New Year, New You (and New Rules, Too!)

Q:    Last year I opened a hand-rolled ice cream shop that I run with the help of my fifteen employees. Business is booming, so I want to hire more employees and open another location in early 2018. Are there any new laws I should know about before I expand my business?

A: Yes, indeed. Get out your note pads California employers, because your legislature has insisted on a few additions to your 2018 “resolutions.” Effective January 1, 2018, your employment operations will be affected as follows:

  • Employment Application Restrictions:
    • Conviction History: Employers with five or more employees, including state or local government employers, can no longer ask applicants, orally or in writing (i.e., on an application), about criminal history before a conditional job offer is given. Employers may consider results of a criminal background check after a conditional offer is made. However, if conviction history is a factor in denying employment to the applicant, the prior conviction must have a “direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” The conditional offer can be rescinded due to conviction history, but the employer must inform the applicant of the rescission in writing, along with other various notification requirements, and provide applicant a chance to respond.[1]
    • Salary History: Employers, including state and local government employers, are prohibited from asking orally, in writing, personally or through an agent, for an applicant’s salary history. Applicants may voluntarily and without prompting disclose salary history, but an employer cannot rely on an applicant’s salary history information as a factor in determining whether to hire an applicant or what salary to offer an applicant. Employers must also provide a pay scale for an applicant’s position upon a reasonable request.[2]
  • Prohibition of Medical and Recreational Marijuana: While anyone 21 and older can now buy and consume marijuana in California, employers can still prohibit its use. Employers may still impose drug tests on employees, and may refuse to hire prospective employees or terminate employees who use marijuana. Employers may do so regardless of whether the use occurred on the job, and regardless of whether the use is medical or recreational, if that use conflicts with company policy.[3]
  • Harassment Training Requirements for Gender Identity, Gender Expression and Sexual Orientation: Employers with 50 or more employees must now include training on gender identity, gender expression, and sexual orientation harassment as a component of the recently mandated two hour sexual harassment that must occur every two years.[4]
  • Minimum Wage Increase: The minimum wage in California has increased to $10.50 per hour for employers with 25 or fewer employees. The minimum wage has increased to $11.00 per hour for employers with 26 or more employees. This also means that the minimum threshold for most exempt workers is increasing as it must be at least two times the minimum wage. As a reminder, minimum wage is increasing again soon and is scheduled to reach $15.00 per hour by January 1, 2023 for all employers, regardless of size.[5]
  • Extended Pregnancy Leave Requirements: Employers with 20 or more employees must provide eligible new parents up to 12 weeks of unpaid leave from work to bond with a new child. Previously, this requirement only applied to employers with 50 or more employees.[6]
  • Joint Liability for General Contractors: General contractors may now be held jointly liable for the wage and hour violations of their subcontractors under contracts signed after January 1, 2018. Only the following parties can pursue a claim under this law: (1) the Labor Commissioner; (2) a third party owed fringe benefit payments; or (3) a joint labor management cooperation committee. General contractors remain protected from penalties or liquidated damages. Moreover, general contractors can verify wages actually owed upon request, and withhold disputed wages if a subcontractor fails to provide requested information.[7]

If you have questions related to these new regulations, Baker Manock & Jensen’s employment attorneys would be happy to assist. Happy New Year and good luck sticking with those resolutions!

 

[1] Assembly Bill 1008

[2] Assembly Bill 168

[3] Proposition 64

[4] Senate Bill 396

[5] Senate Bill 3

[6] Senate Bill 63

[7] Assembly Bill 1701

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Vacation from Voting?

Q:     Bernie Sanders believes that election day should be a national holiday so that everyone has the opportunity to vote.  Indeed, back in 2015 he introduced a bill that would make the first Tuesday after the first Monday in November during even-numbered years a holiday called “Democracy Day.”  This week, Bernie again tweeted about it.   What is California’s take on this?

A:     Every day is Democracy Day in California!  While not an official holiday, in California, pursuant to California Election Code section 14000, employees are eligible for two hours of paid time off for the purposes of voting ONLY IF they do not have sufficient time outside of working hours to vote.  Employers may require the employee vote at the beginning or end of the employee’s shift to limit disruption.  Employees must give their employees at least three days notice that they want to take advantage of the law.

The Election Code also requires that at least ten days before every state wide election, an employer post a notice to employees advising them of their right to time off under this law.  The notice can be found here – http://www.sos.ca.gov/elections/time-vote-notices/.  Many of the standard employee notification posters purchased from the Chamber of Commerce and like organizations already contain this notice.

