DLSE Reverses Its Position on California Rest Breaks

In November 2017, the California Labor Commissioner’s office, Division of Labor Standards Enforcement (“DLSE”), published updated guidance on employer provided paid 10-minute rest breaks.  Specifically, the DLSE maintains that employees must be relieved of all duty during rest breaks, and now has taken the position that employees must be permitted to travel off-site during their ten-minute rest breaks. The DLSE also noted, “As a practical matter, however, if an employee is provided a ten minute rest period, the employee can only travel five minutes from a work post before heading back to return in time.”  The DLSE’s guidance further advised that employers are prohibited from requiring employees to monitor pagers or radios during rest breaks.

This decision follows the California Supreme Court’s decision in Augustus v. ABM (2016) 5 Cal.5th 257, which holds that security guards cannot be deemed to be on duty-free rest breaks when they are required to carry pagers and respond to emergencies on an “as needed” basis.  Jackson Lewis’ analysis of that case is available here:  http://www.jacksonlewis.com/publication/employees-rest-breaks-must-be-duty-california-supreme-court-rules

SB 306 Expands Labor Commissioner’s Powers to Enforce Anti-Retaliation Laws

Effective January 1, 2018, Senate Bill 306 amends Labor Code § 98.7 and adds Labor Code §§ 98.74, 1102.61 and 1102.62 to provide the Division of Labor Standards Enforcement (“DLSE”) with expanded authority to enforce the retaliation provisions of the Labor Code. Specifically:

  • The Labor Commissioner will be authorized to conduct an investigation of an employer and petition a superior court for temporary or permanent injunctive relief (e.g., reinstatement) with or without a complaint having been filed by an applicant or employee with the DLSE, if “reasonable cause exists to believe a violation has occurred” during a field inspection, in the course of adjudicating a wage claim, or in instances of suspected immigration-related threats.
  • In assessing whether “reasonable cause exists to believe a violation has occurred,” the superior court is directed to consider “the chilling effect on other employees asserting their rights under those laws in determining if temporary injunctive relief is just and proper.” However, injunctive relief does not prohibit an employer from disciplining or terminating an employee for conduct unrelated to the claim of retaliation.
  • If the Labor Commissioner determines that an employer has engaged or is engaging in retaliatory acts, the Labor Commissioner will be authorized to issue a citation directing an employer to take various remedial actions (e.g., reinstating an employee or paying lost wages). If the employer disagrees with the citation or the relief ordered, the employer has the burden of seeking review of the citation through an administrative hearing before the Labor Commissioner within 30 days of the citation. Otherwise, the citation becomes final. Following an administrative hearing and issuance of the Labor Commissioner’s decision, an employer has 45 days to request review by a superior court through a writ of mandate. Otherwise, the decision becomes final.
  • Employers may be subject to civil penalties of $100 per day (up to a maximum of $20,000) for willfully refusing to comply with a final order of the Labor Commissioner.
  • The Labor Commissioner is entitled to recover reasonable attorneys’ fees if it is a prevailing party in an enforcement action, to be determined by the court.

Finally, if an employee commences a civil action, the employee is also entitled to seek injunctive relief from the superior court. Should injunctive relief be granted, such an order is not stayed pending appeal.

Please contact Jackson Lewis with any questions that may arise regarding your compliance with the California Labor Code.

City of Santa Monica Minimum Paid Sick Leave Accrual Limits to Increase January 1, 2018

The grace period is over. Effective January 1, 2018, the City of Santa Monica’s minimum cap on accrued sick leave for eligible employees will increase from 40 to 72 hours for businesses with 26 or more employees. The accrual-cap for businesses with 25 or fewer employees will increase from 32 to 40 hours… (to read more, please see original post at the Disability, Leave and Health Management blog.)

California to Hold Direct Contractors Jointly Liable for Subcontractor’s Unpaid Wages and Fringe Benefits

Beginning with contracts entered into on or after January 1, 2018, direct (general) contractors in California will be held jointly liable for their subcontractors’ unpaid employee wages, fringe benefit or other benefit payments or contributions under Assembly Bill 1701, signed into law by Governor Jerry Brown on October 14th. This joint liability requirement is codified…… (to read more, please see original post at the Wage & Hour Law Update blog.)

California Shields Workers from Immigration Enforcement While On The Job

Effective January 1, 2018, new obligations will be imposed on California employers to shield their employees from immigration enforcement efforts in the workplace. Governor Jerry Brown signed AB 450 along with Senate Bill 54, a “sanctuary state” legislation that limits California state and local law enforcement agencies’ authority to hold, question, and transfer individuals at the request of federal immigration authorities.

