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Archive for the ‘Employment Law Blog – CA’ Category

Was That An Out-Of-Bounds Whistle?

Posted on: February 23rd, 2018

By: Samuel Y. Edgerton, III

On Wednesday, February 21, 2018 the U.S. Supreme Court settled a split of opinion between the Ninth and Fifth Circuit Court of Appeals. The issue before the high court concerned the definition of the term “whistleblower” under the Dodd-Frank Act.

In March 2017, the Ninth Circuit found that former Digital Realty executive Paul Somers was entitled to whistleblower protection under Dodd-Frank after being discharged because he complained to upper management that a senior vice president had eliminated some internal corporate controls. These eliminations allegedly constituted a violation of the Sarbanes-Oxley Act.  However, in 2013, a Fifth Circuit ruling in a similar case, Asadi v. G.E. Energy, found that to be eligible for protection under Dodd-Frank as a recognized “whistleblower,” the employee must show that they took their complaint to the SEC, per the specific wording of the statute.

Mr. Somers’s San Francisco based employer appealed the Ninth Circuit’s ruling to the high court, as it was undisputed that Mr. Somers had not reported to the SEC, but reported elsewhere.

In ruling for a definition of a whistleblower as those who report to the SEC, the Supreme Court excluded Dodd-Frank whistleblower protections to those only reporting at their place of work.

The high court ruling is instructive on two fronts: It means that whistleblower definitions in the enabling statute are to be strictly construed. The high court opinion also suggests quite strongly that lower courts and federal agencies cannot ignore unambiguous language in an enforcement statute and expand the definitional meaning on their own.

Score one for the strict constructionist! The Ninth Circuit was out of bounds.

As stated by Justice Kagan during oral argument last November, “you have this definitional provision, and it says what it says.”

If you have any questions or would like more information, please contact Sam Edgerton at [email protected].

Navigating New California Employment Laws

Posted on: February 1st, 2018

By: David Daniels

Are you and your clients doing business in California prepared for the new employment laws that take effect in 2018? If you represent employers in the state of California, these laws may very well affect the daily operations of their business. Unless specified, all new legislation outlined below went into effect on January 1, 2018.  As explained more fully below, I strongly encourage you to review your client’s employee handbooks and job applications to ensure compliance with the new 2018 employment statutes.

 

  • Stop asking about salary history –  AB 168 bars employers from asking job applicants about their previous salary. The legislation’s goal is to narrow the gender gap by preventing employers from basing offers on prior salary and thus, presumably, perpetuating historical discrimination. This will also remove the perceived gap in negotiating power between an employers and employees who must disclose their prior salary. Employers should ensure that their job applications don’t seek prohibited information and that those interviewing applicants know not to ask these questions.  I encourage all employers to review their written and/or on-line employment contracts to determine if the applicant is requested to state their salary history in the “Previous Experience” sections of the applications.  It is common practice to ask the applicant about their salary history in these sections of the application.  This practice must stop before January 1, 2018 in order to be compliant with California law.

 

  • More employers must offer parenting leave – SB 63, officially titled the Parental Leave Act, requires employers with between 20 and 49 employees to offer parenting leave that mirrors the Family Medical Leave Act. The new Act allows employees who work for a covered employer to take 12-weeks of unpaid, job-protected leave if they have worked a minimum of 1,250 hours in the 12-months prior to taking leave.  Employees can take leave only for the purpose of bonding with a newborn child, adopted child or foster child within a year of the birth or placement. Covered employers will also need to maintain health coverage under the same terms as an active employee. The Act also prohibits discrimination and retaliation against an employee for taking parental leave. The Parental Leave Act does not require employers to pay any portion of the leave but requires that employees be able to use accrued sick and vacation time. Employees can apply to have a portion of the parental leave paid for through the state’s Paid Family Leave program.  Please note that, San Francisco requires some employers to pay a remaining portion of parental leave.

 

  • Expanded harassment training – California requires at least biannual harassment training for supervisors in companies with 50 or more employees. Having given a dozen sessions of the  training in the last month, I can assure you that there’s no shortage of material to talk about. But as of January 1, 2018, SB 396 requires that the training include information on gender identity, gender expression, and sexual orientation. If your handbook doesn’t specifically prohibit discrimination and harassment on those bases, you’re overdue for a revision.

