SB: 3: Minimum Wage and Paid Sick Leave Expands for In-Home Supportive Services Workers

(1) Under existing law, the Healthy Workplaces, Healthy Families Act of 2014, an employee who, on or after July 1, 2015, works in California for the same employer for 30 or more days within a year from the commencement of employment is entitled to paid sick days, as specified. Existing law requires an employee to accrue paid sick days at the rate of not less than one hour per every 30 hours worked subject to specified use and accrual limitations. For the purposes of the act, an “employee” does not include a provider of in-home supportive services, as described.

This bill, on and after July 1, 2018, would entitle a provider of in-home supportive services who works in California for 30 or more days within a year from the commencement of employment to paid sick days, subject to specified full amount of leave time amounts and that rate of accrual. The bill would require the State Department of Social Services, in consultation with stakeholders, to convene a workgroup to implement paid sick leave for in-home supportive services providers and to issue guidance in that regard by December 1, 2017. The bill would authorize the department to implement that paid sick leave without complying with the Administrative Procedure Act.

(2) On and after July 1, 2014, existing law requires the minimum wage for all industries to be not less than $9 per hour. On and after January 1, 2016, existing law requires the minimum wage for all industries to be not less than $10 per hour.

This bill would require the minimum wage for all industries to not be less than specified amounts to be increased from January 1, 2017, to January 1, 2022, inclusive, for employers employing 26 or more employees and from January 1, 2018, to January 1, 2023, inclusive, for employers employing 25 or fewer employees, except when the scheduled increases are temporarily suspended by the Governor, based on certain determinations. The bill would also require the Director of Finance, after the last scheduled minimum wage increase, to annually adjust the minimum wage under a specified formula.

On or before July 28, 2017, and on or before every July 28 thereafter until the minimum wage is a specified amount for employers employing 26 or more employees, the bill would require the Director of Finance to annually determine, based on certain factors, whether economic conditions can support a scheduled minimum wage increase and certify that determination to the Governor and the Legislature. The bill would also require the State Board of Equalization to publish specified retail sales and use tax information on its Internet Web site to be used by the Director of Finance in making that determination.

On or before July 28, 2017, and on or before every July 28 thereafter until the minimum wage is a specified amount for employers employing 26 or more employees, in order to ensure that the General Fund can support the next scheduled minimum wage increase, the bill would also require the Director of Finance to annually determine and certify to the Governor and the Legislature whether the General Fund would be in a deficit in the current fiscal year, or in either of the following 2 fiscal years. Senate Bill No. 3


AB: 2337: Employment protections: victims of domestic violence, sexual assault, or stalking

Existing law prohibits an employer from discharging or in any manner discriminating or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work for specified purposes related to addressing the domestic violence, sexual assault, or stalking. Existing law provides that any employee who is discharged, threatened with discharge, demoted, suspended, or in any manner discriminated or retaliated against in the terms and conditions of employment by his or her employer because the employee has taken time off for those purposes is entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer, as well as appropriate equitable relief, and is allowed to file a complaint with the Division of Labor Standards Enforcement within the Department of Industrial Relations. Existing law establishes the Labor Commissioner as the head of the Division of Labor Standards Enforcement.

This bill would require employers to inform each employee of his or her rights established under those laws by providing specific information in writing to new employees upon hire and to other employees upon request. The bill would also require the Labor Commissioner, on or before July 1, 2017, to develop a form an employer may elect to use to comply with these provisions and to post it on the commissioner’s Internet Web site. Employers would not be required to comply with the notice of rights requirement until the commissioner posts the form. Assembly Bill No. 2337


AB 1843: Applicants for Employment: Criminal History

Existing law prohibits an employer, whether a public agency or private individual or corporation, from asking an applicant for employment to disclose, or from utilizing as a factor in determining any condition of employment, information concerning an arrest or detention that did not result in a conviction, or information concerning a referral or participation in, any pretrial or post trial diversion program, except as specified. Existing law also prohibits an employer, as specified, from asking an applicant to disclose, or from utilizing as a factor in determining any condition of employment, information concerning a conviction that has been judicially dismissed or ordered sealed, except in specified circumstances. Existing law specifies that these provisions do not prohibit an employer at a health facility, as defined, from asking an applicant for a specific type of employment about arrests for certain crimes. Existing law makes it a crime to intentionally violate these provisions.

