IMG_4751 (1)Mid-way through 2017 and the California legislature is busy and, as expected, there are a number of employment law bills making their way through the legislature.  This Friday’s Five reviews five bills that could have a major impact upon California employers if passed:

1. AB 168 – Prohibition of asking salary history when hiring employees.

This bill prohibits employers from seeking salary history information from applicants and requires employers to set pay scale for positions and to provide this information to applicants.

2. AB 1008 – Statewide “Ban the Box” (limiting any questions by employers about criminal histories on applications).

Los Angeles and San Francisco have already passed regulations prohibiting employers for asking about criminal histories before a job is offered to employee.  This bill would apply similar requirements on employers state-wide.

3. AB 1565 – Increasing the required salary threshold to $47,472 annually ($3,965/month) for white collar exempt employees.

To qualify as an executive, administrative, or professional employee exemption, employers bear the burden of establishing that the employee is paid a salary the equivalent of two times the state minimum wage and that the employee spends more than 50% of their time on exempt duties.  With the state minimum wage at $10.50 per hour for large employers as of January 1, 2017 the currant salary level that must be paid in order to qualify for the white collar exemptions is $43,680/year.  On January 1, 2018, the state minimum wage increases to $11 per hour for large employers, raising the salary required for exempt employees to $45,760/year.  This bill proposes to increase the salary required to be paid to employees to meet the white collar exemptions since the Department of Labor’s attempt to do this on a federal level stalled at the end of last year.

4. AB 1209 – Internet publication of wages based on gender. This bill would require employers to publish information about “pay gender differentials” on a website open to the public. 

The bill would apply to employers who are required to file a statement of information with the Secretary of State and who have 250 or more employees to collect specified information on gender pay differentials. The bill would require an employer to annually update, publish, and submit the information.

5. SB 63 – Require small businesses to provide parental leave.

Currently, employers with 50 or more employees are required to comply with the California Family Rights Act and provide parental leave of up to 12 weeks to bond with a new child within one year of the birth.  This bill would lower the number of employees for covered businesses to 20 employees in a 75-mile radius.  The bill would also prohibit an employer from refusing to maintain and pay for coverage under a group health plan for an employee who takes this leave.

 

Assemblymember David Chiu (D-San Francisco) introduced a bill – AB 450 – that would put employers between the federal government and the state of California in the immigration debate.  Basically, the bill imposes penalties on employers who cooperate or do not notify the state of federal immigration actions taking place at their locations.  As set out in a statement issued by Assemblymember Chiu, the bill does the following:

  • Protecting workers from being wrongfully detained in their workplace by requiring employers to ask for a judicial warrant before granting ICE access to a worksite.
  • Preventing employers from sharing confidential employee information, such as a social security number, without a subpoena.
  • Requiring employers to notify the Labor Commissioner and employee representative of a worksite raid. Employers must also notify the Labor Commissioner, employees, and employee representatives of an I-9 audit.
  • Preventing employers from retaliating against employees who report labor claims by enabling workers crucial to a labor claim investigation to receive certification from the Labor Commissioner. This certification would both protect the worker and aid in successfully adjudicating labor violations.

The current version of the bill creates the following obligations for employers:

  • prohibit an employer from providing a federal immigration enforcement agent access to a place of labor without a properly executed warrant and would prohibit an employer, or a person acting on behalf of the employer, from providing voluntary access to a federal government immigration enforcement agent to the employer’s employee records without a subpoena
  • require an employer to provide an employee, and the employee’s representative, a written notice containing specified information, in the language the employer normally uses to communicate employment information, of an immigration worksite enforcement action to be conducted by a federal immigration agency at the employer’s worksite, unless prohibited by federal law
  • require an employer to provide to an affected employee, and to the employee’s representative, a copy of the written federal immigration agency notice describing the results of an immigration worksite enforcement audit or inspection and written notice of the obligations of the employer and the affected employee arising from the action
  • require an employer to notify the Labor Commissioner of a federal government immigration agency immigration worksite enforcement action within 24 hours of receiving notice of the action and, if the employer does not receive advance notice, to immediately notify the Labor Commission upon learning of the action, unless prohibited by federal law
  • require an employer to notify the Labor Commissioner before conducting a self-audit or inspection of specified employment eligibility verification forms, and before checking the employee work authorization documents of a current employee, unless prohibited by federal law

