Understanding immigration and labor reform laws on the federal and state level: President Obama's immigration proposal and California's change to immigration related laws in 2015

President Obama's announcement of his controversial plan to provide amnesty for illegal immigrants to remain in the country who meet certain requirements raises a few employment and immigration issues for employers. Putting the politics aside, it is a good time for employers to review their obligations under the law to confirm a worker’s eligibility to work, especially given the new laws taking effect in California in 2015. Below are five areas involving federal and state immigration laws and verification requirements California employers need to be aware of going into 2015.

1. The President’s proposal does not change employers’ current obligation to verify employees’ eligibility to work in the United States.

The President’s proposal will take time to implement, and given the change of power in the Senate in the last election, there is a lot of uncertainty about the effect of the President’s proposal. Even with the political uncertainty, the President’s proposal recognizes the need to create a “provisional legal status” for illegal immigrants that may be provided citizenship. The White House’s website states the following:

Undocumented immigrants must come forward and register, submit biometric data, pass criminal background and national security checks, and pay fees and penalties before they will be eligible for a provisional legal status. Agricultural workers and those who entered the United States as children would be eligible for the same program. Individuals must wait until the existing legal immigration backlogs are cleared before getting in line to apply for lawful permanent residency (i.e. a “green card”), and ultimately United States citizenship. Consistent with current law, people with provisional legal status will not be eligible for welfare or other federal benefits, including subsidies or tax credits under the new health care law.

The details of this system still need to be set out and a process put into place. So employers need to continue to follow the current requirements to verify employment eligibility, and it is not likely that any of the requirements under Federal law will change anytime soon.

2. Expect increased enforcement by federal agencies of immigration and labor laws.

President Obama’s proposal also calls for increasing the monitoring and audit of employers to ensure they are complying with the immigration laws. The President’s proposal seeks a new “labor law enforcement fund” to “ensure that industries that employ significant numbers of immigrant workers comply with labor laws.” The White House’s website touts the fact that ICE has increased his audits of employers since January 2009, and has fined more companies than the Bush administration.

Employers need to review their policies to ensure that they comply with federal and California labor laws. In my practice, I have seen an uptick in DOL audits of employers over the last two years. It is important for California employers to understand the different employment law requirements between federal law and California law, and to ensure that they are complying with the law that applies to their particular workforce.

3. In California, employers need to recognize the new California drivers’ licenses being issued on January 1, 2015 to undocumented workers.

Illegal immigrants will be able to obtain a California driver’s license beginning January 1, 2015. AB 60 was passed in 2013 allowing people who cannot prove their eligibility to be in the United States legally the ability to obtain a driver’s license. The California DMV will begin issuing these drivers’ licenses in the beginning of next year. The licenses will be marked with the phrase “federal limits apply” on the front of the license in the same size and color of text as the other text. This statement will be located in the top right corner above the Class designation on the licenses. On the back of the license, it will have the statement that the license is “not valid for official federal purposes.”

The California drivers’ licenses issued under AB 60 are not valid documentation to prove eligibility to work in the United States. It is important for employers to train their personnel who are responsible for verifying documents when completing the Form I-9 to ensure that the documents presented by the worker are valid for I-9 purposes. In addition, it would be a good time for employers to audit their Form I-9 process and document retention policies.

4. It is illegal for employers to discriminate against workers who present licenses obtained through AB60.

A new law passed in 2014, AB 1660, makes it a violation of California’s Fair Employment and Housing Act (“FEHA”) to discriminate against a worker who presents a driver’s license which was issued to them under AB60 and the individual does not have the legal right to work in the United States. Read this last sentence again and it is not hard to see the rock (federal I-9 obligations) and the hard place (California law) that employers find themselves between. AB 1660 amends FEHA to specify that discrimination on the basis of national origin includes, but is not limited to, discrimination on the basis of possessing a driver’s license issued under this new law. California employers need to be clear on what their obligations are under federal law and carefully navigate these obligations to ensure they do not run afoul of AB 1660 and Vehicle Code section 12801.9.

