2015 EMPLOYMENT LAW UPDATE. Beth A. Schroeder (310)

Transcription

1 2015 EMPLOYMENT LAW UPDATE Beth A. Schroeder (310)

2 California Enacts Comprehensive Paid Sick Leave for All California has enacted SB Requires that virtually all California employers, regardless of size, provide paid sick leave to all their employees. Effective July Will apply to solo employees in California.

3 Who is covered? All employees are covered under the new paid sick leave law. Once an employee has worked 30 hours, exempt or nonexempt, he or she is eligible for sick leave benefits. Except for domestic workers and certain union employees. Employers who already provide to all employees sick or paid time off ( PTO ) benefits which exceed the requirements of SB 1522 need not implement a new policy. Employers who provide sick or PTO benefits but not to all employees will need to implement a new policy for all employees.

4 How much sick leave is required? First, employees can be allowed to accrue sick time as they work. 1 sick hour per 30 hours worked. Not obligated to allow total accrued paid sick leave to exceed 48 hours or six days. Employers may implement a policy that requires that employees wait 90 days until they can use whatever sick leave has been earned. They also limit the use to three days per year. Under the new law, accrued sick leave shall carry over to the following year of employment, however, the employer may cap the accrual at no less than 24 hours or three days.

5 How much sick leave is required? (Cont.) Optionally, the employer can grant 3 full days of sick leave to all employees at the start of the year and upon hire. Employers will not need to keep track of the accrual or carry over. The goal of the new law is for employees to have 3 full days of sick leave to use at the start of every year.

6 How is the leave used? Amount used at a time is at employee s discretion Employers may implement a reasonable minimum policy. The employer may not set a minimum increment greater than two hours. Employees are entitled to use their paid sick time for: Their or a family member's existing health condition. Preventive care. Victims of domestic violence. Family member is defined very broadly and includes grandparents and siblings. Of particular note for restaurants and other hospitality employers, employers cannotrequire their employees to find other employees to cover shifts due to illness.

7 New pay stub rules Effective in July 2015, employers must track and display the number of paid sick days or hours available at that time on the employee s pay stub, or the employer can give the employee a separate writing each pay day providing that information. The Act also requires employers to keep for at least three years records regarding employees paid sick leave accrued and used, and employers must use a new Wage Theft Prevention Act Notice on hiring non-exempt employees.

8 More areas for lawsuits SB 1522 makes it unlawful for an employer to deny accrued paid sick leave and to retaliate in any way for an employee attempting to use or using paid sick leave. Under the Act, employees will be allowed to file complaints for violations with the Labor Commissioner, which will have authority to investigate and award damages and penalties. This will be a new area for lawsuits under California s already heavily used Private Attorney General Act ( PAGA ).

9 Handbooks If you are a participant of Lathrop & Gage s Handbook Update Program, we will provide you new sample policy language and options for If you have any questions about how this new law interacts with your existing policies or impacts your business, please contact your Lathrop & Gage attorney.

10 No Harassment or Discrimination Against Unpaid Interns Prohibits employers from discriminating against individuals in an unpaid internship or other limited duration programs provide unpaid work expense. It is an unlawful employment practice under the California Fair Employment and Housing Act ( FEHA ) to harass or discriminate against any person in the selection, termination, training, or other terms or treatment of a volunteer or unpaid intern (AB 1443).

11 No Discrimination Against Holders of Driver s Licenses for Undocumented Persons Makes it an a violation of FEHAfor an employer to discriminate against an individual because he/she holds or presents a driver s license issued to undocumented persons who can submit satisfactory proof of identity and California residency. Such discriminatory action will constitute national origin and discrimination under FEHA(AB 1660).

12 No Retaliation for Changing SSN or Federal Immigration Documents Labor Code has been amended to clarify that an employer may not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against an employee because the employee updates or attempts to update his or personal information based on a lawful change of name, social security number, or federal employment authorization document. An employer s compliance with this section shall not serve as the basis for a claim of discrimination, including any disparate treatment claim (AB 2751).

13 New Training Required to Prevent Abusive Conduct Employers with 50 or more employees that already are obligated to provide anti-discrimination and antiharassment training to supervisory employees once every two years must now include training on prevention of abusive conduct, which is defined as conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer s legitimate business interest (AB 2053).