Failure to meet any of the obligations would create liability for employers of not less than $10,000 and not more than $25,000 for each violation.  This creates a potential legal conundrum for employers who have a responsibility to comply with federal immigration laws.  Under this proposed bill employers could face fines under state law for not following these requirements, but on the other hand employers face penalties for not complying with federal immigration laws.  The bill makes employers responsible for these difficult legal determinations in interpreting state and federal obligations, in addition to requiring them to become legal experts in determining if the federal government has a “properly executed search warrant” for example.

Plaintiff Victoria Ztwick worked as a correctional office for the County of Yolo. See Zetwick v. County of Yolo.  She sued thekids hugging County and her supervisor, Sheriff Edward Prieto alleging that the supervisor’s conduct over a 12-year period created a hostile work environment.  She alleged the harassment consisted of Prieto hugging her on more than one hundred occasions and kissed her at least once.

Ztwick alleged Prieto created a sexually hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the California Fair Employment and Housing Act (FEHA), CAL. GOV’T CODE § 12900 et seq.  Defendants argued that that such conduct was not objectively severe or pervasive enough to establish a hostile work environment under the law.  Defendants maintained that the activity was innocuous, socially acceptable conduct.  The lower trial court agreed with defendants’ arguments and granted their motion for summary judgment.  However, the Ninth Circuit court of Appeals overturned the trial’s court’s order and remanded the case to the lower court for trial.  This Friday’s Five focuses on five lessons employers should take away from the Zetwick v. County of Yolo case.

1. Hugging can create a hostile work environment

Defendants maintained that most of the hugs were during parties involving sheriff’s office employees, award banquets, GED graduations for prisoners, and some training sessions or meetings, but never when Prieto and the plaintiff were alone.  Plaintiff admitted that there was only one incident that Prieto kissed her at an awards ceremony.  He kissed plaintiff to congratulate her on her recent marriage, and plaintiff alleged that the kiss was partially on the lips because she turned her head.  She alleges she complained to her supervising lieutenants, but they did not forward the complaint for any investigation or resolution.

Plaintiff alleges that she also saw Prieto hug and kiss other female employees, but never saw him hug male employees.  Defendants argued that even Plaintiff herself described the hugs as ones that friends or relatives give each other.  In addition, defendants contended that plaintiff simply never saw when Prieto would hug male co-workers and that the hugs were not only directed towards plaintiff or females.

To succeed in proving hostile work environment harassment, a plaintiff must prove “(1) that he was subjected to verbal or physical conduct of a harassing nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

The appellate court held that there was enough evidence presented by plaintiff to at least have a trial:

We hold that, giving the record proper consideration, a reasonable juror could conclude that the differences in hugging of men and women were not, as the defendants argue, just “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.”

2. To be illegal, harassment must be both objectively offensive to a reasonable person and subjectively offensive in that the victim felt it was offensive

The appellate court set forth the standard required for a victim to allege harassment:

To be actionable under Title VII, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Geo Grp., Inc., 816 F.3d at 1206 (internal quotation marks omitted).

The appellate court found that given the testimony that Prieto hugged plaintiff more than one hundred times over a 12-year period, hugged female employees more often than male employees, and as plaintiff observed Prieto only hugging females, that plaintiff met the subjective and objective showing requirement.  This evidence was sufficient to establish the possibility that a reasonable jury could find in plaintiff’s favor.

3. Hugging could be outside of the “ordinary workplace socializing”

In rejecting defendants’ argument that the hugs in this case were “ordinary workplace socializing” that could not be the basis of a sexual harassment lawsuit, the court explained:

[W]hile it may appear that Prieto’s hugs were “common” in the workplace, and that some other crossgender hugging occurred, neither of those things demonstrates beyond dispute that Prieto’s hugging was within the scope of “ordinary workplace socializing.” A reasonable juror could find, for example, from the frequency of the hugs, that Prieto’s conduct was out of proportion to “ordinary workplace socializing” and had, instead, become abusive. See Geo Grp., Inc., 816 F.3d at 1206 (citing factors relevant to the determination of whether the environment was sufficiently hostile or abusive, including the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance” (internal quotation marks omitted)).