5. California employers need to treat driver’s license information as confidential employee information.

AB 1660, which amends Vehicle Code section 12801.9, provides that employees’ drivers’ license information obtained by the employer is confidential:

Driver’s license information obtained by an employer shall be treated as private and confidential, is exempt from disclosure under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code), and shall not be disclosed to any unauthorized person or used for any purpose other than to establish identity and authorization to drive.

Therefore, employers need to review their record keeping procedures to ensure that any driver’s license information for their employees is keep in a secure manner and limit other employees’ access to the data.

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Five lessons for employers from new meal break decision: In re Walgreen Co. Cases

An appellate court upheld a trial court’s denial of class certification in a case brought against Walgreens. The appellate court’s decision provides a few good lessons for employers defending class action allegations.

1. Meal break cases are harder to certify as class actions after the Brinker decision.
The California Supreme Court held in Brinker Restaurant Corp. v. Superior Court that employers had to make meal breaks available to employees, and had no obligation to ensure that employees took the meal break. The court in Walgreens acknowledged this, and explained by the make available standard set forth in Brinker makes it hard to certify meal break claims as a class action:

One important difference between the make available standard and the ensure standard has to do with ease of proof. The ensure standard can make it easier for plaintiffs to prove employer meal break violations, while the make available standard can make it harder. Here is why. Employers generally require employees to record hours worked by clocking in and clocking out, a process that typically generates centralized and computerized time records. It is simple to use computer records to determine if each employee checked out on time for a full 30-minute meal break. Meal break classes thus are relatively easy to certify under the ensure test: each missed break automatically equals an employer violation. Meal break classes are harder to certify under a make available test because the fact of a missed break does not dictate the conclusion of a violation (and thus employer liability). Rather, under the make available standard you additionally must ask why the worker missed the break before you can determine whether the employer is liable. If the worker was free to take the break and simply chose to skip or delay it, there is no violation and no employer liability. This make available test thus can make analysis of break violations more complex than under the ensure standard.

2. There is not a presumption against the employer if the employer’s records show no meal period was taken.
Plaintiff argued that because Walgreens's records did not show that meal breaks were being taken, or taken on a timely basis, that there was a rebuttable presumption created against Walgreens that the breaks had not been taken. Plaintiff argued that Justice Werdegar’s concurring opinion in Brinker supported this analysis. However, in this case, the court did not find this was binding analysis, as a majority of the justices did not agree with this rebuttable presumption and because “concurring opinions are not binding precedent.”

3. After Brinker, an expert witness’ job becomes much more difficult.
The plaintiff utilized an expert witness in the case to attempt to prove that the case was suitable for class certification. However, Plaintiff’s expert witness “incorrectly assumed there was a Labor Code violation every time a worker did not take a timely break. [The expert] thus incorrectly assumed Walgreens must ensure employees took their breaks. This assumption is legally unsound under Brinker’s holding….”

4. It is a good idea to test the truthfulness of the declarations submitted by Plaintiff’s counsel of current or former employees.
In this case, it does not appear that the employees made up facts about their breaks, but instead the plaintiff’s counsel took some liberties with the facts. Usually, plaintiff's counsel will submit written declarations from current and former employees to support their theories for class certification.  In this case, it appears that the declarations were all very similar, and when the employees who signed the declarations were deposed by the defendant, the employees recanted their declarations and stated that the declaration drafted by plaintiff's counsel included statements that they never made during the interview by plaintiff's counsel.  The appellate court noted:

The trial judge repeatedly said these declarations “appalled” him, and he told [plaintiff’s] counsel, “You know better.”
The trial court was “especially troubled” that, once deposed, so many witnesses recanted their declarations.
Form declarations present a problem. When witnesses speak exactly the same words, one wonders who put those words there, and how accurate and reliable those words are.
There is nothing attractive about submitting form declarations contrary to the witnesses’ actual testimony. This practice corrupts the pursuit of truth.
It was not error for the trial court to give these unreliable declarations no weight.

Defendants should take the opportunity to depose the individuals who submitted declarations drafted by plaintiff's counsel.  You never know what may turn up. 

