The US Dept. of Labor Requires Two Revised Workplace Posters

 

workplacesafety2The U.S. Department of Labor has issued regulations requiring employers to post two revised workplace posters. The regulations took effect August 1, 2016.

The first new poster, “Employee Rights Under The Fair Labor Standards Act” poster, contains new information about the rights of nursing mothers under the FLSA to take reasonable breaks to express milk for a period of one year following birth of their child. It also instructs them that their employer must provide a workplace location shielded from view and free from intrusion. The location may not be a bathroom.

The new FLSA poster also contains a new section about independent contractor misclassification, as well as information in the “tip credit” section that instructs employers of tipped employees who meet certain conditions that they may claim a partial wage credit based on tips received. The poster, available in 10 different languages, is available at: https://www.dol.gov/whd/regs/compliance/posters/flsa.htm.

The second revised poster is the “Employee Rights—Employee Polygraph Protection Act” poster. The only substantive change to this poster was the removal of a reference to the amount of possible penalties. The new poster also contains new contact information for the DOL. This poster, available in English and Spanish, is available at: https://www.dol.gov/whd/regs/compliance/posters/eppa.htm.

Finally, for employers with 50 or more employees, the Department of Labor previously released an updated Family and Medical Leave Act (FMLA) poster in April, 2016. Unlike the FLSA and Employee Polygraph Protection Act posters, the updated FMLA poster contains substantial revisions. This revised poster, available in English and Spanish, is available at: https://www.dol.gov/whd/regs/compliance/posters/fmla.htm.

Conclusion

Employers with questions concerning workplace posters mandatory under federal and state laws should not hesitate to contact their experienced employment law counsel. We can assist.

Share
Learn More

New Law Clarifies Wage Statement Requirements for Exempt Employees

payday-paystub-e1442307328807California Assembly Bill 2535, signed on July 22, 2016 by Governor Brown, amends California Labor Code Section 226. Prior to this amendment, employers were required to track and record hours worked for exempt outside sales persons and executives who are not paid solely by salary. This meant that such tracking was required, even where an employee was not compensated for hours worked, but received commissions, bonuses or stock options.

AB 2535 amends Labor Code Section 226 to eliminate this anomaly. Employers are no longer required to record hours for employees exempt from payment of minimum wage and overtime. Specifically, the law adds section (j) to Section 226, which, effective January 1, 2017, will provide:

“(j) An itemized wage statement furnished by an employer pursuant to subdivision (a) shall not be required to show total hours worked by the employee if any of the following apply:

(1) The employee’s compensation is solely based on salary and the employee is exempt from payment of overtime under subdivision (a) of Section 515 or any applicable order of the Industrial Welfare Commission.

(2) The employee is exempt from the payment of minimum wage and overtime under any of the following:

(A) The exemption for persons employed in an executive, administrative, or professional capacity provided in any applicable order of the Industrial Welfare Commission.

(B) The exemption for outside salespersons provided in any applicable order of the Industrial Welfare Commission.

(C) The overtime exemption for computer software professionals paid on a salaried basis provided in Section 515.5.

(D) The exemption for individuals who are the parent, spouse, child, or legally adopted child of the employer provided in any applicable order of the Industrial Welfare Commission.

(E) The exemption for participants, director, and staff of a live-in alternative to incarceration rehabilitation program with special focus on substance abusers provided in Section 8002 of the Penal Code.

(F) The exemption for any crew member employed on a commercial passenger fishing boat licensed pursuant to Article 5 (commencing with Section 7920) of Chapter 1 of Part 3 of Division 6 of the Fish and Game Code provided in any applicable order of the Industrial Welfare Commission.

(G) The exemption for any individual participating in a national service program provided in any applicable order of the Industrial Welfare Commission.”

Employers with any questions about wage statement requirements are encouraged to contact their experienced employment law counsel. We’re here to help.