4. There is no set number of harassing incidents that results in liability

The court was clear in the case that there is no “magic number of harassing incidents’ that would give rise to liability.”  The totality of the circumstances are taken into account in determining whether a reasonable juror would find the types of hugs and the number of hugs created a hostile environment.  This is why it is so important for employers to continually counsel employees who do not act professionally in the workplace.

5. Alleged supervisory harassment is taken more seriously

The appellate court also held the trial court erred by “completely overlook[ing] legal recognition of the potentially greater impact of harassment from a supervisor and, indeed, the highest ranking officer in the department. The Supreme Court has recognized that ‘acts of supervisors have greater power to alter the environment than acts of co-employees generally.’”  Like it or not, the appellate court looked at the fact that the accused harasser was a supervisor in this case as one of the circumstances it considered in holding that the plaintiff presented enough evidence that a reasonable jury could agree with.

The law has to define certain terms and categories of people in order to make legal concepts predictable so people and happy birthdaycompanies can adjust their actions accordingly.  However, after turning 40 years old this month, the definition of “old” hits home with me.  According to the law, I’m old.  Moving on quickly, this Friday’s Five focuses on age related issues:

1. People 40 years old and older are in a protected category

Both Federal law, Age Discrimination Employment Act (ADEA) 29 USC section 621, et sec. and California state law, Cal. Gov. Code Section 12926(b), protect employees who are 40 years old or older.

2. Even if worker over 40 is terminated and replaced by another worker who is over 40, there could still be an age claim if the difference in age is “substantial”

The United States Supreme Court held in O’Connor v. Consolidated Coin Caterers Corp. that the ADEA prohibits discrimination because of an employee’s age, not class membership.  Therefore, if one employee who is over 40 is terminated and replaced by another employee who is also over 40, the terminated employee may still assert an age claim if they can prove that the determining factor was age.  However, if the person was replaced by another who is close in age, this would cut against any argument that the reason for the termination was based on age.

3. When employers can use age as a factor in an employment decision: the bona fide occupational qualification (BFOQ)

To establish a BFOQ, the employer must prove

First, the employer must demonstrate that the occupational qualification is ‘reasonably necessary to the normal operation of [the] particular business.’ Secondly, the employer must show that the categorical exclusion based on [the] protected class characteristic is justified, i.e., that ‘all or substantially all’ of the persons with the subject class characteristic fail to satisfy the occupational qualification.

Johnson Controls, Inc. v. Fair Employment & Housing Com., See 2 Cal. Code Regs section 7286.7(f).  This is a narrow defense for employers, and they still also must prove that the nature of the operation of the business could not be rearranged in order to reduce the BFOQ impact.

4. Layoffs based on high salary could possibly constitute age discrimination

If salary is used as the basis for conducting terminations or layoffs, this could constitute age discrimination if older employees as a group are adversely impacted because of this factor.  Cal. Gov. Code section 12941.

5. Release of age claims require additional steps – approach with caution

The Older Workers Benefit Protection Act (OWBPA) provides additional rights to workers.  The OWBPA prohibits any waiver of a right under the ADEA, unless certain requirements are met.  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.

Happy Friday.

Often the threat of the plaintiff’s potential ability to recover attorney’s fees is greater than the actual damages that they can prove.  This can be frustrating for employers defending wage and hour claims, in both the individual and class action context.  Indeed, an employer must understand the potential damages and exposure of fees they may have to pay if a case proceeds to trial or arbitration, as well as the potential to recover fees against the plaintiff.  This Friday’s Five addresses common attorney’s fees issues facing employers in wage and hour litigation.

1. When are attorney’s fees recoverable in wage and hour cases?  And can a defendant recover fees if they prevail? 

 Attorney’s fees in wage-and-hour cases are covered by two sections of the Labor Code:  sections 218.5 and 1194.  Aleman v. AirTouch Cell., 209 Cal. App. 4th 556, 579 (2012).  “Sections 218.5 and 1194 cover similar, though functionally exclusive subjects.”  Id.  Section 218.5 covers, among other things, claims “for the nonpayment of wages,” except those claims subject to Section 1194.  Section 1194, in turn, covers claims for failure to pay minimum wage or overtime.  Fees are assessed on a claim-by-claim basis.  Id. at 584.

