Division of Labor Standards Enforcement Publishes Model Posting for Employer Usage Preceding Immigration Agency Inspection of Employment Records

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By Michael S. Kalt and Emily J. Fox, Wilson Turner Kosmo

Taking effect January 1, 2018, AB 450 was certainly one of the more significant new employment laws confronting California employers, and it has continued to generate headlines as the federal government increases worksite enforcement to ensure employment eligibility.  As discussed in greater detail here in AB 450 (1) imposed new limits on the ability of California employers to voluntarily provide worksite access to immigration authorities; (2) imposed new notice and posting requirements on employers, and (3) enacted significant statutory penalties.

The first of the new posting/notice requirements is implicated when immigration agencies provide notice of an intent to inspect I-9 forms or other employment records.  Under that circumstance, new Labor Code section 90.2 requires employers that receive a Notice of Inspection of I-9 records or other employment records by an immigration agency to post notice of this impending inspection.  This notice must be posted within 72 hours of receiving notice of the inspection in the language the employer normally uses to communicate employment-related information to employees.  This notice must also include: (1) the name of the immigration agency conducting the inspection; (2) the date the employer received notice; (3) the nature of the inspection, if known; and (4) a copy of the Notice of Inspection of I-9 Employment Eligibility Verification Forms for the inspection to be conducted.

Fortunately perhaps, AB 450 directed the Division of Labor Standards Enforcement (DLSE) to develop and publish on its website a template posting that employers may use to satisfy this pre-inspection notice of a forthcoming inspection by a federal immigration agency of I-9 forms or other employment records.  The DLSE has now published this sample template on its website here.  Employers are permitted to use this DLSE-provided template or to develop their own version provided it contains all the statutorily-required information.

As a reminder, AB 450 also imposes post-inspection notice obligations upon an employer after it receives the results from this records inspection.  Specifically, within 72 hours of receiving notice regarding the results of the records inspection, the employer must provide to each current “affected employee,” and to their “authorized representative,” a copy of the written immigration agency notice that provides the results of the inspection of I-9 Employment Eligibility Verification forms or other employment records.  This notice shall relate to the affected employee only and must be hand-delivered at the workplace if possible, and if not, by mail and email, if the employer knows the employee’s email address, and to the employee’s authorized representative. This notice must contain the following information: (1) a description of all deficiencies or other items identified in the written immigration inspection results notice related to the affected employee; (2) the time period for correcting any potential deficiencies identified; (3) the date/time of any meetings with the employer to correct the deficiencies; and (4) the employee’s right to be represented during this meeting.

Unfortunately, the DLSE was not tasked with developing a template regarding these post-inspection notices of results, and it is presently unclear whether it will do so.

Wilson Turner Kosmo invites you all to visit the firm’s website, for more information on the firm, its attorneys, their expertise and accomplishments. You may also access past legal updates: www.wilsonturnerkosmo.com.

Wilson Turner Kosmo’s Special Employment Alerts are intended to update our valued clients on some of the more pressing employment law developments as they occur. Please contact us if you have any questions.

Link to original article here.

What to Do About Office Romances?

By Jennifer Jacobus, PHRca, SHRM-CP, San Diego Employers Association

Spring fling, summer romance, no matter what you call it, it can spell trouble it if involves co-workers. It’s no secret that the employees of today’s workforce spend more time at work than they do at home; in many cases, there just isn’t time to pursue a romantic relationship outside of the office. It seems only natural that workplace romances may evolve.

In a survey regarding office dating, conducted by the Society for Human Resource Management and the Wall Street Journal’s CareerJournal.com, 77 percent of HR professionals reported sexual harassment concerns, and 67 percent said they had concerns about retaliation.

The same survey reported that only 4 percent of HR professionals and 14 percent of employees said dating in the workplace shouldn’t be permitted. However, 80 percent of HR professionals and 60 percent of employees opposed dating between a supervisor and a subordinate.

The survey found that more than 70 percent of organizations had no policies on workplace romance, and of those that did, the vast majority merely discouraged dating rather than forbidding it. Only 9 percent of organizations prohibited dating in the workplace entirely.

As an employer or HR professional, here are some things to consider when deciding at what level to interfere with your employees’ personal affairs:

– Relationships are hard, and sometimes there will be arguments. Co-workers involved in a romantic relationship can cause increased tension at work, especially if one partner’s position is superior to the other or if they are working on the same team. If a supervisor and employee have a personal argument, will the supervisor be able to treat the subordinate with respect at the office?