This bill would also prohibit an employer from asking an applicant for employment to disclose, or from utilizing as a factor in determining any condition of employment, information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law. The bill, for the purposes of the prohibitions and exceptions described above, would provide that “conviction” excludes an adjudication by a juvenile court or any other court order or action taken with respect to a person who is under the jurisdiction of the juvenile court law, and would make related and conforming changes. The bill would prohibit an employer at a health facility from inquiring into specific events that occurred while the applicant was subject to juvenile court law, with a certain exception, and from inquiring into information concerning or related to an applicant’s juvenile offense history that has been sealed by the juvenile court. The bill would require an employer at a health facility seeking disclosure of juvenile offense history under that exception to provide the applicant with a list describing offenses for which disclosure is sought.

Because this bill would modify the scope of a crime, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. Assembly Bill No. 1843


AB 908: Disability Compensation; Disability Insurance

Existing unemployment compensation disability law provides a formula for determining benefits available to qualifying disabled individuals. For an individual who has quarterly base wages of greater than $1,749.20, the weekly benefit is calculated by multiplying base wages by 55% and dividing the result by 13. For a benefit that is not a multiple of $1, existing law provides that the benefit shall be computed to the next higher multiple of $1. However, existing law provides that this amount may not exceed the maximum workers’ compensation temporary disability indemnity weekly benefit amount.

Under existing law, the family temporary disability insurance program provides up to 6 weeks of wage replacement benefits to workers who take time off work to care for specified persons, or to bond with a minor child within one year of the birth or placement of the child in connection with foster care or adoption. Existing law defines “weekly benefit amount” for purposes of this program to mean the amount of benefits available to qualifying disabled individuals pursuant to unemployment compensation disability law.

This bill would revise the formula for determining benefits available pursuant to unemployment compensation disability law and for the family temporary disability insurance program, for periods of disability commencing after January 1, 2018, but before January 1, 2022, to provide a weekly benefit amount minimum of $50 and increase the wage replacement rate to specified percentages, but not to exceed the maximum workers’ compensation temporary disability indemnity weekly benefit amount established by the Department of Industrial Relations pursuant to existing law.

Existing law deems an individual to be eligible for family temporary disability benefits if, among other things, the individual is unable to perform his or her regular or customary work for a 7-day waiting period during each disability benefit period. and prohibits payments for benefits during this waiting period.

This bill, on and after January 1, 2018, also would remove the 7-day waiting period for these benefits.

This bill, by authorizing an increase in the expenditure of money from the Unemployment Compensation Disability Fund, would make an appropriation.

This bill would require, by July 1, 2017, the Employment Development Department to report to the Assembly Committee on Insurance and Senate Committee on Labor and Industrial Relations specified information regarding the waiting period for disability benefits. The bill also would require, by March 1, 2021, the department to prepare a report to the Legislature and specified legislative committees on levels and trends regarding utilization, costs, and rates with respect to family leave and disability insurance.  Assembly Bill No. 908


AB 488: Employment Discrimination

“Existing law, the California Fair Employment and Housing Act, protects the right to seek, obtain, and hold employment without discrimination because of race, religious creed, physical disability, mental disability, sex, age, and sexual orientation, among other characteristics. The act prohibits various forms of employment discrimination, including discharging or refusing to hire or to select for training programs on a prohibited basis. The act prescribes requirements for filing complaints of employment discrimination with the Department of Fair Employment and Housing and charges this department with investigating and determining whether or not to bring a civil action on behalf of the complainant, among other duties. The act exempts employers from remedies for specified unlawful employment practices, including when the discrimination is on the basis of physical or mental disability and the disability prevents the employee from safely performing essential duties even with reasonable accommodations. The act excludes from the definition of “employee,” any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility. A special license permits the employment of individuals with disabilities at a wage less than the legal minimum wage.”