Section 218.5 allows for “two-way” fee shifting – i.e., to the prevailing party, whether employee or employer – while Section 1194 only permits a prevailing employee to recover fees.  Kirby v. Immoos Fire Protection, Inc., 53 Cal.4th 1244, 1248 (2012).  For an employer to recover fees under Section 218.5, the claim must have been made in “bad faith.”  Cal. Lab. Code § 218.5(a).

 2. Attorney’s fees are not available to plaintiff for prevailing on missed meal or rest break claims.

 In Kirby, the California Supreme Court considered the issue of whether a can a party recover fees and costs under Labor Code, section 218.5 or 1194 when it prevails only on a claim for meal or rest break premium pay.  The court determined that neither of these sections allow for fees, and neither party can recover fees based on a claim only for premium pay.  Id. at 1251-59.

First, the court held that by its plain terms, section 1194 applies only to claims within the usual meaning of minimum wage and overtime – i.e., failure to pay the minimum wage or overtime compensation set by statute.  Id. at 1251-55.

Second, the court found section 218.5 inapplicable because it only applies to claims for “nonpayment of wages.”  Id. at 1255-57.  The court noted that the basis of a section 226.7 claim is the failure to provide meal or rest breaks, rather than the non-payment of wages.  Id. at 1256-57 (“Nonpayment of wages is not the gravamen of a 226.7 violation.  Instead . . . section 226.7 defines a legal violation solely by reference to an employer’s obligation to provide meal and rest breaks.”)  Accordingly, while premium pay owed for missed meal or rest breaks is measured in terms of an hour’s pay, and deemed a “wage” for other purposes (such as the statute of limitations) this is only the statutory remedy.  Id.  The injury is not a failure to provide premium pay, but the failure to provide breaks, and therefore a prevailing plaintiff is not entitled to attorney’s fees under these provisions.

3. An employee cannot recover attorney’s fees for successfully winning waiting time penalties under Labor Code section 203. 

 In Ling v. P.F. Chang’s China Bistro, Inc., 245 Cal. App. 4th 1242, 1260-61 (2016), the court considered the issue where a plaintiff arbitrated her claims before JAMS and the arbitrator rejected plaintiffs’ primary theory of misclassification.  Id. at 1248-49.  Instead, the arbitrator awarded plaintiff $1,038 in break premium for her nine-week training period, which “received little attention at the hearing,” was raised by plaintiff only in post-hearing briefing, and where it was largely undisputed that the plaintiff was entitled to breaks.  Id. at 1248.  The arbitrator awarded $7,688 in waiting time penalties under section 203Id.

Among many other issues on appeal, the plaintiff claimed that the arbitrator erred in failing to award her attorneys fees on her successful claim under Labor Code section 203.  The Court of Appeal disagreed.  It noted that employee could not “transmute” a claim for missed breaks into one for unpaid wages by bringing a derivative claim for waiting time penalties.  Id. at 1261.  Just as under Kirby, while waiting time penalties are measured in wages, those penalties are—as Section 203 states expressly—“penalties” and not wages.  Accordingly, the court found that waiting time penalties should not have been awarded.  Id.  More importantly, however, the court further concluded that no fees could be awarded, because the waiting time claim was “purely derivative” of a claim for meal break premium pay.  Because the underlying claim did not involve a failure to pay earned wages, the court held that the waiting time claim did not either, so could not support a claim for fees on either side.  (Id. [“Because a section 203 claim is purely derivative of ‘an action for the wages from which the penalties arise,’ it cannot be the basis of a fee award when the underlying claim is not an action for wages.”])