– A potential office romance will always fuel the rumor mill. Remember, in an office setting, perception is reality. Even subtle flirting at work can be enough to start the rumors of a relationship. There also could be claims of favoritism if the love interest is the supervisor.

– What happens if the relationship ends? If a relationship ends with a bad breakup, will major confrontations be avoided at work? What about retaliation or perceived retaliation?

– Office romances pose several potential legal issues for employers, prompting some to use “love contracts” to help minimize their liability

If you are considering such a “contract,” here are some elements we suggest you include:

– If employees are on the same reporting level, the contract should include language stating that “the employees will not seek or accept a position where one reports to the other.”

– If one employee already supervises the other before the romance begins and it’s not possible to transfer one of them, consider requiring that the supervisor agrees “to be permanently removed from any decision-making authority over the subordinate.”

– Since harassment can potentially play a role in an ugly breakup, include language that “dating employees agree to waive their rights to pursue a claim of sexual harassment for any event prior to the signing of the contract.”

Such a policy should be incorporated into your employee handbook as well. The policy should state that the employees have an obligation to notify human resources about the relationship. To be certain that the policy is applied fairly, once the company becomes aware of any type of romantic relationship, it is important that the couple is approached, not necessarily together, so that they can be reminded of company policy.

Update Regarding OSHA Log 300A

The Log of Work-Related Injuries and Illnesses (Form 300) is required by the Occupational Safety and Health Administration (OSHA) to classify work-related injuries and illnesses and to record the extent and severity of each case. Employers are required to complete the OSHA Form 300 log unless they are exempt. Employers will also be required to post an annual summary (Form 300A) in their workplaces from February 1 until April 30 of each year.

A Form 300 log is required for each physical establishment location that is expected to be in operation for at least one year. Work-related injuries and illnesses that result in the following must be recorded:

Death
Loss of consciousness
Days away from work
Restricted work activity or job transfer
Medical treatment beyond first aid
Any work-related case involving cancer, chronic irreversible disease, a fractured or cracked bone, or a punctured eardrum

In addition, employers must also record the following when work-related:

Any needle-stick injury or cut from a sharp object that is contaminated with another person’s blood or other potentially infectious material
Any case requiring an employee to be medically removed under the requirements of an OSHA health standard
Tuberculosis (TB) infection as evidenced by a positive skin test or diagnosis by a licensed health care professional after exposure to a known case of active TB
An employee’s hearing test result that the employee has experienced a standard threshold shift in hearing in one or both ears

When an accident occurs, an employer must document a recordable injury or illness on the OSHA Form 300 log within seven days. An injury or illness is considered work-related and must be recorded on the log unless an exception applies. Some exceptions may be if the employee was at work as a member of the general public and not as an employee; or if injury or illness surfaces while at work, but results solely from a nonwork-related event or exposure. For example, an employee suffers a heart attack while at work but has a history of heart disease.

The Form 300 will contain information related to an employee’s health and must be kept confidential to the extent possible while using the information for occupational safety and health purposes. OSHA has developed a booklet that includes the forms needed for maintaining occupational injury and illness records along with step-by-step instructions.

The information from the OSHA Form 300 Log is transferred onto the 300A Summary by matching the corresponding lettered column on the log with the lettered blank space on the summary.

Employers must complete the 300A summary form and post the summary in the workplace from February 1 to April 30 of the year following the year covered by the form at each job site in a conspicuous area where notices to employees are customarily placed. Copies of the 300A summary should be provided to any employees who may not see the posted summary because they do not regularly report to a fixed location.

The OSHA Form 300 Log and the OSHA 300A Summary must be kept for five years following the year that the log and summary pertain to.

Click here to learn more and for Injury, Illness and Recordkeeping forms.

EEO-1 Filing Deadline Approaching

Filing the Employer Information Report (EEO-1) is mandatory for employers with 100 or more employees and for covered federal contractors with 50 or more employees. The filing deadline for 2017 is coming up fast: March 31, 2018.

The EEO-1 Report, is required to be filed with the U.S. Equal Employment Opportunity Commission’s EEO-1 Joint Reporting Committee annually for those employers who meet the requirements. The EEO-1 Report is the principle reporting form by which employers provide the federal government with a count of their workforce by ethnicity, race, and gender divided into job categories.