5. Emails and other documentation reminding managers to provide meal breaks will help the company’s defense against class certification.

In the Walgreens case, plaintiff counsel argued that the following email (and apparently similar emails) by Walgreens to its managers established meal break violations:

Just an FYI . . . if anyone is on this list, they did not receive a lunch. Please, you must talk to the assistant managers and find out why. . . . please make a big deal about this . . . remind employees that it is their job to ask for a break or lunch if they did not receive it, but also remind the Managers on duty that they must have a break schedule created for every shift . . . there is no negotiation about this . . . there is no excuse not to give a break or lunch . . . look at your schedule and make sure you have the right people at the right time. Two of the people received a lunch, but it was after the 5 hour mark and both did not take a 30 minute lunch. Please. . . Please address in every store. . . . This is one day in the district . . . but this is occur[r]ing in every store! Thank you for your complete follow through on this. If you have any questions, please let me know. I will be sending out some guidelines to help you succeed on making sure everyone gets a 30 minute break within 5 hours of their shift. Thank you.

Contrary to plaintiff’s argument however, the court found that this email instead showed Walgreens’s efforts to provide its employees with meal breaks. The emails showed the company pressuring store managers to ensure that employees took meal breaks. Takeaway for employers: document the emphasis on the company’s actions to make meal breaks available for employees and routinely remind managers of the obligations to make breaks available.

The decision, In re Walgreen Co. Overtime Cases and be read here

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Five issues employers must understand about California's harassment and discrimination laws

1. Automatic liability for a company when harassing or discriminatory conduct is taken by supervisors.
A company is automatically liable for any harassment or discriminatory actions taken by its supervisors. Under California’s Fair Employment and Housing Act (FEHA), a supervisor is defined as anyone who has the authority to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend these actions to the employer.

2. When is a company liable for harassment by non-supervisory employees?
Employers are only liable for harassment in the workplace that it knew about or should have known about, and failed to take corrective action to stop the harassment.

3. Is there personal liability for harassment or discrimination?
There is a difference regarding personal liability for alleged harassment and discrimination.  Employees can be held personally liable for harassment, but there is no personal liability for discrimination.

Any employee working for a company covered by FEHA can be held personally liable for harassment that employee engages in. However, a supervisor who did not engage in harassment and who is aware of harassment taking place but fails stop the harassment, cannot be held personally liable for aiding and abetting the harassment.  However, obviously, this will create liability for the company. 

On the other hand, supervisors are not held personally liable for discrimination or retaliation. This is because the basic job duties of a supervisor could be viewed as discriminatory, acts such as hiring, firing, and setting schedules. Therefore, the courts did not want to impose personal liability on to supervisors for their day-to-day duties. However, it is important to remember that even though the supervisor does not have personal liability for discrimination or retaliation, the employer will always be liable for any proven misconduct.

4. The avoidable consequences doctrine could reduce liability in certain cases.
Under the avoidable consequences doctrine, an employee’s damages can be limited if the employer can show that: (1) it took reasonable step to prevent harassment, (2) the employee unreasonably failed to utilize the procedures put in place by the employer to prevent harassment, and (3) had the employee used the procedure to prevent the harassment some of the damages would have been prevented. Under this defense the employer’s complaint system put in place will be challenged and viewed under high scrutiny.  Therefore it is important for employers to show that employee’s who complained in the past had their complaints properly addressed and there was never any retaliation for making the complaint.  

5. Revise sexual harassment training in 2015 to include discussion about abusive conduct.
Even though workplace bullying is not illegal under California law, a new law going into effect in 2015 amends the law requiring employers with 50 or more employees to provide sexual harassment prevention training to include a discussion about workplace bullying and abusive conduct.

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Friday's Five: Five new laws for 2015 that employers should review

Below are five new laws going into effect in 2015 that California employers should know about before the start of 2015. Employers should also take time and review their current policies to ensure compliance for the new year.

