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One of the great things about the practice of law is that it is never dull or boring. A new unpublished case confirms this opinion. Plaintiff and appellant Marshel Copple filed a case under the California Fair Employment and Housing Act (FEHA) alleging religious discrimination and harassment, failure to accommodate religious practices, retaliation based on his religion, and constructive discharge for his religious practices. Copple asserted California Department of Corrections and Rehabilitation’s requirement that he work overtime violated a tenet of his religion that he sleep at least eight hours per day.   And what religion was that?—Sun Worshipping Atheism — a religion he created and of which he is the only member. The appellate court affirmed the trial court’s entry of summary judgment against Mr. Copple. The court’s reasoning is instructive.

  1. Sun Worshipping Atheism is Not a Religion as Defined Under FEHA.

The court’s treatment of this issue reminds me of the obscenity case of Jacobellis v. Ohio (1964), wherein Justice Potter Stewart wrote in his short concurrence that “hard-core pornography” was hard to define, but that “I know it when I see it, and the motion picture involved in this case is not that.”[1]  Relying on earlier cases the court identified three “objective guidelines” to “make the sometimes subtle distinction between a religion and a secular belief system” for FEHA purposes.

First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Well what could be more clear? Ask the court:

Sun Worshipping Atheism does not “address fundamental and ultimate questions having to do with deep and imponderable matters.” Rather, it deals with living a healthy lifestyle. The sun is worshipped because there are health benefits that derive from it. Plaintiff fashioned Sun Worshipping Atheism after reviewing scientific data to determine healthy practices that have a positive effect on the mind, body, and soul, which he claims are all the same thing. Plaintiff’s statement that his beliefs address “[t]he nature of the universe, nature of human beings, what we need to do to be moral,” is a mere conclusion, insufficient to prove this element.

Second, a religion is comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching.

Sun Worshipping Atheism is not comprehensive and does not express a full set of beliefs. As discussed above, its list of practices reveal that it deals with living a healthy lifestyle, “mind-body wellbeing,” based on scientific facts synthesized by plaintiff. These include eating well, exercising, and getting enough sleep. This is to “get the most out of your human and social function as your [sic] conscious of it now.”

Third, a religion can often be recognized by the presence of certain formal and external signs.

Sun Worshipping Atheism lacks any outward signs. Although not conclusive, this is a strong indication the belief system is not a religious creed. There are no rituals, services, or religious holy days, nor is there any structure where its beliefs are observed. Moreover, there is no hierarchy or organization, not even an informal one. In fact, plaintiff is the only member.

  1. Because Sun Worshipping Atheism is Not a Protected Religion, None of Plaintiff’s Causes of Action survived.

The court concluded that Sun Worshipping Atheism is a “personal philosophy . . . and a way of life” under FEHA’s definition. Purely moral or ethical beliefs that are held with the strength of religious convictions may not qualify for protection under the FEHA. Rather, the requires that the belief, observance, or practice occupy a place in the employee’s life of importance parallel to that of traditionally recognized religions—something more than a strongly held view of right and wrong.

This case illustrates the “deep and imponderable” question of where to draw the line between freedom of expression and government regulation. It will continue to challenge our courts and legislature now and in the future.  Always check with counsel or other human resource consultants before making decisions.

Phillip J. Griego & Associates

95 South Market Street, Suite 520

San Jose, CA 95113

Tel. 408-293-6341

Original article by Phillip J. Griego

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.

[1] Louis Malle’s The Lovers

More often than not, employees do not have direct evidence of discrimination.  Occasionally an employer will say or write something that clearly indicates an unlawful motive, but in most cases the employee tries to prove the “discriminatory animus” through various other methods.  Oftentimes lawyers refer to this as indirect evidence or proving discrimination through pretext.  As one court put it, “Resort to pretextual explanation is, like flight from the scene of a crime, evidence indicating consciousness of guilt, which is, of course, evidence of illegal conduct.”  Binder v. Long Island Lighting Co. (2nd Cir. 1995) 57 F.3d 193. Proving pretext does not necessarily mean the jury must find the employer violated the law, but it is usually enough to get the matter to a jury, and then it is up to the jury to decide whether the employer violated the law.

