant to answer “yes” even if the conviction had been expunged.

  1. Educate those involved in the hiring process regarding the new limitations and requirements related to criminal convictions.

Thank you for joining us on ClarkTalk!  We look forward to seeing you again on this forum.  Please note that the views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  You should certainly consult legal counsel of your choice when considering this or any other employment issue.  If you wish to consult with the author of this post or another attorney at Clark & Trevithick, please contact Debbie Petito dpetito@clarktrev.com or Leonard Brazil lbrazil@clarktrev.com by email at or telephonically by calling the author at (213) 629-5700.

0 comments on “Changes To DFEH Regulations Effective April 1, 2016 – Will You Be Out Of Compliance?”

Changes To DFEH Regulations Effective April 1, 2016 – Will You Be Out Of Compliance?

By Deborah Petito |

California’s Department of Fair Employment and Housing (“DFEH”) has finalized changes to regulations which will be effective April 1, 2016.  These regulations further define and revise provisions of the Fair Employment and Housing Act (the “FEHA”).  The FEHA prohibits discrimination, harassment and retaliation against California employees.  Many employers may not realize that regulations impose employer obligations in addition to those required by statute.

The final regulations reflect recent modifications in the law and court decisions including the following:

  1. Employers Must Count Out of State Employees to Determine If They Are Covered under the FEHA. The FEHA only applies to employers who “regularly employ” five or more employees.  The final regulations define “regularly employ” to include any employer who has five or more employees regardless of whether or not those employees all work in California.  For example, if an employer has 12 employees working out of state and two employees working in California, that employer will be covered by the FEHA.  However, only the two California employees who actually work in California can file complaints under the FEHA.
  1. Unpaid Interns Are Protected. Unpaid interns are now included as a protected class under the FEHA.  Therefore, employers hiring interns should make sure they receive the employer’s policies required under the FEHA.
  1. Requirements of Notice to Employees. The final regulations also modified the notice requirements to employees regarding discrimination, harassment and retaliation.  Employers will now be required to distribute California’s DFEH brochure on sexual harassment or have a written policy that provides the same information to employees AND have a discrimination, retaliation and harassment policy which:
  • is in writing;
  • lists all current protected categories covered under the FEHA;
  • indicates that discrimination, retaliation and harassment is prohibited;
  • has a complaint process which does not require the employee to report the complaint directly to his or her supervisor and includes:
  • an employer’s designation of confidentiality, to the extent possible,
  • a timely employer response to the complaint,
  • impartial and timely investigations by qualified personnel,
  • documentation and tracking for reasonable progress,
  • appropriate options for remedial action and resolution, and
  • timely closure.
  • instructs supervisors to report any complaints to a designated representative;
  • indicates the employer will conduct a fair, timely and thorough investigation;
  • states that confidentiality will be maintained to the extent possible;
  • indicates that if misconduct is found, appropriate measures or discipline will be taken; and
  • states there will be no retaliation against employees for complaining or participating in any workplace investigation.

The regulations also require that the employer’s policy be given or made available to employees and affords five methods for doing so, including providing a copy of the employee handbook which includes the  policy.

  1. Expanded Statement of the Purpose of Prohibiting Sex Discrimination and Harassment. The Statement of Purpose of prohibiting sex discrimination and harassment has been expanded to state:  “The purpose of the laws against discrimination and harassment in employment because of sex is to eliminate the means by which individuals, by virtue of their sex, gender identity, or gender expression, are treated differently, paid less, treated adversely based on stereotyping, subjected to conduct of a sexual nature, subjected to hostile work environments, or made to suffer other forms of adverse action, and to guarantee that in the future equal employment benefits will be afforded regardless of the individual’s sex.”   [Italicized bold words were added.]
  1. Inclusion of Transgender Individuals as Covered under Pregnancy Disability. The regulations were also revised to include protection for a transgender individual who is disabled by pregnancy and expanded the definition of harassment based upon childbirth, breastfeeding or any medical condition related to pregnancy.  California’s DFEH also revised the notice required to be given to employees regarding the rights and obligations of pregnant employees.
  1. Other Changes. The regulations include other changes to mirror new law or court decisions that revise or expand the FEHA.

As a result of the final regulations, effective immediately, employers should, at a minimum, do the following:

  1. Replace the Notice they provide to employees regarding pregnancy discrimination.
  2. Review their discrimination, harassment and retaliation policies to make sure they comply with the new regulations.  Failure to do so may leave the employer open to being sued for failing to prevent discrimination, harassment and/or retaliation.

