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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.

Tuesday
Dec202016

California Employer Compliance 2017

Lawyers for Employers

by: Lewitt Hackman's Employment Practice Group

818-990-2120

 

There have been significant changes to state and federal laws in 2016 affecting employers of all sizes and in many industries. We'd like to help our clients stay apprised of some of the more critical changes by reminding all of the important dates below. Except where otherwise indicated, new laws and regulations go into effect as of January 1, 2017.

 

Federal Minimum Salary Threshold

A federal court blocked the Department of Labor's Final Rule with an injunction in late November. As a result, the minimum salary threshold required for overtime exemptions that was to be met December 1, 2016 no longer applies. This may be a temporary reprieve for employers, as the DOL recently filed a Notice of Appeal.

In the meantime, employers should ensure they meet all state and local overtime exemption requirements.


Affordable Care Act

IRS Affordable Care ActUnder the Affordable Care Act, employers must provide employees forms 1094-B (Health Coverage) and 1094-C (Employer-provided Health Insurance Offer and Coverage to Employees) by March 2, 2017.

Information reporting via Forms 1094 and 1095 with the IRS is February 28, 2017 (hard copies) or March 31, 2017 (electronic filing). 

 

New I-9 and Immigration Protections

Employment I-9A new I-9 Form (Employment Eligibility Verification) was released in November. Employers must begin using the new form for new hires by January 22, 2017

Federal law prohibits employers from asking for additional documents other than those required by the I-9. A new California law (Senate Bill 1001) prohibits this practice as well -- violations may incur penalties of up to $10,000. 


California Fair Pay Act

Fair Pay EthnicityThe Fair Pay Act prohibits employers from paying employees of opposite sex different wages for substantially similar work. Any pay differentials must be based on seniority, merit system, quantity or quality of production, or other bona fide factors such as education or experience. Additionally:

Senate Bill 1063 amends and expands the different rates of pay prohibitions to employees of another race or ethnicity.

Assembly Bill 1676 clarifies that prior salary history cannot justify compensation disparities. 


Criminal Background Checks

Background Checks in CaliforniaCalifornia: Employers are prohibited from asking about arrests or detentions that did not result in a conviction, or about those incidents that have been judicially sealed or dismissed. Assembly Bill 1843 expands protections to protect job applicants with juvenile criminal histories as well. 

Los Angeles: Ban the Box, or the Second Chance Initiative, prohibits employers with ten or more employees from including questions about criminal history on job applications. Employers may ask about criminal history AFTER a conditional offer of employment is made to the applicant. There is a process involved regarding the consideration of such information, written notices, maintaining records; and notifications that must be included on all job posts. Read our Ban the Box blog for more information. 


Payroll, Wage Statements & Notices

Employee NoticesCurrently, employers cannot discriminate or retaliate against employees who are victims of domestic violence, sex assault or stalking – and cannot prohibit employees from taking time off to seek treatment or legal actions for these crimes. Assembly Bill 2337 now requires employers to provide written notice of their employment rights should they become victims of these crimes to all new hires and to other employees as requested. Employers are required to comply with the notice requirements when the Labor Commissioner develops a form notice, on or before July 1, 2017.

Employers who must notify employees of eligibility for federal Earned Income Tax Credits (EITCs) must also notify employees of California EITCs per Assembly Bill 1847.

Employers are not required to track hours worked for exempt employees on itemized wage statements. The clarification comes under Assembly Bill 2535.

Employees of Temporary Staffing Agencies must be paid weekly. Assembly Bill 1311 makes this law applicable to security personnel employed by private patrol operators who are also temp service employers, as of July 2016.


Single User Restroom Facilities

Restroom LawAs of March 1, 2017, single-occupant toilet facilities in any business or public building must be identified as "all gender" facilities with signage compliant with Title 24 of the California Code of Regulations. Single-occupant bathrooms have no more than one stall and one urinal. See Assembly Bill 1732.

