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Entries in employer compliance (24)

Monday
Aug012016

Employers' Guide to Los Angeles' Sick Leave & Minimum Wage Ordinance

Employment Defense

by Tal Burnovski Yeyni

818-907-3224

 

Most Los Angeles employers know the City Council implemented a new sick leave ordinance for employees working within the City of L.A. on June 2016.

However, as the Sick Time Benefits section was added to an existing Minimum Wage Ordinance, there has been some confusion over definitions and compliance dates.

Last week the City published revised FAQs and updated Regulations which shed some light over unanswered questions. Here is what we know about the City of Los Angeles Sick Leave Ordinance as of now: 

  • “Employee”: Section 187.04(A) of the Ordinance states that “every employee ... is entitled to paid sick leave”. The FAQs clarify that an Employee is: 

1. “any individual who performs at least two hours of work in a particular week within the geographic boundaries of the City of Los Angeles”; and

2. “... entitled to payment of a minimum wage from any Employer under the California minimum wage law...”

Accordingly, exempt employees are excluded from the definition of Employee under the Minimum Wage and Sick Leave Ordinance and not entitled to sick leave benefits under the Ordinance. Note, however, that exempt employees working within the City of Los Angeles are entitled to sick leave benefits under the California Healthy Workplace Healthy Family Act of 2014. Employees outside the City of Los Angeles might also be covered under another local ordinance (e.g., San Diego, Santa Monica, San Francisco, etc.) 

  • Los Angeles Sick Pay“Particular Week”: The Regulations explain that Particular Week “means any seven (7) consecutive days, starting with the same calendar day each week. “Week” for the purpose of the [Ordinance] ... shall be a fixed and regularly occurring period of seven (7) consecutive 24-hour periods which is equivalent to a period of 168 hours.

  • “30 Days Requirement”: To be eligible for sick leave under the Ordinance, an Employee [as defined above -- i.e., works two (2) hours within the City and entitled to minimum wage] must work within the City for the same Employer for 30 days or more within a year from the start of employment.

  • Employees Working in L.A. Sporadically:  As explained above, to be eligible for paid sick leave under L.A. Ordinance, an individual must meet the definition of Employee and work within the City of the same employer for 30 days or more within a year from the start of employment. But what happens when an Employee works in-and-out of the City?

    The Regulations offer the following explanation: “If an Employee continuously works for an Employer with only sporadic work time within the geographical boundaries of Los Angeles, ‘commencement of employment’ means the initial start date by the Employee for the Employer. The ‘year’ or 12 month period begins [on] the first ‘day’ the Employee works in the City. If the Employee has not worked a total of 30 days within that 12 month period, the Employee does not qualify for Sick Time Benefits".

    Accordingly, to determine whether Employers have to start complying with the Ordinance, Employers must track employees’ work within the City. Note that even as little as 10 minutes of work within the City is considered a work day. Once an Employee has 30 days of work for an Employer within the City, the Employee is eligible for sick leave benefits.

  • Compliance Date Based on Employer’s Size:  Section 187.04(A) of the Ordinance states that “Every employee who, on or after July 1, 2016, works it the City ... is entitled to paid sick leave.

    This was interpreted to mean that all Employers, regardless of size, must start complying with the Sick Leave Ordinance as of July 1, 2016. Wrong. The FAQs state there is a deferral schedule based on the size of the employer: “Paid sick leave applies on July 1, 2016 for Employers with 26 or more Employees, including Non-Profit Corporations with or without the minimum wage rate deferral. Paid sick leave applies on July 1, 2017 for Employers with 25 or fewer Employees.

  • Determining Size: The size of an Employer’s business shall be determined by the average number of Employees employed during the previous calendar year rounded up to the next whole number of Employees.  The Office of Wage Standards (OWS) recommends small businesses to complete the MW-2 Small Business Deferral Eligibility Worksheet, which can assist Employers in determining eligibility.