Under AB 450, California’s public and private employers will be prohibited from voluntarily consenting to a federal immigration enforcement agent’s request to enter nonpublic areas in the workplace or to voluntarily allowing the agent access to employee records unless the agent provides a judicial warrant.

Employers must also provide notice to employees as follows:

  • Pre-Inspection Notice: Within 72 hours of receiving a federal immigration agency’s notice of inspection (“NOI”) of employment records, including I-9 Employment Eligibility Verification forms, an employer must provide notice to each of its current employees. The posted notice must include (1) the name of the immigration agency conducting the inspection; (2) the date the employer received notice of the inspection; (3) the nature of the inspection to the extent known; and (4) a copy of the NOI. On or before July 1, 2018, the Labor Commissioner will create a template of this notice for employers to use.
  • Post-Inspection Notice: Within 72 hours of receiving written notice of an immigration agency’s inspection results, an employer must provide each affected employee (and his/her collective bargaining representative, if any) with written notice of the results. The notice must include (1) a description of any and all deficiencies or other inspection results related to the affected employee; (2) the time period for correcting any deficiencies identified by the immigration agency; (3) the time and date of any meeting with the employer to correct the deficiencies; and (4) notice that the employee has a right to be represented during any scheduled meeting with the employer. The notice must be tailored to the affected employee and hand-delivered the employee at the workplace. If this is not possible, the employer must endeavor to mail and e-mail the employee and the employee labor union, if applicable.

Finally, an employee is prohibited from re-verifying the employment eligibility of a current employee outside the time and manner required by federal law, under Section 1324a(b) of Title 8 of the United States Code. Violations of this provision can result in civil penalties up to $10,000.

If an employer fails to comply with AB 450, it will be subject to a civil penalty between $2,000 to $5,000 for a first violation and $5,000 up to $10,000 for each subsequent violation. The penalties are recoverable by the Labor Commissioner.

Employers should carefully review and revise their policies and procedures to ensure compliance with AB 450. They should also train their front-line staff to properly handle any workplace visits by immigration authorities, and to provide the proper pre-inspection and post-inspection notices to its employees.  Please contact Jackson Lewis with any questions that may arise regarding your compliance with AB450.

Possible Cal/OSHA Regulation Regarding Workplace Violence for the General Industry

In 2014, the Cal/OSHA Division received a petition for a new workplace violence regulation for general industry.  Petition 542, which was originally submitted on behalf of teachers, has been used as the basis for consideration of a general industry standard on workplace violence.  This year, the CA Standards Board, the entity that promulgates new CA health and safety standards, held meetings on whether a general industry workplace violence standard was necessary.

In 2018, it is expected that the Division will draft a proposed regulation regarding workplace violence for general industry. The proposed regulation will likely include requirements similar to the health care workplace violence regulation (this regulation became effective on April 1, 2017) which requires the establishment, implementation and maintenance of a written Workplace Violence Prevention Plan (WVPP).  It is likely the new regulation will also include new recordkeeping requirements, training requirements, and reporting requirements.

It is the Division’s intent to create a single workplace violence regulation for all general industries, including retail, manufacturing, education, banking and food establishments. Significant compliance issues will result if the Division implements a general industry workplace violence regulation. Employers will have an opportunity to publicly comment on any proposed regulation.  We will continue to update the this blog as developments occur.

California Adds ‘Transgender,’ ‘Gender Nonconforming Individuals’ to Sexual Harassment Prevention Training for Supervisors

Employers subject to California’s mandatory sexual harassment training requirement for supervisors will need to ensure their programs include prevention of harassment based on gender identity, gender expression, and sexual orientation following an amendment (SB 396) to California’s Fair Employment and Housing Act (FEHA).
On October 15, 2017, Governor Jerry Brown signed SB 396 into law. California remains at the forefront of promoting awareness and protections of transgender and gender nonconforming individuals in the workplace.

As of January 1, 2018, employers must display a poster issued by California’s Department of Fair Employment and Housing regarding transgender rights in a prominent and accessible location in the workplace. The Department’s poster is available on its website.

SB 396 amends Government Code section 12950.1, which requires an employer with at least 50 employees to provide supervisors at least two hours of training regarding sexual harassment and abusive conduct. Amended Section 12950.1 includes harassment training on gender identity, gender expression, and sexual orientation. The training must provide examples of such harassment, and the trainer must have knowledge or expertise in this area.