I wonder, if Democracy Day became law, would voting increase or decrease?  If you throw in California’s new paid sick leave – employees (with election day flu) could make a nice little four-day weekend of it and hit the coast instead of the polls.  And, as turkey and burgers are already taken, I wonder what would become the traditional Democracy Day meal? Perhaps, quinoa and kale…

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

 

Employment Lessons from TMZ

Q:     The Kardashian-West/Swift feud heated up again this week with Kim releasing audio allegedly secretly taken of Taylor and Kanye.  Taylor is upset (like, even more than boy break up upset), and I think she just needs to “Shake It Off.”[1]  I own a business, and I record all my conversations with employees.  But, I  only record them to protect myself from the “Golddiggers[2] who may sue me for wrongful termination, discrimination, or harassment.  I’m not trying to make anyone “Famous,”[3] and I am definitely not trying to be “Mean.”[4]  My recording policy is “Safe and Sound[5] for my business right?

A:    Sorry, but “I Knew You Were Trouble[6] when this question came up!  Both you and Kim, are in violation of California’s privacy protections.  In California, all people have the right to privacy.  Indeed, it is enumerated in Article I, section 1 of California’s Constitution.  This right to privacy is broad enough to encompass the actions of private employers.  Surreptitiously recording another person may be considered a violation of that person’s constitutional rights.

Moreover, and perhaps more importantly, in California you can be criminally liable if you  record another individual without their consent.  See California Penal Code section 632.  Not only does the Penal Code provide for possible jail time and fines, it also permits a victim to sue for civil damages.

And, because the evidence would have been illegally obtained, you would likely not be able to use it at any wrongful termination, harassment, or discrimination trial, even in the event that an employee actually sued.

If you are still set on recording the termination meeting, you can do so only if the employee consents to the recording.  It is recommended that the consent be in writing.

Like Kim, you are not “Out Of The Woods[7] with your liability for secretly recording private conversations.  You need to “Begin Again[8] and rethink your policy.

[1] https://en.wikipedia.org/wiki/Shake_It_Off

[2] https://en.wikipedia.org/wiki/Gold_Digger_(Kanye_West_song)

[3] https://en.wikipedia.org/wiki/Famous_(Kanye_West_song)

[4] https://en.wikipedia.org/wiki/Mean_(song)

[5] https://en.wikipedia.org/wiki/Safe_%26_Sound_(Taylor_Swift_song)

[6] https://en.wikipedia.org/wiki/I_Knew_You_Were_Trouble

[7] https://en.wikipedia.org/wiki/Out_of_the_Woods_(song)

[8] https://en.wikipedia.org/wiki/Begin_Again_(Taylor_Swift_song)

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

 

Work Warriors and Medical Inquiries.

Q:     Cleveland Cavalier forward Kevin Love was out for last night’s NBA finals game against the Golden State Warriors. In game 2, Harrison Barnes elbowed Love in the head and then Love appeared to suffer from concussion type symptoms.  Love has indicated that he is “frustrated” by the Cavalier’s decision to keep him out of the game.  As an employer, what can you do if you suspect an employee is prevented from performing based on a medical condition?  Is it legal to ask an employee about a suspected medical condition and seek medical certification that the employee is capable of performing his/her job?

A:     The EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans With Disabilities Act answers this precise question.

 Generally, [an employer may ask] a disability-related inquiry or [require a] medical examination of an employee [. . . so long as it is] “job-related and consistent with business necessity” [and] an employer “has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.”

Sometimes this standard may be met when an employer knows about a particular employee’s medical condition, has observed performance problems, and reasonably can attribute the problems to the medical condition. An employer also may be given reliable information by a credible third party that an employee has a medical condition, or the employer may observe symptoms indicating that an employee may have a medical condition that will impair his/her ability to perform essential job functions or will pose a direct threat. In these situations, it may be job-related and consistent with business necessity for an employer to make disability-related inquiries or require a medical examination.

In Kevin Love’s situation, it is likely playing against the Warriors with concussion like symptoms would pose a direct threat to himself thus making any inquiry into his medical condition reasonable. Then again, the Warriors are a direct threat to anybody they play.  Go Warriors.

