EMPLOYMENT AND LABOR LAW: LEGAL UPDATE FOR CALIFORNIA EMPLOYERS
Topics for this Month include:
– California Supreme Court Opines on “Day of Rest” Requirements
– OSHA Delaying New Recordkeeping Requirements
– Implementation of DOL’s “Fiduciary Rule”
– New Workplace Harassment Guide for California Employers
– Update on Bills Pending in California and U.S.
California Supreme Court Clarifies “Day of Rest” Requirements
On May 8, 2017, the California Supreme Court issued an advisory opinion regarding questions that the Ninth Circuit had on California’s “day of rest” requirements in Mendoza v. Nordstrom, Inc. The Court held as follows:
- Labor Code §551 entitles every person to one day’s rest in seven. A day of rest is guaranteed each workweek. A workweek is defined by the employer. If an employee works seven consecutive days, but the days fall in two different workweeks, then there is no violation.
- Labor Code §556 exempts employees who work 30 hours in a week or six hours or less in a day from being provided a day of rest. This exemption applies only if the employee works six hours or less every day in the workweek.
- Labor Code §552 does not permit employers to “cause” employees to work more than six days in seven. The term “cause” means to induce an employee to forgo rest to which the employee is entitled. However, an employer is not forbidden from permitting or allowing an employee to independently choose to forgo a day of rest, as long as the employee is fully aware of his or her rights. Employers, however, should be cautious to ensure that employees are not implicitly pressured to forgo their days of rest.
OSHA Intends to Delay New Recordkeeping Requirements
On May 17, 2017, the Occupational Safety and Health Administration (OSHA) announced that it was not accepting electronic submissions of illness and injury data, and planned to propose delaying the current July 1, 2017 start date. The rule would have required certain employers to submit injury and illness data to OSHA electronically, which then could be made available publicly on the agency’s website. There are lawsuits pending challenging the requirement.
OSHA Withdraws Interpretation Letter Allowing Non-Union Workers to Designate a Representative During an Inspection
OSHA has withdrawn a February 21, 2013 interpretation letter that allowed a non-union employee to designate a person affiliated with a union or community organization to act as the employee’s personal representative during an OSHA inspection or walkaround.
“Fiduciary Rule” Becomes Effective June 9, 2017
Labor Secretary Alexander Acosta has confirmed that the Department of Labor will not further delay the new rule requiring financial advisors to act in the best interests of their clients in retirement accounts. Known as the “Fiduciary Rule,” the regulation was postponed as part of President Trump’s 60-day freeze on all newly enacted regulations to reassess them. Secretary Acosta found no reason to continue to delay the Fiduciary Rule, which will go into effect on June 9, 2017.
DOL’s State Retirement Plan Regulations Repealed
On May 17, 2017, President Trump signed a resolution to repeal the Department of Labor’s regulation to help states establish government-run retirement accounts for employees who do not have access to employer-sponsored retirement plans. The regulation exempted states from ERISA requirements. After the original regulation was enacted, California created a rule providing for a state-run retirement plan, which was supposed to take effect in 2018 or 2019. California officials have vowed to plow ahead with its plan, but it may be up to the courts to determine whether it is lawful.
DFEH Issues Workplace Harassment Guide for Employers
The Department of Fair Employment and Housing has issued the Workplace Harassment Guide for California Employers, to help employers comply with their obligations under FEHA and the 2016 FEHC amendments regarding investigations. Employers are encouraged to review the guide to ensure their policies are up to date with the latest requirements. A copy of the guide can be found here: https://www.dfeh.ca.gov/files/2017/05/DFEH-Workplace-Harassment-Guide.pdf.
The Legislature is in full swing, and actively voting on bills. Here is where we are on some of the bills for employers to keep watching:
- SB 63: Expands the CFRA to employers with 20 or more employees within a 75- mile radius. This bill passed the Senate and is headed to the Assembly.
- SB 524: Gives employers a “good faith defense” for relying on written advice received from or published by the Labor Commissioner. Still in committee.
- AB 5 (Opportunity to Work Act): Requires employers with 10 or more employees to offer additional hours of work to an existing non-exempt employee before hiring another employee, unless it would require the employer to pay overtime. Still in committee.
- AB 168: Prohibits employers from inquiring about salary history during the hiring process. This bill passed the Assembly, and is now pending before the Senate.
- AB 281, 1429, 1430: Amends PAGA to extend the time to cure certain Labor Code violations from 33 to 65 days; caps penalties at $10,000 per employee; requires the LWDA to investigate all alleged violations. All three bills are still in committee.
- AB 353: Allows employers to voluntarily choose to preferentially hire veterans without running afoul of FEHA. This bill passed the Assembly unanimously, and is now pending before the Senate.
- AB 442: Gives “small businesses” and “microbusinesses” 30 days to cure non-serious OSHA violations before commencement of an enforcement action. Still in committee.
- AB 450 – significant revisions: This bill has been amended to prohibit employers from allowing federal immigration authorities onto their non-public worksite without a warrant, and from accessing employment records without a subpoena, unless required by federal law; requires employers to notify employees within 24 hours of a federal immigration agency inspection of I-9 forms or other employment records; notify the Labor Commissioner of a federal immigration enforcement action within 24 hours (or, if the employer is not given notice of the enforcement action, then employer must immediately inform the Labor Commissioner and employees’ representatives); requires employers to provide a copy of the immigration notices to affected employees and their representatives; requires employers to notify the Labor Commissioner prior to conducting an I-9 self-audit or check a current employee’s work authorization documents unless otherwise required by federal law; fines of $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation. This bill has passed the Assembly as amended, and is now before the Senate.
- AB 569: Prohibits discrimination against an employee due to the employee’s or employee’s dependent’s reproductive health decisions; narrows the “ministerial” exception. This bill passed the Assembly, and is now before the Senate.
- AB 978: Permits employees to request a copy of an employer’s injury prevention program. This bill the Assembly, and is now before the Senate.
- AB 1008: Extends “ban the box” statewide, prohibiting employers from asking about applicants’ criminal convictions until after a conditional offer of employment. This bill passed committee, and is pending a full Assembly vote.
- AB 1173: Establishes an overtime exemption for employee-selected holiday season flexible work schedules, allowing employees to work up to 10 hours without overtime pay within a 40-hour workweek. Still in committee.
- AB 1209: Requires employers with 250+ employees to collect information on gender pay differentials in exempt and board positions, and publish the information on a publicly available website. This bill passed the Assembly, and is now before the Senate.
- AB 1565: Raises the minimum salary to qualify as an exempt employee to $47,472 or twice the state’s minimum wage rate, whichever is higher. This bill passed the Assembly, and now is before the Senate.
- H.R.1180/S.801 (Working Families Flexibility Act): Allows compensatory time off in lieu of overtime compensation under FLSA. H.R.1180 passed the House, and is before the Senate. S.801 is in committee.
- S.337 (Family and Medical Insurance Leave Act): Provides employees paid family leave on a federal level, similar to California’s PFL benefits. Still in committee.
[This article is for informational purposes only and does not constitute legal advice. Do not act or rely upon any of the resources and information contained herein without seeking appropriate professional assistance.]