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Entries in employer compliance (27)

Monday
May142018

Dear Boss: I'm sick. Please Don't Pay Me. Sincerely...

Lawyer for EmployersEmployment Compliance

by Tal Burnovski Yeyni

818-907-3224

This may not be the best time of year to talk about sick leave. The days are longer.  The sun is shining. The weather is hotter.  And, workplaces... well, they don’t really change by the season. So maybe it is appropriate to talk about sick leave!  

sick employeeWe have lately received more employer questions regarding  their employees’ requests to defer sick leave to another time. Meaning, an employee is out sick, but does not want to use the sick leave balance to get paid for the time off. Which begs the question:

Can California employers require employees to use their sick leave balance? 

The law states “An employee can determine how much paid sick leave he or she needs to use” (Labor Code § 246(k)). But does that mean an employee also has a right to waive sick leave pay or defer it? Being a relatively new law, employers have very little guidance on sick leave matters.   

A review of the legislative history indicates the purpose of the law is not to penalize employees for being sick. Stated differently, the law was enacted to benefit employees by allowing them to stay home with pay while caring for themselves or family members.   

One would argue the use of sick leave is the employee’s right, and therefore, only the employee may decide whether to exercise that right or defer it to another time. On the other hand, a waiver may defeat the purpose of the legislation which is to make employees  “whole“ at time of sickness.  The latter argument was also expressed to a certain degree in the recent Dynamex decision (which we wrote about here).  

In Dynamex, the Supreme Court opined that allowing workers to waive employee (wage and hour) protections may displace those employees who want or need those same protections. See Dynamex Operations West, Inc. v. Superior Court 2018 WL 1999120 in page 71. Although the court’s decision discussed misclassification of independent contractors, its reasoning regarding waiving wage and hour protections may also be applied to other benefits.  

On the surface, it might appear that employees should not be able to knowingly waive their rights. However, employers should be mindful that sick leave rules may be subject to future interpretations.

As always, employers with questions regarding state and local employment law compliance are advised to contact an employment defense attorney.

 

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
May092018

Court’s Prop 65 Ruling a Great “Brewhaha” for Coffee Retailers

Environmental Litigation AttorneyProp 65 Defense Attorney

 

 

 

Stephen T. Holzer

818.907.3299

 

 

In 2010, a nonprofit group called The Council for Education and Research on Toxics (CERT) brought a lawsuit against 91 commercial coffee roasters, retailers and distributors. 

CERT claimed the defendants failed to provide warnings regarding high levels of acrylamide, thus violating the Safe Drinking Water and Toxic Enforcement Act of 1986, more commonly known as California’s Proposition 65. The law requires companies with 10 or more employees warn consumers and others of any exposure to more than 900 confirmed or suspected carcinogens, including acrylamide, at the point of sale.

In late March, Los Angeles Superior Court Judge Elihu Berle tentatively decided in favor of CERT. The Court ruled that Starbucks and other companies failed to show there was no significant risk from acrylamide produced in the coffee roasting process and that cancer warning labels must be placed on their products in California.

That ruling has now been finalized. Barring a successful appeal, it appears that the law will force retailers either to post the Prop 65 warnings, or find ways to remove acrylamide from the coffee.

Prop 65: Signs of the Times

Businesses in California should take note: New compliance rules for Prop 65 take effect as of August 30, 2018. That leaves just a few months to ensure your signage or product packaging is complete and accurate. Generic warnings will no longer suffice.

Some of the new rules include the following requirements (for more details, see 27 California Code of Regulations [“CCR” §25603, Consumer Product Exposure Warnings – Content]:

  1. WARNING” must appear in the sign in bold and with all capital letters.

  2. The sign must also generally include a yellow equilateral triangle outlined in black, with a black exclamation point in the center. This symbol must be at least as high as the word “WARNING.”

  3. Premises signage must contain the specific name of the toxic substance found in the product sold.

  4. Product labels do not need the chemical name, but must include requirements 1 and 2, above.

  5. If warning labels and signs are given in another language, businesses must also provide them in English.

Stephen T. Holzer is the Chair of our Environmental 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.

