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Entries in leave policy (5)

Thursday
Oct122017

California Employers: Governor Brown Signs Important New Legislation re Parental Leave and Hiring

Lawyer for EmployersEmployment Defense

by Tal Burnovski Yeyni

818-907-3224

 

You can like it. You can hate it. But one thing is certain: California is a trend-setter when it comes to employees’ rights. Maintaining that tradition, Governor Brown just signed Senate Bill 63 and Assembly Bill 168 into law.

California Parental Bonding Leave

Here is the gist:

Senate Bill 63: Parental Leave 

The new legislation provides eligible employees up to 12 weeks parental leave to bond with a new child. Parents may take this leave within one year of the child’s birth, adoption or foster care placement.

An employee is eligible for the leave if s/he has at least 12 months of service with the employer, has at least 1,250 hours of service with the employer during the previous 12-month period, and works at a worksite in which the employer employs at least 20 employees within 75 miles. 

Senator Hannah-Beth Jackson, SB 63’s author, defined the governor’s endorsement as:

...a great victory for working parents and children in California [...] With more women in the workforce, and more parents struggling to balance work and family responsibilities, our policies must catch up to the realities of our economy and the daily lives of working families. No one should have to choose between caring for their newborn and keeping their job.

The bill specifies it will be an unlawful employment practice for an employer to:  

  • Refuse to allow an eligible employee to take up to 12 weeks of the bonding leave;  

  • Refuse to provide a guarantee of employment in the same or a comparable position before the start of the leave;

  • Refuse to maintain and pay for coverage for an eligible employee during the leave (if applicable);

  • Refuse to hire, or to discharge, fine, suspend, expel, or discriminate against an individual because:
    • An individual’s exercise of the right to bonding leave;
    • An individual’s giving information or testimony as to his or her own bonding leave, or another person’s bonding leave, in an inquiry or proceeding concerning the bonding leave.
  • Interfere with, restrain, or deny the exercise of, or the attempt to exercise any right provided with respect to the bonding leave.  

The new law does not apply to employees who work for large employers (50+ employees) and are otherwise eligible for protected leave under the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA).      

If an employer covered by SB 63 employs both parents that are entitled to the leave – that employer is not required to grant bonding leave that would allow the parents leave totaling more than 12 weeks.

There’s more  the legislature also seeks to create a parental leave mediation pilot program.

Under the program, if an employer receives notice regarding an employee’s claim of violation of the parental leave law, the employer may request to mediate the dispute in a special Mediation Division Program.  An employee may not pursue any civil action concerning the parental leave until the mediation is complete. The pilot program will be in effect until January 1, 2020. 

Employers should be mindful that the new bonding leave is provided in addition to pregnancy disability leave. Thus, an employee who works for a covered employer and is disabled by pregnancy, childbirth, or a related medical condition is eligible for up to four months of pregnancy disability leave and up to 12 weeks of bonding leave.  

Assembly Bill 168: Salary Information

Employers may not ask for salary history

AB 168 prohibits all employers from: 

  • Relying on the salary history information of an applicant as a factor in determining whether to offer employment to an applicant or what salary to offer; and

  • Seeking salary history information, including compensation and benefits, about an applicant for employment;

Furthermore, the legislation requires employers to provide, upon reasonable request, the pay scale for a position to an applicant applying for employment.  

As the bill’s author Assemblymember Susan Eggman explained:

The practice of seeking or requiring the salary history of job applicants helps perpetuate wage inequality that has spanned generations of women in the workforce. AB 168 is a needed step to ensure that my 9-year-old daughter, and all women, can be confident that their pay will be based on their abilities and not their gender.

Note, however, that if an applicant, voluntarily and without prompting, discloses salary history information to a prospective employer, the employer may consider or rely on that voluntarily disclosed information in determining the salary for the applicant.  

Employers, update your company policies – both new laws go into effect January 1, 2018. As always, seek experienced employment counsel if confused about state and federal laws regarding leave of absence or hiring and firing practices.

Tal Burnovski Yeyni is an Employment Defense Attorney

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

Tuesday
Sep202016

Employers' Legislative Update: Governor Brown Signs New Bills

Wage and Hour Defense Attorney

 

by Sue M. Bendavid & Tal Burnovski Yeyni

 

Tis the season for new laws in California and not all of it brings good tidings and cheer for employers.

Recently, Governor Jerry Brown signed several state Assembly and Senate Bills affecting those who employ domestic staff; agricultural workers; teachers; etc. Most companies with employees (or individuals with domestic staff) in California will be affected.

Here’s the current employment law update:

SB 1015 – Domestic Work Employees: Labor Standards

Previously, employees that worked as personal attendants were exempt from overtime and other wage and hour rules.