 

Minimum Wage Hikes

Minimum Wage HikeCalifornia: Businesses with 26 or more employees must pay a minimum wage of $10.50 per hour as of January 1, 2017. Employers with 25 or fewer employers must raise minimum wages to this rate on January 1, 2018

Local Ordinances: In unincorporated Los Angeles County, Los Angeles City, Pasadena and Santa Monica, employers with 25 or fewer employees must begin paying minimums of $10.50 per hour as of July 1, 2017. Employers with 26 or more employees were required to start paying a rate of $10.50 per hour as of July 1, 2016; and will be required to pay $12.00 per hour as of July 1, 2017. (Click: Cty and County Wage Rates for more specific information.) 

 

Sick Time

Sick Leave CaliforniaCalifornia: As of 2015, employers in California must provide 24 hours of paid leave per year for employees who work at least 30 days per year. 

Local Ordinances: In Los Angeles County, employers must provide 48 hours of paid sick leave annually. The time can be front-loaded every 12 months or accrued at the rate of one hour paid sick time for every 30 hours worked. This requirement is part of the Los Angeles Minimum Wage Ordinance, and went into effect last July for employers with 26 or more employees. For employers with 25 or fewer employees, the requirements must be implemented as of July 1, 2017


Arbitration Clauses

Senate Bill 1241 prohibits employers from requiring employees, as a prerequisite of employment, to arbitrate employment disputes under the laws of another state or in another state. This protection applies to all employees who primarily live and work in California. 

An exception to the new law applies to employees represented by an attorney when negotiating terms of an employment contract, including those containing forum selection and choice of law provisions. 


New California Employment Laws: Industry Specific Legislation

 

Janitorial Services

Janitor LawPer Assembly Bill 1978, employers of property service workers (janitorial) must keep records of all employees to include: employee names and addresses; start/stop times and all hours worked; wage rates for each pay period; ages of any minor employees; and conditions of employment – for three years. The law applies to janitorial employees, independent contractors and franchisees. 

Employers in this industry must register with the Labor Commissioner each year as of July 1, 2018. Cost of registration is $500.00.

The new legislation also requires janitorial staff and supervisors to undergo sexual violence and harassment prevention training every two years as of January 1, 2019


Agricultural Workers

Farm Worker LawAssembly Bill 1066 eliminates the one day of rest per seven days worked exemption for California's agricultural industry. Employers cannot require agricultural employees to work more than six days per week.

As of January 1, 2019, agricultural employers must provide overtime wages for more than 9.5 hours worked (or more than 8 hours starting January 2022); meal breaks; and meet other wage and working condition requirements.

Employers with 25 or fewer employees have an additional three years to comply with the criteria above. 


Private Education

Private School Minimum Salary ThresholdAssembly Bill 2230 requires a new minimum earnings test for private school teachers to be exempt from overtime:  salaries for these employees must be comparable to those offered to public schools in the same district or county. The new test is effective as of July 1, 2017

 

 

Salon Services

Salon Worker LawBusinesses licensed by the Board of Barbering and Cosmetology (BBC) are required to post notices regarding wage and hour laws and workplace rights as of July 1, 2017, under Assembly Bill 2437.

Another new law (Assembly Bill 2025) will require BBC schools to provide basic labor law education to license applicants.

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
Dec052016

Criminal Background Checks: Banning the Box in Los Angeles

Lawyer for EmployersEmployer Compliance Attorney

Employer Update 02.09.17

The City updated its website with further information and resources for both Private Employers and City Contractors, including official notices for applicants and employees, sample letters and rules for implementing the Fair Chance Initiative for Hiring Ordinance.

Please visit this City of Los Angeles webpage to access these: Ban the Box resources.

 

 

by Tal Burnovski Yeyni

818-907-3224

 

Los Angeles City is on its way to approve a new Ordinance prohibiting employers with 10 or more employees from including on any application for employment any question that seeks the disclosure of an applicant’s criminal history. The Ordinance was approved on Wednesday, November 30, 2016 and is rescheduled for a second reading on December 7, 2016 (commentators say this second hearing is merely a formality).

Los Angeles' Ban the Box

More commonly known as the Ban the Box or Fair Chance Initiative, the Ordinance aims to reduce recidivism by providing more job opportunities to those with a criminal history, from relapsing into criminal behavior.