How do you acquire race/ethnic identification of your employees? The EEOC indicates that as an employer, you may acquire the race/ethnic information necessary for the report either by visual surveys of the workforce or from post-employment records. An employer should not elicit race/ethnic identity information by direct inquiry from the employee. If an employer does not gather race/ethnic information post-employment, it is recommended that the records be kept separate from the employee’s basic personnel file or other records available to those responsible for personnel decisions.

For further guidance on how to file the report, please visit the EEOC website at https://www.eeoc.gov/employers/eeo1survey/faq.cfm.

Top 10 Tips for Hiring Differently Under Salary History Laws

Interview pic- man sitting on couch

By Dr. John Sullivan, Link to original article here.

Typically there are a few reasons for recruiters or hiring managers to pay much attention to compensation laws. However, that disinterested approach must now change because of new salary history laws in California, Massachusetts, Oregon, and Delaware (and I predict that it will soon come to most other states).

For example, under the new strictest of all requirements in California, when asked by an applicant, employers must now divulge the actual salary scale for their job. And employers, third-party recruiters, and reference checkers are forbidden from making any inquiries regarding an applicant’s current pay or salary or benefits history. And when it is volunteered or discovered, an applicant salary history cannot be used to determine their salary as a new hire. Well for most recruiters, this change is highly problematic because many for years have routinely asked applicants for their salary history for a variety of reasons. So if you want to improve your hiring and avoid legal issues, here are some actionable salary history tips for recruiters and hiring managers.

How to Hire Differently Under Salary History Laws

Because every state and city law is different, consult corporate legal counsel before taking action. However, here are the top 10 actions that I recommend that you consider.

  • Don’t waste recruiting time on a candidate you can’t afford — you can’t inquire about salary history, but nothing in the laws seems to prohibit directly asking a candidate “What is your salary target for this job?” If your goal is to find out if you can afford them, simply asking a candidate their minimum salary/benefits expectation can help you meet that goal.
  • Don’t waste the time of high-salary-expectation candidates— in California, if asked, you have to respond with the job’s salary scale or range. But if you want to alert candidates who have unreasonably high salary expectations, why not just proactively provide that salary-range information to them prior to scheduling an interview? They can then self-select out.
  • Discourage applications from those you can’t afford — if your goal is to discourage even an application from individuals who you can’t afford, you can place the salary range in job announcements or job descriptions. Obviously, that may create an opportunity for salary comparisons between companies. But much of that information is already readily available for potential applicants on online employer review sites like Glassdoor.
  • Stop salary negotiations— one option (adopted by Reddit) is to let applicants and candidates know upfront that once a salary offer is made, you don’t allow any salary negotiations. Or, alternatively, let them know that pay outside of that range is not negotiable, at least based on their past salary history.
  • Educate applicants/candidates about their rights — make applicants and candidates aware of the relevant law and tell the candidates that they need not discuss their salary history any time during the recruiting process. In California, make them aware that they have the right to know the salary range for the job.
  • Make sure that everyone in recruiting knows your salary ranges— because it must be provided when asked in California, make sure that every manager and recruiter is aware of the salary range for each job that they are recruiting.
  • Get on the gender pay equity bandwagon with fixed salary formulas the era of using past salary history to set current salary is over as more state legislatures determine that using salary history negatively impacts the pay of women. So corporate leaders should also consider dropping the idea of using salary history as a relevant data point. And instead, institute an objective, independent salary setting process that takes salary negotiations away from managers. The goal should be to make it a transparent process that uses a 100 percent objective fixed salary formula approach that only considers capabilities, accomplishments, and peer and industry pay rates. And ensure that salary determinations exclude previous pay levels or other factors that may negatively impact the pay of women new-hires.
  • Drop mandatory salary history requirements for completing an application— if you use them, you will need to change job board online applications (and your own website) that require submitting salary history information before you can complete an application. Either drop the requirement for salary history information or stop using the job board altogether.
  • Avoid legal and publicity issues by educating recruiters and hiring managers old habits are hard to break. So when salary histories are not to be used, ensure that everyone involved in the hiring process knows the new expectations. Make sure that no one in the recruiting process prompts or actively encourages candidates to divulge their salary history or that no one involved in the process acquires salary history during reference checking or through firms like Equifax. The California law eventually allows the damaged parties to collect double the actual economic damages.
  • Recruiting processes and pay equity must be monitored — implement monitoring components in the recruiting process to ensure that no salary history related anomalies occur during day-to-day recruiting. Video recording interviews, interviewing a sample of candidates, and using “mystery shopper applicants” are three possible monitoring approaches. Also, understand that your firm needs to monitor overall gender pay differences because everyone is watching. So periodically check the salary differential between men and women of both new-hires and existing employees.

