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Does your company use workers provided by other companies?  If so, your company may be liable for the other companies’ failure to pay wages or carry state-mandated workers’ compensation insurance.

Governor Brown signed AB 1897, which adds Labor Code section 2810.3 effective January 1, 2015.  This new law requires a “client employer” to share with a “labor contractor” all civil legal responsibility and civil liability for all workers supplied by that labor contractor for the payment of wages and the failure to obtain valid workers’ compensation coverage.  In other words, if your company receives workers through a contracting agency, and that agency fails to pay the worker or fails to maintain valid workers’ compensation coverage, your company could be responsible for any unpaid wages or workers’ compensation claims.

A “client employer” is a “business entity that obtains or is provided workers to perform labor within the usual course of business from a labor contractor.” A “client employer” does not include any of the following:

(i) A business entity with a workforce of less than 25 workers, including those hired directly by the client employer and those obtained from, or provided by, any labor contractor.

(ii) A business entity with five or fewer workers supplied by a labor contractor or labor contractors to the client employer at any given time.

(iii) The state or any political subdivision of the state, including any city, county, city and county, or special district.

A “labor contractor” is an “individual or entity that supplies workers, either with or without a contract, to a client employer to perform labor within the client employer’s usual course of business.”

A “labor contractor” does not include specified nonprofit, labor, and motion picture payroll services organizations and certain 3rd parties engaged in an employee leasing arrangements.

A “worker” does not include an employee who is exempt from the payment of an overtime rate of compensation for executive, administrative, and professional employees pursuant to wage orders by the Industrial Welfare Commission described in Section 515.

The law does not prevent client employers and labor contractors from “mutually contracting for otherwise lawful remedies for violations of its provisions by the other party.”  In other words, the client employer can require the labor contractor to defend and indemnify the client employer in the event a worker sues the client employer, but the client employer can still be sued directly.  Labor contractors, client employers and workers may not waive any of the protections provided by Labor Code section 2810.3.

There is no “opportunity to cure” provision, but a worker or his or her representative must notify the client employer of violations at least 30 days prior to filing a civil action against a client employer for violations covered by this section.  Neither the client employer nor the labor contractor may take any adverse action against any worker for providing notification of violations or filing a claim or civil action.

The new law does not impose liability on a client employer for the use of an independent contractor other than a labor contractor or change the definition of independent contractor.

The new law does not impose individual liability on a homeowner for labor or services received at the home or the owner of a home-based business for labor or services received at the home.

If you use or supply sub-contractors, you will want to review and possibly revise your client and/or vendor agreements before the new year.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
East Bay 925-364-4655

Original article by Robert E. Nuddleman of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

The attorneys of Phillip J. Griego & Associates represent employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Several states and agencies expressed concern over the new federal home care regulations that require overtime premiums for companions and other home care workers that become effective January 1, 2015.  The officials running medicare are concerned because the 15-month’s notice the DOL provided was insufficient to enable proper planning for the regulations.  Several senators petitioned the DOL to change course and abandon the revised regulations.  The DOL announced tuesday that:

After careful consideration, the department decided to adopt a time-limited non-enforcement policy. This approach will best serve the goals of rewarding hard work with a fair wage while not disrupting innovative direct care services. For six months, from January 1, 2015 to June 30, 2015, the department will not bring enforcement actions against any employer who fails to comply with a Fair Labor Standards Act obligation newly imposed by the rule. During the subsequent six months, from July 1, 2015 to December 31, 2015, the department will exercise its discretion in determining whether to bring enforcement actions, giving strong consideration to the extent to which states and other entities have made good faith efforts to bring their home care programs into FLSA compliance.

You can read the DOL’s full blog post here.

I have  a couple of issues with the DOL’s position.  Telling employers that the DOL is not going to enforce the regulations could lead employers to believe they are not required to comply with the regulations.  This is simply not true.  While the DOL may choose not to enforce the regulations, the employees and employee groups can enforce the regulations. Employers that rely on the DOL’s lack of enforcement are still at risk, and can still be held liable for the unpaid overtime and liquidated damages.