14 Wage and Hour Client Employer to Share All Legal Responsibility with Labor Contractor Expanded liability for companies using contract labor/staffing companies. A client employer (a business entity that obtains workers to perform labor within its usual course of business from a labor contractor) shall share with the labor contractor all civil legal responsibility and civil liability for any workers supplied by that labor contractor payment of wages and failure to secure valid workers compensation coverage (AB 1897). Mostly codification of existing case law. Remember to review your staffing agreements!

15 Security Guards Must Be Compensated For Nighttime Hours Spent At Jobsite Mediola v. CPS Sec. Solutions, Inc. (Cal. Sup. Ct. Jan. 8, 2015) Security guards filed a class action lawsuit alleging they were entitled to be paid minimum wage and overtime for all on-call time during which they were required to reside in company trailers. On weekdays, guards patrolled for 8 hours, were on call for 8 hours, and were off duty for 8 hours. On weekend, patrolled for 16 hours and were on call for 8 hours.

16 Security Guards Must Be Compensated For Nighttime Hours Spent At Jobsite (Cont.) Test for whether on-call time is compensable depends on nature of employer s control, including: Whether there was an on-premises living requirement; Whether there were excessive geographical restrictions on employee movements; Whether frequency of calls was unduly restrictive; Whether a fixed time limit for response was unduly restrictive; Whether on-call employees could easily trade on-call responsibilities; Whether use of a pager could ease restrictions; Whether employees actually engaged in personal activities during call-in time; and Whether for employer s benefit. Based on factors, guards on-call time was compensable hours worked, including the sleep time! Sleep time must be specifically excluded under another Wage Order.

17 Unauthorized Alien Who Provided False SSN Can Proceed with Disability Discrimination Lawsuit Salas v. Sierra Chemical Co., 59 Cal. 4th 407 (2014) Employee who repeatedly falsified his employment status to obtain employment, as his employer learned only after he was laid off a second time and filed suit, was not barred by the doctrine of afteracquired evidence or unclean hands from asserting claims for alleged disability discrimination against his employer under California law. However, employee s right to lost compensation was limited to the period preceding the employer s discovery of the misconduct. Federal immigration law foes not preempt California law extending protections and remedies regardless of immigration status, except to the extent it authorized damages for an period after the employer s discovery of an employee s ineligibility to work in the United States.

18 Employer Properly Deducted Hours From Exempt Employee s Leave Bank Rhea v. General Atomics, 227 Cal. App. 4th 1560 (2014) Rhea filed this putative class action on behalf of herself and other exempt employees who were subject to Annual Leave deductions for partial-day absences of less than four hours. The trial court granted General Atomics summary judgment motion on the ground that California law does not prohibit requiring exempt employees to use annual Leave for partialday absences of any length. The Court of Appeal affirmed, holding that the policy did not create an illegal forfeiture and that prior case law does not limit such deductions to instances in which the partial-day absence is at least four hours in duration.

19 Trial Court Should Not Have Denied Class Certification To Employees Seeking Reimbursement For Cell Phone Charges Cochran v. Schwan s Home Serv., Inc.228 Cal. App. 4th 1137 (2014) The trial court denied class certification to the putative class based upon a lack of commonality because individualized inquiries of the class members cell phone plans and payments are necessary to determine liability. Appellate court reversed and determined that employees with flat rate plans were still entitled to a reimbursement for using their personal phones for business. We are providing a sample policy as part of our Handbook Update for 2015.

20 FedEx Drivers Are Employees Not Independent Contractors Alexander v. Fed-Ex Group Package Sys., Inc., 765 F.3d 981 (9th Cir. 2014) Named Plaintiffs represent approximately 2,300 individuals who were full-time delivery drivers for FedEx in California between 2000 and The United States Court of Appeals for the Ninth Circuit reversed the summary judgment that was granted to FedEx and ordered, instead, that summary judgment be entered in favor of plaintiffs. The court based its decision on the ground that operating Agreement grants FedEx a broad right to control the manner in which its drivers perform their work. The most important factor of the right-to-control test thus strongly favors employee status. Still hot topic in the wage and hour arena.

