wrotenlaw

Health Benefits During Pregnancy and Prohibition Against Interfering with Employee’s Right to Leave (SB 299 and AB 592)

Wroten & Associates, Inc. — Mon, 14 Nov 2011 18:12:57 +0000

Beginning January 1, 2012 California employers will be required to continue existing group health coverage for an employee taking leave under California’s Pregnancy Disability Leave Law for the duration of the leave at the same level and under the same conditions as would have been provided if the employee had not been on leave.

AB 592 clearly articulates that it is unlawful to “interfere with, restrain or deny the exercise or attempt to exercise” rights to a leave of absence under the California Family Rights Act (CFRA) or Pregnancy Disability Leave Law.

Protected Classes to Include Gender Identity and Gender Expression (AB 887)

Wroten & Associates, Inc. — Thu, 10 Nov 2011 22:46:52 +0000

The Gender Non-Discrimination Act recently signed into law by Governor Brown explicitly adds “gender identity” and “gender expression” as protected classifications in California’s anti-discrimination laws. These characteristics are currently included within the definition of gender in California; however, this law removes any uncertainly by providing specific enumeration of gender identity and gender expression as protected categories.

Misclassification of Independent Contractors (SB 459)

Wroten & Associates, Inc. — Wed, 09 Nov 2011 17:14:15 +0000

Beginning January 1, 2011 section 226.8 of the California Labor Code creates new and very serious penalties for misclassification of workers as independent contractors. The law makes “willful” misclassification of workers as independent contractors by “any person or employer” unlawful. It further allows the Labor and Workforce Development Agency to assess civil penalties of $5000 to $15,000 per violation, in addition to other penalties or fines permitted by law. Employers found to have engaged in a pattern and practice of violations are subject to civil penalties of $10,000 to $25,0000 per violation. The law requires violators to prominently post a notice on the employer’s website advising employees and the general public of the violation. Non-lawyers who advise an employer to misclassify a worker are subject to joint and several liability with the employer.
While the bill does not appear to create a private right of action, claims will likely be asserted under the California Private Attorneys General Act. Now is certainly the time to evaluate whether you independent contractors are classified correctly!

Prohibited Use of Credit Reports (AB 22)

Wroten & Associates, Inc. — Mon, 07 Nov 2011 18:32:44 +0000

Beginning January 1, 2011 employers in California will no longer be permitted to obtain and use pre-employment credit checks except in limited circumstances. The bill prohibits employers or prospective employers from obtaining a consumer credit reports for employment purposes unless the position of the person for whom the report is sought is one of the following:

A managerial position (defined as a position which qualifies for the executive exemption for overtime);
A position in the state Department of Justice;
A sworn peace officer or other law enforcement position;
A position for which the information contained in the report is required by law to be disclosed or obtained;
A position that involves regular access to individual’s bank or credit card account information, Social Security number and date of birth for any purpose other than the routine solicitation and processing of credit card applications in a retail establishment;
A position in which the person is or would be a named signatory on the employer’s bank or credit card account, or authorized to transfer money or enter into financial contracts on the employer’s behalf;
A position that involves access to confidential or proprietary information; or
A position that involves regular access to $10,000 or more of cash.

In addition, AB 22 requires written notice informing the person for whom a consumer credit report is sought for employment purposes of the specific reason for obtaining the report. The credit report must be provided free of charge to the employee and if employment is denied based on the information provided, the employer must provide the name and address of the credit reporting agency.

Wage Theft Prevention Act of 2011 (AB 469)

Wroten & Associates, Inc. — Wed, 02 Nov 2011 20:59:27 +0000

Beginning January 1, 2011 private employers in California will be required to provide specific written notifications to all non-exempt employees during the hiring process. The notification requirement does not apply to employees covered by a collective bargaining agreement. The information must be provided in the language the employer normally uses to communicate employment-related information to the employee.

The information includes:

The employee’s rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime, as applicable.
Allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances.
The regular payday designated by the employer in accordance with the requirements of the Labor Code.
The name of the employer, including any “doing business as” names used by the employer.
The physical address of the employer’s main office or principal place of business, and a mailing address, if different.
The telephone number of the employer.
The name, address, and telephone number of the employer’s workers’ compensation insurance carrier
Any other information the Labor Commissioner deems material and necessary.