I am also concerned with the DOL’s position that between July and December 2015, the department “will exercise its discretion in determining whether to bring enforcement actions.”  Does that mean after December 2015 the department will no longer exercise discretion?  It’s kind of like a city changing the sped limit on your street and telling you, “we might enforce this, we might not.”  I don’t think this half-measure method makes sense.  If you’re going to change the law then change the law.  Don’t change the law and then tell people you might or you might not enforce it.  If you determine that enforcing the law is not a good thing, then consider changing the law again, or altering when the new law goes into effect.

I will instruct my clients to follow the new regulations regardless of the DOL’s enforcement position.  You can bet eligible home care employees will sue employers that fail to pay overtime after 40 hours in week after January 1, 2015.

If you have questions about the DOL regulations, the Domestic Workers Bill of Rights or how the new regulations will impact you, your family or your business, contact an attorney familiar with wage and hour laws in the elder care industry.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
East Bay 925-364-4655

Original article by Robert E. Nuddleman of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

The attorneys of Phillip J. Griego & Associates represent employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Governor Brown signed AB 2074, expanding the time frame within which an employee may bring a claim for liquidated damages under Labor Code section 1194.2.

An employee who receives less than the applicable state minimum wage is entitled to bring an action to recover the unpaid wages.  Typically, the employee can bring the claim any time within 3 years of when the wages were earned.  The employee may be able to expand the time frame to 4 years if the employee can establish the failure to pay minimum wage is also an unfair business practice under Business & Professions Code section 17200, et seq.

An employee can also bring a claim for liquidated damages “in an amount equal to the wages unlawfully unpaid and interest thereon.”  AB 2074 amends Labor Code section 1194.2 to make it clear that “A suit may be filed for liquidated damages at any time before the expiration of the statute of limitations on an action for wages from which the liquidated damages arise.”  The statute does not specify whether an employee could recover the liquidated damages going back 4 years under B&P section 17200, but I suspect they can’t, because a 17200 claim seeks “restitution,” not damages.

The new law goes into effect on January 1, 2015.  The statute does not state whether it applies only to claims filed after January 1, 2015, or if a plaintiff can wait until January 1, 2015, to file the claim and take advantage of the new, longer statute of limitations.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
East Bay 925-364-4655

Original article by Robert E. Nuddleman of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

The attorneys of Phillip J. Griego & Associates represent employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Existing law requires the Department of Motor Vehicles (DMV) to issue an original driver’s license to a person who is unable to submit satisfactory proof that the applicant’s presence in the United States is authorized under federal law if he or she meets all other qualifications for licensure and provides satisfactory proof to the department of his or her identity and California residency.  AB 1660, signed by Governor Brown, makes it a violation of the California Fair Housing and Employment Act (FEHA) for an employer or other covered entity to discriminate against an individual because he or she holds or presents a driver’s license issued under these provisions or to require a person to present a driver’s license, except in specific situations.

Effective January 1, 2015, FEHA’s definition of “National origin” discrimination will include, but is not limited to, discrimination on the basis of possessing a driver’s license granted under Section 12801.9 of the Vehicle Code.  The new laws do not alter an employer’s rights or obligations under Section 1324a of Title 8 of the United States Code regarding obtaining documentation evidencing identity and authorization for employment. An action taken by an employer that is required by the federal Immigration and Nationality Act (8 U.S.C. Sec. 1324a) is not a violation of law.

Driver’s license information obtained by an employer must be treated as private and confidential, is exempt from disclosure under the California Public Records Act, and can not be disclosed to any unauthorized person or used for any purpose other than to establish identity and authorization to drive.