4. Which party is entitled to fees is the verdict a split decision and the plaintiff does not win all of their claims? 

Where neither party secures a “complete, unqualified victory” on all claims, “it is within the discretion of the trial court to determine which party prevailed . . . or whether, on balance, neither party prevailed sufficiently to justify an award of attorney fees.”  (See Scott Co. of California v. Blount, Inc. (1999) 20 Cal.4th 1103, 1109.)  In exercising this discretion, the court is to “compare the relief awarded . . . with the parties’ demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources.”  (Hsu v. Abbara (1995) 9 Cal. 4th 863, 876.)  This rule applies where both parties effectively win on some claims but not others, including the Labor Code context.  (On-Line Power, Inc. v. Mazur (2007) 149 Cal.App.4th 1079, 1087 [noting that where plaintiff brought action for breach of contract and Labor Code violations, and settled for $25,000 pursuant to statutory offer, it was the type of case where the court had discretion to determine the prevailing party].)

5. Plaintiff’s attorney’s fees may be recovered for expense reimbursement claims under Labor Code section 2802.

Labor Code section 2802 provides that employers must pay for and reimburse employees for “all necessary expenditures or losses incurred by the employee in direct consequence” of the employee’s job. Therefore, items like mileage reimbursement, even personal cell phone expenses, or other out-of-pocket expenditures employees make while performing their job must be reimbursed by the employer. Labor Code section 2802(c) provides that the employee is entitled to “attorney’s fees incurred by the employee enforcing the rights granted by this section.”

With the arrival of 2017, many employers are recognizing the difficulties in navigating the complex set of paid leave laws in Southern California.  For regular readers of the blog, this may seem like a repeat, but this post is five items employers need to remember about paid sick leave laws in Southern California.

1. The law – either state or local –  that provides the most generous benefits to the employees must be followed by the employer.

California’s paid sick leave law applies to all employers and provides employees with 24 hour or 3 days of paid sick leave.  As set forth below, many local cities and counties have implemented their own paid sick leave requirements.  Employers must comply with the law that provides the most benefits to employees.

2. Southern California cities and counties that have implemented paid sick leave laws

State/City Minimum Wage Paid Sick Leave
California $10/hr January 1, 2016; $10.50 January 1, 2017 for employers with 26 or more employees Current: 3 days or 24 hours
Los Angeles – City July 1, 2016: $10.50/hr; July 1, 2017 $12; July 1, 2018 $13.25; July 1, 2019 $14.25; July 1, 2020 $15.00 * July 1, 2016: 48 hours*
Los Angeles – County Same as LA City No specific requirement – CA law applies
San Diego July 2016: $10.50; January 1, 2017 $11.50; January 1, 2019 indexed to inflation 5 paid sick days (effective July 11, 2016)
Santa Monica $10.50 July 1, 2016; July 1, 2017 $12.00; July 1, 2018 $13.25; July 1, 2019 $14.25; July 1, 2020 $15.00* January 1, 2017: 32 hours for small businesses, 40 hours for large businesses; January 1, 2018: 40 hours for small business, 72 hours for large businesses*
Malibu $10.50 July 1, 2016* No specific requirement – CA law applies
Pasadena $10.50 July 1, 2016* No specific requirement – CA law applies
* Employers with 25 or fewer employees the implementation is delayed one year.

3. How to determine which law applies to your business operating in the County of Los Angeles

There is a lot of confusion about what law applies to businesses operating in Los Angeles County.  The County of Los Angeles’ ordinance only applies to unincorporated cities within the county.  Here is a list of the incorporated cities in the County of Los Angeles. If the employer is located in an incorporated city, the employer must comply with the incorporated city’s paid sick leave requirements, and if the city does not have any requirements, California’s paid sick leave law would apply.

4. Understand the difference between use cap and accrual caps

Under California state law, employers may apply an accrual cap at 48 hours or 6 days per year.  The employees must be allowed to accrue up to this amount and carry it over from year to year.

The accrual cap is different from the annual use cap.  The annual use cap allows employers to limit the amount of paid sick leave used by the employee within one year.  Under California state law, employers can also impose an annual use cap of 24 hours or 3 days (whichever is greater) each year.

Employers need to pay careful attention about the differences in the state and local laws that apply to their companies in this regard.  For example, under Santa Monica’s paid sick leave ordinance, the accrual cap is 40 hours for large employers in 2017.  However, because accrual cap is less than what is permitted under California law, employers must follow California’s more generous requirements of allowing accrual of up to 48 hours or 6 days per year) and 72 hours in 2018.