Hundreds (if not thousands) of cases throughout the nation discuss various methods for proving pretext.  Kent Spriggs, in his book Representing Plaintiffs in Title VII Actions, identifies (with appropriate case citations) the following 22 ways to prove pretext:  

  1. Statistical proof that a pattern of discrimination existed
  2. Direct evidence of discrimination
  3. Articulated reason is not the true reason
  4. Nonplaintiff selectee is less qualified
  5. Articulated comparison is not actually made
  6. Falsity of articulation stemming from inadequate opportunity to observe
  7. Change of qualifications or rules midstream
  8. If the employer departs from rules of law or its own regular rules or processes
  9. Drastic decline in performance
  10. Unequal discipline
  11. Catch-22: the employer is responsible for creating the problem that is supposedly the basis of the employer’s disqualification of employee
  12. Changing the articulated reason during the litigation
  13. Contamination: Falsity of one articulated reason impeaches other articulated reasons
  14. Excessive subjectivity or lack of factual basis
  15. Secret paper trail
  16. Surveillance as suggestive of pretext
  17. Employer’s treatment of other members of the same group
  18. Reason not reflected in performance evaluations
  19. Hostility toward retention of counsel
  20. Lack of proportionality
  21. Intent inferred from strong views of nondecisionmakers
  22. Absence of evidence supporting reasons

The second edition of Mr. Spriggs’ book came out in 1994, and Mr. Spriggs continued to update the book at least through 2004.  There is a book with the same name written by Robert E. McKnight Jr., which I believe is an updated version of the book, but I haven’t read it yet.

Understanding how to prove discrimination and how to avoid conduct that will lead to a discrimination claim is important for anyone representing individuals or companies in employment law disputes.  Representing Plaintiffs in Title VII Actions is a valuable resource for any employment attorney.

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.

The Second Appellate District published its decision in Augustus v. ABM Security Services, which overturned a trial court’s award of $90 million in statutory damages, interest, penalties, and attorney fees for a class of security guards who were allegedly denied rest breaks.  There has been much controversy over the extent to which employers must relieve employees of duty while on rest and meal breaks.  The court’s opinion does a fairly thorough analysis and is worth reading.  The following are some highlights from the case.

The trial court certified a class and granted plaintiffs’ motion for summary adjudication, concluding an employer must relieve its employees of all duties during rest breaks, including the obligation to remain on call. The trial court awarded approximately $90 million in statutory damages, interest, penalties, and attorney fees on the premise that California law requires employers to relieve their workers of all duty during rest breaks. The appellate court concluded the premise was false, and therefore reversed the order.

ABM employs thousands of security guards, some sites where only a single guard is stationed, while others dozens could be stationed.  ABM policies required security guards to remain on-call and to carry a radio or pager even when the employee was on his/her rest break.  Labor Code Section 226.7, and the applicable wage orders, require employers to “afford their nonexempt employees meal periods and rest periods during the workday.”  The plaintiffs alleged since they were required to remain on-call,they were not relieved of all duties and therefore they were not afforded required rest periods.

The appellate court compared the wage order’s rest period requirement and the language in Labor Code section 226.7, and concluded that while an employer cannot require an employee to perform work while on a rest period, being on-call (at least in this situation) did not require the employees to perform work.

[A]lthough ABM’s security guards were required to remain on call during their rest breaks, they were otherwise permitted to engage and did engage in various non- work activities, including smoking, reading, making personal telephone calls, attending to personal business, and surfing the Internet. The issue is whether simply being on-call constitutes performing “work.” We conclude it does not.

The guards had a variety of duties they would perform throughout the day, including greeting visitors, allowing egress and ingress to the premises, making rounds of the buildings, responding to emergencies, etc.  Although a guard could be called back to work to perform such tasks, “remaining available to work is not the same as actually working.”

The court also differentiated rest breaks from meal breaks under the wage order.  Subdivision 11(A), pertaining to meal periods requires that an employee be “relieved of all duty” during a meal period. Subdivision 12(A), regarding rest breaks, contains no similar requirement. The court found that if the IWC had wanted to relieve an employee of all duty during a rest period, including the duty to remain on call, it knew how to do so. Additionally, since the IWC’s order allows a paid on-duty meal period in some circumstances, “it would make no sense to permit a 30- minute paid, on duty meal break but not a 10-minute paid rest break.”

