THE LETTER OF THE LAW: JANUARY 2016
IN THIS ISSUE:
2015 was another busy year for the California Legislature when it came to adopting new employment related laws that are effective in 2016. While this list is not exhaustive, it provides an overview of the key legislation employers in California should be aware of.
Bills Related to Discrimination, Retaliation & Whistleblowing
AB 987 – Reasonable Accommodation & Retaliation – This law makes it an unlawful employment practice for an employer to retaliate or otherwise discriminate against a person for “requesting” an accommodation for a physical or mental disability or religious belief or observance, regardless of whether the request was granted.
This bill was sponsored by the California Employment Lawyers Association (CELA) and is in direct response to a recent California Court of Appeal decision, Rope v. Auto-Clor System of Washington, Inc., 220 Cal. App. 4th 635 (2013). According to the Committee analysis, CELA states that, as a result of the Rope decision, courts have dismissed cases where an employee was fired or otherwise discriminated against in retaliation for simply making a request for reasonable accommodation for a disability or religion.
AB 1509 – Whistleblower & Retaliation – This law expands on existing laws to prohibit employers from retaliating against an employee when the employee’s family member (who also works for the same employer) engages in whistleblowing. Whistleblowing occurs when an employee suffers adverse employment actions for complaining about unsafe conditions, violations of state or federal laws, or wage theft.
SB 358 – Fair Pay Act – This historic law prohibits an employer from paying any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work and performed under similar working conditions, except where the employer demonstrates that the wage differential is based upon one or more of the following factors:
- A seniority system;
- A merit system;
- A system that measures earnings by quantity or quality of production;
- A bona fide factor other than sex, such as education, training, or experience; or
- A business necessity. A “business necessity” is defined as an overriding legitimate business purpose such that the factor relied upon effectively fulfills the business purpose it is supposed to serve.
The bill also prohibits an employer from discharging, discriminating or retaliating against, any employee by reason of any action taken by the employee to invoke in any manner the enforcement of the Act. For example, if a female employee asks to see the pay records of her male counterparts in the same position, the employer cannot terminate or retaliated against the female employee for making this request.
While written “gender neutral,” this bill was written to address claims that female employees are paid less for the same or similar job performed by males. This bill also makes it unlawful for an employer to prohibit an employee from disclosing the employee’s own wages, discussing the wages of others, or inquiring about another employee’s wages if the purpose of the disclosure, discussion, or inquiry is to invoke or enforce the rights granted by this bill.
Kring & Chung recently published a more detailed analysis of this bill. Click here to read more.
Wage & Hour Laws
AB 1506 – PAGA Right to Cure – In a bill helpful for employers, AB 1506 amends the Private Attorney General Act (“PAGA”) to allow employers an opportunity to cure several types of itemized wage statement violations before an employee can sue. These violations include a failure to provide employees with itemized wage statements that include the pay period dates or a failure to list the legal name and entity of the payor as often times the employee’s employer is not paying the wages, rather another legal entity is.
AB 1513 – Piece Rate – This law significantly affects any employer who has compensated their employees on a piece rate basis for any work performed during a pay period for the last four years. The new law has two main purposes: (1) to set forth “new” requirements for compensating piece rate workers for their non-productive time, including rest and recovery periods, travel time, safety meetings, etc.; and (2) to create an affirmative defense for employers who are currently facing or in the future may face lawsuits for failure to pay piece rate workers for rest and recovery breaks and non-productive time.
This bill requires the itemized wage statements provided to employees, who are compensated on a piece-rate basis, to separately state (1) the total hours of rest and recovery periods, the rate of pay (regular rate of pay), and the gross wages paid for those periods during the pay period; and, (2) the total hours of other non-productive time, the rate of pay, and the gross wages paid for that time during the pay period. The bill also requires those employees to be compensated for rest and recovery periods at the “regular rate of pay” and other non-productive time at the contractual hourly rate in excess of the current minimum hourly wage rate, separately from any piece-rate compensation. The bill defined “other non-productive time” to mean time under the employer’s control, exclusive of rest and recovery periods, that is not directly related to the activity being compensated on a piece-rate basis.
The bill further provides that, until January 1, 2021, an employer shall have an affirmative defense to any claim or cause of action for recovery of wages, damages, liquidated damages, statutory penalties, or civil penalties based solely on the employer’s failure to timely pay the employee the compensation due for rest and recovery periods and other nonproductive time for time periods prior to and including December 31, 2015, if, by no later than December 15, 2016, the employer complies with specified requirements (basically paying all employees unpaid or underpaid back wages).
Note the bill does not address (1) overtime claims, (2) meal period violations, or (3) claims relating to unlawful employment policies such as failure to advise employees to take their breaks or preventing employees from taking rest and recovery breaks.
Kring & Chung has been heavily involved in assisting contractors, who routinely utilize piece rate to pay its employees, in bringing them into compliance with the requirements of AB 1513.
