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Wednesday
Apr202016

That's Just Sick: Paid Sick Days May Increase in Los Angeles

Lawyer for EmployersAttorney for Employers

 

by Tal Burnovski Yeyni

818-907-3224

 

Yesterday, the Los Angeles City Council voted to require employers to offer employees at least six days of paid sick leave per year, twice the minimum amount required under California law. If finally approved, Los Angeles will join more than a dozen cities who have established their own paid sick leave standards. 

In yesterday’s meeting, City Council has asked the City Attorney to prepare and present an Ordinance that should include, among others, the following provisions: 

  • An employee who, on or after July 1, 2016, works in the City for the same employer for 30 days or more within a year from the commencement of employment, is entitled to paid sick leave.

  • Paid sick leave shall begin on the first day of employment or July 1, 2016, whichever is later.

  • Employees will be entitled to take 48 hours of leave per calendar year, that must be provided up front by the employer, or accrued at the rate of one hour per every 30 hours worked.

  • Accrued paid sick leave shall carry over to the following year of employment and may be capped at 72 hours; an employer may set a higher cap or no cap at all.

In response to the City Council’s vote, Mayor Eric Garcetti issued the following statement:

Paid sick leave means a world of difference to working people and their families. That’s why it is important for L.A. to not just comply with state law, but take it a step further on behalf of our people. We set a tone for California and the nation by leading on the minimum wage increase, but we could do more in guaranteeing that people's jobs are secure in the face of illness. We are fixing that, and I'm proud to stand with my City Council colleagues on the principle that workers need and deserve these protections.

Final vote on the Ordinance is expected to take place within the next month. We will keep you posted on further updates. 

Tal Burnovski Yeyni is an attorney in our Employment Practice Group

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
Apr132016

California Wage & Hour: Employer Q&A

Wage and Hour DefenseEmployment Litigation Defense

by Sue M. Bendavid

818.907.3220

 

Recently, the California Labor Commissioner cited a residential care provider for multiple wage theft violations, including for failure to pay minimum wage and overtime.

Wage Theft DefenseAs a result of the Labor Commissioner’s investigation the company was found to owe approximately $192,000 in pay. However, in addition to back wages, this particular employer will have to pay nearly $450,000 because of penalties, interest, liquidated damages and other fees.

The lesson for all employers is this:

Ensure proper payment of all wages now, or double (or perhaps triple) the costs later.

So what can employers do to stay compliant and reduce the risk of wage claims? Here’s a Q&A regarding some of the bigger pitfalls in timekeeping and payroll.

 

Payroll & Timekeeping FAQs

Q:  When should an employer change an employee’s time entries?

 

A:   An employer should change an employee’s time records when the employee forgets to record his or her start or end time or meal period on a timesheet or time clock. Further, an employer can record an employee’s work time if the employee is out sick, on vacation, or absent on some other form of time off.

If the employee forgets to clock in or out, or record a meal period, the employer may enter the actual in or out time to ensure the employee is paid correctly. If an employee is out sick or out for some other form of time off, the employer can change the time record to show the reason for the time off. 

Important: Employees should initial any changes to their timecards to confirm they are accurate.

 

Q:  What are some of the common mistakes employers make when tracking time?

 

A:  Don’t assume an employee only works 8 hours a day or 40 hours in the week or takes a 30-minute or 1-hour meal break each day, regardless of the hours the employee was scheduled to work or the Company’s meal break policy or practice.

An employer may not change a time record to show fewer hours than actually worked. For example, an employer may not reduce an employee’s time record from 10 hours in a work day to 8 hours to avoid overtime payment. This is true even if the employee consents to the change.

If an employee wants to take personal time off during a particular day and make up the time later in the same week, consider whether the “makeup” rules can apply.  If done correctly these rules can allow an employee to work up to 11 hours in a workday (3 hours of makeup time) without triggering overtime, as long as the employee does not work more than 40 hours in a workweek).

 

Q:  What are some of the potential claims if the employer fails to accurately pay an employee?