In an amended portion of the decision, the court looked at the meaning of the word, “work,” both as a noun and a verb:

The word “work” is used as both a noun and verb in Wage Order No. 4, which defines “Hours worked” as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” (Cal. Code Regs., tit. 8, § 11040, subd. 2(K).) In this definition, “work” as a noun means “employment”—time during which an employee is subject to an employer’s control. “Work” as a verb means “exertion”—activities an employer may suffer or permit an employee to perform. (See Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123 (1944) 321 U.S. 590, 598 [work is “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business”].) Section 226.7, which as noted provides that “[a]n employer shall not require an employee to work during a meal or rest or recovery period,” uses “work” as an infinitive verb contraposed with “rest.” It is evident, therefore, that “work” in that section means exertion on an employer’s behalf.

I’m not a linguist, but I know we will see this language quoted in future cases.

In the end, the court concluded that “on-call status is a state of being, not an action. But section 226.7 prohibits only the action, not the status. In other words, it prohibits only working during a rest break, not remaining available to work.”

Augustus will be useful to occupations other than security guards since all of the wage orders contain identical language regarding rest breaks.  Any industry where the employee is required to remain on-call while on a rest break, and any employee that is required to remain on-call during rest breaks, should review Augustus.

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.

 

 

In an earlier article on New Laws for 2015 and on our website, Associate Robert Nuddleman, mentioned the Healthy Workplaces, Healthy Families Act of 2014.  Let’s take a closer look at that new law.

On or after July 1, 2015, all employees (including part-time and temporary employees) earn paid time off for:

  1.  The Diagnosis, care, or treatment of an existing health condition of, or preventive care for an employee or an employee’s family member or
  2. Victims of domestic violence, sexual assault, or stalking to obtain restraining, to seek medical attention, to obtain services of a domestic violence shelter, program, or rape crisis center, to obtain psychological counseling, to participate in safety planning or to find temporary or permanent housing.

“Family Member” includes:

  1. A biological child, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis regardless of age or dependency status.
  2. A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child.
  3. A spouse.
  4. A registered domestic partner.
  5. A grandparent.
  6. A grandchild.
  7. A sibling.

Paid leave is earned according to the following terms and conditions:

  • The employee must work more than 30 days within a year of the commencement of employment or within a year of July 1, 2015, whichever is later.
  • The employee can earn up to 24 hours of paid sick leave in a calendar year.
  • The employee accrues paid sick days at the rate of one hour per every 30 hours worked. If the employee is an exempt employee, he or she accrues sick days based on the their normal weekly work schedule or 40 hours per week, whichever is less.
  • An employee can use accrued paid sick days after 90 days of employment.
  • An employer can limit the use of paid sick days to 24 hours or three days in each year of employment.
  • Accrued paid sick days carry over to the following year of employment. However, the employer can impose a maximum cap of 48 hours or 6 days until sick leave is used.
  • An employer is not required to pay an employee for accrued, unused paid sick days upon termination, resignation, retirement, or other separation from employment. However, if rehired within one year of the date of separation, the employer must reinstate previously accrued and unused paid sick days.
  • The employer can require the employee to use paid sick leave in minimum increments of no more than two hours.
  • The rate of pay is the employee’s hourly wage at the time of the leave. If in the 90 days before taking accrued paid sick leave the employee had different hourly pay rates, was paid by commission or piece rate, or was a nonexempt salaried employee, then the rate of pay will be calculated by dividing total wages, not including overtime premium pay, by the total hours worked in the full pay periods of the prior 90 days of employment.
  • The employee must provide reasonable advance notice if the need for paid sick leave is foreseeable. If the need for paid sick leave is unforeseeable, the employee must provide notice of the need for the leave as soon as practicable.
  • The employee must receive payment for sick leave no later than the payday for the next regular payroll period after the sick leave was taken.
  • An employer cannot require the employee to find a replacement to cover the days during which the employee uses paid sick days.
  • An employer need not provide paid sick leave if it has a PTO policy that meets the minimum conditions and grants the same leave for the same purposes as this paid sick leave law.
  • The employee must receive written notice of accrued paid sick leave (or PTO an employer provides in lieu of paid sick leave) on an itemized wage statement or in a separate written notice provided to the employee with his or her wage statement.
  • The state can sue an employer for violations of the new law, seeking reinstatement, back pay, costs, attorneys’ fees, and penalties of up to $4,000 per employee per day.  Aggrieved employees can also sue the employer under the statute and on behalf of other “aggrieved employees” pursuant to the Labor Code Private Attorney General Act (“PAGA”)
  • Penalties include:
    • (1) the dollar amount of paid sick days withheld multiplied by three, or two hundred fifty dollars ($250), whichever amount is greater, not to exceed four thousand dollars ($4,000 and
    • (2) fifty dollars ($50) for each day the violation occurred or continued, not to exceed thousand dollars ($4,000).
  • The Labor Commissioner may file of a civil action to enforce its order and the employer may be ordered to pay to the state fifty dollars ($50) for each day or portion of a day a violation occurs or continues for each aggrieved employee.
  • In an administrative or civil action brought under this article, the Labor Commissioner or court, as the case may be, will award interest on all amounts due and unpaid.