Share
Learn More

Minimum Wage Hike and Sick Leave Enhancements in Los Angeles & San Diego

get-a-raiseThe cities of Los Angeles and San Diego approved ordinances that will increase the minimum wage and mandatory Paid Sick Leave starting this month.

Los Angeles

Los Angeles Mayor Eric Garcetti signed an ordinance that increases the minimum wage of employees who work in the City of Los Angeles for at least two hours in a particular week. Employers with 26 or more employees will pay $10.50 per hour effective July 1, 2016. Employers with fewer than 26 employees will continue to pay the state minimum wage of $10.00 until July 1, 2017, when their applicable minimum wage will climb to $10.50.

Los Angeles employers must also provide Paid Sick Leave up to 48 hours per year, which can be provided in a “front load” method, or an accrual method, accruing 1 hour of PSL for every 30 hours worked. This is twice the annual PSL required under California state law. Additionally, Los Angeles employers must allow employees to carry over accrued, but unused, sick leave up to a limit of 72 hours. Unlike the statewide PSL law, the Los Angeles ordinance expressly allows employers to require reasonable documentation of an absence from work for which PSL will be used.

There are stiff fines for noncompliance, including a $500 fine for failing to post the required notice.

San Diego

On June 7th, voters in San Diego voted to increase the city’s minimum wage to $10.50 immediately upon certification of the election results by the San Diego City Clerk, which could occur anytime. The minimum wage will increase to $11.50 per hour effective January 1, 2017. Further increases, keyed to San Diego’s Consumer Price Index, will occur beginning Jan. 1, 2019.

The ordinance also requires employers to provide employees with one hour of Paid Sick Leave for every 30 hours worked within the city limits. While employers may limit an employee’s use of PSL to 40 hours per year, they may not cap sick leave accrual.

As with Los Angeles, there are stiff penalties for noncompliance. Employers who fail to comply may face a civil penalty of up to $1,000. Failure to comply with the notice requirement face a penalty of $100 per employee, up to $2,000.

What you should do: Employers with any employees in the cities of Los Angeles or San Diego should immediately ensure their pay practices, sick leave practices and posted notices comply with the new ordinances. Your employment law counsel can help.

Share
Learn More

Updated FLSA Minimum Salary Requirement for White Collar Exemption

AAEAAQAAAAAAAAXnAAAAJGMzY2Q0NzZhLTk0Y2YtNDQ1ZS1hNDVlLTA2NjU2ZDcyZDQwYQMost employees are entitled to receive overtime premium pay when they work beyond a certain number of hours in a day or week. Under both state and federal law, certain employees, because of their job duties and compensation, can be considered “exempt” from overtime. The most common exemptions are the so-called “White Collar” exemptions, for executive, administrative and professional employees.

On May 18, 2016, the US Department of Labor published its Final Rule updating the Fair Labor Standards Act (FLSA) to increase the minimum compensation required for an employee to be properly classified under one of the White Collar exemptions. The Final Rule increases the minimum salary level from its present $455 per week ($23,660 annualized) to $913 per week ($47,476 annualized). Employers can count nondiscretionary bonuses and commissions toward up to 10% of this annual minimum.

Importantly, all of the other stringent “duties” requirements for an employee to be considered exempt remain unchanged. Finally, the Rule, which becomes effective December 1, 2016, provides for automatic increases in the salary levels every three years (beginning January 1, 2020).

What you should do: This is an excellent time to evaluate whether exempt employees are properly classified. This means, not only determining whether they will meet the increased salary requirements, but equally important is evaluating whether their job duties meet the specifications set forth under the FLSA (and California Wage Orders). We encourage you to involve your employment law counsel in this important analysis.

Share
Learn More

California Employers Have Duty to Accommodate Disability of Employee’s Family Member

in-home-care-relinquishes-constraints-while-dealing-with-quadriplegia-at-home-nursing-careIn Castro-Ramirez v. Dependable Highway Express, the California Court of Appeal for 2nd Appellate District, which includes the Los Angeles Superior Courts, held for the first time that an employer has a duty to reasonably accommodate an applicant or employee who is related or associated with a disabled person who needs the applicant/employee’s assistance.