5. Can employers change accrual methods after one has been implemented?

Yes, there is nothing that prohibits employers from changing accrual methods (i.e., up-front grant or the accrual method).  However, as employers are already required to provide non-exempt employees with an individualized Notice to Employee as required under Labor Code section 2810.5 that sets forth the employer’s accrual method, employers should consult an employment attorney about how to provide advanced notice to employees prior to changing the policy and how to treat already accrued and unused paid sick leave under the old policy.

I’m starting 2017 off with videos taken from my recent webinar discussing local minimum wage issues, California’s new employment laws, Los Angeles’ ban the box ordinance, the new Form I-9 required in 2017, and potential impacts President-elect Trump may have on employment laws.  Happy New Year!

California state and local minimum wage and paid sick leave laws in 2017

California’s new wage discrimination laws in 2017

Los Angeles bans employers from asking about criminal background information

New Form I-9 required in 2017

President-elect Trump’s impact on California’s employment landscape

Quick video on the five things California employers need to pay attention to in 2017.

(Sorry for the wind noise in the video.)

I briefly discuss the following five issues:

1) Augustus v. ABM Security Services: A new California Supreme Court decision about whether rest breaks during which security guards were required to monitor a pager for a call actually counts as a rest break under California law.  Short answer: No.  The Court held that the guards had to be completely relieved of all duties during the rest break.  I’ll write more about this decision in the coming weeks.

2) Local ordinances banning criminal history inquiries, such as Los Angeles’ new prohibitions staring in 2017.

3) Local paid sick leave requirements (such as San Diego and Los Angeles).

4) Local minimum wage ordinances.

5) Arbitration agreements and class action waivers.

Happy holidays!

Los AngelesLos Angeles city past a new law on June 1, 2016 requiring employers with 26 or more employees to provide employees with 48 hours of paid sick leave per year.  This is twice the amount required by California state law.  The kicker: employers must develop policies, adjust payroll, and put the new requirement into effect by July 1, 2016.  Employers in the City of LA must comply with the law that provides more benefits to the employee, and this means many employers must immediately start implementing payroll and policy changes to meet this short deadline.  This Friday’s Five reviews five items Los Angeles city employers need to know about the new law to comply in less than 30 days:

1. Accrual methods

Employees who on or after July 1, 2016 work in the City of Los Angeles for the same employer for 30 days or more within one year from starting work for the employer is entitled to paid sick leave under the city law.  Paid sick leave accrues on the first day of employment or July 1, 2016, whichever is later.  Even though the employee is accruing paid sick leave, the employee is not entitled to use paid sick leave until the beginning on the 90th day of employment or July 1, 2016, whichever is later.

Two methods of providing paid sick leave:

  • Up front grant – by providing the entire 48 hours to an employee at the beginning of each year of employment, calendar year, or 12-month period or
  • By providing the employee one hour of sick leave per every 30 hours worked.

LA city’s law is different than state law in this regard.  State law allows for different options for employers to accrue paid sick leave, and under state law if the employer uses the up front grant method, there is no carry over requirement into the new year.  However, the LA city law requires up to 72 hours to carry over to the next year, even under the up front grant.

2. Caps on accrual

Employees are entitled to take up to 48 hours of sick leave in each year of employment, calendar year, or 12-month period.  Accrued unused paid sick leave shall carry over to the following year of employment and may be capped at 72 hours.

3. Employee’s notice requirements and doctor’s note requirement

An employer must provide paid sick leave upon the oral or written request of an employee for themselves or a family member, or any “individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.”  What is an individual relationship that is the equivalent of a family relationship?  Good question, and the law does not clarify what is meant to be covered by this requirement.

Differing from state law, the LA city law does set that an employer may require an employee to provide “reasonable documentation” of an absence from work to use paid sick leave.

4. No payout of unused paid sick leave upon separation

Accrued and unused paid sick leave does not need to be paid out at separation from employment.  This is similar to state law.

If employee separates from the employer, and then is rehired by the employer within one year, the previously accrued and unused paid sick time must be reinstated.

An employee may not waive their rights to the city’s paid sick leave law.