1. Mandatory paid sick leave.
You’ve probably been beaten over the head from emails from your employment lawyer already about this new law, so I won’t rehash the particulars. If you need more information, see my prior post.

2. Must revise sexual harassment training to include anti-abusive conduct training.
This is a simple revision to sexual harassment training should be implemented into any sexual harassment training. For more information, see my prior post here.

3. Undocumented workers’ driver’s licenses: immigration and confidentiality issues.
Last year, California passed AB 60 that allows undocumented immigrants to apply for a driver’s license. This year, AB 1660 was passed to clarify some issues left unresolved by AB 60, and to provide greater rights to immigrants who present a driver’s license to employers that was obtained without establishing citizenship. The California DMV will begin issuing driver’s licenses under the new law on January 1, 2015. These licenses will be marked with the term “federal limits apply” on the front of the license. Therefore, employers must be aware that these licenses cannot be used to establish eligibility to work when completing the Form I-9. Once the new licenses are issued, employers should train the individuals regarding the different licenses and which licenses can be used to verify eligibility to work in the U.S. when completing the I-9. In addition, the new law makes it illegal to discriminate against employees who present these licenses for employment purposes.
Finally, employers must be aware that the new law also makes driver license information obtained by the employer “private and confidential.” Therefore, employers should take steps to ensure that this information is treated with the same safeguards as other confidential information.

4. Joint liability for employers who contract with outside companies for workers.
AB 1897 automatically makes an employer jointly liable with a labor contractor, such as an employment agency, for wage and workers’ compensation violations. The law exempts some companies from this joint liability, such as companies with fewer than 25 employees, or businesses with five or fewer workers supplied by a labor contractor. With this new potential liability, employers need to carefully review the contractors who provide workers for their companies. While companies cannot contract around the provisions of the new law, companies can enter into indemnification agreements with the staffing agencies to mitigate some of the risk. Companies should audit the staffing agencies they work with to insure they are compliant with the law, and should consider asking for indemnification from the staffing agency should there be any wage and hour violations.

5. Employers may utilize email to report serious injuries.
Under existing law, employers are required to file a report with the Division of Occupational Safety and Health (DOSH), every occupational injury or illness which results in lost time beyond the date of injury or illness, or which requires medical treatment beyond first aid. Employers are required to immediately report a serious injury or illness, or death at the workplace to DOSH. The prior law permitted employers to make these reports by telephone or telegraph. AB 326 updates the law to allow employers to make the reports by telephone or email. This is not a major change in the law, and one to make it easier for employers, but a good reminder for employers to review injury protocols in the workplace and ensure that these reports are being made to DOSH when required. Failure to do so could result in a $5,000 fine.

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Friday's Five: Five items employers need to understand about automobile and mileage reimbursement under California law

Expense reimbursement may seem like a small issue in comparison with the other areas of liability facing California employers, but the exposure for not appropriately reimbursing employees can be substantial. In Gattuso v. Harte-Hanks Shoppers, Inc., the California Supreme Court clarified the parameters of mileage reimbursement under California law, as well as the three different methods available for employers to reimburse employees for their mileage reimbursement.  This post discusses five issues employers need to know about automobile and mileage reimbursement under California law.

1. Mileage reimbursement based on IRS mileage rate is presumed to reimburse employee for all actual expenses

The IRS publishes standard mileage rates each year (and sometimes adjusts these rates during the year). The 2014 mileage rate is published on the IRS mileage rate here.

If the employee challenges the amount reimbursed, the employee bears the burden to show how the “amount that the employer has paid is less than the actual expenses that the employee has necessarily incurred for work-required automobile use (as calculated using the actual expense method), the employer must make up the difference.” Gattuso, at 479.

The California Supreme Court also held that the reimbursement rate can be negotiated by parties as long as it fully reimburses the employee, and the amount does not have to be set at the IRS mileage rate. The Court also warned that employee cannot waive the right to be fully reimbursed for their actual expenses:

We agree that, as with other terms and conditions of employment, a mileage rate for automobile expense reimbursement may be a subject of negotiation and agreement between employer and employee. Under section 2804, however, any agreement made by the employee is null and void insofar as it waives the employee’s rights to full expense reimbursement under section 2802.