Employers should consult with the Jackson Lewis counsel with whom they work on how best to prepare and deliver compliant and impactful transgender training materials.
In addition to creating new poster and training requirements, SB 396 also amended the Unemployment Insurance Code (UIC) in two significant ways. First, the UIC was amended to include transgender and gender nonconforming individuals as persons eligible for programs and services offered under the California Workforce Innovation and Opportunity Act. Second, the UIC was amended to allow community-based organizations that assist transgender and gender nonconforming individuals to serve as members on the California Workforce Development Board.

(For more on the state regulations in this area, see our article, California’s New Regulations Offer More Protection for Transgender Individuals.)

If you have any questions regarding the new requirements or want to discuss training programs tailored to your organizational needs, please contact our firm’s LGBT national expert or the Jackson Lewis attorney with whom you regularly work.

Governor Brown Has Signed ‘Ban the Box’ Legislation into Law for California

Effective January 1, 2018, California will be the next jurisdiction to implement statewide “ban the box” legislation.  On October 14, 2017, Governor Jerry Brown signed into law Assembly Bill 1008, which prohibits pre-offer inquiries regarding applicants’ conviction histories and regulates employers in their decisions to deny employment to an applicant based on his/her conviction history.  For more details regarding this important law, please see our earlier post. 

Employers should review their employment applications and hiring processes in light of this upcoming change in the law.  Please contact your Jackson Lewis attorney to discuss these developments and your specific organizational needs.

Governor Signs Bill Prohibiting Employers From Asking Applicants About Prior Salary History

On October 12, 2017, Governor Brown signed a new law which expands California’s fair pay laws in front of the Women’s Empowerment Group in Sacramento, California. Jackson Lewis previously discussed some of these proposed laws at the Pay Equity Advisor Blog. Specifically, AB 168 added Labor Code 432.2 which generally requires all employers, of any size, to adhere to these new rules:

  • Cannot ask for prior salary information. An employer shall not, orally or in writing, ask for or seek salary history information, including compensation and benefits, about an applicant for employment.
  • Cannot use prior salary information to set wage rates for applicants. An employer shall not rely on the salary history information of an applicant for employment as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant.
  • Must provide pay scale for position. Upon request, an employer shall provide the pay scale for a position to an applicant applying for employment.
  • The new law does not apply to salary history information disclosable to the public pursuant to federal or state law.

There are also some other unique provisions. The new law does not prohibit an applicant from voluntarily disclosing salary history information to a prospective employer. If an applicant voluntarily and, without prompting, discloses salary history information to a prospective employer, the law does not prohibit that employer from considering the voluntarily disclosed salary history information. However, the new law does remind employers that, even with voluntary disclosure by an applicant, the employer must still be mindful of Labor Code 1197.5. This section was amended last year to clarify the prior salary history, by itself, cannot be used to justify any disparity in compensation.

The new law is effective January 1, 2018.  The law will have a significant practical impact for employers. Employers will likely need to move to update employment applications to remove questions regarding prior salary history or wage rates. Individuals who conduct hiring interviews of applicants should be trained on the new law. Employers should consider establishing pay grades for each position based on lawful, non-discriminatory factors and be prepared to respond to applicants who request the pay scale for a position. California continues to be on the forefront of fair pay legislation.

Please feel free to contact the Jackson Lewis attorney you normally work with or Jonathan Siegel at siegelj@jacksonlewis.com

Governor Approves Expanding Parental Leave to Small Employers

On October 12, 2017, Governor Brown approved a new law that will expand parental leave benefits to employers with 20 or more employees. The new law will take effect on January 1, 2018.

Currently, employers with 50 or more employees are required to grant up to 12-weeks of unpaid leave to eligible employees who request leave to bond with a newborn child or with a child placed in the employee’s home for foster care or adoption. To be eligible for leave, the employee must have worked for the employer for at least 12 months (which do not need to be consecutive), worked at least 1,250 hours in the 12-month period preceding the use of leave, and work at a worksite with 50 or more employees in a 75-mile radius.

Under the new law, employers with 20 or more employees will be required to grant up to 12-weeks of unpaid leave to eligible employees for bonding purposes. An eligible employee is one who has worked for the employer for at least 12 months, worked at least 1,250 hours in the 12-month period preceding the use of leave, and who works at a worksite with 20 or more employees in a 75-mile radius.  More information about this leave expansion can be found here.