 

A:  Under California law, if an employer does not pay an employee correctly, they can expect to see some or all of the following claims: 

  • Failure to pay minimum wage (for off the clock work/hours that may not have been recorded on time records)

  • Failure to pay wages for hours worked

  • Failure to pay overtime

  • Waiting time penalties (up to 30 days wages)

  • Paystub violations (up to $4,000 in penalties or damages)

  • Failure to keep accurate records

  • Penalty claims under the Private Attorneys General Act (PAGA)

  • Liquidated damages

  • Missed Meal Break Penalties (one additional hour of pay per day missed)

  • Missed Rest Break Penalties (one additional hour of pay per day missed)

  • Violation of Business & Professions Code Section 17200 (restitution and injunctive relief)

  • Interest

  • Attorneys’ fees

  • There is risk of both civil and statutory penalties under various Labor Code provisions.    

Not only is the employer potentially liable, there is a recent move to try and hold individuals liable for penalties (against those who caused the violations to occur).

 

Q:  What is the statute of limitations on these claims?

 

A:  Under California Business & Professions Code Section 17200, employees can assert various wage claims going back up to four years. This includes claims for wages, meal breaks, rest breaks, overtime, minimum wage, failure to pay all wages, etc. Some claims go back one – three years, depending on the particular statute at issue.

 

Q:  How can an employer avoid (or at least reduce the risk of) claims?

 

A:  Strict compliance is critical. Employers should minimize unnecessary changes to time records, including requiring all employees to accurately record and maintain their own time records. Employers should prohibit changes to time records unless pre-approved and signed off by the employee.

Employers should develop policies prohibiting off-the-clock work, ensure employees are authorized and permitted to take all rest periods and meal periods as required by law, and have employees review, sign and date their own time records each pay period.

All work hours must be recorded, even if the work is performed remotely or before or after regular work hours.

PAGA DefenseEmployers who may be exposed to litigation risk because of previous violations should consider a payroll audit (under the attorney-client privilege) to determine the scope of potential liability. Ensure you have non-retaliation policies in place and inform employees there will be no retaliation if they complain about errors or “wage theft” or raise questions about timekeeping, breaks or pay.

It is also important to analyze classification of workers as independent contractors vs. employees and exempt vs. non-exempt. Non-exempt employees are entitled to overtime premiums. Exempt employees must be paid at least two times minimum wage on a salaried basis. Recent minimum wage increases must be complied with and there are many local minimum wage ordinances to be aware of as well.

Pay stubs must be reviewed to ensure accuracy and compliance with the law.

 

Q:  What documentation would be important when changes are made to time records?

 

A:  When changes are made to a time record, employers should keep the original and create a modified record, or line through the error on the original, make the correction, and have both the employer and employee sign and date the corrected record. The reason for any changes should be noted and signed.

If engaging in a wage audit, enlist the help of an experienced employment attorney.

 

Paying Employees in California

Don’t forget the new laws that went into effect in various metro areas like Los Angeles, as well as new state laws affecting pay, including: 

  1. The Fair Pay Act, ensuring equal pay for all genders.

  2. Senate Bill 3, signed by Governor Jerry Brown earlier this month, SB3 amends the Healthy Workplaces, Healthy Families Act and provides an increase in minimum wage as of January 1, 2017.

  3. The Los Angeles Minimum Wage Ordinance also mandates a minimum wage increase as of July 1, 2016. 

Remember, in cases where a city or county law conflicts with state or federal law, employers should always pay the higher standard.

 

Sue M. Bendavid is the Chair of the Employment Practice Group at our firm. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
Apr052016

Save the MAMILs - Cyclist Injury & Death Statistics

Injury AttorneyWrongful Death Attorney

 

by Thomas Cecil

(818) 907-3292

 

According to a recent government report, MAMILs (Middle Aged Men In Lycra) are the likeliest of all age groups and genders to be killed or seriously injured while riding a bicycle.

In its report to the US Congress last November (Pedestrian and Cyclist Safety), the General Accounting Office found that of the 743 cyclists who died and the estimated 48,000 who were injured in 2013, 87 percent of those killed were male with an average age of 44, and 83 percent of those injured were male with an average age of 33. Men between 55 and 59 “made up the largest number of cyclist fatalities”.

Although the report didn’t actually reference what the cyclists were wearing, it did confirm that more and more people, in fact over a million more, started riding or walking to work between 2005 and 2013. Riding a bicycle or walking to work clearly is not without risk. As the study points out, fatalities and injuries involving pedestrians and bicyclists remain relatively high while at the same time deaths and injuries from traffic collisions have fallen significantly.