Gattuso, at 479.


2. Reimbursement Method: Actual Expense Method

In examining the different methods of reimbursement, the Supreme Court held that the actual expense method is the most accurate, but it is also the most burdensome for both the employer and the employee. Gattuso, at 478. Under the actual expense method, the parties calculate the automobile expenses that the employee actually and necessarily incurred and then the employer separately pays the employee that amount. The actual expenses of using an employee’s personal automobile for business purposes include: fuel, maintenance, repairs, insurance, registration, and depreciation.

3. Reimbursement Method: Mileage Reimbursement Method

The Court recognized that employers may simplify calculating the amount owed to an employee by paying an amount based on a “total mileage driven." Gattuso, at 479.

Under the mileage reimbursement method, the employee only needs to keep a record of the number of miles driven for job duties. The employer then multiplies the miles driven by a predetermined amount that approximates the per-mile cost of owning and operating an automobile. The Court recognized that the mileage rate agreed to between the employer and employee is “merely an approximation of actual expenses” and is less accurate than the actual expense method. It is important to note that while this amount can be negotiated, the employee still is unable to waive their right to reimbursement of their actual costs as mentioned above.

4. Reimbursement Method: Lump Sum Payment

Under the lump sum method, the employee need not submit any information to the employer about work-required miles driven or automobile expenses incurred. The employer merely pays an agreed upon fixed amount for automobile expense reimbursement. Gattuso, at 480. This type of lump sum payment is often labeled as a per diem, car allowance, or gas stipend.

In Gattuso, the Court made it clear that employers paying a lump sum amount have the extra burden of separately identifying and documenting the amounts that represent payment for labor performed and the amounts that represent reimbursement for business expenses.

5. All expenses incurred in an employee’s course and scope of their job must be reimbursed by the employer.

In addition to mileage, employers may also have to reimburse employees for other costs they incurred in driving their personal cars for business. In making the determination about whether an employee’s actions are in the “course and scope” of their job, courts examine whether the expense being sought by the employee is “not so unusual or startling that it would seem unfair to include loss or expense among other costs of the employer’s business.” This is a very fact specific determination that employers need to approach with caution.

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Friday's Five: Five answers to common questions about severance pay and severance agreements

Severance pay is not required under California law. However, employers who have potential disputes with employees that are leaving employment should consider whether offering severance pay in exchange for a signed severance agreement containing a release of claims against the company may be useful in avoiding costly litigation. Here are answers to five common questions about severance:

1. Are employees entitled to severance pay?
No. If an employee is an at-will employee, and either the employer or the employee decides to end the employment relationship, the employer is not required to provide any type of severance to the employee.

2. If severance pay is not required, why would employers offer it?
There are a number of reasons that employers offer severance pay. If the employer’s business has slowed down and it needs to layoff employees, but the employer wants to cushion the effect of the layoff, severance can be offered. Also, if the employer believes that there is a potential dispute between it and an employee, the employer may choose to pay some severance in exchange of a release of claims by the employee in order to avoid any potential litigation.  If done properly, an employee's acceptance of a severance agreement would effectively waive any and all claims that he or she may have against the company.  If there is any potential for a dispute about any issues that arose during employment, entering into a severance agreement could be an effective way to avoid costly and time consuming litigation. 

3. Does the employer have to pay the employee for a release of claims?
If the employer asks the employee to release all claims the employee may have against the company, generally there needs to be some consideration provided to the employee for the release of his or her rights. Consideration is a legal term, and very generally means something of value that each side agrees to exchange (this is a very oversimplified definition). In severance agreements, the consideration is usually, but is not required to be, some form of payment by the employer that is not already legally obligated to be made in exchange for the release of claims (i.e., an agreement not to sue) by the employee.

