2014 EMPLOYMENT LAW BRIEFING

Transcription

1 LOS ANGELES 2014 EMPLOYMENT LAW BRIEFING January 21, 2014 Presenters: Eric Beane, Partner, Los Angeles Mark Boxer, Partner, San Francisco David Durham, Partner, San Francisco Ute Krudewagen, Partner, Silicon Valley Maria Rodriguez, Partner, Lost Angeles Ben Gipson, Of Counsel, Los Angeles Caroline Donelan, Associate, Los Angeles Michelle Kunihiro, Associate, Los Angeles Katharine Liao, Associate, Los Angeles Nick Pujji, Associate, Los Angeles *This presentation is offered for informational purposes only, and the content should not be construed as legal advice on any matter.

2 LEGISLATIVE AND ADMINISTRATIVE UPDATES

3 2014 WITHHOLDINGS - UNCHANGED Social Security Tax 6.2% Medicare Tax 1.45% Additional Medicare Tax 0.9% *For wages earned in excess of $200,000 per year Review IRS Notice 1036 (rev. December 2013) for recent withholding tables 2014 Employment Law Briefing 3

4 MILEAGE RATES IRS MILEAGE RATES 2014 Business Purposes $0.56 Medical or Moving Purposes $0.235 Charitable Organizations $ Employment Law Briefing 4

5 MINIMUM WAGE INCREASES AB 10 Amends Labor Code CALIFORNIA S MINIMUM WAGE $9.00 per hour Effective : July 1, 2014 $10.00 per hour Effective : January 1, Employment Law Briefing 5

6 MINIMUM WAGE INCREASES Labor Code 515.5(a)(4) CALIFORNIA S MINIMUM WAGE Computer Software Employees Adjusted Wages for 2014 Minimum wage: $40.38 per hour Minimum monthly exemption: $7, Minimum annual salary exemption: $84, Employment Law Briefing 6

7 MINIMUM WAGE INCREASES 2014 LOCAL MINIMUM WAGES San Francisco: $10.74 per hour San Jose: $10.15 per hour 2014 Employment Law Briefing 7

8 LOCAL LAWS SAN FRANCISCO 2014 Health Care Security (HCSO) Rates Large employers 100+ employees $2.44 per hour Medium employers employees $1.63 per hour Small Employers 1-19 employees Still exempt 2014 Employment Law Briefing 8

9 LOCAL LAWS New SAN FRANCISCO Family Friendly Workplace Ordinance Flexible and predictable work arrangements for employees who care for a child, person with serious health condition, or a parent (age 65+) without fear of retaliation (includes domestic partners) Affects businesses with 20 or more employees Employee must be with the company at least 6 months and work 8 hours a week to qualify Employer must respond in writing to an employees written request within 21 days Employer may refuse the request if the business reason is legitimate Employer or employee may revoke a flexible/predictable work arrangement within 14 days Employer must keep records showing compliance for a period of three years Failure to accommodate could mean fines up to $50 per employee per day to each employee and the City, and also civil action, injunctive relief, and attorneys fees/costs Enforced by the Department of Fair Labor Standards Enforcement (DLSE) A waiver may be made in a Collective Bargaining Agreement 2014 Employment Law Briefing 9

10 LOCAL LAWS SAN FRANCISCO Family Friendly Workplace Ordinance What kind of flexible work arrangements are acceptable? Modified work schedule Changes in start times and/or end times Part-time employment Job sharing arrangements Working from home Telecommuting Reduction or change in work duties Part-year employment Requests may be made twice every twelve months Reminder!!! Must post a Notice to employees 2014 Employment Law Briefing 10

11 CALIFORNIA DRIVER S LICENSES AB 60 Amends, repeals, and adds to the Vehicle Code, most notably adds and Provides driver s licenses to non-u.s. citizens who can establish identity and California residency Licenses will be distinct from resident licenses Does not establish eligibility for employment Does not permit discrimination by law enforcement Effective : January 1, Employment Law Briefing 11

12 UNPAID WAGES AB 442 Amends Labor Code and Additional damages for paying less than minimum wage: Liquidated damages to the employee Not more than employee s wage, plus interest Note: Does not authorize liquidated damages for failure to pay overtime compensation 2014 Employment Law Briefing 12

13 JUDGMENT ENFORCEMENT AB 1386 Amends Labor Code 98.2 On final order of an employment dispute, the Labor Commissioner has the discretion to file a certificate of lien in any county the employer has real property Duration of lien: up to 10 years unless the lien is satisfied or released beforehand 2014 Employment Law Briefing 13

14 SEXUAL HARASSMENT SB 292 Amends Government Code Redefines harassment because of sex under the Fair Employment and Housing Act Harassment because of sex includes sexual harassment, gender harassment, harassment based on pregnancy, childbirth or related medical conditions Specifies that harassment does not need to be the motivated by sexual desire 2014 Employment Law Briefing 14

15 VICTIMS OF CRIME SB 288 Adds Labor Code Specifies the offenses that a victim of crime can request time off for to appear in court without fear of discharge, retaliation, and discrimination Victim also includes a spouse, parent, child, sibling, and guardian who suffers physical, psychological, or financial harm Failure to comply is a misdemeanor 2014 Employment Law Briefing 15

