California Labor and Employment Law Update

Transcription

1 California Labor and Employment Law Update FEATURED FACULTY: Douglas J. Farmer Ogletree, Deakins, Nash, Smoak & Stewart, P.C

2 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Mr. Farmer is the managing shareholder of the firm s San Francisco office, and a member of the firm s Management and Class Action Steering Committees. His litigation practice focuses on representation of management in wage and hour class actions and wrongful termination matters. He has tried to verdict a variety of employment cases in state and federal courts, including wage and hour representative actions, sexual harassment, age discrimination, pregnancy discrimination, and other wrongful termination matters. Mr. Farmer is the author of several widely used employment law publications and lectures frequently on employment law topics. He has been recognized as one of California s leading employment lawyers in Chambers USA, America s Leading Business Lawyers, and as a "Super Lawyer" by the publishers of Northern California Super Lawyers magazine, a recognition based on peer reviews and professional achievement limited to five percent of all California lawyers. Prior to joining Ogletree, he was a partner in the labor department of an AM 100 Law Firm, and a former Trial Attorney for the United States Equal Employment Opportunity Commission (EEOC).

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4 2014 California Employment Law Title Goes Here Update Presented By: Douglas J. Farmer San Francisco, California Legislative Developments 2014 California Employment Law Update 1

5 Minimum Wage Increase AB 10 increases the state minimum wage to $9.00 per hour as of July 1, 2014 $10.00 per hour as of January 1, 2016 SB 935 would amend increases to $11 (1/1/15), $12 (1/1/16), and $13 (1/1/17) Minimum Wage Increase San Francisco minimum wage to increase from $10.74 to $11.03 on Jan. 1, 2015 San Francisco proposed increase to $15.00 by July 2018 on November ballot San Francisco Health Care Security Ordinance (HCSO) rates to increase effective January 1, California Employment Law Update 2

6 Minimum Wage Increase Impact of state minimum wage increase: White Collar exemptions (2x = $37,440/yr) Commission sales employee exemption CBA exemption to overtime pay Split shift premiums Draws or advances against commissions Agreements for non-productive work (e.g., waiting time, travel time, etc.) Military and Veteran Status Now Protected Category AB 556 adds military and veteran status to the list of categories protected from employment discrimination under FEHA Impacts EEO policies, harassment policies, employment agreements, etc California Employment Law Update 3

7 Harassment Because of Sex Clarified SB 292 clarifies California FEHA definition of harassment because of sex. Sexually harassing conduct need not be motivated by sexual desire. Impacts harassment policies, investigation procedures, etc. New Leave Legislation SB 400 adds victims of stalking to domestic violence and sexual assault victims as grounds for protected leave Requires employers to engage in interactive process and provide reasonable accommodation to protect victims Impacts leave policies 2014 California Employment Law Update 4

8 New Leave Legislation SB 770 modifies rules for Family Temporary Disability Insurance ( Paid Family Leave ) Wage replacement benefits now available for seriously ill grandparent, grandchild, sibling or parent-in-law Impacts PFL policies New California Immigration Legislation AB 263 prohibits retaliatory unfair immigration related employment practices Misuse of E-verify system Asking for more or different documents than I-9 authorizes False police reports Contacting immigration authorities, etc. Remedies include suspension of license to do business, including grounds for disbarment (SB 666) 2014 California Employment Law Update 5

9 Proposed California Paid Sick Leave Legislation If passed AB 1522 would: Require employers to provide employees 1 hour of paid sick leave for every 30 hours worked after July 1, 2015 Permit employees to start using paid sick leave days 90 days after employment starts Permit employers to limit use to 3 days per year Permit use for employee, or an employee s family member, for domestic violence, sexual assault or stalking Does not apply to employees covered by CBA SF Bay Area Commuter Benefits Legislation SB 1339 adopted in 2012 authorizing SF Bay Area agencies to adopt commuter benefit rule Rule requires large Bay Area employers to offer specified commuter benefits to covered employees by September 30, 2014 Purpose of rule is to encourage carpooling and use of public transportation 2014 California Employment Law Update 6

10 SF Bay Area Commuter Benefits Legislation Covers employers with an average of 50 or more full-time employees (30 hours of work per week) performing work in nine counties Employees entitled to benefits must work average of 20 hours per week within covered counties (excluding seasonal or temporary employees working 120 or fewer days in the calendar year) SF Bay Area Commuter Benefits Legislation Employer must provide one of following benefits include: Exclusion from taxable wages transit costs of up to $130 per month Employer paid subsidy of up to $75 per month to cover cost of transportation via transit or vanpool Transportation provided by employer at no or low cost via bus, shuttle or vanpool Other employer option that provides equivalent benefit Employer must register on-line, designate a Commuter Benefits Coordinator, and post required notices 2014 California Employment Law Update 7

11 San Francisco Ban-the-Box Ordinance Effective Aug 13, 2014, ordinance applies to private employers with 20 or more employees doing business in SF Prohibits employers from making any inquiry regarding criminal history until after initial job interview Prohibits criminal inquiries on job applications Indirect inquiries through background checks now unlawful before first interview San Francisco Ban-the-Box Ordinance Individualized assessments of convictions required Adverse action based on criminal history information requires notification to applicant or employee and 7 days to respond Employer must retain records (including job applications) for 3 years Job applications must contain notice required by ordinance 2014 California Employment Law Update 8