Thank you for joining us on ClarkTalk!  We look forward to seeing you again on this forum.  Please note that the views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you have any questions regarding the final changes to California’s DFEH regulations, or any other employment issue you should certainly consult legal counsel of your choice when considering this .  If you wish to consult with the author of this post or another attorney at Clark & Trevithick, please contact Debbie Petito dpetito@clarktrev.com or Leonard Brazil lbrazil@clarktrev.com by email at or telephonically by calling the author at (213) 629-5700.

0 comments on “Employers Get Some Relief from Wage and Hour Penalties”

Employers Get Some Relief from Wage and Hour Penalties

By Deborah Petito |

Any employer who has been sued for wage and hour violations knows that the acronym “PAGA” stands for California’s Private Attorney General Act.  It allows employees to bring wage and hour claims against an employer on behalf of all employees and collect 25% of the penalties that would go to the State if the State had brought the claim.  While the State is supposed to get the remaining 75%, in my experience, such an allocation is rarely made.

Wage and Hour Penalties

There are endless penalties for various wage and hour violations including the following:

  1. $50 for the first pay period and $100 for every subsequent pay period up to $4,000 per employee where the employee either does not receive a wage statement with their pay checks (these may be made available electronically if the employee has access to a computer) or receives a wage statement that does not contain the required information.
  2. Up to thirty days of wages (that is 30 x 8 hours x the employee’s hourly rate) if the employee is not paid either on a given payroll date or when the employee resigns or is terminated. This penalty can run from the date of any inaccurate pay stub.

There are other penalties that are included in PAGA and not listed above.

Amendment to PAGA

PAGA claims were becoming extremely expensive for employers even when the violations were very minor.  Last year, the California State Legislature amended PAGA to provide limited relief for two very minor violations that can result in huge penalties.  Effective October 2, 2015, an employer has 33 days to correct the following two specific violations:

  1. Failure to provide employees with an itemized wage statement that includes the beginning and ending dates of the pay period; and
  2. Failure to provide employees with an itemized wage statement that includes the name and address of the legal entity which is the employer.

This change will not eliminate PAGA claims, but it can reduce the amount of penalties at issue, namely the potential for up to $4,000 in penalties per employee for a wage statement violation.  Employers need to keep their eyes open for letters that employees are required to send to the State and the employer before a PAGA claim is filed.  PAGA letters will contain a laundry list of wage and hour violations.  If the letter contains an allegation that the dates of the pay period and/or the employer’s legal name are not included on the wage statement, employers should immediately make those corrections and notify the State and the employee’s attorney that the corrections were made.  The employer must also provide a copy of the corrected wage statement to the employee(s).  This will, at a minimum, eliminate some of the penalties that an employee may claim as part of a larger wage and hour case and put the employee’s attorney on notice that the employer is attentive and responsive to wage and hour claims.

Thank you for joining us on ClarkTalk!  We look forward to seeing you again on this forum.  Please note that the views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  You should certainly consult legal counsel of your choice when considering this or any other employment issue.  If you wish to consult with the author of this post or another attorney at Clark & Trevithick, please contact Debbie Petito dpetito@clarktrev.com or Leonard Brazil lbrazil@clarktrev.com by email at or telephonically by calling the author at (213) 629-5700.

0 comments on “Are Your Exempt Employees Still Exempt?”

Are Your Exempt Employees Still Exempt?

By Deborah Petito |

Just a reminder that the minimum wage in California increased to $10/hour on January 1, 2016.   Some cities and counties, including San Francisco and San Jose, have set higher minimum wage rates and employers should check their local jurisdiction.  The California Labor Commissioner has the authority to enforce the local minimum wage rates effective January 1st.  Also, keep in mind that exempt employees must make a minimum of two times the minimum wage.  Hence, exempt employees must make a minimum of $41,600 per year.  The minimum annual salary will be greater if the local minimum wage is higher.  If an exempt employee’s salary is less than $41,600, it does not matter what their job duties and responsibilities are, they will not be considered exempt in California and must be paid overtime and provided rest and meal breaks.

This is a good time to review your exempt positions to ensure that they meet the California and federal requirements for exemption, starting with the salaries.

Thank you for joining us on ClarkTalk!  We look forward to seeing you again on this forum.  Please note that the views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  You should certainly consult legal counsel of your choice when considering this or any other employment issue.  If you wish to consult with the author of this post or another attorney at Clark & Trevithick, please contact Debbie Petito dpetito@clarktrev.com or Leonard Brazil lbrazil@clarktrev.com by email at or telephonically by calling the author at (213) 629-5700.

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