Lettuce Get Back to Work

Q:     I run a custom farming operation where we often need our employees to work over 8 hours in a day during our busy seasons. Most of our employee’s understand that the short window of harvest means a relatively short season of long hours. However, I heard that a bill was introduced in Sacramento with a strong likelihood of passing which would impose much stricter overtime requirements for farm workers.  Tell me it is not sow![1]

A:     You heard correctly. On April 6, the Assembly Labor & Employment Committee passed AB 2757 which seeks to “phase-in” overtime requirements for agricultural workers over the next four years, beginning in 2017. The impacts of this bill are feared to increase labor costs associated with farming and the agricultural industry. First, AB 2757 would require agricultural employers to pay overtime premium pay (at a rate of 1.5 times an employee’s regular rate of pay) to their employees after 8 hours in any work day, and 40 hours in any work week.[2]  Currently, the operative wage order for farm workers only requires daily overtime if the employees works more than 10 hours.  Second, it would require premium pay at the rate of two times the employee’s regular rate of pay for any work after 12 hours in a day. Currently, there is no double time for farm workers.  Furthermore, AB 2757 will repeal the agricultural exemption from the “one days’ rest in seven” requirement in the Labor Code, requiring agricultural employers to provide employees at least one day off each work week even during peak season.

Proponents characterized AB 2757 as “clean-up” legislation righting decades of unfair exclusion of farm workers from the right to 8-hour work days and 40-hour work weeks.[3] The Farm Bureau and a broad coalition of employer groups opposed the bill, arguing that the legislation will actually reduce farm workers’ income as affected employers will elect to have employees work 8 hours per day and avoid overtime premium pay, rather than the current practice of paying workers at their regular rate of pay for as many as 10 hours a day for as many as 6 days a week during busy harvest periods when enough work is available to work those hours.[4]

The farming interests argue the current law was meant to account for the variable nature and seasonality of farming.

AB 2757 passed the committee by a 5-2 party-line vote and was referred to the Assembly Appropriations Committee. Here, at Baker Manock & Jensen we will continue to track the bill as well as others that affect Valley businesses.

[1] http://www.dictionary.com/browse/sow

[2] http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160AB2757

[3] http://www.leginfo.ca.gov/pub/15-16/bill/asm/ab_04510500/ab_486_cfa_20150411_153203_asm_comm.html

[4] http://www.farmbureauvc.com/new/assets/pdf-forms/friday-review/friday-review-4-8-2016.pdf

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

 

In light of the Zika virus scare, can I require an employee traveling to the summer Olympics in Brazil to get medical clearance before returning to work?

Q:     I have an employee that is planning to visit Brazil for the summer Olympics.  As a huge sports fan, I am very excited for my employee… U-S-A- … U-S-A!  But, as a bone fide germ-a-phobe and an employer that feels responsible for his employees’ wellbeing, I am scared of the Zika virus, which has been largely reported in the host nation.

Can I require an employee traveling to the Olympics to get medical clearance before returning to work?  Or, would such a request violate the Americans with Disabilities Act (“ADA”)?  Are there any other options?

A:     The Equal Employment Opportunity Commission (“EEOC”) provides specific guidance regarding permissible actions that an employer may take during a pandemic.  While the guidance is not binding legal authority, it sets forth established ADA principles that are relevant to these types of questions.  The guidance notes that an employer is permitted under the ADA to require an employee who has been away from the workplace during a pandemic to provide a doctor’s note certifying fitness to work.   It is unclear whether this is limited to employees who have been out sick, or if it also includes those who have been traveling.

Note, that the ADA only allows employers to request medical information or order a medical examination when an employer has a reasonable belief (based on objective evidence) that an employee poses a “direct threat” because of a medical condition. That “threat” must be job-related, and the requested medical information must be consistent with a business necessity.[1] Because the Zika virus is not transmitted from person-to-person in casual contact, the ADA standard may not be satisfied in many job settings.[2]  That could change if the employee works in an agricultural seating where certain types of mosquitos are present.

That said, the EEOC guidance also notes, “[i]f the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have pandemic influenza symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.”  As such, the employer should check with the CDC and determine if it is recommending that employees stay home after returning from Brazil.  So far, public health agencies have imposed no quarantine on people returning from areas in which the Zika virus has been found.

Like any agency-provided guidance, it does not address all situations.  For example, the EEOC guidance assumes that there is a “pandemic.”  What if the illness is not considered a “pandemic” but just a dangerous situation?  These types of questions can be novel and should be vetted with your employment attorney.  However, reviewing materials like the EEOC’s Guidance on Pandemic Preparedness in the Workplace, the Americans with Disabilities Act, and the EEOC’s Guidance on Disability-Related Inquiries and Medical Examination of Employees Under the Americans with Disabilities Act (ADA), is a good place to start.