The facts underlying the case are interesting. Luis Castro-Ramirez was a driver for Dependable Highway Express (DHE). His son required dialysis. Before accepting DHE’s job offer, Castro- Ramirez explained that he would need to leave work early enough to go home and operate his son’s dialysis machine. Although DHE initially accommodated this request, scheduling early routes, a new supervisor refused and warned Castro-Ramirez that if he did not take a later route he would be fired. Castro-Ramirez refused and was fired.

The trial court ruled in favor of DHE, reasoning that Castro-Ramirez could not show that the termination was motivated by his association with his disabled son. The Court of Appeal reversed, holding that California’s Fair Employment and Housing Act (FEHA) creates a duty on the part of employers to accommodate employees who are associated with a disabled person.

At this juncture, Castro-Ramirez is only binding in the 2nd Appellate District. It is likely DHE will seek review of the decision by the California Supreme Court, which could result in a reversal. However, until such review, if it occurs, other appellate courts throughout California could find the court’s reasoning persuasive and follow it.

What Employers Should Do Given This Ruling

Disability discrimination, including claims of failure to reasonably accommodate a known or perceived disability, is a particularly thorny area for California employers. Castro-Ramirez further complicates matters. Employers must take care whenever a request is made for accommodation of a disability or medical condition. When in doubt, it is wise to seek the advice of employment law counsel.

Share
Learn More

California Supreme Court Issues Ruling on Employee Seating

lunchIn Kilby v. CVS Pharmacy, the California Supreme Court clarified when employers must provide employees with seating at work. The applicable California state wage orders require employers to provide suitable seats to employees when the “nature of the work reasonably permits the use of seats.” Prior to the Kilby case, there was a lack of controlling precedent about the meaning of the phrase “nature of the work.”

To place the dispute into perspective, the employers argued that the decision whether seating was needed required analysis of an employee’s duties as a whole during a complete shift, as well as the layout of the workplace and the employer’s own business judgment. The employees’ position, by contrast, was that each particular task had to be examined; if any task could be performed while seated, the employer should be required to provide seating.

The Supreme Court adopted a middle ground. It held that the “nature of the work” element referred to the actual tasks performed by an employee at a particular location, rather than the “holistic” analysis urged by the employers. Focusing on the actual work done at a particular location would, according to the Court, enable courts and, presumably, employers, to determine objectively whether the “nature of the work reasonably permits the use of seats” based on a totality of the circumstances test. The circumstances to be considered include the frequency and duration of tasks as well as the feasibility and practicability of providing seating.

What Employers Should Do Given This Ruling

Recognizing the Kilby opinion is riddled with legalese and provides little clear guidance, California employers with employees who may be entitled to seating—particularly if a request has been made—should seek advice from their employment counsel.

Share
Learn More

Important Amendments to California Discrimination and Harassment Regulations

HarassmentPhoto-00263893Effective April 1, 2016, significant amendments to the California Fair Employment and Housing Act (FEHA) will take effect. These impact every employer, including out of state employers, with at least 5 workers in California. Here are the critical highlights of these amendments.

Mandatory Written Anti-Discrimination/Harassment Policy

Of greatest import, the amendments require every covered employer to have a written policy that:

  • Lists all FEHA protected categories (race, religious creed, color, national origin, ancestry, physical/mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation and military and/or veteran status).
  • Specifies that employees are protected from discrimination or harassment from any workplace source, including third parties (vendors, customers).
  • Provides a confidential complaint process that ensures a timely response, impartial investigation by qualified personnel, documentation and tracking, appropriate remedial actions and resolutions, and timely closure.
  • Provides avenues for complaint other than to a direct supervisor.
  • Requires supervisors to report complaints to a designated employer representative.
  • States that employees will not be exposed to retaliation for making a complaint or participating in a workplace investigation.

