This article is a follow up to our previous articles on the new California Paid Sick Leave requirement. As effective date of July 1, 2015 fast approaches many employers still have questions about what must be offered and are wondering if their current offerings are already compliant with the new requirements. To recap briefly, effective July 1, 2015 California employees are entitled to paid sick leave accordance with the Healthy Workplaces / Healthy Families Act of 2014, below is a brief summary of this new requirement.
Well, the good news is that labor numbers look very good for US businesses, which means there are more employees in the workplace and the economy is showing good signs for recovery. However, with more employees comes responsibility as the frost from a slowed economy begins to thaw.
The California courts this month were abuzz with a look at arbitration in employment from the state’s high court. The court’s review continues to stress the issues inherent to negotiating employment agreements to arbitrate workplace disputes. Generally, employees cannot be required to sign these provisions as a condition of employment. An employer must also assure that these clauses are reader-friendly and must assume the costs of the procedure, and when and if there are clauses which seek a waiver of any specific claims — including wage and hour administrative hearings — these clauses may still be overlooked and it is highly likely parties will be ordered to litigate matters through traditional means. The truth is that the decision whether an arbitration agreement is enforceable lies wholly within the discretion of the fact finder/arbitrator/court hearing the matter.
Labor Law Updates: Federal and State
California State Update: Are Decisions from EDD Binding On the DLSE? One Court of Appeal Says: “Yes!”
By Crystal M. O’Brien, Esq. and Christopher Rodriguez (MMC Summer Intern)
In a July 19, 2013 published decision, the Fourth Appellate District of California’s Court of Appeal, Happy Nails & Spa of Fashion Valley v. Su reviewed a very interesting case that is encouraging for employers who are forever managing the inherent issue of how regulatory agencies might determine who is or is not an “independent contractor”. In this matter, the issue of classification was examined and suggests that an employer should not be required to flip a coin as to how it may be found an employer of some workers while a hiring principal of others.
Leaves of Absence (LOA) are a difficult area for employers to administrate as it directly involves their work community. Many times when an employee needs to take an extended period of time from work it is for a serious reason, so not only is the employee affected, but so is their workplace family. In other instances, the period of time an employee may need to deal with a disability may be in one chunk or as episodic absences. I have spoken with many employers who find the maze of LOAs very frustrating and stressful; it is important to remember that in most cases, the employee needing the time off is also dealing with a stressful and often scary situation.
Don’t be confused on the proper pay severance for employees leaving your company under the strict Labor Law Codes. We clear up and simplify the subject regarding Employee pay and compensation exiting your company, whether it is willful by the employee or termination via employer.
Many employers are unaware of the requirements related to the final payment of wages for separating employees, which can lead to hefty penalties. It is very important for employers to know the wage and hour rules for all states in which they operate, as the requirements from state to state can vary widely.For example, some states allow final wages to be paid on the next regularly scheduled payday whereas other states have different rules when an employee resigns versus when an employer chooses to end the employment relationship. We will focus on the final pay requirements in California to help you stay compliant against penalties for your business.
March 2013 Employment Law Updates
California State Law Update
State Courts Review Pregnancy Discrimination in Employment
This month showcases some fantastic cases for legal commentators interested in the expanding laws protecting women from workplace pregnancy discrimination. In Harris v. Santa Monica, a February 7, 2013 California Supreme Court decision, our state high court considers whether the Fair Employment and Housing Act (“FEHA”) requires fact-finders to consider an employer’s ‘mixed motive’ versus ‘substantially motivated’ decision to terminate an employee who believes she has been discriminated due to pregnancy. In Harris, a bus driver (Wynonna Harris) with her two ‘preventable’ accidents, two ‘miss outs’, and an otherwise not so glowing performance review during her probationary period was ultimately terminated only a short time after her manager discovered she was pregnant. As is often the case in these published matters, the timing for this termination was undoubtedly bad. The issue in Harris, however, was not a question of whether the employee’s work performance was truly poor, or even whether the employer possessed actual knowledge of the employee’s pregnancy, but how jurors were instructed to find an award in Harris’ favor.
Wage and hour compliance is one of the hot button items for businesses in 2010, with the promise of increased investigations and fines by both the Internal Revenue Service (IRS) and Department of Labor (DOL). This does not include state or local tax agencies that may also be stepping up their efforts in this area. There have been reports that non-government wage and hour settlements in 2009 grew by 44% over those in 2008. For suits filed under the federal Fair Labor Standards Act (FLSA), lawsuit settlement amounts rose from $253 million in 2008 to $364 million in 2009. Below are some of the major wage and hour problem areas that have historically resulted in lawsuits and continue to be a litigation quagmire for employers.
A question we hear regularly from California employers is “Why do I have to pay overtime when an employee works 9 hours today, but only 25 hours total for the week?” This question is quickly followed by the statement “I have read the Fair Labor Standards Act (FLSA) and it only provides overtime when more than 40 hours in a week has been worked.” The answer is that California employs both daily and weekly overtime standards for employers. The standard that is most beneficial to the employee is what must be used to calculate wages.
It is important to note here that when federal and state employment laws differ, employers must generally follow the standard that is most beneficial to the employee. In the case of overtime, the federal standard is a weekly standard; however, California applies a daily standard which is more beneficial to California workers and must be observed by California employers.
A major area for litigation that continues to grow on both the federal and state fronts is that of Harassment and Discrimination. Under federal law, Title VII prohibits workplace harassment and discrimination based on race, color, national origin, religion, sex, pregnancy, sex stereotyping. In California, the state legislature has adopted Title VII and expanded on the protections afforded under anti-harassment/discrimination laws to include protections based on religious creed, color, ancestry, physical disability, mental disability, medical condition, marital status, and perceived sexual orientation.