In addition to Zika, you may also be concerned if the employee goes swimming![3]

[1] http://www.eeoc.gov/facts/pandemic_flu.html

[2] http://www.cdc.gov/zika/transmission/index.html

[3] http://www.latimes.com/sports/sportsnow/la-sp-sn-water-pollution-2016-olympics-20150730-story.html

Three Super Bowl inspired questions for your halftime discussions.

This is a Super BMJ Employment Answer – Three Super Bowl inspired questions for your halftime discussions.

Q.     After the Super Bowl, can the Broncos fire Peyton Manning for being too old?  Isn’t age discrimination illegal?

A.     Generally, an individual is not in a protected class for age until they are over 40 years old.  Peyton Manning turns 40 on March 24th.  At that point, the Broncos (according to the Age Discrimination in Employment Act of 1967) could not take into account Peyton’s age when making an employment decision.  It would seem the Broncos could not choose a younger quarterback just because he is younger – it would have to be based on other performance factors. (29 U.S.C. §§ 621-634.)  Luckily for the Broncos, Peyton has not reached his golden years just yet, and short arming throws and the inability to throw spirals is not a protected class.  As such, they could probably move on…  It would be interesting, however, if he has a great Super Bowl, and he outperforms his back up in the Fall.  Then what?  Mr. Elway/Broncos, my number is on the blog site.

Q.     Is the expansion of the Rooney rule (a requirement to interview a minority candidate before hiring coaches and executives) to include a requirement to interview women, legal?  Should it be extended for LBGT individuals?  What about players and certain positions on field?

A.     It is illegal for an employer to discriminate against a job applicant for being a member of protected class. (42 U.S.C. § 2000 et seq.)  It is also illegal to base hiring decisions on stereotypes and assumptions about a person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.  The interesting component of the Rooney rule (and its proposed expansion) is that it does not purport to exclude any protected class, but to simply ensure that certain protected classes are always part of the interview pool.[1]  As such, it is likely lawful.  That said, when race or other protected classes are involved it is always tricky.  One could argue that, by specifically including one particular protected class (aka women), this could potentially be to the patent exclusion of other protected classes (aka discrimination).  An interesting case could be made if an organization decided to only interview three people and somebody was excluded from the interview process because they didn’t belong to the protected class that the NFL is trying to promote through this new rule.

On the field, physical size, skill and strength generally determine who gets what position.  This would seem to make it difficult to always include older Americans or women for many positions on the football field. However, it could be argued, that certain stereotypes have persisted in the NFL (even though some of them have been regularly broken as of late) such as a Caucasian quarterbacks/kickers or African American wide receivers.  So far, there are no lawsuits that I am aware of, but if somebody felt they weren’t given a chance because of race or gender despite having the requisite skill set for a certain position, a lawsuit is certainly plausible.

Q.     Cam Newton inferred that some people don’t like him because of his race, what is the NFL’s requirement to protect its players from third party harassment such as from fans or sports talk radio?

A.     Employers are generally responsible for ensuring a harassment-free workplace for employees, regardless if the alleged harasser is a co-worker, manager, independent contractor, customer… or fan.  In this case, Newton has remarked that being a black quarterback “may scare a lot of people.”[2]  If those people are fans, and they shout epithets, what could the NFL do?  Or, if radio show hosts pick on him for being African American.  For starters, they are required to take reasonable remedial measures.  It would be easy to eject the offending fans from the stadium and to issue social media responses asserting that they do not tolerate such behavior.  They could also pull endorsements of radio shows/stations.

[1] http://www.huffingtonpost.com/entry/the-nfl-will-implement-a-rooney-rule-for-women_us_56b3a045e4b08069c7a67110

[2] http://www.usatoday.com/story/sports/nfl/panthers/2016/01/27/cam-newton-carolina-super-bowl-50/79414764/

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

 

Can employees like the Uber-attacking doctor be fired?

Q:     Recently, a Florida doctor made headlines when a video went viral of her boozy tantrum attacking her Uber driver on a night out.[1]  The doctor has profusely apologized for her conduct and blames a broken heart for the incident.  Unfortunately, her medical training provided no cure for this type of cardiac injury – other than apparently a self prescription for ample amounts of vodka.  Should her career still be on life support even though her conduct occurred outside of the workplace?

A:     Probably, yes.  Simply because an employee’s conduct is off-duty does not mean that it is protected.  Formerly, there was an argument that Labor Code sections 96(k) and 98.6 created a statutory authority for an employee to file a claim if they were terminated for lawful off-duty conduct.  However, the case of Grinzi v. San Diego Hospice Corp (2004) 120 Cal.App.4th 72 held that the Labor Code does not establish a public policy against terminations not otherwise protected by the Labor Code.