Ban the Box’s Primary Parameters

Who May Be Held Liable? The Ordinance defines “Employer” as any “individual, firm, corporation” etc., that is located or doing business in the City and that employs 10 or more employees. The definition also includes owners, management, supervisors and employment agencies.

No Inquiry Permitted Until a Conditional Offer of Employment is Made. An employer may not, at any time or by any means, inquire about or require disclosure of an applicant’s criminal history unless and until a conditional offer of employment has been made to the applicant.

Notice to Employee before an Adverse Action Is Required. 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 allows the applicant an opportunity to provide information regarding the accuracy of his/her criminal history or information regarding other factors that should be considered.

These include mitigating factors or evidence of rehabilitation. The notice requirements also include preparation of written assessment and reassessment by the employer that links the aspects of the criminal history with risks inherent in the duties of the position.  

Hiring and FiringNotice Requirements in Job Posts. Any job posts or employment ads must include a statement that the employer will consider for employment qualified applicants with criminal histories in a manner consistent with the requirements of  the Los Angeles Fair Chance Initiative for Hiring.  

Additionally, employers are required to post a notice informing applicants of the provisions of the Ordinance in a conspicuous place at every workplace, job site or other location in the City under the employer’s control visited by applicants.  

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.  

Exceptions. The criminal history inquiry prohibition, the assessment and reassessment requirements, and the duty to give notice to applicants in all solicitations or advertisements seeking applicants do not apply if: (1) the employer is required by law to obtain information regarding conviction; (2) the position requires possession or use of a firearm; (3) an individual who has been convicted of a crime is prohibited by law from holding the position sought by the Applicant, and; (4) an employer is prohibited by law from hiring an applicant who has been convicted of a crime.  

Fines for Failure to Comply Will Be Imposed This Summer. As of July 1, 2017 the City may impose fines of up to $500 for failure to (1) provide notice to applicants in solicitations or advertisements; (2) post notice in a conspicuous place; or (3) retain records as required. For any other violation of the Ordinance, the City may impose a fine of up to $500 for the first violation; up to $1,000 for the second violation and; up to $2,000 for the third and subsequent violation.  Administrative fines paid by the employer may be awarded to the applicant or employee, up to a maximum of $500 per violation.  

Approximately half of America's states have Ban the Box laws, though most, including California, currently apply only to public employers.

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.

Monday
Oct242016

Employer Guide for Election Season

 

by Nicole Kamm & Tal Burnovski Yeyni

 

The 2016 presidential election season has provided fodder for often impassioned conversations among friends, family and co-workers.  While we may not always agree with all points of view, it is important to remember that conduct and discussion tolerated among friends or family may not be suitable in the workplace.

Employers should be mindful of the principal “dos and don’ts” when addressing political speech in the workplace

  • Do not encourage or discipline employees for their political activities.  California law prohibits employers from adopting or enforcing any policy that tends to control or direct employees’ political activities or affiliations. Employers further cannot coerce or influence employees to follow, or refrain from following, any particular line of political activity by threatening a loss of employment. Labor Code §§ 1101-1102.  

  • If heated discussions are an issue, remind employees about what constitutes acceptable conduct in the workplace.  Remind employees that all perspectives are entitled to respect, and that use of derogatory or abusive language will not be tolerated in a workplace setting.   

  • Comply with “time off to vote” rules in California. California law allows employees to take paid time off to vote (up to two hours) if employees do not have sufficient time outside of work hours to do so. Note, employees are allowed to take more than two hours to vote, but only two hours need be paid. 

Generally, time off to vote can be restricted to the beginning or end of an employee’s shift, whichever allows the most free time for voting and the least time off from the regular working shift (unless employee and employer agree otherwise). Finally, if employees know, or have reason to believe that time off to vote will be necessary, they are required to give notice to the employer at least two working days prior to the election.   

  • Post “time off to vote” notices. If not already in place (many pre-printed workplace postings reference time off to vote), employers must post an employee notice at least 10 days before a state-wide election – either in the workplace or where it can easily be seen by employees as they enter or exit their place of work. You can find a list of upcoming elections here, and sample notices here.   

 

Nicole Kamm and Tal Burnovski Yeyni are Employment Defense attorneys

 

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
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.

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