4. What terms are generally included in a severance agreement?
Here is a list of common terms included in severance agreements:

  • A general release with a Civil Code section 1542 waiver releasing all known and unknown claims.
  • Confidentiality
  • No admission of liability
  • No present or future employment
  • Non-disparagement clause which can also set forth what job reference, if any, will be given to any prospective employers
  • Return of company property and non-solicitation of customers clause

5. Are there any special considerations for employees 40 years old or older that need to be included in a release?
Yes. The Older Workers Benefit Protection Act (OWBPA) protects individuals 40 years old or older. The OWBPA provides that in order to release a claim for age discrimination must meet certain requirements. Some of these requirements include that the employee is advised to consult with an attorney, the waiver is easily understood, the individual is given at least 21 days to consider the agreement; and the individual is given at least 7 days following the execution of the agreement to revoke the agreement. The 21 day consideration period can be waived by the employee, but the seven day revocation period after the agreement is signed cannot be waived by the employee. Therefore, it is important to consider potentially not paying any money until after the seven day revocation period expires. If the employer is offering the release to a group or class of employees a longer consideration period and other requirements apply. It is highly recommended that employers receive the assistance of counsel to ensure that employees 40 years old or older effectively waive any rights under the OWBPA. For more information, the EEOCs’ website provides a good explanation and some examples.

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Five tips about tips under California law

Today's Friday's Five provides a few points for employers to consider who have employees that receive gratuities. California law is very specific regarding gratuities left for employees, and since tips are property of the employee, employers must approach this area with caution. Here are five “tips” about tips in California.

1. Tips are employee’s property.
The Labor Code section 350 states unequivocally that “Every gratuity is hereby declared to be the sole property of the employee or employees for whom it was paid, given or left for.” In addition, Labor Code section 351 clearly states that “[n]o employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron, or deduct any amount from wages due an employee on account of a gratuity, or require an employee to credit the amount, or any part thereof, of a gratuity against and as a part of the wages due the employee from the employer.”

2. Timing requirements of payment of tips left on credit cards.
Payment of a gratuity made by a patron using a credit card must be paid to the employee not later than the next regular payday following the date the patron authorized the credit card payment.

3. Mandatory tip pools are permissible under California law.
Labor Code section 351 clearly sets forth that tips are the sole property of the employee, yet California courts have also reached the seemingly contradictory conclusion that employers may lawfully require that employees must share this “sole property” with other employees through tip pools. In Leighton v. Old Heidelberg, Ltd., the court authorized mandatory tip pooling policies. Generally, mandatory tip pools are permissible as long as (1) only employees who provide direct table service participate in the tip pool and (2) the tip pool distribution is consistent with industry standards.

4. There is a difference between a mandatory service charge and a tip.
Mandatory service charges are not tips and are not governed by Labor Code section 351. Mandatory service charges are charges imposed by an establishment for specific reason, such as for parties larger than eight people. Unlike tips, these charges may be received by the employer and distributed, if at all, as the employer sees fit.

5. There is no tip credit allowed for under California law.
Tips earned by an employee cannot be counted towards the minimum wage requirement under California law. In addition, employers may not deduct the costs of any credit card processing fees or any other charges form the employee’s tips or wages.

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Friday's Five: Five things California employers should not forget about meal and rest breaks

Back to some basics with this Friday’s Five. This post revisits some meal and rest break requirements. It has been a couple of years since the California Supreme Court issued it groundbreaking ruling in Brinker Restaurant Group v. Superior Court, and it is a good time for employers to audit these policies and practices. Here are five things employers should not forget regarding about meal and rest breaks.

1. Timing of breaks.
Meal Breaks
The California Supreme Court made clear in Brinker Restaurant Group v. Superior Court that employers need to give an employee their first meal break “no later than the end of an employee’s fifth hour of work, and a second meal period no later than the end of an employee’s 10th hour of work.” Here is a chart to illustrate the Court’s holding:

Rest Breaks
As for of rest breaks, the Court set forth that, “[e]mployees are entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.” This rule is set forth in this chart:

In regards to when rest breaks should be taken during the shift, the Court held that “the only constraint of timing is that rest breaks must fall in the middle of work periods ‘insofar as practicable.’” The Court stopped short of explaining what qualifies as “insofar as practicable”, and employers should closely analyze whether they may deviate from this general principle.