 

  • Ban the box – Following the leads of San Francisco and Los Angeles, AB 1008 prohibits employers with five or more employees from:
    • Asking on employment applications about criminal convictions;
    • Asking applicants about criminal convictions before making a conditional offer of employment;
    • When conducting background checks on applicants, considering, distributing, or disseminating information about prior arrests not leading to conviction, participation in diversion programs, or convictions that have been sealed, dismissed, expunged, or otherwise nullified.

 

Employers who wish to rely on criminal conviction information to withdraw a conditional job offer must notify the applicant of their preliminary decision, give them a copy of the report (if any), explain the applicants right to respond, give them at least five business days to do so, and then wait five more business days to decide when an applicant contests the decision. There are exceptions for employers who operate health facilities hiring employees who will have regular access to patients or drugs.

 

  • Minimum Wage Increases – On January 1, 2018, the California state minimum wage goes up to $11.00 per hour for businesses with 26 or more employees and $10.50 per hour for smaller companies.

 

  • Worksite Immigration Enforcement and Protections, AB 450 – The Immigrant Worker Protection Act shields workers from immigration enforcement while on the job. The legislation prohibits employers from providing federal immigration enforcement agents access to a business without a warrant and requires employers to notify employees of Form I-9 inspections performed by federal immigration enforcement officials.

 

  • Gender Identification: Female, Male or Nonbinary, SB 179 – This new law, which goes into effect on September 1, 2018, allows California residents to choose from three equally recognized gender options — female, male or nonbinary — on state-issued identification cards, birth certificates and driver’s licenses.

 

  • Employment Discrimination: Gender Neutral Language, AB 1556 – This law is a revision to California’s Fair Employment and Housing Act which deletes gender-specific personal pronouns in the state’s anti-discrimination, anti-harassment, pregnancy disability and family/ medical leave laws by changing “he” or “she,” for example, to “the person” or “the employee.”

 

  • LGBT Rights for Long-Term Care Facility Residents, SB 219 – Called the Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Residents’ Bill of Rights. The new law will strengthen anti-discrimination protections for LGBT individuals living in long-term care facilities, making it unlawful to willfully and repeatedly fail to use a resident’s preferred name or pronoun or to deny admission to a long-term care facility because of gender identity or sexual orientation. You must post a notice about the protections and follow recordkeeping requirements.

 

  • Human Trafficking, AB 260 – This new law extends the list of businesses that must post human trafficking information notices to include hotels, motels and bed and breakfast inns. In addition, SB 225 requires the human trafficking notice include a new number for those who wish to send text messages. Businesses are not required to post the updated notice until on or after January 1, 2019.

 

  • Anti-Discrimination Protections for Veterans, AB 1710 – This law will expand the current protections for members of the armed services. AB 1710 prohibits discrimination in all “terms, conditions, or privileges” of employment.

 

  • Health Facilities: Whistleblower Protections, AB 1102 – increases the maximum fine for a violation of whistleblower protections in healthcare facilities from $20,000 to $75,000.

 

  • Harassment Prevention Training: Farm Labor Contractors, SB 295
    This bill requires sexual harassment prevention training for each agricultural employee provided in the language understood by that employee in order to apply for or renew a license. The bill also requires an employer provide to the commissioner the total number of agricultural employees trained in sexual harassment prevention in the calendar year prior to the month the renewal application is submitted.

 

  • Labor Law Enforcement, Retaliation, SB 306 – This allows the Labor Commissioner to investigate an employer with or without a complaint from an employee as long as the Labor Commissioner suspects retaliation or discrimination against a worker.

 

  • Increased Liability for Construction Contractors, AB 1701 – This law pertains to private construction contracts entered into after January 1, 2018. It imposes liability onto the general contractor for any unpaid wages, benefits or contributions that a subcontractor owes to a laborer who performed work under the contract.

 

Please feel free to contact me at [email protected] should you wish to further discuss any of these new laws and/or how to best change your policies and practices to ensure compliance with California law.

Employer Notification to Disseminate Updated Sexual Harassment Brochure or Poster to California Employees

Posted on: December 11th, 2017

By: Elizabeth G. Fellmeth

On April 1, 2016, stronger discrimination and harassment regulations under the Fair Employment and Housing Act (“FEHA”) took effect. In addition to distributing California’s Department of Fair Employment and Housing (“DFEH”) brochure on sexual harassment (DFEH-185), the new regulations require employers to prepare and disseminate their own harassment, discrimination, and retaliation prevention policy.  A summary of the new FEHA regulations can be found here.  The DFEH also issued a workplace harassment guide for employers found here, which provides recommendations for implementing an effective anti-harassment program.