Final Thoughts

Firms should attempt to increase gender pay equity not only because it benefits society but also because it can improve the performance and the retention of women at individual firms. Improving the percentage of pay that is based on quantified performance can also help in these two areas. Some firms have also found that shifting away from hiring and pay criteria that are based on low predictive factors like education and previous job titles actually result in the improvement of diversity and on the job performance of new hires. If you hire in California, that there are new laws covering “banning the box” for those with criminal records and new marijuana laws that will also affect employers.

DOL Gives Credit to Unpaid Student Interns After Getting Schooled by the Courts

Recently, the US Department of Labor made a change to the 6-factor internship test.  This change may impact who is and is not considered an intern under Federal laws.  As the California standards are more stringent than Federal standards, the California standards must be followed by most businesses operating in our state.

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 Intern image

DOL Gives Credit to Unpaid Student Interns After Getting Schooled by the Courts
By James M. Paul with Ogletree Deakins; link to original article here.
Published January 8, 2018

Over the last few years, several federal courts—and, most recently last month, another appellate court—rejected the Obama administration’s mandatory six-prong test for whether someone can properly be classified as an unpaid intern under the Fair Labor Standards Act (FLSA). On January 5, 2018, the Trump administration issued an overhauled Fact Sheet #71, which formerly adopts a more flexible “primary beneficiary/economic reality” test.

We have previously blogged about some of these developments over the years, e.g., “Is the Six-Factor Test Still Good? Eleventh Circuit Endorses Modified Intern Test” (October 1, 2015), “A New Internship Standard—The Second Circuit’s Seven-Factor Test and What it Means for Your Company” (July 13, 2015), and “Work for Free and Maybe Meet a Celebrity? Probably Not a Lawful Internship!” (June 13, 2013), and those articles are hereby amended and supplemented!

Six Required Criteria Versus Seven Considerations To Be Balanced

In April 2010, the U.S. Department of Labor (DOL) issued its Fact Sheet #71 requiring six factors to be met before an unpaid intern could safely be categorized as such and excluded from pay requirements of the FLSA. The DOL emphasized that internships in the “for-profit” private sector “will most often be viewed as employment” unless the purported employer could prove the existence of all six of the following required criteria:

  1. “The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.”

The Sixth Circuit Court of Appeals in 2011, the Eleventh Circuit in 2015, the Second Circuit in 2016, and the Ninth Circuit at the end of 2017 all rejected this strict test.  But employers could not take comfort in other federal circuits while the 2010 Fact Sheet #71 was still the DOL’s official interpretation of the FLSA and could still be enforced by the DOL (at least outside of the Second, Sixth, Ninth and Eleventh Circuits).

Now, the DOL assisted both interns and for-profit employers when it issued a revised Fact Sheet #71 to essentially comply with the courts’ guidance on this issue.  As a result, the following seven factors should be considered and weighed:

  1. “The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.”

However, every factor need not be present. The DOL makes clear “no single factor is determinative” and the ultimate answer depends on the “unique circumstances of each case.” Factors (2) and (4) from the original test are omitted, and new factors (3), (4), and (5) are part of the updated test. The “economic reality” of the intern-employer relationship governs instead. If the intern or student is the “primary beneficiary” of the relationship, then he or she is not entitled to either the minimum wage or overtime pay under the FLSA. Conversely, if the employer is getting the better end of the bargain, it may have to treat the intern or student just as all of its other employees, i.e., minimum wage and overtime pay are required.

Notably, the court decisions mostly list the seven factors as “a non-exhaustive set of considerations.” While the DOL’s revamped fact sheet does not use that same terminology, it refers to the seven factors “as part of the test”—leaving it open-ended to be analyzed on a case-by-case basis. We can expect the courts to further develop this test and entertain additional factors and circumstances argued by both sides in cases to come.