HR professionals and persons involved in the hiring process need to ensure they do not discriminate against individuals on the basis of possessing a driver’s license obtained under these provisions.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
East Bay 925-364-4655

Original article by Robert E. Nuddleman of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

The attorneys of Phillip J. Griego & Associates represent employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Governor Brown signed AB 1443 and AB 2053 amending California’s Fair Employment and Housing Act.  AB 1443 expands FEHA’s anti-harassment protection to unpaid interns.  AB 2053 requires employers to add an anti-bullying module to their sexual harassment prevention training.  Employers and employees (and now volunteers) need to be mindful of the new protections and requirements.

Protection for Unpaid Interns and Volunteers

Existing law protects employees and applicants from unlawful discrimination and harassment in the workplace on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.   AB 1443 expands FEHA’s protections to persons in unpaid internships or other volunteer positions.  The law does not make it lawful to employ unpaid interns, and the Labor Commissioner and the Department of Labor have taken strong positions that make it very difficult to use unpaid interns.  Regardless of whether the intern or volunteer is required to be paid as an employee, effective January 1, 2015, employers and employees may not discriminate or harass unpaid interns and volunteers in violation of FEHA.

Employers should communicate to its employees that unpaid interns and volunteers are afforded the same rights to a harassment-free workplace as other employees.

Anti-Bullying Training

Employers with 50 or more employees are required to provide sexual harassment prevention training to supervisory employees every two years.  AB 2053 requires the training include a module regarding “prevention of abusive conduct.”  The law does not actually prohibit abusive conduct, unless such conduct otherwise violates FEHA, but it does require employers to train supervisory employees regarding conduct “that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.”

AB 2053 instructs, “Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.”

While abusive conduct unrelated to a protected category may not be illegal (yet), an employer could theoretically be cited for failing to train supervisors regarding such abusive conduct.  There is no indication that an employee could sue an employer for a failure to provide the requisite training, but the failure to provide the training, or a violation of a company’s anti-bullying policy, may certainly be evidence of a hostile work environment in the right case.

Employers should ensure their next sexual harassment prevention training includes an anti-bullying module.  Employers may also want to consider updating their handbooks to ensure they have a policy prohibiting “abusive conduct.”

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
East Bay 925-364-4655

Original article by Robert E. Nuddleman of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

The attorneys of Phillip J. Griego & Associates represent employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

UPDATE:  Governor Brown has announced he will sign AB 1522 today.  This means that effective July 1, 2015, any employee who works in California for 30 or more days within a year from the commencement of employment is entitled to paid sick days. Unless otherwise exempt from the law, California employees will accrue paid sick days “at the rate of not less than one hour per every 30 hours worked.” Employees can use the accrued paid sick days “beginning on the 90th day of employment, after which day the employee may use paid sick days as they are accrued.” Unused accrued paid sick days carry over to the following year of employment. An employer may “limit an employee’s use of paid sick days to 24 hours or three days in each year of employment.”

Employers doing business in California should revise their handbooks to reflect the new laws.

Last week AB 1522 made it one step closer to becoming law. Hailed as the Healthy Workplaces, Healthy Families Act of 2014, this bill does more than just provide for mandatory sick leave for employees. It also contains significant penalties for failure to comply with the law, prohibits employers from retaliating against individuals for engaging in certain protected conduct, and mandates new record-keeping requirements.

The new law will apply to almost all employers. Unlike some bills, there is no distinction between small employers and larger employers that can more easily absorb the additional costs. The only employees exempt from the proposed law are employees with collective bargaining agreements that provide for similar benefits and employees working under the In-Home Support Services program.

Effective July 15, 2015, employers must allow employees to accrue up to 3 days of paid time off to be used for their own illness or a family-member’s illness each year. The sick leave begins to accrue after 30 days of employment and must carry over to the following year. Employers can cap the paid sick leave to a maximum of 6 days, but employees must be allowed to use sick leave in increments not to exceed 2 hours. Employers can limit an employee to using no more than 3 sick days per year.