16 VICTIMS OF STALKING SB 400 Amends Labor Code 230 and Extends protections available to domestic violence and sexual assault victims to victims of stalking Prohibits discharge, retaliation, discrimination Requires implementation of reasonable accommodations/safety measures as long as the accommodations do not create undue hardship for the business 2014 Employment Law Briefing 16

17 DISCRIMINATION AB 556 Amends Government Code 12920, 12921, 12926, Military and veteran status is a new protected class under the Fair Employment and Housing Act Includes members or veterans of the United States Armed Forces, United States Armed Reserve, United States National Guard, California National Guard Note: Using military and veteran status for the purpose of awarding veteran s preference is permitted 2014 Employment Law Briefing 17

18 CRIMINAL REHABILITATION SB 530 Amends Labor Code Employers may not, for the purposes of utilizing as a condition employment: Ask an applicant to disclose information concerning a conviction that has been judicially dismissed or ordered sealed Utilize information regarding a judicially dismissed or ordered sealed conviction Violation is a misdemeanor 2014 Employment Law Briefing 18

19 WITHHOLDINGS SB 390 Amends Labor Code 227 Failing to remit withholdings from an employee s wages pursuant to local, state, or federal law is a crime: Misdemeanor (Violation of less than $500) Felony (Violation of more than $500) 2014 Employment Law Briefing 19

20 PAID FAMILY LEAVE SB 770 Amends Unemployment Insurance Code 3300 and amends, repeals, and adds 2708, 3301, 3302, 3303 Expands the scope of family relationships covered by California s paid family leave program to include seriously ill: Grandparents Grandchildren Siblings Parents-in-laws Effective : July 1, Employment Law Briefing 20

21 PROTECTED CONDUCT SB 666 Adds and to the Business and Professions Code Amends 98.6 and , and adds 244 to the Labor Code Protects immigrants who engage in protected conduct, and their family members, from unfair immigration practices Potential Loss of business license Disbarment or suspension (attorneys) Protects employees who have made written or oral complaints regarding unpaid wages Retaliation is a misdemeanor Civil penalties up to $10,000 per violation per employee Prohibits anyone acting on behalf of the employer from adopting policies that would retaliate against an employee who has reasonable cause for disclosing information to a government or law enforcement agency (includes testifying as a witness) Violation is a misdemeanor Civil penalties up to $10,000 for each violation 2014 Employment Law Briefing 21

22 PROTECTED CONDUCT CONT. AB 263 Amends 98.6, 98.7, , and 1103 of the Labor Code and adds and Chapter 3.1 to Part 3 of Division 2 Similar to SB 666 but notable differences are: Further defines retaliation as any unfair immigrationrelated practice taken within 90 days of an exercised protected right; defines what practices are considered an unfair immigration-related practice Outlines the suspension schedule for engaging in unfair immigration-related practices: First violation: up to 14 days Second violation: up to 30 days Third violation: up to 90 days (Suspension will be at location/locations where violation occurred) Prohibits an employer from retaliating against an employee for updating or attempting to update personal information, unless directly related to skill set, qualifications, or knowledge required for the job 2014 Employment Law Briefing 22

23 EMERGENCY SERVICES AB 633 Adds Health and Safety Code Prohibits policies that prevent an employee from providing emergency medical services Permits policies: Authorizing trained employees to provide emergency medical services (or untrained if the employee is willing and someone trained is not available) Prohibiting an employee from providing emergency medical services if the person in need of medical services does not want medical intervention and has expressed such though a legally recognized means Does not impose a duty to train employees to provide emergency medical services 2014 Employment Law Briefing 23

24 EMERGENCY DUTY AB 11 Amends Labor Code Grants a 14 day leave of absence for fire, law enforcement, or emergency rescue training for employees that perform emergency services as: Volunteer firefighter Reserve peace office Emergency rescue personnel Applies to companies with 50 or more employees 2014 Employment Law Briefing 24

25 ATTORNEYS FEES SB 462 Amends Labor Code In order for the employer to recover reasonable attorneys fees and costs, it must be shown that an employee brought an action in bad faith Applies to the following actions: Nonpayment of wages Fringe benefits Health and welfare or pension fund contributions (Employees do not have the same burden if they are the prevailing party) 2014 Employment Law Briefing 25

26 PRIVACY SB 46 Amends Civil Code and Expands definition of computerized personal information to include a username or address, in combination with a password or security question and answer that would permit access to an online account Any breach of security, permitting access to online or accounts must be disclosed to the victims in a timely manner and meet the specified requirements 2014 Employment Law Briefing 26

27 WORK SHARING AB 1392 Amends Unemployment Insurance Code Section 1 and adds Section 2. Section 2 applies to all work sharing plans that become effective on or after July 1, 2014 (Section 1, by amendment, is set to expire): Establishes requirements and certifications for employer eligibility Note: Reduction in hours may not be less than 10% or greater than 60% Retirement benefits must stay in effect, and any reductions in benefits must be applied to all employees Details the approval process Establishes employee eligibility and prohibits employees from receiving benefits unless employer collective bargaining unit agrees in writing to participate Establishes that work sharing compensation will be charged to rating accounts like unemployment compensation 2014 Employment Law Briefing 27