Public Sector and Non-Profit Organizations Given a Hall Pass

As explained in the original Fact Sheet #71, the new guidance makes clear that unpaid internships in the public sector and for non-profit charitable, religious, civic, or humanitarian organizations “are generally permissible.” The vast majority of legal disputes have involved “for-profit private” businesses, so the analysis in that context does not change much. Interestingly, though, the original Fact Sheet #71 claimed that the DOL was “reviewing the need for additional guidance on internships in the public and non-profit sectors,” but that guidance never materialized. The DOL has now struck that language from the new guidance, so the public and non-profit sectors can presumably get a passing grade for their internship and volunteer programs fairly easily going forward.

Key Takeaways for Employers With Internship Programs

The DOL’s new test makes it easier to create unpaid internship programs that are lawful under federal law as long as the answers to the seven questions show that—on balance—the intern or student benefits more from the relationship than the employer does. In order to ace the test, a business will want to attempt to structure its program such that all seven factors lean toward an internship—rather than an employer-employee relationship. Moreover, a passing grade absolutely requires implementation of clear policies, forms, and agreements for the internship program. The new year is a good time for every business to make a resolution to review/audit its existing internship program, or to create a new one from scratch using the new guidelines. While there could be flexibility with a few of the factors (especially when the remaining factors so clearly weigh in favor of the existence of a lawful internship), if some of the factors are missing, the DOL or a court could still find that the relationship is truly an employment relationship.

Employers should keep in mind that this development only affects the analysis under federal law. States (and even some cities and local jurisdictions) can impose stricter requirements on businesses—just like many of them do with regard to minimum wage, overtime compensation, and paid sick time and leave requirements. Employers will want to confirm that their internship programs comply with all applicable state and local requirements. Only then will an employer graduate and gain a certificate of compliance from both a federal and state law perspective!

 

 

New Employment Law Updates for 2018

  1. CHANGE YOUR EMPLOYMENT APPLICATION – BAN THE BOX

Employers are prohibited from asking job applicants about their criminal records. The law also prohibits employers from asking similar questions on job applications. Employers can consider applicants’ criminal record only after making a conditional job offer.

Under the law, an employer that refuses to hire an applicant due to his or her conviction history, will be required to conduct an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justifies denying the applicant the position.

Employers that decline to hire an applicant with a criminal history will be required to provide written notice to the employee identifying the disqualifying conviction. However, if an employer makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the employer would be required to notify the applicant in writing of the final denial or disqualification. The employer will also be required to notify the applicant of any existing procedure the employer has for the applicant to challenge the decision or request reconsideration and of the applicant’s right to file a complaint with the California Department of Fair Employment and Housing.

ACTION NEEDED:

  • Update applications to remove inquiries related to conviction history
  • Have a written policy on the use of criminal background checks of applicants and current employees.
  • Train managers and supervisors and anyone else involved in the hiring process to avoid inquiring about any conviction history until after a conditional offer of employment has been extends, and on types of information that may be obtained during
  1. CHANGE YOUR INTERVIEW SCRIPTS – SALARY HISTORY INQUIRIES PROHIBITED

Assembly Bill 168 prohibits an employer from asking for a job applicant’s salary history information. The new law also prohibits consideration of salary history as a factor in making a hiring decision (even if volunteered by the applicant). Despite the law, employers may consider an applicant’s prior salary information in determining salary for that applicant if the applicant voluntarily discloses the information. The law requires an employer, upon reasonable request, to provide a pay scale for a position to an applicant.

The new law follows on the heels of AB-1676, which amended the California Fair Pay Act to provide that prior salary cannot, by itself, be a “bona fide factor other than sex” justifying a pay disparity between employees of different genders.

ACTION NEEDED:

  • Update applications, interview templates and other forms to remove inquired related to salary history
  • Train managers and supervisors and anyone else involved in the hiring process to avoid inquiring about an applicant’s salary history
  • Develop a salary range for every job posting to be provided to the applicants upon request
  1. CHANGE IN PARENTAL LEAVE FOR MEDIUM SIZED EMPLOYERS

Senate Bill 63 requires small employers to provide unpaid parental leave for the purpose bonding with a new child. The law applies to employers with 20–49 employees in a 75-mile radius, imposing a new leave law requirement on employers that were previously exempt from the California Family Rights Act (which applies to businesses with 50 or more workers).

