EMPLOYMENT AND LABOR LAW: LEGAL UPDATE FOR CALIFORNIA EMPLOYERS
July 08th, 2016/By Admin/In Blog, Employment and Labor Law
The following legal update for California employers is brought to you by Firm Partner Sherry B. Shavit. If you have any questions or comments about the information presented, please contact Ms. Shavit direct at telephone number (818) 205-9955; or via email to sshavit@tharpe-howell.com.
LEGISLATIVE/REGULATORY UPDATE
Do You Know What the Minimum Wage Is for Your Employees?
Although California has implemented a new statewide minimum wage scheme, many municipalities are adopting their own schedules that either go above and beyond the state’s requirements, or at least accelerates them. For instance, in Los Angeles, the minimum wage for employers with 26 or more employees went up to $10.50 on July 1, 2016, but this increase will not happen in other parts of the state until January 1, 2017.
Other areas that have implemented their own minimum wage schedules include: Berkeley, El Cerrito, Emeryville, Mountain View, Oakland, Palo Alto, Pasadena, Richmond, San Diego, San Francisco, San Jose, Santa Clarita, Santa Monica and Sunnyvale. Be sure to check for any local minimum wage requirements for any area where your company has employees working.
Increased Paid Sick Leave Benefits for Los Angeles Employees
Not only has Los Angeles implemented a more aggressive minimum wage schedule, but it also has made employers scramble to revise their paid sick leave policies. On June 2, 2016, Mayor Eric Garcetti approved Ordinance No. 184320, Section 187.04, which, effective July 1, 2016, provides employees up to 48 hours of paid sick leave annually, and requires employers to allow employees to carry over at least 72 hours of paid sick leave to the following year. The ordinance also expands the available uses for the paid sick leave to include not only for employees and their family members, but also “any individual related by blood or affinity whose close association with the employees is the equivalent of a family relationship.” Thus, if your company has employees working in Los Angeles, be sure to check whether your current paid sick leave and/or paid time off policy complies with these new requirements. In addition, employers must post the new Los Angeles Minimum Wage poster in any language in which at least 5% of the workforce at the workplace or job site speaks. The poster and further information can be found at http://wagesla.lacity.org/.
E-Cigarettes Banned from Workplaces
Governor Brown has enacted legislation prohibiting the use of electronic cigarettes in public places, including workplaces. The minimum smoking age also has been raised to 21 years old.
PAGA Amendments
On June 27, 2016, as part of the budget bill, Governor Brown signed into law revisions to the Labor Code Private Attorneys General Act (“PAGA”). The amount of time for the Labor and Workforce Development Agency (“LWDA”) to review a PAGA notice has increased from 30 to 60 days, and the time to conduct an investigation has increased from 120 to 180 days. A plaintiff cannot file a PAGA action until the 60-day period has expired. The LWDA also must receive copies of any PAGA action filed in court and any proposed settlement of a PAGA claim, and the final judgment. Notices and responses also now must be filed online with a $75 fee.
“Persuader Rule” Halted
The Department of Labor’s Persuader Rule (reporting on activity by labor consultants and attorneys retained to assist in responding to union organizing campaigns and collective bargaining issues), which was supposed to go into effect on July 1, 2016, was halted when a Texas district court judge issued a nationwide preliminary injunction. This rule could still go into effect if the injunction is lifted, so stay tuned.
EEOC to Propose Revised Equal Pay Data Rule
The EEOC has announced that it will be revising its proposed regulations to expand pay data collection requirements, and provide a new period for interested parties to comment on the revisions.
SIGNIFICANT CASE LAW
Affirmative Action is Legal
In Fisher v. University of Texas, the U.S. Supreme Court ruled that the university’s admissions policy taking race into account is constitutional. The Court rejected an applicant’s claim that she was discriminated against because she is white, finding the race-conscious policy to be lawful under the Equal Protection Clause, as the university’s goal was to promote “the educational benefits that flow from student body diversity,” not a particular quota of a certain race.
Regular Rate of Pay Can Include Compensation Paid to Employees Unrelated to Hours Worked
The City of San Gabriel provides police officers cash-in-lieu of benefit payments, when police officers choose not to use all of their benefit allowance. These payments are made in their regular paychecks. In Flores v. City of San Gabriel, the Ninth Circuit held that these payments must be included in calculating an employee’s regular rate of pay for purposes of determining overtime rates. Rejecting the City’s argument that the compensation should be excluded because it is not tied to the number of hours an employee works, the Court ruled that any compensation for performing work, unless specifically exempted, must be included in calculating the regular rate of pay. Moreover, because the City took no steps to determine whether such payments should be included in the regular rate of pay calculation, their failure to include the payments was “willful,” and thus subjected the City to a three-year statute of limitations instead of two years under the Fair Labor Standards Act. Employers should take heed, and seek professional advice to confirm whether compensation above and beyond a non-exempt employee’s hourly wage must be taken into account in calculating the employee’s regular rate of pay.
[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.]