The individual human tragedies are found in the numbers. In 2004, 727 cyclists were killed commuting to work and the annual number of deaths since then “has ranged between 623 and 786”. Cyclist injuries in 2004 were 41,000 and by 2013 were 48,000. Pedestrian deaths and injuries are worse:  4,675 deaths and 68,000 injures in 2004; 4,735 deaths and 66,000 injuries in 2013.

With respect to cyclists, the report notes that most traffic crashes that resulted in death in 2013 “occurred in urban areas, happened in clear weather conditions, and most frequently took place between 6:00 p.m. and 9:00 p.m.”  Unlike pedestrian deaths which occurred under similar circumstances, “more cyclists (405) died during daylight rather than in the dark.”  

Why are MAMILs and Others in Such Danger?

The study notes many possible factors, including increased walking and cycling trips, alcohol use, distracted driving, cycling and walking due to cell phone use, texting and eating. Another factor is the fact that roadways are built to accommodate cars rather than bicyclists and pedestrians.

As noted, as more and more people bike and walk to work, it is more likely that more cyclists and pedestrians will be involved in crashes. The report indicates, however, that when the numbers of cyclists and walkers in a particular area increase, the number of fatalities and injuries in that area decreases. Reasons given include drivers become used to seeing walkers and riders and change their behavior by driving more slowly. Thus more walkers and cyclists may actually improve safety and decrease deaths and injuries.

As also noted, distracted driving remains a serious threat to cyclists and walkers. In 2013 alone, 3,154 people died in motor vehicle crashes involving distracted driving. According to the report, 480 deaths “were pedestrians, cyclists, or other non-motorists.” 

With respect to road design, historically engineers designed roads meant to accommodate motor vehicles with wide straight roads often the goal. Unfortunately, the report notes, wide straight roads lead to faster traffic and speeding. A speeding driver has less time to react and the severity of the crash is much more likely to kill or seriously injure the cyclist or pedestrian.

So, what’s the solution?

Three Es of Safety for Pedestrians & Cyclists

1. Engineering:  better use of data to identify problem roadways and concentrations of cyclists and pedestrians; the use of highway design documents specific for cyclists and pedestrians such as the Pedestrian and Bike Guides, Urban Bikeway Design Guide and Designing Walkable Urban Thoroughfares: A Context Sensitive Approach.

2. Education:  collaborative education campaigns to educate the public on bike riding and walking safety along with officer training on pedestrian and cyclist safety and traffic laws.

3. Enforcement:  targeting areas with a high-frequency of crashes for law enforcement action.


(According to the Federal Highway Administration, there is typically a fourth “E” in highway safety, for “Emergency Medical Services” but it is not mentioned in this report.)

As bicycling and walking in urban areas is likely to only increase, and as more and more people look to biking and walking for exercise and recreation, drivers, city planners and walkers and bike riders will all have to learn to share the road. And remember, #SaveTheMamils.

Thomas Cecil is a Shareholder in our Personal Injury Practice Group

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
Mar232016

Amended FEHA Regulations: Employers Required to Update Harassment & Discrimination Policies

Lawyer for EmployerEmployment Defense

 

 

by Nicole Kamm

818.907.3235

 

 

 

The California Fair Employment and Housing Act’s (FEHA) proposed amendments have been approved and go into effect April 1, 2016. All employers should review the regulations and update their policies.

In large part, the amended regulations incorporate and adopt recent changes in the law.  However, the amendments also add a lengthy new section (California Code of Regulations Section 11023) that imposes additional substantive requirements related to harassment and discrimination prevention and correction.

There are extensive changes to the law.  In this blog, we’ll take a look at three primary areas: 

  1. New harassment and discrimination prevention policy requirements
  2. New definitions concerning transgender applicants and employees
  3. Expanded national origin protections for applicants and employees 

Harassment & Discrimination: Mandated Policies & Procedures

FEHA now expressly states, “Employers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct”, §11023(a). Employers further “have an affirmative duty to create a workplace that is free from employment practices prohibited by the Act,” §11023(b).