5. Minimum wage increase

As a reminder, the ordinance also increases the minimum wage for workers within Los Angeles city (as previously written about here).

Starting July 1, 2016, the minimum wage in the City of Los Angeles will increase according to the following rate:

Effective Date Employers With 26 or more Employees Employers with 25 or fewer Employees or Non-Profit corporations with 26 or more Employees with approval to pay a deferred rate
7/1/2016 $10.50 Deferred
7/1/2017 $12.00 $10.50
7/1/2018 $13.25 $12.00
7/1/2019 $14.25 $13.25
7/1/2020 $15.00 $14.25
7/1/2021 $15.00 $15.00

Los Angeles County also passed an ordinance that tracks this schedule, and applies to Los Angeles County, except for any incorporated cities within the County.

As a reminder, I will be speaking about this new law, and other mid-year legal updates at our seminar and mixer on June 22, 2016 at the Westside Tavern in Los Angeles.  Registration and additional information can be found here.

Yes, it is that time again: Friday’s Five.  This week I address five interview practices that every California employer should know:

1.      Understand which questions employers cannot ask that may be viewed as discriminatory.

Employers cannot ask questions that relate to an applicant’s marital status, children, plans to have children, religion, age, national origin, and other protected categories.  Even questions that can be interpreted as being discriminatory towards a protected category can lead to discrimination claims, therefore employers should carefully consider the interview questions and plan questions in advance of the interviews.

2.      Develop a list of good interview questions to test how applicants think on their feet.

Some of my favorite questions:

  • Tell me something that’s true that almost nobody agrees with you on. (Peter Thiel)
  • On a scale of one to 10, how weird are you? (Tony Hsieh)

3.       No interview questions at all – use “try outs”

From Seth Godin:

There are no one-on-one-sit-in-my-office-and-let’s-talk interviews. Boom, you just saved 7 hours per interview. Instead, spend those seven hours actually doing the work. Put the person on a team and have a brainstorming session, or design a widget or make some espressos together. If you want to hire a copywriter, do some copywriting. Send back some edits and see how they’re received.

If the person is really great, hire them. For a weekend. Pay them to spend another 20 hours pushing their way through something. Get them involved with the people they’ll actually be working with and find out how it goes. Not just the outcomes, but the process. Does their behavior and insight change the game for the better? If they want to be in sales, go on a sales call with them. Not a trial run, but a real one. If they want to be a rabbi, have them give a sermon or visit a hospital.

California employers need to be careful about not having the applicant perform actual work to create something that is then sold to customers, this may qualify as compensable work that the employer would have to pay the applicant at least minimum wage for.  The DLSE Enforcement Policies and Interpretations Manual provides the following guidance on “try out” time:

Try Out Time. There may arise situations where an employer may wish to have a prospective employee exhibit skills such as typing, shorthand, or operation of machinery, before employment. The DLSE will accept such “try out time” as non- compensable if:

1. This time is not, in fact, training as opposed to testing skills;

2. there is no productivity derived from the work performed by the prospective employee, and

3. the period of time is reasonable u under the circumstances.

Each case must be reviewed on its facts. For instance, the period of time to test skills of a sewing machine operator will be much less than that needed to test the skills of a computer programmer. While no particular time frame can be given, the rate of pay for the occupation can usually be used as a guide to determine the amount of time necessary for a “try out”.

4.      Obtaining reference checks.

It is a good practice to follow-up with the applicant’s references provided.  I’m also a big proponent of conducting a search of the applicant’s background on the Internet.  For some issues that may arise when an employer uses the Internet to do a search on an applicant, my previous article on the topic can be read here.

5.      Use background checks with caution.

When conducting background checks on applicants and employees, employers need to take time to review the applicable state and federal laws that apply to background checks.  LinkedIn was sued previously for violation of the federal Fair Credit Reporting Act (FCRA) for certain background reports it generated for users of the site.  In addition, under California law, the Investigative Consumer Reporting Agencies Act and the Consumer Credit Reporting Agencies Act could apply to background checks in the employment context.  These laws are very complex, and employers should enter this area with the knowledge of their obligations before conducting background checks.  For more information about background checks, please see my previous article here.

Photo: World Relief Spokane