In order to ensure that employees receive the written policy, employers may publish the policy through various means. These include: providing a copy to existing employees and during the hiring process, posting it in the workplace, and obtaining a written acknowledgement. Translation of the policy is required into every language that is spoken by at least 10% of the workforce.

Definitions

The amendments also contain definitions that are important in the context of gender discrimination.

  • Gender expression = a person’s gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.
  • Gender identity = a person’s identification as a male, female, a gender different from the person’s sex at birth, or transgender.
  • Transgender = a term for a person whose gender differs from the person’s sex at birth.
  • Sex stereotyping = relying on assumptions about a person’s appearance or behavior, or making assumptions about an individual’s ability or inability to perform certain kinds of work based on a myth, social expectation, or generalization about the individual’s gender.

Recordkeeping Requirement

Employers with 50+ employees are required to provide sexual harassment prevention training to supervisors at least every 2 years. The amendments require employers to retain materials related to this training, including sign-in sheets and course materials, for at least 2 years.

What Employers Should Do

Covered employers (5+ employees) should immediately review their policies to ensure they are in compliance with the amended regulations before April 1st. If you have any doubt whether your business is in compliance, we recommend you contact your qualified employment law counsel.

Share
Learn More

California Governor Signs Significant New Equal Pay Law

equal-pay-84711244On October 6, 2015, California Governor Jerry Brown signed Senate Bill 358, amending California’s Equal Pay Act, which prohibits an employer from paying employees of one sex less than employees of the opposite sex for “substantially similar work.” This Bulletin briefly discusses this amendment and how it could impact California employers.

What is required for an employee to prove unequal pay?

Prior to the new law, an employee seeking to prove unequal pay had to demonstrate that he or she was not being paid at the same rate as someone of the opposite sex at the same establishment for “equal work.”

The new law, effective January 1, 2016, relaxes this standard, making it much easier for an employee to prove unequal pay. Under the new law, an employee need only show he or she is not being paid at the same rate for “substantially similar work” as measured by a composite of skill, effort and responsibility performed under similar working conditions. It is not necessary that the employees of opposite sexes perform the same or equal work.

What can an employee recover?

Employees have the option of pursuing a claim through the Labor Commissioner or filing a civil lawsuit. An employee who prevails through a claim with the Labor Commissioner may recover pay differential plus an equal amount as liquidated damages. An employee who successfully sues in court may recover pay differential damages, interest, litigation costs and attorneys’ fees.

How can an employer defend a claim or suit?

Even if there is a gender-based wage differential, an employer can escape liability if it can show that the differential is based on:

  • A seniority system;
  • A merit system;
  • A system that measures earnings by quality or quantity of production; or
  • Some other bona fide factor other than sex, such as education, training or experience.

These factors were included in the law, as it existed prior to the October 6th amendment. However, the fourth factor has been changed to require an employer to show with competent evidence that any difference in compensation is not sex-based, is related to the position in question and there exists a “business necessity” for the wage differential. A “business necessity” is an overriding legitimate business purpose such that the factor relied upon effectively fulfills the business purpose it is intended to serve.

Additional “Wage Transparency” requirement

As amended, the law makes it unlawful for employers to prohibit employees from disclosing their wages to others, discussing their wages or inquiring about the wages of another employee.

Extended record keeping period

The amendment extends the time period for employers to keep records pertaining to employees’ terms and conditions of employment (including wages and job classifications) from two to three years.

What Should Employers Do?

Commentators suggest this amendment may cause a significant uptick in claims and lawsuits alleging unequal pay–this remains to be seen. However, there are unquestionably steps employers should take to protect themselves against an unequal pay claim:

  • Review employee compensation to ensure that instances of gender-based pay differential are minimized and/or defensible under the criteria set forth above.
  • Ensure that individuals making compensation decisions are familiar with the amended law.
  • Review policies, in handbooks and elsewhere, to ensure they do not violate the “wage transparency” requirement.

If you have questions about this amendment, you should consult with experienced employment law counsel.