In addition to distributing the DFEH-185 brochure, employers must develop written policies to prevent and correct harassment, discrimination and retaliation in the workplace.  Among other things, such policies must: 

  • List all current protected categories covered under FEHA;

  • Indicate that the law prohibits coworkers, third parties, supervisors and managers from engaging in prohibited conduct with the employee;

  • Create an employee complaint process to ensure complaints receive:
    • Confidentiality, to the extent possible
    • A timely response
    • Impartial and timely investigations by qualified personnel
    • Documentation and tracking for reasonable progress
    • Options for remedial actions and resolutions
    • Timely closures
    • Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor

  • Instruct supervisors to report complaints to designated company representatives;

  • Indicate that fair, timely and thorough investigations giving all parties appropriate due process will be conducted, and that reasonable conclusions based on evidence will be reached;

  • State that confidentiality will be kept to the extent possible, but not that the investigation will be completely confidential;

  • Indicate that remedies will be made should misconduct be found in the investigation; and

  • Make clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

Employers are further required to ensure employees are aware of these new or updated policies, either by providing printed copies to all employees with an acknowledgment form, sending the policy via email with an acknowledgment return form, posting the policies on a company intranet with a tracking system ensuring employees have read and acknowledged receipt, discussing the policies upon hire, and/or some other method that ensures employees receive and understand the policies.

Further, in any facility or establishment where 10 percent or more of persons speak a language other than English as their spoken language, employers shall translate the policy into every language spoken by at least 10 percent of the workforce.

Defining Terms: Gender-Related Characteristics

Gender Discrimination

While already a protected category, the amended FEHA regulations include definitions for “gender expression,” “gender identity,” and “transgender”: 

  1. Gender Expression: Gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.

  2. Gender Identity: A person’s identification as male, female, or a gender different from the person’s sex at birth, or transgender.

  3. Sex: Expanded to have the same definition as provided in Government Code §12926, which includes pregnancy, childbirth, medical conditions related to pregnancy, childbirth or breast feeding, gender identity and gender expression.

  4. Sex Stereotypes: Definition now includes an assumption about a person’s appearance or behavior, or ability or inability to perform certain kinds of work based on myth, social expectation or generalization about the individual’s sex.

  5. Transgender: A general term that refers to a person whose gender identity differs from the person’s sex at birth.  A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth.  A transgender person may or may not identify as “transsexual.”

The amendments include reference to the fact that sexual harassment need not be motivated by sexual desire and “eligible female employees” under the pregnancy disability regulations include transgender employees who are disabled by pregnancy.

Employers should ensure they display an updated poster regarding pregnancy disability leave before April 1st. (See also the new DFEH Transgender FAQ Sheet.)

Expanded National Origin Protections for Applicants & Employees

The FEHA amendments incorporate sections of the California Vehicle Code to expand national origin protections.

Generally, it is unlawful for an employer to discriminate against an applicant or employee who holds or presents a driver’s licenses issued under §12801.9 of the Vehicle Code. 

Additionally, employers may require an applicant or employee to hold or present a driver’s license under the Vehicle Code only if

  1. Possession is required by state or federal law, or
  2. Possession of a driver’s license is required by the employer or other covered entity and is otherwise permitted by law.  

A policy requiring applicants or employees to present or hold a driver’s license may be evidence of a FEHA violation if the policy is not uniformly applied or is inconsistent with legitimate business reasons (i.e., a driver’s license is not needed to perform an essential function of the job).

Employer Takeaway

There is a lot to absorb – the amended Act runs nearly 90 pages with numerous edits and revisions. The key things to remember are these: 

  1. Update your harassment and discrimination policies as soon as possible (you must be compliant by April 1, 2016).
  2. Be aware of the new protections regarding national origin and gender.
  3. Make sure critical policies are in writing, employees read, understand and acknowledge receipt, and supervisors are trained on changes in the law and increasing employer obligations. 

Nicole Kamm is an Employment Defense Attorney

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
Mar012016

Employers: Criminal History Inquiries May Get Tricky 

Lawyer for EmployersAttorney for Employers

 

by Tal Burnovski Yeyni

818-907-3224

 

 

 

Employment Background ChecksProposed Amendment to California Code of Regulations 

Last week the California Fair Employment and Housing Council of the Department of Fair Employment and Housing (or, in short, the Council) announced its proposed amendment to the California Code of Regulations, aiming to substantially limit the use of criminal history information in employment decisions. 

The use of criminal background checks in the employment context has long been hotly contested. The argument against using the info is that it may have a disparate impact upon a protected class.