12 California Case Law Update Independent Contractors: Ayala v. Antelope Valley Newspapers California Supreme Court held trial court erred in denying class certification to group of newspaper carriers Carriers had sued the newspaper for wage and hour violations, claiming they should have been classified as employees Trial court denied class certification, holding that the issue of whether the carriers were employees or IC s could not be decided in one stroke as to the entire class because evidence showed substantial variation in degree of control actually exercised by employer 2014 California Employment Law Update 9

13 Independent Contractors: Ayala v. Antelope Valley Newspapers Supreme Court reversed, holding that a key issue is whether the employer has the right to control the work, not whether it actually controlled it Key issues for the trial court: Whether business uniformly uses the same agreement for all of its workers The course of conduct of the parties to determine of control different on an employee by employee basis Independent Contractors: Ayala v. Antelope Valley Newspapers Court emphasized that test for determining IC status depends not only on right of control as a primary factor, but also on numerous secondary factors (method of payment, tools, place of work, etc.) Variation in right of control to be given more weight on class certification than secondary factors Impact on employers: More IC litigation because most form agreements retain right of control Review IC agreements which should allow for variation on degree of control depending on circumstances 2014 California Employment Law Update 10

14 Class Action Waivers: Iskanian v. CLS Transportation California Supreme Court held that: Class action arbitration waivers are enforceable under California law and preempted by FAA PAGA representative action waivers in arbitration agreements are not waivable as contrary to public policy Impact for employers: Review arbitration agreements to ensure it complies with decision Carefully drafted arbitration agreements can preclude class actions But lots of pros and cons to consider e.g., cost of individual arbitrations, effect of PAGA representative actions going forward, etc. Off-the-Clock Developments: Jong v. Kaiser Foundation Plan Employer not liable to employee for work employee performed off-the-clock because there was no evidence that employer knew about the off-the-clock work Rule is not new, but case is useful for employers because it illustrates factors courts will consider in applying knew or should have known standard 2014 California Employment Law Update 11

15 Off-the-Clock Developments: Jong v. Kaiser Foundation Plan Factors considered by court included: Employee knew Kaiser had policy prohibiting off-theclock work No manager or supervisor ever told him that he should perform work off-the-clock Employee told he was eligible to work and be paid for overtime Employee had never been denied approval to work overtime when he requested it Employee paid for all work hours he recorded Employee signed an attestation form agreeing not to perform work off-the-clock per company policy Wage and Hour Update: Heyen v. Safeway Assistant store manager of supermarket alleged unpaid overtime based on misclassification She spent most of her time doing nonexempt work such as stocking shelves Court held that when employees concurrently perform exempt and nonexempt work, employers must look at the primary purpose of such work to determine exemption If a task is helpful in supervising employees or contributes to the smooth functioning of the department, the work is exempt if not, its nonexempt No hybrids tasks are either exempt or nonexempt 2014 California Employment Law Update 12

16 Investigations: McGrory v. Applied Signal Technology Discrimination complaint made against Plaintiff Employer hired an outside attorney to conduct investigation Investigator found no discrimination, but found Plaintiff withheld information; employer terminated him The Court held: protection for participating in investigation extends only to sincere participation and lack of cooperation not a protected activity Withholding information during an investigation is a legitimate reason for termination Medical Marijuana: Use of Marinol In Ross v. RagingWire, California Supreme Court held that employer has no duty to reasonably accommodate use of medical marijuana in work place Court held that California s Compassionate Use Act only protects doctors prescribing medical marijuana, and patients who use medical marijuana, from state criminal prosecution but federal criminal laws still apply Caution: FDA authorizes certain synthetic medical marijuanas such as Dronabinol (Marinol) which are controlled substances but illegal under federal law 2014 California Employment Law Update 13

17 Family Leave Update: Sanchez v. Swissport Plaintiff had a high-risk pregnancy which required bed rest through birth, but she could return to work following birth with minimal accommodations Employer terminated her after she exhausted all of her leave under the Pregnancy Disability Leave Law and California Family Rights Act, although it was still several months before her due date Court held that employer still required to consider reasonable accommodations under FEHA, which could include further leave as long as it did not impose an undue hardship Obligation is independent of California PDL and CFRA New Rules for Payment of Commissions Bluford v. Safeway Gonzalez v. Downtown LA Motors Balasanyan v. Nordstrom 2014 California Employment Law Update 14

18 Federal Case Law Update U.S. Supreme Court United States v. Windsor (2013). Held that federal laws that discriminate against same-sex married couples are unconstitutional FMLA s provisions allowing leave to care for a spouse applicable to both opposite-sex and samesex spouses so long as employee requesting leave resides in state that recognizes same-sex marriage Problem many states still do not recognize samesex marriage so same sex married couples who live in those states do not qualify for FMLA leave DOL proposed amendment to regulation defining spouse to clarify that FMLA applies to legally married same-sex spouses, regardless of state of residence 2014 California Employment Law Update 15

19 Questions? 2014 California Employment Law Update 16

20 Thank you Douglas J. Farmer, Esq. San Francisco, California Ph: California Employment Law Update 17