SB 588 – A Fair Day’s Pay Act – Another stab at employers that utilize a piece rate system, SB 588, gives the California Labor Commissioner new mechanisms to collect back wages from employers who have exhausted all appeals for their non-payment of wages and have final judgments owed. The bill would authorize the Labor Commissioner to use any of the existing remedies available to a judgment creditor and to act as a levying officer when enforcing a judgment pursuant to a writ of execution. It requires a business that has an outstanding unpaid judgment against them to purchase a wage bond of $150,000. If it fails to do that, the employer can be subject to a stop work order and a lien at the Labor Commissioner’s discretion.
SB 588 also gives the Labor Commissioner the authority to hold individual business owners liable for their company’s debts to workers. By applying an existing employment law (Labor Code section 558) to wage claims, responsible individuals can held personally liable. This was done to discourage business owners from closing up their operations and starting a new company and avoiding their debts to employees. The new law also improves collection methods by giving the Labor Commissioner greater flexibility and power in choosing how to secure the assets needed to pay judgments a business owes its employees.
AB 622 – E-Verify – E –Verify is an internet-based system that compares information from an employee’s Form I-9 to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility. There are very specific rules regarding when, where and how an employer can utilize E-Verify in its hiring practices, which is what this bill is clarifying. AB 622 prohibits employers from using E-Verify in a manner that is inconsistent with federal law.
As indicated in the Senate analysis of the bill, AB 622 limits the misuse of E-Verify by prohibiting “unscrupulous” employers from engaging in unjust E-Verify practices against workers and creates financial civil penalties for employers who maliciously use E-Verify to discriminate against their workforce. The penalty is $10,000 for each violation.
AB 202 – Cheerleaders – While this bill may not be of interest to most of our readers, what is important to note is the Legislature continues to take steps to ensure that employers do not misclassify their workers as “independent contractors” when they are really employees, to avoid having to pay employment taxes. This bill requires professional sports teams to classify professional cheerleaders as employees, not independent contractors.
Proper classification of a person as either an employee v. independent contractor or exempt v. non-exempt is absolutely essential. Misclassification can costs employers hundreds of thousands of dollars, particularly if a class action is filed. Kring & Chung regularly provides classification advice and analysis to its clients. If you have concerns whether a particular person is properly classified, contact an employment attorney at Kring & Chung.
Leaves of Absence & Benefits.
AB 304 – Amendments to the Paid Sick Leave law – Kring & Chung has extensively reported on the requirements of AB 1522, which was adopted in 2014, but became effective on July 1, 2015, regarding providing all employees 3-paid sick days a year. Since this bill became law, amendments have already been made and passed via AB 304 to address some of the ambiguities of AB 1522. The amendments make some of the following clarifications (for a complete listing of all amendments, you can read the bill in its entirety at www.leginfo.ca.gov):
- Specifies that an “employee in the construction industry” means an employee performing work – deleting the reference to “onsite work” in the current provisions of the law.
- Specifies that the law applies to an employee who works in California “for the same employer” for 30 or more days within a year.
- Provides that an employer may use a different accrual method, other than providing one hour per every 30 hours worked, provided that the accrual is on a regular basis so that an employee has no less than 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment or each calendar year, or in each 12-month period.
- Provides that an employer may satisfy the accrual requirements of this section by providing not less than 24 hours or three days of paid sick leave that is available to the employee to use by the completion of his or her 120th calendar day of employment.
- Provides that an employer is not required to reinstate accrued paid time off to a rehired employee that was paid out at the time of termination, resignation, or separation of employment.
- Provides that if an employer provides unlimited paid sick leave or unlimited paid time off, the employer may satisfy a specified written notice requirement of existing law by indicating on the notice or the employee’s itemized wage statement that such leave is “unlimited.”
SB 579 – Kin Care and School Activities Leave – Changes were made to the Kin Care law to be in accordance with the Paid Sick leave law addressed above. This bill allows employees to use Kin Care for the same reasons that employees can use Paid Sick leave – to care for not only oneself, but a sick “family member,” as defined by AB 1522.
The current School Activities leave allows an employee to take time away from work to attend a child’s school activities during the work day. This bill now allows a parent employee to take time away from work to find a school or a licensed child care provider for enrollment purposes.
AB 560 – Child Labor – This law adds a section to the Code of Civil Procedure that bars the consideration of a child’s immigration status in civil actions involving liability or remedy.
This bills stems from a lawsuit by more than 80 elementary school children against the Los Angeles Unified School District (LAUSD) for alleged sexual misconduct by one of the district’s former teachers. Many of the victims in the lawsuit were undocumented. During the litigation, attorneys for the children filed motions to preclude inquiry into the immigration status of the children in the case. In response, the attorneys for the LAUSD requested that the court deny the children’s motion based on the holding in Hernández v. Paicius, (2003) 109 Cal. App. 4th 425, 460, which held that if a plaintiff is seeking damages for loss of earnings or lost wages, the plaintiff’s immigration status is relevant to the determination of the plaintiff’s potential for earning money in the future.