According to the U.S. Equal Employment Opportunity Commission’s ("EEOC") 2012 Guidance on Criminal Background Checks, an employer's criminal record screening policy or practice may be biased against a Title VII-protected group (i.e., those protected for their race, gender, national origin, etc.). To avoid discrimination claims, employers must demonstrate that the policy or practice is job-related for the positions in question, and consistent with business necessity.

California state law also prohibits employers from asking job applicants to disclose information or otherwise obtain information about:  

  • Arrests or detentions not resulting in conviction;

  • Information concerning a referral to or participation in a criminal diversion program (a criminal diversion program is a work or education program as part of probation);

  • Convictions for most marijuana possession offenses more than two years old;

  • Convictions that have been judicially dismissed or ordered sealed pursuant to law per Labor Code §§ 432.7, 432.8

There are several exceptions to the prohibition, e.g., when the employer is required by law to obtain the information, the employer is prohibited by law from hiring an applicant who has been convicted of crime, etc. Labor Code §432.7.

New Rules for Background Checks?

 

The proposed amendment seeks to introduce regulation 11017.1 "Consideration of Criminal History in Employment Decisions."

It would set forth statutory limitations when seeking or considering information regarding various types of criminal history (as stated in Labor Code §§432.7, 432.8). This includes the limitations on state agencies from asking applicants about conviction history, until the agency has determined that the applicant has met the minimum employment qualifications (Labor Code § 432.9).  It also includes additional limitations on employers pursuant to local laws or city ordinances (e.g., San Francisco's Fair Chance Ordinance.)    

Most importantly, the proposed new regulation mirrors the EEOC guidance regarding criminal background checks. It states:

"Depending on factors such as the type of convictions considered, the job position, and the geographic bounds of the applicant pool, consideration of other forms of criminal convictions ... may have an adverse impact on individuals on a basis protected by the [Fair Employment and Housing Act], including, but not limited to, gender, race and national origin." 

Thus, if the policy or practice re criminal information creates an adverse impact, the employer has the burden of showing that the policy is justifiable because it is job-related and consistent with business necessity 

  • The criminal conviction consideration policy or practice needs to bear a demonstrable relationship to successful performance on the job and in the workplace and measure the person’s fitness for the specific job, not merely to evaluate the person in the abstract.  In order to establish the "job-related and business necessity" criteria, the employer must demonstrate that the policy or practice is appropriately tailored, taking into account at least following factors:

a. The nature and gravity of the offense or conduct;

b. The time that has passed since the offense or conduct and/or completion of the sentence; and

c. The nature of the job held or sought 

  • Demonstrating that the policy is appropriately tailored to the job requires the employer to:

a. Show that any bright-line, across the board conviction disqualification can properly distinguish between applicants or employees that do and do not pose an unacceptable level of risk, and that the convictions being used to disqualify have a direct and specific negative bearing on the person's ability to perform the duties or responsibilities necessarily related to the position; or

b. Show that the employer conducts an individualized assessment of the circumstances or qualifications of the applicants or employees excluded by the conviction screen.

  • Note that per the proposed rule, conviction disqualification policies that do not incorporate an individualized assessment and includes a conviction related information that is seven or more years old are subject to a rebuttal presumption that they are not sufficiently tailored.  

  • Finally, the proposed rule seeks to require employers to give employees notice before taking an adverse employment action regarding the disqualifying conviction and allow the individual a reasonable opportunity to present evidence that the information is factually inaccurate.  If the individual establishes that the record is factually inaccurate, then that record cannot be considered in the employment decision. 

But that's not all. Even if the employer demonstrates that its background check policy or practice is job-related and consistent with business necessity, adversely impacted employees or applicants may make an FEHA claim if they can demonstrate that there is a less discriminatory policy or practice that serves the employer's goals as effectively as the challenged policy or practice  – such as a more narrowly targeted list of convictions or another form of inquiry that evaluates job qualifications or risk, without significantly increasing the cost or burden on the employer.

Hearing, "Sentencing" & Bottom Line for Employers

 

The Council will hold a public hearing regarding the proposed amendment on April 7, 2016. Employers or other interested parties may submit written comments relevant to the proposed amendment until 5:00 p.m. on April 7, 2016.  

If the amendment will be adopted employers who use information regarding conviction history in making an employment decision will have to review their policies or practices to determine whether they can demonstrate that their policies are job related and consistent with business necessity.    

 

Tal Burnovski Yeyni is an attorney in our Employment Practice Group

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

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