28 ACTION ITEMS 1. Update employee withholdings to comply with 2014 tax tables 2. Update mandatory postings for Comply with California s 2014 wage schedule 4. Comply with new/updated local ordinances and minimum wage laws 2014 Employment Law Briefing 28

29 ACTION ITEMS 5. Educate managers and/or review company policies to ensure compliance with new legislation regarding: CA drivers licenses Sexual harassment Victims of crime Victims of stalking Discrimination Criminal rehabilitation Withholdings Paid family leave Protected conduct Emergency services Emergency duty Privacy Work share To Do List : 2014 Employment Law Briefing 29

30 CASE LAW BRIEFING

31 DISABILITY DISCRIMINATION Ana G. Fuentes Sanchez v. Swissport, Inc. 213 Cal.App.4th 1331 (2013) Judgment reversed and remanded Merely satisfying the obligations required under Pregnancy Disability Leave Law (PDLL) does not automatically satisfy the requirement for reasonable accommodation under the Fair Employment and Housing Act (FEHA). Cynthia Lawler v. Montblanc North America, LLC 704 F.3d 1235 (2013) Judgment affirmed Termination for disability is not discrimination when it can be established that the employee is unable to perform his/her essential job functions with requested accommodations 2014 Employment Law Briefing 31

32 RACE DISCRIMINATION Kenneth Hatai v. Dept. of Transportation 214 Cal.App.4th 1287 (2013) Judgment affirmed Evidence of similar instances of discrimination against employees that are outside of the initially named protected class is too broad in scope 2014 Employment Law Briefing 32

33 VICARIOUS LIABILITY Majid Moradi v. Marsh USA, Inc. 219 Cal.App.4th 886 (2013) Judgment reversed Employers requiring employees to provide personal vehicles for work use receive an incidental benefit (i.e. not having to provide the cars), which subjects employers to liability for tortious acts committed by employees during commuting time to and from work (includes time spent during commute to run personal errands) 2014 Employment Law Briefing 33

34 CLASS CERTIFICATION Josie Faulkinbury v. Boyd & Associates, Inc. 216 Cal.App.4th 220 (2013) Vacated initial order affirming denial of subclasses post Brinker; reversed and remanded Certified 3 subclasses, post-brinker, holding that claims regarding common company policies are subject to class treatment despite any differences in circumstances due to nature of work. (Will also apply where there is a lack of policies.) Individual circumstances and eligibility goes to damages Claims alleging that a uniform policy consistently applied to a group of employees is in violation of the wage and hour laws are of the sort routinely, and properly, found suitable for class treatment. Brinker Restaurant Corporation, et al. v. The Superior Court of San Diego, 53 Cal.App.4th 1004 (2012) 2014 Employment Law Briefing 34

35 OVERTIME EXEMPTION Mark Negri v. Koning & Associates 216 Cal.App.4th 392 (2013) Judgment reversed To qualify for exemption from overtime pay, compensation must meet the FLSA definition of a salary and be a predetermined amount that is not subject to reductions (based on hours or production) Linda M. Heyen v. Safeway Inc. 216 Cal.App.4th 795 (2013) Judgment affirmed Overtime awarded to a managerial employee who performed nonexempt tasks alongside exempt tasks more than 50% of the time 2014 Employment Law Briefing 35

36 PRIVACY Melissa Ignat v. Yum! Brands, Inc. 214 Cal.App.4th 808 (2013) Judgment reversed Invasion of privacy requirements may be satisfied by written and oral disclosures Clarified that common law and constitutional rights to privacy are NOT synonymous (common law right requires publicity of facts that would be offensive or objectionable; constitutional right covers the disclosure of anything confidential to any number of persons) 2014 Employment Law Briefing 36

37 ARBITRATION AGREEMENTS Milton Brown, et al. v. The Superior Court of Santa Clara County 216 Cal.App.4th 1302 (2013) Affirmed in part and denied in part Decision: Class action waivers are enforceable under the National Labor Relations Act (NLRA) (private claims) The terms of an arbitration agreement pursuant to the FAA are binding in private claims; however, PAGA claims are actions on behalf of the government for a public benefit, so the statutory rights that accompany such class claims may not be waived by a private [arbitration] agreement because it would nullify the law Rulings on class action waivers pertaining to PAGA have been inconsistent. CA Supreme Court has granted review of the following cases to clear the confusion: Iskanian v. CIS Transportation of Los Angeles LLC, Case No. S (decided class action waivers apply to PAGA claims) Franco v. Arakelian Enterprises, Inc., Case No. S (decided class action waivers do not apply to PAGA claims) 2014 Employment Law Briefing 37

38 ACTION ITEMS 1. Educate managers and/or review company policies to consider updates regarding: Anti-discrimination policies Required vehicle policies Meal and rest period policies Overtime policies Privacy policies Arbitration agreements Scope of all policies To Do List : 2014 Employment Law Briefing 38

39 QUESTIONS?