Unwary employers may not realize that this new law will require employers to track the hours worked by salaried employees who are otherwise exempt from California’s overtime laws. The paid sick leave law will apply to exempt and non-exempt employees. The bill requires employers to track the hours worked by all employees (including exempt employees) and the sick leave taken, and to report those hours on the employee pay stubs or a separate written statement with each pay period. This means employers may need to require exempt employees to start reporting hours worked. Alternatively, an employer could allow the paid sick leave to immediately accrue and forego the time tracking for exempt employees, but the employer must still report the available sick time to the employee each pay period.

Employees paid on a piece-rate, commission basis, or paid with different hourly rates, must be paid the average effective hourly rate, not including overtime premium pay, based on the employee’s earnings over the 90 days preceding the time off.

Employers may not discharge, threaten to discharge, demote, suspend or in any other manner discriminate against an employee for using accrued sick leave, or who complains to the Labor Commissioner or participates in an investigation regarding a violation of the new paid sick leave law. There is a rebuttable presumption of retaliation if an employer takes action against an employee within 30 days of the employee opposing any policy or practice prohibited by the statute.

The Labor Commissioner can issue penalties for various violations of the new statute, including treble damages when an employer fails to provide the paid time off. Employees terminated in violation of the law are entitled to reinstatement and back pay.

Given the fact that Governor Brown pushed for the bill, I suspect the governor will soon sign the bill into law. If passed, employers will need to modify handbooks, provide new notices to all employees regarding the new paid sick leave, and post new posters identifying the employee’s rights and employer’s obligations.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
East Bay 925-364-4655

Original article by Robert E. Nuddleman of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

The attorneys of Phillip J. Griego & Associates represent employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Caregivers typically work with clients who, as a result of age or disability, cannot completely care for themselves.  The work ranges from providing companionship to assisting someone with all their activities of daily living, such as feed, dressing, bathing, etc.  A client with Alzheimer’s or dementia can be particularly difficult depending on how the condition effects the client.  Sometimes, Alzheimer’s clients can put themselves and others in danger.  What happens if the caregiver is injured as a result of the client’s actions?

California and other jurisdictions previously held that Alzheimer’s patients are not liable for injuries to caregivers in institutional settings. In a recent case, Gregory v. Scott, the court had to determine whether a patient suffering from Alzheimer’s disease are liable for injuries they inflict on health care workers hired to care for them at home.  The court noted that agitation and physical aggression are common late-stage symptoms of the disease,  and injuries to caregivers are not unusual.  Because the caregiver was employed specifically to assist a client who suffered from Alzheimer’s and the caregiver knew of the client’s propensity for aggressive behavior, the court applied the rule that “those hired to manage a hazardous condition may not sue their clients for injuries caused by the very risks they were retained to confront.”  The court reasoned that if liability were imposed for caregiver injuries in private homes, but not in hospitals or nursing homes, the incentive for families to institutionalize Alzheimer’s sufferers would increase. 

The court was quick to point out that its holding “does not preclude liability in situations where caregivers are not warned of a known risk, where defendants otherwise increase the level of risk beyond that inherent in providing care, or where the cause of injury is unrelated to the symptoms of the disease.”  Additionally, the caregiver was covered under California’s Workers’ Compensation program, but the caregiver could not sue the patient, or his family, in court.

As an aside, the court pointed out that the number of Californians afflicted with Alzheimer’s can only be expected to grow in coming years, and encouraged the Legislature to focus its attention on the problems associated with Alzheimer’s caregiving.

If you employ persons to provide care to Alzheimer’s patients, it is important to educate your employees so they understand the risks inherent in the position, and to provide them the tools so they can safely care for the client.  If you are a caregiver, it is equally important to understand how to care for persons with Alzheimer’s and how to protect yourself, your client and others.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
East Bay 925-364-4655

Original article by Robert E. Nuddleman of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

The attorneys of Phillip J. Griego & Associates represent employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

 

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