While employers may have spent the last year implementing the new regulations, the DFEH recently issued an updated DFEH-185 brochure replacing the earlier version (found here in English and here in Spanish).  The new brochure is also available in a printable poster format (found here in English and here in Spanish).

State law requires employers to disseminate the new information to their employees.  Employers can fulfil their obligations by providing new hire and current employees with a hardcopy or email copy of the updated brochure or new poster.  To ensure receipt of the brochure or poster, employers should include an acknowledgment form for employees to sign and return.

If you would like more information or have any questions, please contact Elizabeth Fellmeth at [email protected].

Trends and the Economic Impact Involving Workplace Injuries

Posted on: December 6th, 2017

By: Jac O’Delle E. Wright

Employers, agents, brokers and insurers have every reason to keep up-to-date regarding trends and the economic impact involving workplace injuries.  Because of frequent changes, including those involving workers’ compensation legislation and case law, safety management programs and training, as well as indemnity and medical costs, it is important to consider the inclusion of reliable, actuarily-based reports into business plan models.

In California, the premier provider of this information is the Workers’ Compensation Insurance Rating Bureau (WCIRB) that tracks, among other things, projected loss and expense ratios, benefit rates, duration and nature of claims, renewal percentages, retrospective rating plans, hazard group severity multipliers, average returns on net worth, cost exposure pertaining to prescription medications and liens, and comparisons with other states.

The WCIRB is also tracking the long-term impact of State Senate Bill 863 reforms that primarily resulted from negotiations between employers and labor unions, with several provisions effective January 1, 2013 and beyond. Some of the objectives and impact of California’s legislation were to increase benefits for injured workers and, contemporaneously, address and/or limit the rising costs of medical treatment and related costs to employers in part, through the implementation of a Medical Provider Network program and a Utilization Review appeal process.

Similar information to that provided by the WCIRB for other states can also be viewed, including for the following locations:

Florida-National Council on Compensation Insurance (NCCI Holdings, Inc.);

Georgia -National Council on Compensation Insurance (NCCI Holdings, Inc.);

New York Compensation Insurance Rating Board;

New Jersey Compensation Rating & Inspection Bureau;

North Carolina Rate Bureau;

Pennsylvania Compensation Rating Bureau (PCRB)

It is of primary importance to correlate these industry costs and trends with the practical and legal implications as applicable to each individual employment circumstance. For further information, contact our local counsel at Freeman Mathis & Gary LLP, and, for California, contact Jac O’Delle E. Wright at [email protected].

Do You Like Piña Coladas? What Questions Can An Employer Ask in Light of Recent Bans on Requests for Salary History Information?

Posted on: October 31st, 2017

By: Laura S. Flynn

Massachusetts, Delaware, Oregon, California, New York City, Philadelphia and San Francisco have passed laws banning employers from asking applicants about their salary history. The intent behind the legislation is to discourage perpetuation of the gender wage gap. Many employers are unclear as to what they are allowed to ask potential employees.

Generally, an employer can ask an applicant about their expectations in regard to salary, benefits, bonuses and/or commission structures. An employer can inform the applicant of the anticipated salary range for the position. While an employer cannot ask about prior W-2s or earned commissions, they can ask about gross sales or revenue. In California, employers are allowed to ask about any financial benefits an applicant would have to forego in order to take the new job, such as unvested equity or a future bonus. An employer can also ask about competing or counter-offers. In addition to inquiring about skills and prior level of responsibility, the questions asked of an applicant should seek information relating to objective indicators of work productivity. For example, an applicant for a legal position could be asked about her billable hours, her average billable rate, number of trials, and information regarding her client base. The salary history bans may prevent employers from hiring employees at below market rates. However, the anticipated decrease in pay disparities will likely result in an overall economic gain for employers, as the discovery of pay disparities by employees negatively impacts morale, can cause productive employees to leave, and can subject an employer to charges of gender discrimination.

If you have any questions or would like more information, please contact Laura Flynn at [email protected].