2. Rule regarding waiver of breaks.
Meal Breaks
Generally meal breaks can only be waived if the employee works less than six hours in a shift. However, as long as employers effectively allow an employee to take a full 30-minute meal break, the employee can voluntarily choose not to take the break and this would not result in a violation. The Supreme Court explained in Brinker (quoting the DLSE’s brief on the subject):
The employer that refuses to relinquish control over employees during an owed meal period violates the duty to provide the meal period and owes compensation [and premium pay] for hours worked. The employer that relinquishes control but nonetheless knows or has reason to know that the employee is performing work during the meal period, has not violated its meal period obligations [and owes no premium pay], but nonetheless owes regular compensation to its employees for time worked.
Rest Breaks
Rest breaks may also be waived by employees, as long as the employer properly authorizes and permits employees to take the full 10-minute rest break at the appropriate times.

3. Timekeeping requirements of meal breaks.
Meal breaks taken by the employees must be recorded by the employer. However, there is no requirement for employers to record 10-mintute rest breaks.

4. Implementing a procedure for employees to notify the company when they could not take a break.
If employers have the proper policy and practices set up for meal and rest breaks, the primary issue then becomes whether the employer knew or should have known that the employee was not taking the meal or rest breaks. Therefore, many allegations that the employer was not providing the required breaks can be defended on the basis that the employer had an effective complaint procedure in place to inform the employer of any potential violation, but failed to inform the employer of these violations.

5. Implementing a policy of paying employees for missed breaks and recording these payments.
Employers should show that in addition to the complaint procedure mentioned above, that the company has a system in place to correct any violations. If during an investigation, the employer confirms that the employee in fact missed the break because of the rush of business or some other factor, the company should pay the employee the one hour “premium pay” penalty at the employee’s regular rate of pay. Also, the company should record these payments made to employees in case it needs to prove later on that it has an effective remedial process in place to address missed breaks.

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Friday's Five: Five ways employers can receive requests for employees' personnel and wage records

Employers can receive requests for employment records of current and former employees though different ways. It is important for employers to first carefully review the request to understand what is being requested. It is important to understand who is making the request? Is the request only seeking a personnel file? Is the request only seeking payroll records? It is possible that a third party, such as a governmental agency or a party in litigation is seeking employment records for an employee. In this case, it is important for the employer to understand its obligations in protecting the privacy interest of the employee in connection with the rights of third parties to obtain these records.

The following are five ways that employers may have to provide copies of employment records or make employment records available for inspection.

1. Request under Labor Code Section 432, which provides employees with a right to receive a copy of any signed document upon request by the employee.

2. Request under Labor Code section 1198.5, which provides for the right of current and former employees to inspect and receive a copy of personnel records.

A few guidelines regarding requests under section 1198.5:

  • Employers must comply no later than 30 days from when the request is received.
  • If employee asks for copy of file, employer may charge actual costs of coping to employee.
  • Employers may take reasonable steps to ensure identity of the current or former employee.
  • Employers may redact the names of any nonsupervisory employees contained in the personnel file.
  • Employees have no right to inspection under this section if lawsuit has already been initiated.
  • Failure to comply with this section can result in a $750 penalty.

3. Request under Labor Code section 226(b), which allows current and former employees to inspect or copy records pertaining to their employment.

A few guidelines regarding requests under section 226(b):

  • Employers can take reasonable steps to ensure the identity of a current or former employees, and that they are actually making the request.
  • Actual costs of reproduction may be charged by the employer.
  • Employers must comply within 21 days of request.
  • Failure to comply with this section can result in a $750 penalty.

4. Public agencies, such as the Department of Labor or California Labor Commissioner, have the right to inspect records and workplaces under limited circumstances.

For example, under the Federal Labor Standards Act (FLSA), the Department of Labor (DOL) has certain permissions to investigate and gather date about wages, hours worked, and other working conditions at workplaces. The FLSA also provides the DOL limited permission to enter employers’ premises, review records, and even potentially question employees about employment practices. Upon receiving a request from any public agency, such as the DOL or the California Labor Commissioner, an employer should immediately review what obligations and rights it has in responding to the request.