“This bill would authorize an individual employed under a special license in a nonprofit sheltered workshop, day program, or rehabilitation facility to bring an action under the act for any form of harassment or discrimination prohibited by the act. The bill would provide an employer against whom the individual brings this action with an affirmative defense by proving, by a preponderance of evidence, that the challenged action was permitted by statute or regulation and was necessary to serve employees with disabilities under a special license. The bill would exempt an employer’s obtaining a special license, or hiring or employing a qualified individual at a wage less than the minimum wage in conformity with a special license, from the act’s provisions prohibiting discrimination based on disability. The bill would provide that the definition of employee was not intended to permit the harassment of, or discrimination against, an individual employed under a special license in a nonprofit sheltered workshop, day program, or rehabilitation facility.” Assembly Bill No. 488


Employment News – 10/20/2016

The Fair Labor Standards Act defines regular rate of pay to include all remuneration for employment except certain payments excluded by the Act itself. Payments which are not part of the regular rate include:

  • Expenses incurred on the employer’s behalf,
  • Premium payments for overtime work or true premium paid for work on Saturdays, Sundays and holidays,
  • Discretionary bonuses,
  • Gifts and payments in the nature of gifts on special occasions, and
  • Payments for occasional periods when no work is performed due to vacation, holidays, or illness.

Source for News notes: Calculating Overtime Just Got Trickier for Some Employers by Laura K. Sitar, Shareholder at Wroten & Associates.


Employment News – 10/18/2016

The Fair Labor Standards Act (FLSA) requires that employees be paid one and one-half times their regular rate of pay for all hours worked over forty hours in a workweek. California’s Labor Code additionally requires overtime for all hours worked over eight hours in a day and on the seventh day worked in a workweek. To calculate an overtime rate, an employer must know what to include in an employee’s regular rate of pay.

Source for News notes: Calculating Overtime Just Got Trickier for Some Employers by Laura K. Sitar, Shareholder at Wroten & Associates.


Mandatory Sick Leave

Many employers who offer holiday pay have written policies that state holiday pay will not be granted if an employee calls in sick the day before or after a holiday. Presumably the intent is to discourage employees from calling in sick as a means of lengthening a holiday weekend. Unfortunately, it is likely such a provision would be seen as resulting in retaliation against the employee for using protected sick leave since using the sick leave results in loss of holiday pay. It’s important to strike any similar language from written policies.

Source for Employment notes: California’s Mandatory Sick Leave, by Laura K. Sitar, Shareholder at Wroten & Associates.


In the News – Employment 04/04/16

The California Healthy Workplaces, Healthy Families Act of 2014 requires all California employers to provide the greater of three days or twenty-four hours of paid sick days annually to all eligible employees beginning July 1, 2015. A detailed description of the law with questions and answers is available on the California Department of Industrial Relations website at http://www.dir.ca.gov/dlse/Paid_Sick_Leave.htm Eight months after California employees rolled out their new compliant sick leave or Paid Time Off (PTO) policies, one simple requirement of the act deserves special attention. The law prohibits retaliation against employees for exercising their right to use protected sick leave. Given the frequency retaliation claims are filed in California, it’s important that employers evaluate their sick leave policies and procedures to avoid inadvertent retaliation.

Source for Employment notes: California’s Mandatory Sick Leave, by Laura K. Sitar, Shareholder at Wroten & Associates.


Employment News – 02/16/16

Labor Code § 226 requires accurate itemized pay statements showing:

  • Gross wages earned,
  • Total hours worked by the employee,
  • The number of piece rate units earned and any applicable piece rate if the employee is paid on a piece rate basis,
  • All deductions, provided that all deductions made on written orders of the employee, may be aggregated and shown as one item,
  • Net wages earned,
  • Dates inclusive of the period for which the employee is paid,
  • Name of the employee and only the last four digits of his or her social security number or an employee identification number other that a social security number,
  • Name and address of the legal entity that is the employer, and
  • Applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.