Now is the time to prepare for this new law and to learn these new rights so that employees and employers alike will be informed come July 1st.

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 Phillip J. Griego 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.

The California Supreme Court issued its decision in Mendiola v. CPS Security Solutions, where the court examined California’s sleep time rules for employees working 24-hour shifts.  I previously wrote about this case in 2013, and then updated the article when the Supreme Court granted review of the case.  I attended the oral arguments and I can’t say I am surprised by the court’s ruling. In essence, the court held that California does not allow an employer to deduct sleep time from the employee’s hours worked.

The court did not overturn a previous case under wage order 9 dealing with ambulance drivers/attendants, but limited that case to the specific facts of that case.  The court did disapprove of another case that expanded the sleep time deduction to non-ambulance drivers/attendants.

California requires employers to pay employees for all “hours worked.”  Most wage orders define hours worked as any time the employee is subject to the employers control, and includes any time the employee is suffered or permitted to work.  This means that if the employer requires the employee to be in a specific place, the employee is under the employee’s control and must be compensated for that time.  There are some exceptions, such as wage order 5 which has a special definition of “hours worked” for employees that are required to live on the premises.

This case is going to have significant impact in the caregiver industry.  Even at minimum wage (currently $9.00 per hour in California), caregivers working 24-hour shifts will earn at least $283.50 per day–more if the employee does not qualify as a personal attendant under the Domestic Workers Bill of Rights.  With weekly overtime, if the employee works 7 days per week, the employer will have to pay no less than $2,088.00 per week.  That’s almost $109,000.00 per year for 24-hour live-in care.

Most families will not be able to afford the cost of live-in care unless they employe 2 or 3 different caregivers each day.  This may be good news for residential care facilities and other homes for the aged, but it’s bad news for anyone who wants to spend their last years in the home.

There may be other alternatives to 24-hour care that families and care agencies should explore, and some employees may still qualify under a different definition of “hours worked.”  For example, if the employer does not require the employee to remain on the premises, then the employee is not necessarily working just because the employee chooses to remain on the premises after his/her shift ends.

If you work a 24-hour shift, or if you have employees working a 24-hour shift, you should consult with an attorney familiar with California’s wage and hour laws to make sure you are handling things correctly.

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.

NEW LAWS FOR 2015

The following is a quick summary of the most significant changes in the law impacting California businesses.

Paid Sick Leave for All California Employees – Effective July 15, 2015, employers doing business in California must provide paid sick days to almost all employees. Full-time and part-time employees will accrue 1 hours of paid sick leave for every 30 hours worked. California’s paid sick leave begins accruing as soon as the employee starts to work , although an employer can prohibit an employee from using accrued paid sick leave in the first 90 days of employment. Employers may “limit an employee’s use of paid sick days to 24 hours or three days in each year of employment.” Unused paid sick days carry over to the following year, but employers can place a 6-day(48-hour) cap on the paid sick day accrual. Some cities have ordinances that allow a higher cap, and employers have to comply with whichever laws are most favorable to employees. Employers must also provide written notice of the accrued and used sick leave, either on the pay stub or in a separate document, with every paycheck.

