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Entries in California Law (19)

Tuesday
Oct142014

Assembly Bill 802 Makes Arbitration Less Confidential

Business LitigationBusiness and Employment Litigation Attorney

by Hannah Sweiss

818.907.3260

 

On September 30, 2014, Governor Jerry Brown signed Assembly Bill 802 (AB 802) into law, amending Section 1281.96 of the Code of Civil Procedure, relating to consumer arbitration.

Effective January 1, 2015, AB 802 requires large-scale arbitration providers such as JAMS and AAA to collect and publish certain details about consumer arbitration proceedings that were previously confidential. Arbitration providers must publish the required information in a consumer-friendly format, accessible from a conspicuous link on the arbitration providers’ website. 

What information will arbitration providers have to publish under AB 802? 

  • Arbitration Clause: Was the arbitration mandated because of a pre-dispute contractual clause?

  • Arbitration Provider: Did the arbitration contract designate a particular arbitration provider? If so, the name of that provider.

  • Non-Consumer Party Identification: If a non-consumer party (i.e., employers) is involved, the arbitration provider must disclose the name, type of business entity and if the entity initiating or responding party?

  • Nature of the Dispute: Does the dispute involve goods, services, health care, employment or some other issue? If there is an employment dispute, the employee's salary range should be disclosed unless the employee wishes to not disclose his/her salary.

  • Prevailing Party: Who was the prevailing party (i.e., the party with a net monetary recovery or the party awarded injunctive relief)?

  • Number of Arbitrations and Mediations: How many times the company has been involved in an arbitration or mediation using this particular arbitration service.

  • Consumer's Attorney: Was the consumer represented by counsel? If so, the full name and firm of the attorney who represented the consumer or claimant.

  • Arbitration Timeline: What date was the arbitration demand received by the arbitration provider? When did the arbitration actually occur? What date was the award issued?

  • Disposition of the Case: Did the arbitration end with a withdrawal, abandonment, settlement, award, default or dismissal?

  • Claim Amount, Attorneys’ Fees, Etc.: What was the claim amount? Award? Attorneys’ fees? Was equitable relief requested and awarded?

  • Arbitrator Info: Who was the arbitrator? What was the amount of the arbitration fee? Who paid the fee? Was a waiver for payment granted?

Prior to AB 802, one of the significant benefits to arbitration was the confidentiality and privacy of arbitration proceedings. The new disclosure requirements chip away at these protections and potentially expose businesses to more frivolous claims.

Now consumers (more likely consumer attorneys) can easily assess which entities/employers are arbitrating more often than others and the results of those arbitrations. The new law practically offers up a guidebook for serial complainants to bring claims against businesses who have a public history (in a private forum) of paying out awards to claimants.

This disclosure requirement may also add a layer of time and cost to the arbitration process. Now arbitration providers have to spend time and money collecting, assembling and disseminating information that may not have otherwise been readily available. This could potentially translate into higher arbitration fees and more time spent involved in the overall arbitration process.

Despite the new disclosure requirements under AB 802, arbitration still has benefits for certain employers. Employers can potentially limit employee class actions for wage-and-hour, employment discrimination, and other labor and employment claims. Arbitration may offer a more streamlined process to resolve employment claims. And there is limited discovery, which may help reduce time spent on discovery.             

Although there are benefits, arbitration has disadvantages, particularly for employers. Arbitration is often more costly. Arbitration fees are usually more expensive than court filing fees and employers are required to pay the arbitrator’s fees. The outcome in arbitration may also be riskier than state or federal court litigation because there are fewer checks on the arbitrator’s discretion and no meaningful appellate procedure.

Therefore, arbitration may not always be the best option for employers. It is important for employers to discuss with legal counsel before requiring employees to sign arbitration agreements.

Hannah Sweiss is a Business & Employment Litigation Attorney. Contact her via email: hsweiss@lewitthackman.com, or by phone: 818.907.3260 for more information.

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.

Monday
Sep152014

Paid Sick Leave Now Required by Law

Lawyer for EmployerWage and Hour Defense

by Nicole Kamm

818.907.3235

On Wednesday, Sept. 10th, Governor Jerry Brown signed the paid sick leave bill (Assembly Bill 1522) into law. This means that, effective July 1, 2015, California employers, regardless of size, must provide most employees paid sick leave. Eligible employees will be entitled to at least three paid sick leave days per year.