Source for Employment notes: Window of Opportunity for Employers: AB 1506 by: Laura K. Sitar, Shareholder at Wroten & Associates.

 


Employment News – 02/10/16

AB 1506 now provides employers with 30 days to cure select missing information, specifically (6) missing inclusive dates of the period for which the employee is paid and (8) the names and address of the legal entity that is the employer. Before filing a civil action the employee must give written notice of the violation by certified mail to the Labor and Workforce Development Agency and the employer, including facts and theories to support the alleged violation.  Employers should pay attention to any correspondence served by certified mail addressed to the Labor and Workforce Development Agency and the employer identifying Labor Code violations. The cure provisions require providing compliant wage statements to all employees for the past three years, which may sound onerous, but is certain to be less costly than the penalties and attorneys fees available if the violation is not cured.

Source for Employment notes: Window of Opportunity for Employers: AB 1506 by: Laura K. Sitar, Shareholder at Wroten & Associates.


Claims of negligent hiring

Claims of negligent hiring are waiting in the wings for employers who fail to conduct reference checks on prospective employees.  The following are tips for conducting effective reference checks:

  1. Contact the candidate’s former supervisors, not the human resources department of personal references.
  2. Identify who you are and the nature of the position sought. Ask:
  3. What was the individual’s start and end date?
  4. What was the individual’s final pay rate?
  5. Why did the individual resign?
  6. Why was the individual fired?
  7. How was the individual’s attendance?
  8. Was the individual ever disciplined for abuse?
  9. Is there anything else I should know about this individual?
  10. Don’t give up.  Keep calling.
  11. Document all of your efforts including an employer’s refusal to provide a reference.

Source for Employment notes: Reference Checks by: Laura K. Sitar, Shareholder at Wroten & Associates.


Reference Checks

An employer is immune from liability for defamation, as long as the employer provides the information to a prospective employer who requests it and acts without malice. California Civil Code section 47(c) specifically states that this protection extends to statements about job performance, qualifications, and eligibility for rehire. An employer is protected if its statements are based on credible evidence and made without malice.

Source for Employment notes: Reference Checks by: Laura K. Sitar, Shareholder at Wroten & Associates.


Paid Sick Leave (effective July 1, 2015) Part II of II

AB 1522 requires California employers to pay up to three days sick pay per year effective July 1, 2015.   Sick leave may be used for diagnosis, treatment, or preventative care for an employee or that employee’s family members.  Family members include parents-in-law, grandparents, grandchildren, and siblings.  Sick leave may also be used for victims of domestic violence, sexual assault or stalking.

Unused hours must carry over year to year with a permissible cap of 48 hours or six days.  However, if employees are given the total amount of sick days that may be used at the beginning of the year, no accrual or carryover is required.  Employers are not required to pay employees for accrued unused sick pay at the time of separation from employment.

Employers must provide employees with an itemized statement setting forth available sick leave on the employee’s itemized wage statement or separate form each payday.  Employers must also display a poster informing employees of their rights in a conspicuous location.

Source for Employment notes: New California Employment Laws for 2015 by: Laura K. Sitar, Shareholder at Wroten & Associates


Paid Sick Leave (effective July 1, 2015) Part I of II

AB 1522 requires California employers to pay up to three days sick pay per year effective July 1, 2015.  Employers must permit employees to accrue paid sick leave at a rate of at least one hour of paid sick leave for every 30 hours worked.  Exempt employees are deemed to work 40 hours, unless the employees work week is less than 40 hours.

The employer may limit the use of paid sick days to 24 hours or three days in each year of employment.  Employees who work 30 or more days within a year from commencement of employment are entitled to accrue sick days and entitled to use accrued sick leave beginning the 90th day of employment.  Employers may set a minimum increment of sick hours to be used at one time, but that minimum cannot be more than two hours.

Source for Employment notes: New California Employment Laws for 2015 by: Laura K. Sitar, Shareholder at Wroten & Associates.