If an employer makes changes to the information above the employer must provide notice of the changes within seven days. Changes may be communicated through a written amendment, a new notice, or on the employee’s next pay statement.

The Labor Commissioner is currently working on preparing employer guidance to comply with the Act and a required notice template. It is anticipated that the documentation will be posted on the Department of Industrial Relations’ website at www.dir.ca.gov/dlse by mid-December, 2011.

National Labor Relations Board Announcement

Wroten & Associates, Inc. — Fri, 07 Oct 2011 18:18:03 +0000

The National Labor Relations Board announced this week that it is postponing the November deadline for employers to post a notice advising employees of their rights to organize under the National Labor Relations Act. The new posting deadline is January 31, 2012. The NLRB announced that the decision to extend the rollout period was made to enhance education regarding the requirement and to ensure broad voluntary compliance; however, many observers believe the delay was in reaction to several lawsuits which seek to block the posting requirement, arguing that the Board has “exceeded its authority granted by Congress and violated free speech guarantees of the First Amendment.”

Supreme Court will hear argument in Brinker Restaurant v. S.C. (Hornbaum)

Wroten & Associates, Inc. — Wed, 05 Oct 2011 20:01:43 +0000

The California Supreme Court has just announced it will hear oral argument in Brinker Restaurant v. S.C. (Hornbaum) on November 8, 2011. The Brinker case, which was taken up by the California Supreme Court more than three years ago, should decide several meal and break period issues which are critical to California employers. Most importantly, the Court will decide whether an employer must simply make meal and break periods available to employees or must affirmatively ensure meal and break periods are taken. The Court is also expected to clarify when meal and break periods must be provided and whether missed meal and break period claims should be certified as class actions.

This case has been the talk of employment lawyers in California for the past three years. Twenty-three amicus briefs were filed in the Supreme Court by interested employee and employer supported groups throughout California. Numerous appellate courts have issued decisions consistent with the Brinker appellate decision in the intervening three years; however, those cases have been largely held up pending the California Supreme Court’s decision. An opinion is expected sometime between December 2011 and mid-February 2012.

New Posting Requirements from the National Labor Relations Board

Wroten & Associates, Inc. — Fri, 16 Sep 2011 17:13:24 +0000

Beginning November 14, 2011 employers will be required to post a notice informing employees of their rights under the National Labor Relations Act. The notice will inform employees of their rights to act together to improve wages and working conditions, to organize and participate in a union, and to refrain from any of these activities. The notice must be posted in a conspicuous place where other notifications of workplace rules and policies are posted. Employers who post personnel rules and policies on intranet or internet sites will be required to post the National Labor Relations Act notice on those sites as well.

While the National Labor Relations Board will not audit employers’ worksites for compliance with this new posting requirement, a knowing and willful failure to post the notice may be considered by the National Labor Relations Board as evidence of an unlawful motive in an unfair labor case involving other alleged violations of the National Labor Relations Act.

Copies of the notice are available for download from the NLRB website at nlrb.org/poster or employers can pick up the 11 by 17 inch poster from any NLRB regional office.

Form I-9 Final Rules Take Effect May 16, 2011

Wroten & Associates, Inc. — Thu, 05 May 2011 17:30:08 +0000

Employers should be reminded the U.S. Citizenship and Immigration Services’ (USCIS) final rule on the Form I-9 will take effect May 16, 2011.

The final rule prohibits employers from accepting expired documents and revises the lists of acceptable documents which may be used for identification.

Employers should be confirm they are using the revised Form I-9.

California Employees Do Not Waive Their Rights to a Labor Commissioner Hearing By Signing an Arbitration Agreement

Wroten & Associates, Inc. — Mon, 25 Apr 2011 19:35:52 +0000

The California Supreme Court in Sonic-Calabasas v. Moreno has ruled that employees do not waive their rights to file a claim with the Labor Commission by signing an agreement to arbitrate all claims that may arise out of the employment context.

The Court determined that public policy strongly favors an employee’s right to pursue payment of wages through an administrative hearing before the Labor Commissioner, called a Berman hearing.

The Court found numerous advantages to a Berman hearing over arbitration, including a strong emphasis on resolving claims before the hearing, an informal hearing for which an employee does not need counsel, and a hearing officer who can assist the employee with cross examination.

Because an appeal of such the Labor Commissioner’s decision is heard in Superior Court, the appeal would likely be governed by a valid arbitration agreement.