Share
Learn More

Key Amendments to California’s New Paid Sick Leave Law

flu-manCalifornia’s new Paid Sick Leave Law, the Healthy Workplaces, Healthy Families Act of 2014 (“Act”), took effect January 1, 2015, with leave benefits to accrue starting July 1, 2015. Although the Act was already in effect, the California legislature passed additional amendments, which were signed into law by Governor Jerry Brown on July 13, 2015.

Here are some of the key amendments:

Accrual

In addition to the accrual method in which an employee gains one hour of paid sick leave for every 30 hours worked, employers have the option to use their own accrual method, provided accrual is (1) on a regular basis; and (2) the employee will have 24 hours of accrued sick leave by his or her 120th calendar day of employment.

Employers who already have their own PTO policy

Employers who had a preexisting Paid Time Off (“PTO”) policy as of January 1, 2015, may continue that policy provided: (1) PTO/PSL accrues regularly; (2) employees accrue at least one day/eight hours of PTO/PSL within 3 months of employment each calendar year; and (3) employees accrue at least 3 days/24 hours PTO/PSL within 9 months of employment.

Rate of pay for Paid Sick Leave

For nonexempt employees, pay during PSL can be calculated using one of two methods: (1) the “regular rate of pay” for the workweek in which the employee uses paid sick leave; or (2) by dividing the employee’s total wages, not including overtime premium pay, by the total hours worked in the full pay periods of the prior 90 days of employment.

Other Amendments

  • If an employer provides unlimited PSL or PTO, the employer may satisfy its notice obligation by indicating “unlimited” on the employee’s wage statement.
  • An employer is not required to reinstate accrued PSL to an employee who returns to the company after less than one year, if the employee was “cashed out” for unused PSL at the time of separation. (Recall there is no obligation to “cash out” accrued, but unused PSL, though there is for PTO.)
  • PSL is only available for employees who have worked at least 30 days within the last year for the same California employer.

Again, California employers are encouraged to consult with their employment law counsel to ensure they are in compliance with all aspects of the new Paid Sick Leave law.

Share
Learn More

US DOL Issues Guidance That Most Workers Are Employees, Not Independent Contractors

Contractors-vs-employeesOn July 15, 2015, the United States Department of Labor (DOL) issued a guidance memorandum (Administrator’s Interpretation No. 2015-1) clarifying whether workers can properly be characterized as Independent Contractors, rather than employees. This Bulletin explains this development and its implications for employers who treat any workers as Independent Contractors.

What is The DOL and Why is This Important?

The DOL is the federal agency charged with enforcing laws and regulations enacted to protect employees. The DOL’s Administrator periodically issues “guidance” memoranda interpreting a law or regulation. While these memoranda are neither law nor legally binding, they are frequently cited and given weight by courts when interpreting law in a particular case. They may also be considered in the legislative process, as federal and state laws are enacted which directly impact employers.

This guidance is also important because it provides clarity and may help employers avoid misclassifying workers as Independent Contractors. Employers who misclassify risk a costly claim or civil lawsuit by the worker claiming she did not receive overtime or rest and meal periods as a result of the misclassification.

The “Economic Realities” Test

Determination whether an employer can properly treat a worker as an Independent Contractor has long required application of the “economic realities” test. This test asks the following questions about a worker classified as an Independent Contractor:

Is the work performed by the individual an “integral part of the employer’s business”?

Does the individual’s “managerial skill” affect his or her opportunity for profit or loss?

How does the worker’s investment compare with that of the company?

Does the work performed require special skill and initiative?

Is the relationship between the worker and the company permanent or indefinite?

What is the nature and degree of the employer’s control?

What Does the DOL Guidance Add?

The DOL guidance memorandum adopts the economic realities test. But the agency makes clear that the test must be applied in the context of the definition, from the federal Fair Labor Standards Act (FLSA), of “employ,” as “suffer or to permit to work.” An individual who is “economically dependent on an employer is suffered or permitted to work by the employer,” and thus cannot be properly classified as an Independent Contractor (emphasis added).