Employees are eligible for leave provided that they have worked for the employer for at least 12 months and have worked at least 1,250 hours in the past 12 months for the employer. Where both parents work for the same company, the employer would be able to require the parents to take no more than a combined 12-week leave.

Employers are required to continue to pay their regular share of healthcare premiums while employees are on parental leave. Under certain circumstances, employers may be able to recover the premiums when the parent-employee does not return to work following the leave.

ACTION NEEDED:

  • Employers with between 20 and 49 employees should update leave policies to include a description of parental leave including the right to take 12 workweeks of job-protected, unpaid parental leave to bond with a new child, assuming employees meet eligibility criteria.
  1. CHANGE IN ICE COOPERATION

Assembly Bill 450 prohibits employers from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a place of labor unless the agent was to provide a judicial warrant. The law does not prohibit inviting immigration officers into nonpublic areas, where no employees are present, in order to verify the existence of a warrant.

Except as required by federal law, the law will also prohibit an employer from providing voluntary consent to an immigration enforcement agent to access, review, or obtain the employer’s employee records without a subpoena or court order. This prohibition would not apply to I-9 Employment Eligibility Verification forms and other documents for which a notice of inspection has been provided to the employer.

The law also requires employers provide a notice to each current employee of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving notice of the inspection.

The law grants the state labor commissioner or the attorney general the exclusive authority to enforce these provisions. The law prescribes penalties for failure to satisfy the prohibitions described above of $2,000–$5,000 for a first violation and $5,000–$10,000 for each subsequent violation.

  1. SEXUAL HARASSMENT PREVENTION TRAINING ADDITION AND CHANGE YOUR REQUIRED POSTINGS

Senate Bill 396 expands the requirement that employers provide sexual harassment training to supervisors. Current law requires employers with 50 or more employees to provide sexual harassment and abusive conduct prevention training every two years, or within six months of an individual’s assumption of supervisory duties. This bill requires covered employers to include training on harassment based on gender identity, gender expression, and sexual orientation.  This law also amends section 12950 that requires all employers to post DFEH’s poster regarding transgender rights in a prominent and accessible location in the workplace.

ACTION NEEDED:

  • Update your training and postings
  1. NEW LIABILITY CHANGE FOR GENERAL CONSTRUCTION CONTRACTORS & SUBS

Assembly Bill 1701 holds construction contractors liable for the wage and hour violations of their subcontractors. As a result, a direct contractor making or taking a contract (entered into on or after January 1, 2018) in California for the erection, construction, alteration, or repair of a building, structure, or other private work will be liable for any debt owed to a wage claimant incurred by a subcontractor at any tier acting under the contractor. The law gives contractors the right to demand inspection of a subcontractor’s payroll data in order to ensure compliance with wage and hour obligations.

The contractor’s liability will extend only to any unpaid wage and fringe or other benefit payments or contributions; including interest owed, but would not extend to penalties or liquidated damages. Either the state labor commissioner or a wage claimant may bring a civil action against a direct contractor to collect wages owed.

  1. CHANGE IN LABOR COMMISSIONER’S POWERS

Senate Bill 306 authorizes the state labor department “to commence an investigation of an employer, with or without a complaint being filed, when specified retaliation or discrimination is suspected during the course of a wage claim or other specified investigation being conducted by the Labor Commissioner.” Previously, the agency could take action only upon receipt of an employee complaint.

The law authorizes the labor commissioner, upon finding reasonable cause to believe that any person has engaged in or is engaging in a violation, to petition a superior court for injunctive relief. If an employer discharges or imposes adverse action on an employee for claiming that the employer retaliated because the employee asserted his or her rights, the law would require courts “to order appropriate injunctive relief on a showing that reasonable cause exists to believe a violation has occurred.” The injunctive relief remains in force until the agency completes its review or issues a citation. The injunctive relief would not prohibit the employer from disciplining or discharging the employee for conduct that is unrelated to the claim for retaliation.

The labor commissioner would be vested with the authority to issue monetary and other relief, including an order to reinstate the employee and pay back wages

      8. CHANGE IN CALIFORNIA’S MINIMUM WAGE

As of January 1, 2018 the minimum wage for employers with 26 or more employees increased to $11.00 per hour and the salary threshold for exemptions purposes is now $45,760 annually.  The minimum wage for employers with 25 or fewer employees increased to $10.50 per hours and the salary threshold for exemption for those employers is $43,680 annually.