On January 1, 2014 the Domestic Worker Bill of Rights went into effect and provided that a “domestic work employee who is a personal attendant” is eligible for overtime at one and one-half times the employee’s regular rate of pay if the employee works more than nine hours per day or more than 45 hours per week. The Domestic Worker Bill of Rights was to be in effect until January 1, 2017 – at which time the legislature will decide whether to renew it.

SB 1015 deletes the repeal date, which means that the Domestic Worker Bill of Rights will remain in effect indefinitely.  

AB 1066 – Agricultural Workers: Wage, Hours, and Working Conditions

Federal, state and local laws require employers to comply with wage and hour rules and pay non-exempt employees overtime and minimum wage – and to comply with meal and rest break rules.

Currently, Wage Order 14 sets different standards for overtime for agricultural employees (e.g., 1.5 times the employee’s regular rate of pay for hours worked beyond 10 hours per day and for the first eight hours or the 7th consecutive day of work; two times the employee’s regular rate of pay for all hours worked over eight on the 7th consecutive day.)

AB 1066 added sections 857 through 864 to the Labor Code which creates new overtime standards for agricultural employees (“under the same standards as millions of other Californians”), on a gradual basis: 

The Governor is authorized to suspend a scheduled “phase-in” only if the Governor suspends a scheduled minimum wage increase (SB 3, signed in April). If suspension occurs, all phase-in dates will be postponed by an additional year.

AB 2337 – New Notice Requirement to Employees 

Current law (Labor Code § 230.1) prohibits employers with 25 or more employees from retaliating or discharging employees who are victims of domestic violence, sexual assault, or stalking, for requesting time off to: 

  • Seek medical treatment;

  • Obtain services from a domestic violence shelter or program; or

  • Obtain counseling or participate in safety planning.

This act requires employers to give written notice to new employees regarding the right to take protected time off for the purposes stated above. The notice must also be provided to current employees upon request.

The Labor Commissioner will develop a form that employers may use to comply with this notice requirement. The notice will be available before July 1, 2017. Employers are not required to comply with notice requirement until the Labor Commissioner posts the form on the DLSE website.

AB 2230 – New OT Exemption Requirements for Certain Teachers 

Current law provides that individuals employed as teachers at private elementary or secondary academic institutions are exempt from overtime payment requirements if, among others, they earn no less than two times the state minimum wage for full time employment.

This bill will change the salary requirement for the exemption. As of July 1, 2017, an individual employed as a teacher will be exempt if, among other criteria, the employee earns the greater of:

  1. No less than 100 percent of the lowest salary offered by any school district to a person in a position that requires a valid California teaching credential (excluding individuals employed in that position pursuant to an emergency permit, intern permit, or waiver); OR

  2. No less than 70 percent of the lowest scheduled salary offered by the school district or county in which the private elementary or secondary institution is located, to a person who is in a position that requires the person to have a valid California teaching credential (excluding individuals employed in that position pursuant to an emergency permit, intern permit, or waiver).

In effect, AB 2230 ties private school teaching salaries to that of public school teachers – establishing a wage floor that increases with the public sector.

 

Sue M. Bendavid and Tal Burnovski Yeyni are Employer 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.

Wednesday
Apr202016

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

Lawyer for EmployersAttorney for Employers

 

by Tal Burnovski Yeyni

818-907-3224

 

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

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

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

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

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

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

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

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

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

Tal Burnovski Yeyni is an attorney in our Employment Practice Group

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

Friday
Mar072014

Employers: Don't Forget to Designate Employees' Time Off

Wage and Hour DefenseEmployee Leave of Absence Claim Defense

No Harm No "Fowl" in FMLA Case - 9th Circuit

by Sue M. Bendavid

818.907.3220

 

Score one for the employers in this case, but do so with caution:

Foster Farms did not violate California and federal law when the company fired an employee for returning to work more than two weeks after her vacation ended, according to the Ninth Circuit Court of Appeals.

Lawyers for Employers - FMLA ClaimsThe employee, Maria Escriba, requested two weeks' vacation to tend to her ill father in Guatemala. Her supervisor asked Escriba twice if she needed to apply for leave under the Family and Medical Leave Act (FMLA), which Escriba declined. She then asked for additional vacation time, but that request was denied.

When her vacation ended, Escriba did not contact Foster Farms to request time under FMLA. Foster Farms fired her because of their "three day no-show, no call" policy. Escriba claimed her FMLA rights should have automatically gone into effect to cover the additional two weeks because her employer knew she was attending to a sick parent.

The Ninth Circuit disagreed with Escriba, saying: 

An employer’s obligation to ascertain “whether FMLA leave is being sought” strongly suggests that there are circumstances in which an employee might seek time off but intend not to exercise his or her rights under the FMLA…We thus conclude that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.