In other words, only a worker who is financially independent of the employer can properly be classified as an Independent Contractor. In one telling sentence, the memorandum says that “Only carpenters, construction workers, electricians, and other workers who operate as independent businesses, as opposed to being economically dependent on their employer, are independent contractors.”

The guidance also clarifies that work away from the employer’s premises does not necessarily support Independent Contractor classification, since that work can still be integral to the employer’s business.

What Should Employers Do?

The issuance of this guidance is an excellent reminder for employers to work with their employment law counsel to evaluate whether they are properly classifying any worker who is treated as an Independent Contractor.

Share
Learn More

New Cal/OSHA Regulations Address Heat Illness Prevention

beagle fanThe Division of Occupational Safety and Health (DOSH), better known as CalOSHA, protects workers from health and safety hazards in almost every workplace in California. The amendments to certain CalOSHA regulations, effective May 1, 2015, will impact any business that includes an “outdoor place of employment.” The amendments require action by employers, including (1) revision of written policies covering heat illness prevention; (2) updates to training protocols and materials; and (3) adoption of expanded workplace procedures, practices and protections to better prevent heat illness from occurring.

A key amendment relates to the temperature at which shade must be provided. Previously, the regulation required a shaded area when the temperature reached 85 degrees. The threshold is now 80 degrees.

Certain industries, including agriculture, construction, landscaping, oil and gas extraction, and transportation or delivery of agricultural, construction or other heavy materials, face an even heavier burden when the temperature reaches 95 degrees. These include (1) conducting paid pre-shift safety meetings to go over the company’s high-heat procedures; and (2) implementing effective heat illness monitoring, defined as having a supervisor assigned to observe 20 or fewer employees, a mandatory buddy system, regular communication with each employee, and a designated person at the worksite authorized to call emergency services in the event of a heat illness.

Employers must also provide adequate fresh, pure and suitably cool water, at no cost, located as close as practicable to the areas where employees are working. Employers must encourage employees to take cool-down periods of at least five minutes (10 minutes every 2 hours for agricultural workers at 95 degrees).

Finally, employers must establish a written heat illness prevention plan in English and any other languages that will be understood by employees. This plan must be made available at the worksite.

Share
Learn More

California Agency Issues Amendments to CFRA Regs

maternity-leave-062314The California Family Rights Act (CFRA) was established to ensure secure workplace leave rights for the birth of a child, for purposes of bonding, placement of a child in the employee’s family for adoption or foster care, for the serious health condition of the employee’s child, parent or spouse, or for the employee’s own serious health condition.

Importantly, the CFRA applies only to employers who employ 50 or more employees within a 75-mile radius. This is not new. However, the amended regulations clarify how to determine if this threshold is met for employees with no fixed worksite (i.e., work from home, etc.). The regulations now provide that such employees’ worksite is the location (1) to which they are assigned as their home base; (2) from which their work is assigned; or (3) to which they report.

CFRA leave is only available to employees who have been employed for at least 12 months and at least 1,250 hours during the preceding 12 months period. The amended regulations provide that employees who are not eligible for CFRA leave at the start of a leave because they did not meet this requirement, may become eligible for protected CFRA leave during their non-CFRA leave because their continued employment during such leave counts toward the 12 month threshold.

Formerly, employers could require an employee using CFRA leave to obtain a second opinion of the employee’s “serious health condition” if the employer had “reason” to doubt the validity of the first medical certification. This regulation has been amended to allow an employer to require a second opinion only where it has a “good faith, objective reason” to doubt the certification. Employers are also now prohibited from contacting health care providers except to authenticate a medical certification.

As amended, the regulations now provide that an employee who fraudulently uses CFRA leave is not protected for purposes of job restoration (at conclusion of leave) or health benefits.

Finally, the amended regulations require employers to post a notice explaining the CFRA and how to file a complaint with the Department of Fair Employment and Housing (DFEH).

Share
Learn More
Follow

Follow this blog

Get every new post delivered right to your inbox.

Email address