California Employment LawCalifornia is the second state to enact such a law (Connecticut was the first), but AB 1522 – the Healthy Workplaces, Healthy Families Act 2014 – is even more expansive, according to the bill's author, Lorena Gonzalez (D-San Diego):

We become the first state in the nation to guarantee paid sick days for every single private-sector worker in the state — no matter what industry they work in, no matter if they are part-time or seasonal, and regardless of the size of their employer…This means more than 6.5 million more workers in this state will be able to take up to three days off when they or their child is sick without fearing the loss of income, hours or their job.

Paid Sick Days – Employer Responsibilities

Employees who work 30 or more days in a year are now entitled to one hour of paid sick leave for every 30 hours worked. (Employers in San Francisco and San Diego may have to award more days, under certain city ordinances.) Employers may cap annual sick leave use at three days (24 hours) per year; however unused, accrued sick leave must roll over from year to year. The rollover may be capped at six days (48 hours).

Employees may use accrued sick days as of the 90th day of their employment, after which time employees may use paid sick days as they are accrued.

Employers will be able to set a minimum increment for use of sick leave, however the minimum increment cannot be greater than two hours (e.g., employers may not require employees take sick leave in increments of four hours or more).

Employees will not be entitled to pay for unused sick leave on separation of employment. However, a separated employee who is rehired within one year from the date of separation will be entitled to have any accrued, unused sick days reinstated.

Employees will be able to use sick leave for their own illness or preventive care, to care for a sick family member, and/or to recover from certain crimes.

Employers are required to provide written statements of accrued, available sick time on the employee's pay stub, or on a separate written statement provided at the same time as wages. Pursuant to the new law, records documenting hours worked and sick days accrued or used, must be maintained for at least three years; however, we generally recommend employers maintain employment records for at least four years.

Employers will be required to post a paid sick leave poster, to be prepared by the Labor Commissioner. The Labor Commissioner will also issue a revised Wage Theft Notice (Labor Code §2810.5) for all non-exempt employees, which will include information about paid sick leave.

The new law prohibits retaliation against an employee for using sick leave and establishes a rebuttable presumption of retaliation if adverse action is taken against an employee within 30 days of the filing of a complaint with the Labor Commissioner, cooperation with an investigation, or opposition by an employee to a policy, practice or prohibited by this bill.

Employer Take Away

Employers who already provide paid sick leave should review their policies in view of these new requirements to ensure compliance. And employers who currently do not provide paid sick leave will need to review the new law and implement a compliant sick leave policy. Please let us know how we can help you with this process.

Nicole Kamm is an attorney focused on protecting and defending employers.  Contact her via email: nkamm@lewitthackman.com, or via phone: 818.907.3235 for more information regarding sick leave.

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.

Thursday
Sep042014

Employers: Governor Expected to Sign Off on Paid Sick Time for Most Employees

Wage and Hour DefenseEmployee Leave of Absence Claim Defense

by Sue M. Bendavid

818.907.3220

 

California lawmakers voted 52-25 to pass Assembly Bill 1522. Written by Lorena Gonzalez (D-San Diego), the bill would entitle most employees in California three days of paid sick leave to care for themselves, or for a family member. Governor Jerry Brown will more than likely sign the bill, given his official statement:

Tonight, the Legislature took historic action to help hardworking Californians. This bill guarantees that millions of workers – from Eureka to San Diego – won't lose their jobs or pay just because they get sick.

Wage and Hour Law: Sick Time

If or when Governor Brown does sign, the new law enacts the Healthy Workplaces, Healthy Families Act, and will go into effect on July 1, 2015. Here's how it will affect California employers:

  1. Employees who work 30 or more days within a year (part-time employees are also covered) of commencement of employment is entitled to one hour of paid sick time for every 30 hours worked.

  2. Employees will accrue this time beginning on the 90th day of employment.

  3. Employers can minimize paid sick time to 24 hours (or three days) per year.

  4. Employers cannot retaliate against employees who request paid sick days.

  5. Employers must post notices regarding this change in Labor Code.

 

Given that many employers already provide paid sick time, most will just have to post the appropriate notices and update their employee handbooks. But, for those employers who did not provide paid sick leave, this law represents a substantial change. If signed into law, California will be one of the first states to pass a paid sick leave law (Connecticut already has such a law).