    An Employer should not submit MW-2 to the OWS, but instead retain it with supporting documents in the Employer’s records. Supporting documents may include, but are not limited to: Payroll records; Timesheets and/or attendance records; Quarterly Contribution Return and Report of Wage (DE9 and DE9Cs); Report of New Employees (DE 34).

  • Hours per Year: An eligible Employee is entitled to take up to 48 hours of paid sick leave annually. However, as with California Law, an Employee may use sick leave on or after 90 days of the first day of employment or July 1, 2016, whichever is later.

  • Calculating Methods:
    Front Loading Method: An Employer who chooses to provide sick leave based on the front-loading method must select one type of anniversary, either at the beginning of each year of employment, calendar year, or 12-month period. At each anniversary date, an Employer shall provide all 48 hours to an Employee.

    An Employer who uses the front-load method on a calendar year basis (January through January) may on July 1, 2016 (and only for the calendar year of 2016) provide 24 hours of sick leave for the period covering July 1, 2016 to December 31, 2016. On January 1, 2017, the Employer must front-load the full 48 hours.

    Accrual Method: An Employer who chooses to provide sick leave based on the accrual method must provide the Employee one (1) hour of sick leave per every thirty (30) hours worked. An Employee’s hours worked within L.A. must be tracked. The Regulations provide the following example for accrual: “a full-time Employee working a 40-hour work week within City boundaries (160-hours a month) will accrue 5.33 hours which must be available for use no later than 90 days after the first day of employment.

    Employers may select either the front-loading method or accrual method and may switch between the front-loading method or the accrual method only on an annual basis.

  • 72 Hour Cap: Unused sick leave, either accrued or front-loaded, must be carried over to the following year, but the Employer may cap carry-over (and accrual) at 72 hours. This is where the L.A. city ordinance substantially differs from California law, which does not require carry-over when sick leave time is front-loaded.

  • Permissible Uses: The Sick Leave Ordinance allows employees to take paid sick leave for all permissible uses under the Healthy Workplace Healthy Family Act of 2014, and to care for “any individual related by blood or affinity whose close association with the Employee is the equivalent of a family relationship.” However, it is unclear what an “individual related by blood or affinity” means.

  • Doctor’s Note: While California Law is silent on whether Employers can require Employees to provide documentation, the FAQs state that documentation is allowed only after an Employee has used more than three (3) consecutive days of sick leave. A demand to provide description or explanation of the illness or condition necessitating the Employee’s leave is prohibited.

  • Geographic Boundaries:  The FAQs also refer to a new map which could help determine if a specific address/workplace, is within the City of L.A. (http://neighborhoodinfo.lacity.org/). “If an address is located within the boundaries of the City of Los Angeles and is correctly entered, then the search will locate the address on the map with detailed address information.” 

The FAQs and Regulations also contain helpful and important information concerning the Minimum Wage section of the Ordinance.

For example, the Regulations state any changes in the number of Employees shall not impact the Employer’s status as a small business for purposes of the Minimum Wage deferral schedule. If an Employer’s average number of Employees from the previous calendar year was twenty five (25) or fewer, it shall pay based on the deferral schedule regardless of the changes in number of Employees for duration of the minimum wage schedule.

There is also valuable information concerning tracking of Employees’ time for work performed within the City and recommendations concerning required documentation regarding Employees’ hours.  

Employers can also visit http://wagesla.lacity.org/ for additional information, relevant notices,  posters and helpful charts.

Changes to Federal Employment Postings

Last week the U.S. Department of Labor announced changes to two mandatory posters, which go into effect immediately. As of August 1, 2016, employers must post the revised versions of the Federal Minimum Wage notice and the Employee Polygraph Protection Act notice. You can find revised notices here and here.

If you have questions concerning compliance with the Minimum Wage and Sick Leave Ordinance or other local ordinances and California Laws, contact employment defense counsel as soon as possible.

 

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
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.