ACTION NEEDED: 

  • Ensure all employees are making the appropriate minimum wage
  • Ensure all exempt employees are making at least $45,760 (employers with 26+ employees) or $43,680 (employers with 25 or fewer employees)

    9. CHANGE IN MARIJUANA LAWS

While marijuana possession has been legalized under California law since earlier in 2017, January begins dispensary sales to recreational users.  Despite this change to state law, marijuana remains illegal under Federal law.  In California, each employer is allowed to create and enforce a Drug Free Workplace program.  Impairment due to marijuana, like any other substance, need not be allowed in California.  Drug screening, both for pre-employment purposes and observed impairment screening, remains a bona fide process to use for potential new hires and current employees demonstrating impairment while working.

SB 65 now extends alcohol consumption and “open container” laws to Prop 64 as well.  Driving while high will be treated the same as, or similarly to, driving under the influence of alcohol.

December Member Feature: Geppetto’s Toys

Geppetto's

As the holiday season approaches, it is likely you’ve been pulled into a Geppetto’s toy shop by a young person in your life who is excited to show off a new toy or game recently added to their holiday wish list.  Over 25 years ago, Geppetto’s was founded as a small toy store located in the Hotel Del Coronado by Carol and Hadley Miller.  Today, over two decades later, Mr. Miller’s son Brian leads the company which has grown from one shop to nine local shops with close to 90 employees. Geppetto’s has grown in size and popularity with parents and kids alike over the years, in part because of its emphasis on listening to the customer and its commitment to measured, steady growth.  Over the years, Geppetto’s employees have listened to requests from kids who are interested in new toys, such as the kendama toy.  After a little boy expressed his interest in the line, Geppetto’s added it to its offerings and it has become a favorite among many of Geppetto’s customers.

During a time when it is widely acknowledged that the retail landscape is changing and as customer preferences continue to evolve, Geppetto’s has maintained its status as a locally owned business which has experienced steady growth over the course of time, truly becoming a part of the fabric of San Diego’s community.

Geppetto’s believes in giving back to the local community and has donated hundreds of toys over the years to important causes and organizations.  One of the organizations Geppetto’s supports is Words Alive, a literacy organization based in San Diego.  The company also supports our military through providing toys and donations to the USO, in addition to supporting La Jolla public schools and the La Jolla Art and Wine Festival.  This past summer, Brian Miller was awarded the Lifetime Achievement Award by the American Specialty Toy Retailing Association. “It is truly an honor to be able to carry on the tradition of Geppetto’s for my family and for the community,” Brian Miller said.

As always, gift wrapping is complimentary at Geppetto’s.  To learn more and to start crafting your favorite toy wish list just in time for the holidays, visit www.geppettostoys.com.

Are Your Employees Texting? Risks To Employers Taking Workplace Communications Offline

Women Holding Cell Phone while looking at Laptop

The impact of technology on the workplace is undeniable, and its effect on how employees will communicate in the workplace of the future cannot be overstated.

Impacts are emerging in workplaces, globally. We thought we would share the thought leadership of our colleague, Karla Grossenbacher, a partner in our Washington, D.C. team. It seems to us that her insights on these issues are equally applicable to Australian workplaces and we hope you find them of value.

As Generation Y begins to enter the workforce, many believe their preference for using texts instead of email to communicate will cause a fundamental shift in the workplace of the future, in which texting will replace email as the primary method of electronic communication. Employers need to prepare now for how they will be able to access and monitor workplace texts in the same way they do email, and preserve those texts as necessary to fulfill any legal obligations they have to preserve workplace communications.

Texting is becoming more common in the workplace. Most employees use company-owned or personal phones to communicate in the workplace to some degree, and with phones comes texting. Even if email is the sanctioned form of communication in the workplace, employees will text. Some employers may not even be aware their employees are texting with each other or to what extent. Other employers may be aware and actually permit texting in the workplace or simply tolerate it because they feel they cannot prevent it from happening.

Yet, if employers allow employees to text in the workplace, they will need to think about how they will access, view and preserve employee texts in the same manner that they do with emails. Lawyers in employment cases are beginning to demand that text messages be produced along with emails during discovery. If the texts are made from company phones, the basis for such a request would seem to be well-founded assuming the substance of the texts is relevant to the claims and defences in the case.