21 Commission Wages Paid In One Pay Period May Not Be Attributed To Other Pay Periods In Order To Satisfy Minimum Wage Requirements Peabody v. Time Warner Cable, Inc., 59 Cal. 4th 662 (2014) Susan Peabody worked as a commissioned salesperson for Time Warner Cable, Inc. ( TWC ). Peabody regularly worked 45 hours per week but received no overtime. TWC considered Peabody and the other members of the putative class to be subject to the inside commissioned employee exemption under California Law. However, most of Peabody s paychecks did not pay her an hourly rate of at least one and one-half times the minimum wage (as required by the exemption). Court looked at her weekly wages, not commissions averaged over several months.

22 Court Affirms $700,000 Attorney s Fees Award to Demoted Employees Who Recovered Only $27,280 Muniz v. United Parcel Service, Inc., 738 F.3d 214 (9th Cir. 2013) Kim Muniz sued UPS for employment discrimination based on various theories, but proceeded to trial only on her claim of gender discrimination in violation of the Fair Employment and Housing Act. The jury found in favor of Muniz only with respect to her claim that her demotion from division manager to supervisor was based on her gender and awarded her a total of $27,280 for lost earnings, medical expenses and non-economic damages.

23 Court Affirms $700,000 Attorney s Fees Award to Demoted Employees Who Recovered Only $27,280 (Cont.) After the trial, Muniz requested that the court grant her more than $1.9 million in prevailing-party attorney s fees, which the court adjusted downward to $698,000. The Ninth Circuit approved the award of attorney s fees, even though it was 25 times the actual damages award.

24 Employee Who Exhausted Four Months Of Pregnancy Leave Was Entitled To Further Disability Leave Sanchez v. Swissport, Inc., 213 Cal. App. 4th 1331 (2013) In a case of first impression, the California Court of Appeal determined in this case whether an employee who has exhausted all permissible leave (four months) under the California Pregnancy Disability Leave Law ( PDLL ) may state a claim for failure to accommodate a disability under the California Fair Employment and Housing Act ( FEHA ).

25 Employee Who Exhausted Four Months Of Pregnancy Leave Was Entitled To Further Disability Leave (Cont.) The Court answered the question in the affirmative, holding that Ana G. Fuentes could proceed with her FEHA disability claim despite the fact that her employer had provided her more than 19 weeks of leave associated with her pregnancy. The Court reasoned that the four months of leave provided by the PDLL augment, rather than supplant, [the leave remedies] set forth elsewhere in the FEHA.

26 Arbitration And Class Action Waivers The Class Action Waiver Debate CLS v. Iskanian Earlier this summer, the California Supreme Court ruled in Iskanian v. CLS that while class action waivers in employment arbitration agreements are enforceable, similar waivers of the right to bring a representative action under PAGA are not enforceable. The Court reasoned that preventing a representative action under PAGA is contrary to California public policy because it undermines the state s interest in fully penalizing employers who violate labor laws.

27 Arbitration And Class Action Waivers (Cont.) The Iskanian Court ruled that California s public policy was not preempted by the Federal Arbitration Act ( FAA ) because the FAA only applies to arbitration of private disputes and a PAGA plaintiff represents the interests of the state. However, a federal court in California ruled to the contrary just a few months later, allowing the PAGA waiver in an arbitration agreement governed by the FAA. The SCOTUS just this month denied certification, refusing to hear the Iskanian decision at the highest level, leaving this schism between state and federal courts

28 Electronic Signatures on Arbitration Agreements Are Enforceable, But It Is Employers Burden to Prove Ruiz v. Moss Bros. Auto Group, Inc. (Dec ) Employer failed to provide sufficient evidence of employee s signature Evidence should include: An electronic signature in employee s name could have been placed only by person using employee s unique login ID/password. Date and time printed next to the electronic signature indicates date/time signature was made. Employees were required to use their unique login ID and password when logged into HR system. Authenticating electronic signature was not a difficult evidentiary burden to meet, but it was not met here.

29 NLRB Reverses Precedent In Employer Case A divided National Labor Relations Board held a few weeks ago that workers have a right to use their employers' systems for non-business purposes including communicating about union organizing, overruling the labor board's 2007 Register Guard ruling and calling it "clearly incorrect."

30 Thank you for attending! Beth A. Schroeder, Esq. Dir Cell Follow me on