Monday
Jan122015

Bay Area Blues: San Francisco's Employers/Franchisees Face Retail Workers Bill of Rights

 

by Bryan H. Clements

Doing business in San Francisco can be difficult, to say the least. At $10.74/hour, the city already had the highest minimum wage in the country at the end of 2014. On January 1, 2015, San Francisco employers began shelling out $11.05/hour; on May 1, 2015, they will begin paying $12.25/hour; and on January 1, 2018, they will pay $15/hour (a 39.6 percent increase over three years).

Franchise Employers CaliforniaNevertheless, franchisors, franchisees and other multi-unit business owners doing business in San Francisco, referred to as “Formula Retail Establishments,” will soon see their resolve to continue doing business in the city further tested.

On November 25, 2014, San Francisco's Board of Supervisors (BOS) unanimously approved two ordinances, collectively referred to as the “Retail Workers Bill of Rights.”  These ordinances are the first of their kind in the United States and are being added to the Police Code.

Formula Retail Establishments Defined

The Retail Workers Bill of Rights applies to employers with 20 or more employees and with 20 or more locations worldwide – if one or more of their locations operates in San Francisco. Formula retailers include companies with at least two of the following: 

  • A Standard Array of Merchandise

  • Standard Facades or Interior Designs

  • Standard Signage

  • Use of  Common Trademarks/Servicemarks

  • Standard Uniforms 

San Francisco’s definition of formula retail businesses includes retail trade businesses, movie theatres, hotel chains, food service businesses (including restaurants and bars) and banks. It also includes businesses providing professional, financial (accountancies, insurers, etc.), repair (plumbing, closet installation, oil change, etc.) and cleaning and janitorial services.

Franchised businesses will typically fall within the definition of a formula retail business, so franchisees can expect to be disproportionately impacted.

Groups advocating for franchise companies have attacked the ordinances claiming they unfairly target franchised businesses. For example, the day following the BOS’s vote, Robert Cresanti, Executive Vice President, Government Relations & Public Policy of the International Franchise Association, the nation’s most powerful lobbying group for franchisors, penned a sharp letter to the Mayor of San Francisco urging him to veto the ordinances.

Despite these protests however, the Mayor neither signed nor vetoed the ordinances, and they became law.

Employer Compliance with SF's Retail Bill of Rights

California Business Lawyer

The Retail Workers Bill of Rights will affect employers in many ways. To comply, formula retailers must: 

  1. Additional Hours: Offer additional hours to part-time employees before hiring new employees or engaging temporary workers.

  2. 90 for 90: If the company is sold, successor employers must retain all current employees who have been with the company for at least 90 days, for a period of 90 days.

  3. Predictability Pay: Excepting certain circumstances, employers must provide employees with two weeks’ advance notice of their schedule. Employers providing less than seven days' notice must pay one hour of extra pay per changed shift; and two hours of extra pay for less than 24 hours' notice, per changed shift.

  4. On-Call Predictability:  Employers must give employees at least 24 hours' notice before cancelling or rescheduling an on-call shift.

  5. No Part-Time Prejudice: Part-time employees will start at the same hourly wage as full time employees, and be provided with the same opportunities to advance.

  6. Retain Records: Employers must retain written records pertaining to written offers of employment, offers of additional hours, employees retained during a change of control, and work schedules for three years. Failure to preserve records will be deemed to be a failure to comply. 

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
Dec022014

California's New Sick Leave Law: New Posting & Notice Requirements Effective January 1

Lawyer for EmployerEmployment Defense Attorney

 

 

by Nicole Kamm

818.907.3235

 

 

Big changes await employers in 2015, but even before the New Year begins, employers should add this item to their lists:

Download the new Division of Labor Standards Enforcement (DLSE) poster regarding California’s new sick leave law and Notice to Employee (links below), which now includes required information about paid sick leave. 