However, when the texts are sent or received on personal devices used by employees in the workplace, the issue becomes more complicated. In such cases, employers typically argue that they are not required to produce texts from their employees’ personal devices because such devices are not within the employer’s custody or control. But if employees are using personal devices at work pursuant to a Bring Your Own Device program, the argument that such devices are not under the employer’s custody or control is undercut. Often BYOD policies allow for the employers to take custody of the employee’s personal device for various legitimate business purposes, which would include responding to discovery requests in litigation. 

The work text is here to stay

Employers must grapple with how they will fulfill their legal obligations with respect to workplace texts by ensuring they have the same ability to access, view and preserve employee texts that they do with employee emails. And this need will only grow more pressing as time goes on. Thus, prudent employers will start thinking about this issue is now.

The difficulty with texting in the workplace is that — from the employer’s perspective — texting is offline. In workplaces in which email is the primary method of communication, employee emails are usually sent, received and stored on an email server that is maintained by the employer. With the right policies in place, employers have free rein to access, review and preserve employee emails stored on these servers. There are many legitimate reasons for which employers need to access and view employee communications.

However, employers do not have ready access to employee texts and are not in a position to preserve them. Unlike emails, texts typically reside on the phones on which they are sent and received. These phones may or may not belong to the employer, but in order to access and review workplace texts, the employer must first take possession of the phone on which the text resides. Not only is this a cumbersome process if several employees’ texts must be retrieved, but it may not be possible if the owner of the phone is not in the office or works remotely. Moreover, having to take physical custody of an employee’s phone rules out any kind of surreptitious review of texts, which could be important in an investigation of suspected wrongdoing.

What’s your backup plan?

Where texts reside only on the phones on which they are sent and received, it is much more difficult for the employer to ensure such texts are being preserved in those situations in which an employer has an affirmative duty to preserve such communications.

Setting aside the fact that phones can be lost or damaged or suffer a malfunction that makes it impossible to retrieve the texts stored on them, in order for an employer to ensure texts are being preserved, the texts need to be backed up in some way. If employees are texting on company-owned phones, it is conceivable that the employer could implement a system for automatically backing up the texts. However, with the proliferation of Bring Your Own Device programs, employees are often using their own phones at work. Where employees are using their own personal devices in the workplace, the employer would have to require employees to back up their texts to a company-owned computer or server. Even with a protocol in place for backing up texts, an employer could never be sure all texts were being captured as it is possible for employees to delete texts from a phone before the backup occurs.

There will also certainly be privacy issues raised for employers when they access and view employee texts. Personal and work-related texts will inevitably be commingled, especially if the phone is a personal device.

Given the issues workplace texting presents for employers, employers would be wise to make clear in their policies what method of communication employees may use in the workplace for business purposes. If texting is allowed or tolerated in the workplace, employers need to review their policies relating to employee communication and record retention to make sure texts, in additional to email, are covered. No one knows exactly what the workplace of the future will look like and how employees will communicate in it, but employers should look into that future now and start taking steps to prepare for it.

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Link to original article here.

Expanded Harassment Training and New Poster Requirements (SB 396)

While California presently has the most expansive non-discrimination protections for lesbian, gay, bisexual, and transgender employees, this law is intended to further publicize these protections. For instance, while Government Code section 12950 presently requires all employers to post the DFEH’s poster prohibiting sexual harassment, it does not presently require employers to post the DFEH’s recently published information poster on transgender rights at work. Accordingly, this law amends section 12950 to require all employers to post the DFEH’s poster regarding transgender rights in a prominent and accessible location in the workplace. The FEHA presently requires employers with more than 50 employees to provide at least two hours of training and education regarding sexual harassment and abusive conduct to all supervisory employees within six months of promotion and once every two years. This law amends Government Code section 12950.1 to require this training include the prevention of harassment based on gender identity, gender expression, and sexual orientation. Notably, the training and education must include practical examples inclusive of such harassment, and must be presented by trainers or educators with knowledge and expertise in those additional areas. This law also amends California’s Unemployment Insurance Code to specify that transgender and gender nonconforming individuals are included within the definition of “individuals with employment barriers” and therefore eligible for programs and services available under the California Workforce Innovation and Opportunity Act.

Excerpt from the October Legislative Report published by Wilson Turner Kosmo.  Link to original article here.