The soon-to-be law would exclude some employees (e.g., employees covered under certain collective bargaining agreements). But it will affect restaurants, retailers and other businesses, including those that tend to hire more part-time employees.

Supporters for AB 1522 say about 40 percent of employees in California do not currently earn paid sick leave.

Sue M. Bendavid is the Chair of our Employment Practice Group. Contact her via email: sbendavid@lewitthackman.com or via telephone: 818.907.3220. 

 

 

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
Mar192014

Bridging the Pay GAP

Lawyer for EmployerWage and Hour Defense

 

by Nicole Kamm
818.907.3235

 

Last week, GAP announced it would be increasing its minimum wage to $9 in 2014 and $10 in 2015 for employees nationwide. In its press release, GAP’s Chairman and CEO, Glenn Murphy, stated the clothing company “did this because it is right for our company and right for our people.”

Just one step behind, President Obama is continuing to push efforts to increase federal minimum wage to $10.10 per hour – more  than a dollar higher than the $9 proposal made in his 2013 State of the Union address. Federal minimum wage has not increased since 2009. In states that don’t mandate a higher rate, federal minimum wage remains $7.25 per hour.

Also last week, President Obama directed the Department of Labor to propose revisions to the Fair Labor Standards Act (FLSA) regulations regarding overtime exemptions. The President asked the Labor Secretary to consider: 

  1. How existing protections can be “modernized” to conform to the intentions of the FLSA

  2. The changing nature of the workplace 

  3. Simplifying regulations to make them easier to understand by both employees and employers, and easier for employers to apply 

This has been interpreted to mean we can expect a proposed: 

  1. Increase in minimum salary paid to an employee for the employee to qualify as exempt (currently, $455 per week); and

  2. Replacement of the FLSA “primary duty” test with a more substantive test to require an employee to spend a certain percentage of his/her time on exempt duties to qualify for exempt status. 

Both of the above changes would substantially decrease the number of employees who qualify under the federal exemption test.

 

What Does This Mean for California Employers?

 

Bottom line – not much.

California minimum wage is already going up to $9 per hour as of July 1, 2014, and $10 per hour as of January 1, 2016. Now is a good time for California employers to start gearing up for the increase, including issuing new wage notices pursuant to Labor Code section 2810.5, adjusting overtime calculations, and reviewing exempt employee salaries to ensure they are at least two times the minimum wage ($37,440 as of July 1st).

As for the proposed FLSA changes, California employers are already subject to more narrow overtime exemptions requirements under state law. Among other things, to qualify as exempt in California, an employee must be paid a salary of at least $640 per week ($720 as of July 1st). California employees must also spend more than 50 percent of their weekly work time on exempt duties.

Though there is much debate over proposed changes in federal employment laws, California employers can take some comfort knowing that - in most cases - they are already required to comply with what may be implemented on a national level. Somewhat surprisingly - it would appear California is a trendsetter these days when it comes to changes in national employment law.

 

Nicole Kamm is a Wage and Hour Defense Lawyer at our firm. She can be reached via email: nkamm@lewitthackman.com

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
Feb262014

New Family Law Adds Impersonation to Domestic Violence Claims

 

by Michelle S. Robins

 

Identity thieves beware, restraining orders can and will be issued against you in the future. 

Certain sections of the California Family Code regarding domestic violence have been repealed and amended, going into effect as of July 1, 2014. Currently, the law says a court may decree that a party cannot molest, threaten, attack, strike, stalk, sexually assault, batter, harass, destroy the personal property, contact (via telephone or mail, directly or indirectly) or otherwise disturb the peace of certain named family or household members.  

In July, add credibly impersonate or falsely personate, to this list.

Assembly Bill 157, written by Nora Campos of the 27th District, makes it a crime to falsely impersonate or steal the identity of a domestic violence victim. According to Campos' State Assembly website, false impersonation online is becoming a growing problem for those who suffer abuse.

When the law goes into effect, a judge may issue an ex parte restraining order against a person that falsely impersonates another person.  This means that the alleged domestic violence victim may not have to give the domestic violence perpetrator notice of a request for a restraining order or the time required for notice may be shortened. 

Furthermore, in some cases, the alleged domestic violence perpetrator does not even have to be present in court when temporary domestic violence restraining orders are issued.  Once restraining orders are issued, those who violate the order may be held in contempt of, which is a misdemeanor.

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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