 

Employer Compliance

 

The new poster notifies employees of their rights under Assembly Bill 1522, or the Healthy Workplaces, Healthy Families Act of 2014 – which obligates employers to provide most California employees at least one hour of paid sick leave for every 30 hours of work, or no less than 24 hours (three days) per year.

Employers must display the poster in a conspicuous location, i.e. in the break room, near the time clock, etc. Employers may use the template poster or create their own, however self-made posters should make sure to comply with the requirements of the new Labor Code §247.

While an employee’s entitlement to paid sick leave does not go into effect until July 1, 2015, according to the DLSE website, the posting requirement is effective January 1, 2015. Click here to download the new DLSE Paid Sick Leave Poster.

The DLSE also issued a revised "Notice to Employee," which must be given to all non-exempt employees. As required by the amended Labor Code §2810.5, the notice must include information regarding how sick time is accrued and state that an employer may not retaliate against or terminate an employee for using paid sick leave.

In addition to the previous required  information such as name, address, pay, etc., the employer will now need to choose one of four options on page two of the form, indicating:

□ Accrues paid sick leave only pursuant to the minimum requirements stated in Labor Code §245 et seq. with no  other employer policy providing additional or different terms for accrual and use of paid sick leave.

□ Accrues paid sick leave pursuant to the employer’s policy which satisfies or exceeds the accrual, carryover, and  use requirements of Labor Code §246.

□ Employer provides no less than 24 hours (or 3 days) of paid sick leave at the beginning of each 12-month period.

□ The employee is exempt from paid sick leave protection by Labor Code §245.5. (State exemption and specific subsection for exemption):______________.

As with the poster, the revised Notice to Employee must be used for all new hires starting January 1, 2015. Employers who already provide paid sick time will need to review their policies to ensure compliance with the new law. 

Nicole Kamm is an attorney in our Employment Practice Group. Call her direct line: 818.907.3235, or email: nkamm@lewitthackman.com 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.

Friday
Jul112014

The Road Ahead for California Transportation Industry Employers

Wage and Hour Defense Attorney Employment Defense Attorney

 

by Sue M. Bendavid & Hannah Sweiss

 

The 9th Circuit Rules FAA Authorization Act Does Not Preempt State Meal and Rest Break Laws

On July 9, 2014, in Dilts v. Penske Logistics, Inc. the Ninth Circuit Court of Appeals held that, for motor carrier employers, California’s meal and rest break laws are not preempted by the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”).      

Class Action: 349 delivery drivers and installers claim Defendants create an environment that discourages employees from taking breaks.Up until this ruling, motor carrier employers tried to argue they need not comply with California’s meal and rest break rules, as those rules had an impermissible negative impact on “prices, routes and services” and therefore, those laws were preempted by federal law under the FAAAA.

Defendants in Dilts argued compliance with California’s meal and rest break laws would force drivers to deviate from routes and would result in a cessation of delivery services throughout the day. This could cause longer delivery times and greater costs to employers. However, the Ninth Circuit was unpersuaded.  

 

The Ruling's Impact on California Employers     

So what does this mean for certain motor carriers in the transportation industry?

Generally, under California law an employer must provide a duty free meal break of 30 minutes for nonexempt employees who work more than five hours and a second 30 minute duty free meal break for those who work more than 10 hours. If a nonexempt employee’s total daily work time is at least 3.5 hours, employers must also provide a paid rest period of 10 minutes for every four hours or major fraction thereof.

Based on this decision, motor carrier employers may have to: 

  • Hire more drivers,

  • Stagger employee break times,

  • Reallocate resources to maintain a particular service level,

  • Allow drivers to make minor deviations from their routes, and

  • Make other changes to ensure compliance with California’s meal and rest break rules.

A failure to do so may result in substantial penalties and is expected to result in more class actions on this issue. 

Sue M. Bendavid and Hannah Sweiss are Wage and Hour Defense Attorneys at our Firm. Contact them directly: sbendavid@lewitthackman.com or 818.907.3220; hsweiss@lewitthackman.com or 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.

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