That being said, there are still concerns.  Primarily, an employer must make assurances that it treat all employees the same.  If the employer treats one group (e.g. woman, heterosexuals, etc.) different there could be a violation of Title VII or the FEHA.  An employer also cannot terminate an employee based on conduct that is otherwise protected by the Labor Code such as political speech or expressions of sexual orientation.  Here, it would seem a stretch to suggest that her actions were in anyway protected.  Currently, a broken heart is still not recognized as an ADA disability.

[1] http://abc13.com/news/video-uber-driver-attacked-by-miami-doctor/1169501/

Stand-up and clap, or stay seated and scowl: The State of Being an Employer

Q:        Wednesday night, President Obama gave his last State of the Union Address.  Did he provide any insight into potential new laws that will affect employers?

A:        The State of the Union is always great political theatre.  I particularly enjoy when one side of the chamber stands and claps while the other side sits and shakes their heads.  This got me thinking, what if the chamber was full of just employers instead of politicians?  Would, or should, those employers have stood up and clapped or stayed seated and shook their heads?

The stand-up and clap moments – the President stated that he “believe[s] a thriving private sector is the lifeblood of our economy, . . .[and he] think[s] there are outdated regulations that need to be changed, and there’s red tape that needs to be cut.” Well said,…..Hooray!  But, like every great infomercial (er….State of Union Address)….there is more.

The sit and shake heads moments –the President then seemed to suggest more red tape would be added.  To that end, he wanted to “give everyone a fair shot at opportunity and security in this new economy.”  This sounds great, but the “new economy” generally is a euphemism for what is commonly referred to as the “sharing economy.”  As you may be aware, Uber has been the poster company for the “new/sharing economy” and is currently under attack for its designation of drivers as independent contractors instead of “employees.”  As such, the President’s reference to a “fair shot and security” is likely a reference at continuing to limit the ability to classify individuals as independent contractors thereby ensuring more individuals fall under the rubric of labor laws, including overtime.  This would seem to make sense, because it would be consistent with his past administration initiatives.

Additionally, the President noted the “attacks on collective bargaining” cannot go unanswered without hurting working families.  This is seemingly in reference to both strengthening the National Labor Relations Board (NLRB) and a potential disproval of a current Supreme Court case, Friedrichs v. California Teachers Association et al., in which oral arguments were heard on Monday regarding compulsory union dues.  Generally, strengthening “collective bargaining” is not interpreted as pro-employer (i.e. locally – the Gerawen Farming case).

Another sit and shake your head moment came when the President made reference and commitment to such legislative aims as paid leave and raising the minimum wage.  In this regard, perhaps the President is simply jealous of California.  As you are aware, California recently enacted a new law in 2015 that gives all employees up to 3 days or 24 hours of paid sick leave and minimum wage just went up from $9.00 to $10.00 on January 1, 2016.

Finally, as we have learned, President Obama is not afraid to use his executive order power to further his agenda. So, it would not a be a surprise to see additional actions, like his proposal to increase the salary minimum for exempt employees to $50,440.00.

As we have seen in the past decade, we predict 2016 will have no shortage of employment laws to make employers sit, shake their heads, and in some instances, want to curl up in the fetal position and cry. Nonetheless, as our economy improves we hope 2016 is your best employment year yet, and you have many reasons to stand-up and clap.

Identity Crisis: BMJ’s 2015 Employment Law Review

Here at the BMJ team, we are on the forefront of employment law developments.  As we wrap up the end of our year, it seems to be confirmed –we nailed it.

A recent story on CNN claims that “Identity” is the Dictionary.com 2015 word of the year.   http://www.cnn.com/2015/12/08/living/word-of-the-year-dictionary-com-feat/index.html

This development is not surprising to us.

See our blogs on identity:

Rachel Dolezal: http://wp.me/p67Lhq-1d and

and Caitlyn Jenner:  http://wp.me/p67Lhq-c

as well as our interview on Central Valley Today.  http://www.yourcentralvalley.com/story/d/story/racial-identity-vs-human-race/34097/lb2i6Z4b_UCOmDkLKXOmKQ

This is the first year with our new BMJ Employment Answers’ format.  As you are aware, in 2015 we began to identify as bloggers.  In 2016 we are rolling out our cool new twitter handle, @BMJemployment.  Follow us today!  We hope our new Twitter following will be as successful as our blog, which has now been viewed in over 30 countries worldwide!

That’s a wrap for us in 2015.  May your holiday season be merry and bright and your new year be free from legal fights.

-The BMJ Employment Answers Team