5. Requests for records through subpoenas.

Employers can also receive subpoenas from third parties seeking employment records. The “custodian of records” is responsible for responding to the requests and producing employment records in certain circumstances. California law requires that a request for a personnel file include a “Notice to Consumer” notifying the employee that such records are being sought, and providing the individual an opportunity to object to the disclosure of the information. If the employee or former employee has not been notified, or objects to the production of the requested records, the employer should not produce the information requested unless and until a court orders otherwise, or the affected employee agrees to the production. If the subpoena seeks the disclosure of confidential or proprietary information, you should contact an attorney to see if the company has an obligation to move to quash the subpoena or seek an appropriate protective order to preserve the confidentiality of the information sought.

Employers should not produce requested documents before they are due and without being satisfied that the proper subpoena procedures and notice requirements, if applicable, have been met. Employers do have a duty to maintain the privacy rights of current and former employees.

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Friday's Five: Five points to understand about California's new requirements for sexual harassment training

AB 2053 was signed into law by Governor Brown, and as of January 1, 2015, employers have to comply with new obligations regarding the sexual harassment training already required for some employers under California law.  Here are five issues employers should understand about AB 2053. 

1. What are employer’s current obligations to have supervisors attend sexual harassment prevention training before AB 2053 was passed?

In California, employers with 50 or more workers must provide at least two hours of sexual harassment prevention training to all supervisors. This training must be provided to supervisors within six months of the time they become a supervisor, and then at least once every two years. The training must cover federal and state statutory laws regarding prohibitions against sexual harassment, remedies available to victims, how to prevent and correct sexual harassment, discrimination, and retaliation. This requirement is set forth in California Government Code section 12950.1.

2. What new obligations does AB 2053 add to California’s sexual harassment training requirement?

AB 2053 amends Government Code section 12950.1, and takes effect January 1, 2015. The new law requires employers subject to the sexual harassment training requirement must continue with their obligations under Gov. Code section 12950.1, but to “also include prevention of abusive conduct as a component of the training and education….”

The law defines “abusive conduct” as follows:

For purposes of this section, “abusive conduct” means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. 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.

Therefore, going forward, employers need to provide training that complies with this new requirement. Currently, there are no guidelines specifically setting forth details about how long the training should focus on this “abusive conduct” requirement. Employers are encouraged to take reasonable steps to implement a training that complies with this new requirement (I’m updating my training materials right now). Employers providing training by the end of 2014 should seek a training class that complies with the new requirements immediately.

3. Does it create a new cause of action for “abusive conduct” in the workplace?

No. While it may not good business practices, there is no law in California that makes workplace bullying or “abusive conduct” as defined in AB 2053 illegal. The policy reason behind not making such conduct illegal is that it would be difficult to determine what conduct is simply discipline, counseling, and day-to-day management actions versus actions taken with “malice” by a manager. Making such conduct actionable under the law would, in effect, make the court system the final decision maker in resolving normal day-to-day workplace disputes, which could stress the already overwhelmed court system.

4. If employers have already conducted sexual harassment training within the last few months, do they need to re-train their supervisors on January 1, 2015?

The law is unclear on this issue. I placed a call into Assemblywoman Lorena Gonzalez’ office, author of the bill, and was told by a spokesperson that the law would not require re-training of supervisors any sooner than when the two year deadline required them to receive their next training. However, employers should approach this issue with caution, as the law is not clear on the requirement regarding when supervisors must receive training compliant with this new requirement regarding “abusive conduct.” Also, if employers are conducting training of its supervisors between now and the end of 2014, it goes without saying that the training should cover this new requirement to avoid any issues.

5. Could this amendment eventually lead to a law making “abusive conduct” illegal?

Potentially. Even though there is no legal cause of action for “abusive conduct” as defined in the new law, this type of legislation could be amended to make this conduct illegal in the future.

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