A notable fact in this case was that Escriba had obtained FMLA leave 15 times in her 18 year work history at Foster Farms, indicating a familiarity with the request process. Escriba’s supervisor knew she needed time off to care for an ill family member, and thus asked Escriba twice, with the help of a Spanish language interpreter, whether Escriba wanted to take FMLA leave. 

That worked in Foster Farms' favor, as the evidence demonstrated the supervisor took reasonable steps to protect the employee's FMLA rights, and the interpreter later served as a witness who could attest that proper steps were taken.

 

Employer's Responsibility to Communicate and Designate

 

Though the decision went in favor of Foster Farms, this case provides some important reminders for employers: 

  • Communication – a key factor in preventing employee claims. First, supervisors should be fully aware of employee rights regarding the California Family Rights Act and the federal FMLA rules. Secondly, it's the employer's responsibility to determine the nature of a leave.


  • Documentation – equally important. Be sure to document the employee's decision when they choose whether or not to take a leave of absence.


  • Designation – When an employee elects FMLA/CFRA leave, make sure you specifically designate the time off as FMLA/CFRA. 

 

Sue M. Bendavid is an Employer Defense Attorney, and Chair of our Employment Practice Group. Contact her via email: sbendavid@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.

Tuesday
Mar052013

Employers: New Posting Requirement & Expanded FMLA Regs

Lawyer for EmployerWage and Hour Defense

 

by Nicole Kamm
818.907.3235

 

Marking the 20th anniversary of the federal Family and Medical Leave Act (FMLA), the US Department of Labor (DOL) issued new FMLA regulations on February 6, 2013. 

The regulations, which take effect Friday, March 8, 2013, expand FMLA protections for military family members and airline flight crews. The regulations also clarify intermittent leave calculations, and remind employers of their confidentiality obligations under the Genetic Information Nondiscrimination Act (GINA).

Highlights from the new FMLA regulations are summarized below:

 

Military Family Leave

 

Current FMLA regulations provide “qualifying exigency” leave for eligible family members of certain military personnel to address issues related to certain military deployments. The revised regulations clarify that qualifying exigency leave is intended for family members of persons serving in the regular Armed Forces, National Guard or Reserves who are on active duty or called to active duty in a foreign country.  

Additionally, a new category of qualifying exigency leave – parental leave -- has been added. Parental care exigency leave may be utilized to make arrangements for care of parents of military members.

 

Military Caregiver Leave

 

FMLA regulations currently provide leave to care for certain military members with serious injuries or illness. 

Military caregiver leave has been expanded to include leave to care for covered veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness. A covered veteran is an individual who was discharged or released under conditions other than dishonorable in the five-year period prior to the date the employee’s military caregiver leave begins.  

 

Intermittent Leave

 

Regarding intermittent leave, the new regulations clarify that employers must use the shortest increment of time the employer uses to account for other forms of leave, provided it is not greater than one hour. For example, if an employer allows an employee to take vacation in 15-minute increments, it must allow employees to take FMLA in 15-minute increments. 

 

Airline Flight Crew Eligibility

 

The new regulations state airline flight crew employees meet the FMLA hours-of-service eligibility requirement if they:

(1) have worked or been paid not less than 60 percent of the applicable total monthly guarantee (i.e., not less than 60 percent of the minimum number of hours an employer has agreed to schedule the employee), and

(2) have worked or been paid for not less then 504 hours during the previous 12 months. 

Airline employees who are not flight crew members continue to be covered under the general FMLA hours-of-service eligibility standard (1,250 hours in the preceding 12 months).

 

Genetic Information Nondiscrimination Act (GINA)

 

The regulations include a reminder to employers of their obligation to comply with the confidentiality requirements of GINA to the extent records and documents created for FMLA purposes contain family medical history or genetic information. 

Under both FMLA and GINA, employee information relating to medical certification or family medical history must be maintained as confidential medical records in separate files from the usual personnel files, and may only be disclosed under certain limited circumstances.

 

New FMLA Poster/Forms

 

In addition to the above, the DOL has published an updated FMLA poster for covered employers (i.e., employers with 50+ employees), as well as several updated (optional-use) forms. The new poster, which must be posted by March 8, 2013, is available on the DOL website. California employers should use caution when using the DOL’s forms, which may not be compliant with state law.

 

FMLA covered employers should review their policies and forms to ensure consistency with the new regulations. Employers should confirm they are properly accounting for intermittent leave (increments of one hour, or shorter if other forms of leave are permitted in shorter increments). Employers should be aware of and provide qualifying exigency and military caregiver leave when needed. 

Finally, covered employers should replace their current FMLA posters with the revised poster and review recordkeeping policy and practice to ensure compliance with FMLA and GINA.

 

Nicole Kamm is an Employment Attorney who helps employers minimize the risk of wage and hour, harassment, discrimination and FMLA claims. Contact her 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.
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