Notably, existing law specifies a number of situations where immigration status is not to be considered, however it did not address protections for minor children or personal injury matters. We have seen this problem in California sweat shops were garment manufacturers employ immigrant minor children and yet do not pay them for minimum wages.
The statistics vary, but it is noted that between 60 and 70% of the litigants in Family Court (the courts that process divorces and other family law matters) are self-represented, meaning they do not have an attorney. Of that 60 to 70%, about half of the individuals can afford an attorney, but are opting not to hire one. The other half are not able to afford an attorney. So why are litigants choosing to represent themselves if they can afford an attorney? Let’s explore the benefits of hiring a divorce attorney and why a divorce attorney is a sound investment.
Any litigant, whether they have an attorney or are self-represented, is expected to know and follow the rules of procedure and evidence. An attorney goes to college for 4 years, and then law school for an additional 3 years, for a total of 7 years of education beyond high school. After graduation from law school, it takes at least 5 years of being in a specific practice field to have a good handle on typical matters. This experience enables an attorney to conduct themselves appropriately in hearings and navigate any unexpected situations, questions from the court, and so forth. That is a total of twelve years of education and experience that an attorney has over a self-represented party.
Next, is the issue of asset protection. If there is a pension that needs to be divided, an attorney will know that a separate domestic relations order will need to be prepared to properly divide that account. Otherwise, the non-pensioned spouse will almost certainly have their community property interest in that pension affected. This is just one of the many issues that can fall through the cracks when a litigant fails to have a professional handling their divorce case for them.
Why do litigants think they can trust the spouse they are divorcing when it comes to equally dividing property? The court puts the onus on the parties to disclose the assets and debts, so an asset can easily be left off the “balance sheet”, either intentionally or inadvertently, especially when there are no attorneys involved. If an asset is omitted when an attorney is handling the matter, the omission has the potential to be located, found and disclosed or the attorney can seek court orders to rectify the omission. Why not have it done right the first time?
But what about the belief that a divorce attorney will cost too much or that they just want to rip you off? Our Family Law Courts involve a small circle of family law attorneys and judges. Over the years, we get to know one another and reputations are formed and shared. We know that our reputations are everything. Just off the cuff, I’d estimate that at least 90% of the family law attorneys I practice amongst are ethical, straight-shooting people who value their profession and feel honored and privileged to be able to practice it. Those attorneys (myself included) are not going to “run up a bill” unless the work done justifies the outcome being sought. A good attorney will treat your pocket book as they would their own. We will almost always do a cost/benefit analysis when determining whether to take a certain action by discerning the size of the estate we are dividing versus the cost of the action being contemplated. The other 10% of divorce attorneys unaccounted for could consist of misunderstandings between client and attorney, poor decisions or even rogue attorneys who do put their own pocketbook above yours. They are by far the exception.
So what is your call to action after reading this? Take advantage of those attorneys that offer free consultations and meet with several different attorneys. Come prepared to ask each attorney a string of the same questions so you can compare apples to apples. Then ask some other questions as they occur to you to gauge the attorney’s knowledge base and personality. Make sure you comply with the time they allot to a free consultation (mine is 30 minutes) because it is, after all, free. Disclose your concerns to the attorney in advance, and throughout the representation as to how important it is to you that your divorce fees not exceed a certain amount. Don’t be afraid to have candid conversations with your attorney about fees and whether actions are necessary or recommended.
I have practiced family law for eighteen years and could not imagine representing myself in a divorce if I didn’t know what I know now. I urge all self-represented parties to take the suggestions discussed in this article into consideration.
Congratulations to Managing Partner, Kyle D. Kring on being selected for inclusion in the 2016 Best Lawyers list. .
Best Lawyers is the oldest and most respected peer-review publication in the legal profession. The methodology is designed to capture the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical and legal practice area. Best Lawyers employs a sophisticated, conscientious, rational, and transparent survey process designed to elicit meaningful and substantive evaluations of the quality of legal services.
Kring & Chung Holds Men’s Clothing Drive in Support of Working Wardrobes and their Camp Pendleton Power Up for Success Event.
Kring & Chung is thrilled to be hosting a clothing drive to benefit Working Wardrobes. Working Wardrobes empowers men, women, veterans and young adults overcoming difficult challenges to confidently enter the workforce and achieve success. Their clients become workforce ready by participating in career training, job placement assistance and wardrobe services, in an environment of dignity and respect.
The items needed are men’s suits, slacks, blazers, ties, dress shirts, belts and new dress socks. We kindly ask that all donated clothing is in good condition, with no tears, holes or broken zippers. Please provide your donations to Courtney Kring at the Irvine, CA office before February 29 th, 2016. Contact Courtney Kring at (949) 261-7700 if you have any questions.
If you would like to learn more about Working Wardrobes, visit their website here.