Protecting Workers in the New Subcontracted Society

We are half way through 2015. Are you following the employment laws that went into effect January 1, 2015?

 Protecting Workers in the New Subcontracted Society
AB 1897 requires a client employer to share all civil legal responsibility and civil liability for the payment of wages and the failure to obtain valid workers’ compensation coverage for all workers supplied by certain labor contractors.  It amends existing law which prohibits a person or entity from entering into a contract for labor or services with a construction, farm labor, garment, janitorial, security guard, or warehouse contractor if the person or entity knows or should know that the contract or agreement does not include sufficient funds for the contractor to comply with laws or regulations governing the labor or services provided.

Source for Employment notes: New California Employment Laws for 2015 by: Laura K. Sitar, Shareholder at Wroten & Associates.


Prohibition Against Discrimination Based on Driver’s License for Undocumented Workers

We are half way through 2015. Are you following the employment laws that went into effect January 1, 2015?

 Prohibition Against Discrimination Based on Driver’s License for Undocumented Workers
AB 1600 extends current anti-discrimination and harassment provisions of the FEHA because the individual holds a driver’s license that indicates that he or she is undocumented.  It further prohibits any employer from requiring that an applicant or employee present a driver’s license unless having a driver’s license is a requirement of the job.

Source for Employment notes: New California Employment Laws for 2015 by: Laura K. Sitar, Shareholder at Wroten & Associates.


Mandatory Reporting to OSHA

We are half way through 2015. Are you following the employment laws that went into effect January 1, 2015?

Mandatory Reporting to OSHA
AB 326 amends current law requiring a company to immediately report a severe occupational injury, illness or death to the Division of Occupational Safety and Health Administration (OSHA) by phone or telegraph.  The bill very simply replaces the ability to report by telegraph with email.  An employer who violates the immediate reporting requirement may be assessed a civil penalty of not less than $5,000.  Employers continue to be required to report any occupational injury or illness which results in lost time beyond the date of injury or illness, or which requires medical treatment beyond first aid, within 5 days after the employer learns of the injury or illness.

Source for Employment notes: New California Employment Laws for 2015 by: Laura K. Sitar, Shareholder at Wroten & Associates .

 


Conquering a Department of Labor Investigation (What Employees Should Know)

What employees should know:

  • Employee interviews are voluntary.
  • Employees should not be intimidated because the investigator’s credentials look like a police badge.
  • Employees are expected to be truthful.
  • Employees should listen carefully to all questions asked.
  • Employees should take a break or end the interview at any time.
  • Employees should feel comfortable asking facility management any questions about the interview process before or after the interview.

Source for Employment Notes: Conquering a Department of Labor Investigation by: Laura K. Sitar, Shareholder at Wroten & Associates.


Conquering a Department of Labor Investigation (Be Prepared)

All too often, employers are not prepared and negatively influence the outcome of an investigation by failing to:

  • Immediately respond to a request for an appointment by the DOL or a notice requesting documents be provided.
  • Prepare a game plan ahead of time regarding how to proceed once notice of an investigation has been given.
  • Prepare employees for interviews.
  • Fully understand the laws the DOL is there to enforce.
  • Cooperate with the DOL.
  • Seek assistance or representation, if necessary.

Source for Employment Notes: Conquering a Department of Labor Investigation by: Laura K. Sitar, Shareholder at Wroten & Associates.


Conquering a Department of Labor Investigation (Initial Conference)

The initial conference is part of the investigation and what is said in the conference counts. It is important that whomever is present representing the interests of the employer appears knowledgeable and organized.  Documents generally requested are:

  • Names, addresses and telephone numbers of all business owners and their company officers.
  • Organizational chart.
  • Legal names of company and all other names used.
  • Records showing gross annual dollar volume for past three years.
  • List of all employees with addresses and phone numbers, job titles, hourly rates/ salaries and exempt status.
  • All 1099 forms issued for the past two years.
  • Employers’ federal tax ID number.

Source for Employment Notes: Conquering a Department of Labor Investigation by: Laura K. Sitar, Shareholder at Wroten & Associates.