Tuesday
May012018

Independent Contractor vs. Employee: Our Supreme Court Speaks Again

Wage and Hour Defense Attorney Employment Defense Litigation

 

by Sue M. Bendavid & Nicholas Kanter

 

On April 30, 2018, the California Supreme Court handed down a ruling that may significantly impact the decision on classifying workers as “employees” or “independent contractors.” To the dismay of many businesses, the decision will place the burden squarely on the hiring entity to establish that its workers are correctly classified as independent contractors. The decision is Dynamex Operations West v. Superior Court.

Dynamex is a package and document delivery company. Prior to 2004, Dynamex treated and paid its drivers as employees. In 2004, Dynamex adopted a new policy and contractual arrangement under which all drivers are considered independent contractors rather than employees. Dynamex maintained that, in light of its contractual arrangement, the drivers were properly classified as independent contractors.

Charles Lee was a delivery driver who signed an independent contractor agreement with Dynamex in January 2005. Four months after signing the agreement, Lee filed a class action lawsuit alleging Dynamex misclassified drivers as independent contractors rather than employees.

Prior to the recent Supreme Court's Dynamex ruling, and depending on the applicable regulation or statute, California used several tests for determining whether a worker was an independent contractor, particularly the multifactor tests and considerations set forth in Supreme Court decisions re Martinez v. Combs and S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations.

After discussing Martinez and Borello at length, the Dynamex Court decided to adopt a simpler “ABC” test used by courts outside California to determine whether independent contractors are properly classified for purposes of the wage orders adopted by California’s Industrial Welfare Commission. Under this newly adopted test, a worker is considered an independent contractor to whom a wage order does not apply only if the hiring entity establishes:

(A) The worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; and

(B) The worker performs work that is outside the usual course of the hiring entity’s business; and

(C) The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

Notably, the Court also concluded “the suffer or permit to work definition is a term of art that cannot be interpreted literally in a manner that would encompass within the employee category the type of individual workers, like independent plumbers or electricians, who have traditionally been viewed as genuine independent contractors who are working only in their own independent business.”

Employment Defense Tips re Classification

California employers must consider the three Dynamex factors to determine whether they can prove a worker is not an employee. This involves reviewing the reality of the business arrangement apart from any agreement that may attempt to define the nature of the relationship.

If analysis of these factors points towards an employer-employee relationship, and the worker is classified as an independent contractor, the business should consider consulting an experienced employment attorney to evaluate whether it is necessary to re-classify the worker as an employee and take all necessary steps to comply with the applicable wage orders and statutes.

 

Sue M. Bendavid and Nicholas Kanter are employment defense attorneys 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.

Friday
Jun092017

Los Angeles Ensures Employees Know Their Rights. Employers, Take Notice.

Employment Defense

 

by Amy I. Huberman

818-907-3014

 

 

 

If Los Angeles was a person rather than a city, you could practically hear her telling employers, “It’s ON.

Minimum Wage Notice Los AngelesThe warning comes by way of a massive ad campaign to remind members of the working public they have certain rights regarding minimum wage and paid sick time – just in case employers fail to comply with these legal mandates. Witness the latest bus stop ads for example, in big, bold lettering, which sends a not-so-subtle reminder to Los Angeles workers. This one is right outside our offices on Ventura Boulevard in Encino:

In case you can’t read the graphics on the bus stop wall, here’s what it comes down to: As of July 1, 2017 which is less than a month away, ALL employers with workers in Los Angeles will need to increase wages. 

For employers with 25 or fewer employees, that means raising minimum hourly pay to $10.50 per hour. For companies with 26 or more employees, minimum hourly rates will increase to $12.00 per hour.

The chart below illustrates the scheduled increases through 2021 – after 2021, minimum hourly wage rates will be based on Consumer Price Index for Urban Wage Earners, according to the Los Angeles Ordinance. 