City Paid Sick Leave Ordinances –San Francisco, Oakland and San Diego passed city-wide ordinances requiring paid sick leave for certain employees. The city ordinances are similar to California’s new paid sick leave law, but typically provide additional benefits for employees working within city limits.

Federal Regulations Regarding Companions Goes Into Effect – Although the Department of Labor has said it will not enforce the new regulations until mid-year, effective January 1, 2015, companions will be entitled to overtime when they work more than 40 hours in a week, unless otherwise exempt from the Fair Labor Standards Act. While some personal attendants may still be exempt if the household owner employs the companion directly and the duties are limited to providing companionship and protection, caregivers employed by third-party employers and caregivers that provide care in addition to companionship and protection are now covered by the FLSA. Although personal attendants in California have been entitled to overtime after 9 hours in a day or 45 hours in a week, Californians using caregivers may need to pay weekly overtime after 40 hours in a week.

Additional Protections Under the Fair Employment and Housing Act –

Unpaid Interns Are Protected from Unlawful Harassment – Effective January 1, 2015, the Fair Employment and Housing Act extends protection to unpaid interns. Keep in mind that the Labor Commissioner and the Department of Labor only allow unpaid interns in a few limited situations, typically when the intern is receiving school credit and the employer receives very little benefit from the work. If you use interns, now is a good time to examine whether the interns are actually entitled to wages.

Anti-Bullying Module for Sexual Harassment Prevention Training – All employers with 50 or more employees are required to provide 2 hours of sexual harassment prevention training to all supervisory employees every 2 years. Although “bullying” is not strictly prohibited by law, AB 2053 now requires the sexual harassment prevention training include a module on anti-bullying.

No Discrimination Against Workers with Special Drivers Licenses – The DMV must issue an original driver’s license to California residents even if the person cannot lawful residence in the United States.  AB 1660 prohibits discrimination 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. Additionally, FEHA’s definition of “national origin” now includes 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 regarding obtaining proof of lawful residency prior to employment. Any 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.

Employers Using Third-Party Employers Are Liable for Wages and Workers’ Compensation Insurance – Labor Code section 2810.3 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. Employers can still include indemnification language in their contracts, but they cannot avoid liability by hiring the worker through a third-party employer.

Longer Statute of Limitations for Liquidated Damages and Failure to Timely Pay Final Wages – Existing law provides for criminal and civil penalties for certain wage violations and authorizes the Labor Commissioner to recover liquidated damages for minimum wage violations. AB 1723 expands Labor Code section 1197.1 to allow the Labor Commissioner to issue citations and seek penalties for the willful failure to timely pay wages of a resigned or discharged employee (e.g., waiting time penalties).

Several Cases Cause Employers to Reconsider Mandatory Arbitration Provisions – For years employers had difficulty requiring employees to agree to resolve all dispute through arbitration. Recent U.S. Supreme Court and California court decisions make it easier for employers to require binding arbitration for some employment law claims. Employers should evaluate whether binding arbitration is the right decision for their business. There are many pros and cons to resolving cases through binding arbitration, and employers must still be careful when drafting arbitration agreements. Just because you find an arbitration agreement on line does not mean it will be enforceable.

Minimum Wage Increase By Various Cities – Several cities passed their own ordinances requiring a higher minimum wage for employees working within certain geographical limits:

 

City Rate Effective
Berkeley $10.00

$11.00

1/1/15

10/1/15

Menlo Park $10.30 7/1/15
Oakland $12.05 3/2/15
Richmond $9.60 1/1/15
San Diego $9.75 1/1/15
San Francisco $11.05 1/1/15
San Jose $10.30 1/1/15
Sunnyvale $10.30 1/1/15

 

We expect to see more cities adopt similar legislation, and California legislators are trying to pass a higher California minimum wage by the end of the year (currently slated to increase to $10.00 per hour on January 1, 2016).

Employers need to update their employment handbooks and their policies to comply with the new laws. There is no better time to review your policies and practices with a knowledgeable employment attorney. The New Year affords employers the opportunity to start the year in compliance, and avoid potentially costly mistakes.

If you have any questions about the new laws, or any employment-related matter, contact our office and speak with one of our attorneys. Let us help you figure out how to employ your workers correctly, so you can focus on growing your business.

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.

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.

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