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Archive for the ‘Employment Law Blog – CA’ Category

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].


California Bans Employers from Seeking Salary History Information

Posted on: October 24th, 2017

By: Laura Flynn

California has joined a growing number of states and cities that ban employers from inquiring as to a job applicant’s salary history. Governor Brown recently signed California Labor Code section 432.3 into law. It becomes effective on January 1, 2018.  Studies have shown the wage gap between men and women is present regardless of industry, occupation or education level and the disparity is even larger for women of color.  Across the country, women still make roughly 80 cents for every dollar earned by their male counterparts. Proponents of the new legislation believe closing the wage gap starts with barring employers from asking questions about salary history so that previous salary discrimination is not perpetuated.

The law prohibits an employer from relying on the salary history information of an applicant as a factor in determining whether to offer an applicant employment or what salary to offer an applicant. The law prohibits an employer, either personally or through an agent, from seeking salary history information and requires employers, upon reasonable request, to provide the pay scale for a position to an applicant. The law does not prevent applicants from voluntarily and without prompting disclosing salary history information to a prospective employer. When an applicant voluntarily discloses the information, an employer may consider or rely upon that information in determining the applicant’s salary. The bill applies to all employers, including state and local government employers. In light of the new law, California employers will want to revise their employment applications to remove requests for salary history; modify their screening and interview practices to eliminate questions about salary history; and train hiring personnel regarding what compensation questions are permissible, as well as how to respond to requests for pay scale information and voluntary disclosure of salary history by an applicant.

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

Guidance on Compensation for After-Hours Work on Mobile Devices

Posted on: September 1st, 2017

By: Margot M. Parker

1[2]Of the many modern day conveniences brought to us by the rise of technology and widespread use of smartphones, one may be a double-edged sword.  That is, you’re never off work.  Or at least, so it seems.  This is especially true for employees who are given smartphones by their employers as a means for communicating on work-related matters.  And significantly, it raises questions regarding an employer’s duty to compensate non-exempt employees for after-hours work conducted on such devices.

The issue arises under the Fair Labor Standards Act (FLSA), which requires employers to pay employees for all hours they are “suffered or permitted” to work, with overtime compensation for hours exceeding 40 per week.  The FLSA, however, does not require an employer to pay for work it did not know about or have reason to know about it, including after-hours work on a mobile device.

Recently, in the case of Jeffrey Allen, et al. v. City of Chicago, the Seventh Circuit upheld a U.S. District Court’s decision denying claims brought by a class of police officers against the Chicago Police Department (CPD) based on its failure to compensate the officers for off-duty time spent using BlackBerry devices for work-related communications.  While the Court recognized that off-duty work on mobile devices is compensable work, it found the officers knowingly failed to report such time, despite the CPD’s reasonable reporting procedures.  The Court held in favor of the CPD based on its findings that: (1) the CPD it did not know or have reason to know of the officers’ hours, and (2) its time reporting procedure was well known and would have allowed the officers to be compensated, had it been used.

In reaching its decision, the Seventh Circuit considered similar holdings by the Sixth and Ninth Circuits, both of which recognize the importance of maintaining reasonable time reporting procedures and an employee’s duty to follow the same:

  • “When the employee fails to follow reasonable time reporting procedures she prevents the employer from knowing its obligation to compensate the employee.”  White v. Baptist Memorial Health Care Corp., 699 F.3d 869, 876 (6th Cir. 2012).
  • “Where an employer has no knowledge that an employee is engaging in overtime work and . . . deliberately prevents the employer from acquiring knowledge, the employer’s failure to pay is not a violation of [FLSA § 207].”  Forrester v. Roth’s I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir. 1981).

To avoid suits like Allen, the Seventh Circuit’s decision suggests employers should implement a policy for compensating employees for work conducted on mobile devices and clearly articulate it to employees to avoid the perception that reporting such time is discouraged.  Or if such overtime work is unpermitted, employers should avoid issuing smartphones to non-exempt employees or clearly state that such devices should not be used after work hours.

Finally, it is important to remember that, notwithstanding an employee’s duty to report all time, employers should make reasonable, good-faith efforts to track all time worked by non-exempt employees and compensate accordingly, as an employer may be found liable for failing to pay an employee for unreported overtime the employer should have known about, including after-hours work on smartphone devices.

For more information, please contact Margot Parker at [email protected].



Posted on: August 9th, 2017

By: Melissa M. Whitehead


Effective July 1, 2017, new regulations went into place to protect transgender employees (Cal. Code Regs. §§ 11030-11034). The new regulations are intended to provide “enhanced clarity” and also lists specific types of prohibited conduct and/or protections.

New defined terms are key to the new regulations. “Gender Identity” is now defined as “each person’s internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.” (New portions underlined.) “Transitioning” is defined for the first time, as ““a process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth.” This process is not expressly defined, but can include anything from name or pronoun usage to undergoing hormone therapy, surgeries, or other medical procedures. Discrimination against a person who is transitioning, has transitioned, or is perceived to be transitioning, is now specifically prohibited.

Under the new regulations, employers –

  • Must use requested name/pronouns, except where legally obligated (e.g., tax documents);
  • May not ask for identification/documentation of sex, gender, gender identity, or gender expression, and cannot discriminate if a job applicant declines to designate;
  • Must permit employees to perform job/duties that correspond to the employee’s gender identity or gender expression; and
  • May not ask employees to comply with dress/grooming standards inconsistent with gender identity or expression.

Employers also must provide equal access to comparable, safe, and adequate “facilities” that correspond to the employee’s gender identity or gender expression. Here, a “facility” is more than just a bathroom, and can include locker rooms, showers, etc. An employer cannot require “proof” or documentation of any medical treatment or procedure, or any identity document, for use of a particular facility. Interestingly, the new regulations also require employers to provide “feasible alternatives” to protect the privacy interests of all employees. These can include, for example, locking toilet stalls, staggered shower schedules, shower curtains, or other methods of ensuring privacy.

One final note to employers – typically in discrimination cases, an employer has an available defense where a certain religion, age, gender, etc., is a “bona fide occupational qualification.” Examples of this defense include requiring a Church’s minister to be a particular religion or a women’s’ restroom attendant to be female. However, the new regulations specifically state that this defense will not apply to discrimination based on an individual being transgender, gender nonconforming, or where an individual’s sex assigned at birth is different from the sex required for the job.

California employers faced with implementation of these new regulations are entering uncharted territory and though the obligations and expectations of employers is now somewhat clearer, much is still left murky.  Employers with questions or issues raised by these new regulations are strongly encouraged to seek advice of experienced employment counsel.

If you have questions or would like more information, please contact Melissa Whitehead at [email protected].