Los Angeles Minimum Wage & Sick Pay

48 Hours Paid Sick  Leave in Los Angeles

Employees who perform at least two hours of work in a particular week in the City of Los Angeles are entitled to a greater amount of paid sick leave than California law mandates, pursuant to the City of Los Angeles Paid Sick Leave ordinance. These employees must be provided with one hour of paid sick leave for every 30 hours worked, or 48 hours each year. Larger companies (26+ employees) should have begun compliance last July. This July 1st, the rules apply to employers with 25 or fewer employees as well.

Ban the Box Penalties

The Fair Chance Initiative for Hiring Ordinance (FCIHO, a/k/a Los Angeles’ “Ban the Box” initiative) has been in effect since January 22nd of this year. This means that employers may not inquire about a job candidate’s criminal history until AFTER an initial offer of employment has been made.

There are strict rules regarding the “Fair Chance Process” and withdrawing job offers, should a criminal history be discovered.  Employers should proceed with caution. Go to Hiring and Firing in Los Angeles: Fair Chance Initiative Update, for more information.

Starting July 1st of this year, fines will  be imposed on employers who violate the rules According to the city’s Administrative Fine Schedule, they amount to $500 for the first violation, $1,000 for the second, and $2,000 for the third and subsequent violations.

These are the current rules specific to employers in Los Angeles, or employers headquartered elsewhere but have employees performing work within Los Angeles. Other cities (San Francisco comes to mind) may have stricter regulations.

Employers should follow a general rule of thumb: local laws tend to be stricter than county ordinances, which tend to be stricter than California regulations, and state regs tend to trump federal law. That isn’t always the case of course. But employers should always follow the higher standard.

Amy I. Huberman 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.

Thursday
Feb162017

Hiring and Firing in Los Angeles: Fair Chance Initiative Update

Lawyer for EmployersEmployment Defense

by Tal Burnovski Yeyni

818-907-3224

 

We told you about Los Angeles’ Ban the Box ordinance in early December. Also known as the Fair Chance Initiative for Hiring Ordinance (FCIHO), the new regulation seeks to reduce recidivism by limiting inquiries regarding applicants’ criminal histories.

The City of Los Angeles recently posted further resources online in connection with the FCIHO. They include: 

  • Rules and Regulations for Implementing FCIHO

  • Notice to Applicants and Employees (for Private Employers or City Contractors)

  • Assessment and Reassessment Forms

  • Sample Letter: Notice to Rescind Employment Offer

  • Complaint Forms (in English and Spanish for applicants and employees) 

If you read our post in December (see link above), you know that employers must include in employment ads notice regarding compliance with the FCIHO.

Employers may not inquire about an applicant’s criminal history until AFTER an initial offer of employment has been made – in other words, not on a job application or during the interview or selection process.  If an applicant provides information/documents regarding criminal history, any decision to withdraw or cancel the conditional offer of employment may not be made until the employer complies with specific notice requirements and performs written assessment.

The Rules and Regulations suggest that the employer shall at least consider the following factors in the assessment: 

  • What is the nature and gravity of the offense? (The harm caused by the criminal conduct should be considered)

  • How much time has passed since the offense? (Convictions remote in time are less significant than similar more recent ones)

  • What is the nature of the job duties and responsibilities? (Consider the job’s essential functions and the circumstances under and the environment in which the job is performed.)

  • Is the employer looking at ONLY convictions? Arrests cannot be considered in employment decisions. 

Duty to Maintain Records for a Period of Three Years. Employers are required to retain all records and documents related to applicants’ employment applications and the written assessment and reassessment for a period of three years following the receipt of an applicant’s employment application.  The Rules and Regulations specify that if an employer relied on oral information to form a determination of Adverse Action, the employer should summarize this information by putting it in writing and maintain it with the employment records.  For example, a verbal reference check with former Employer should be documented.

Of course, certain exceptions still apply, i.e. if the employer is mandated by federal or state law to obtain information regarding conviction, especially if the position requires the use of a firearm, or if the employer is prohibited by law from hiring applicants with criminal convictions. Also, some applicants may be prohibited from holding certain positions because of their criminal histories.

Remember, fines on employers who violate the Rules and Regs of FCIHO will be imposed as of July 1, 2017.

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.

LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120