A number of changes to California Employment Law have taken effect or were recently amended. The laws are summarized below. If you are experiencing difficulties at work regarding these situations, or would like to speak with an attorney regarding your employment rights, please give us a call.
Changes to the new law regarding Paid Sick Leave include requirements that:
-An employee must work for the same employer for 30 or more days within a year of the commencement of employment to be eligible to use PSL.
-Allow for alternative accrual methods for all leave banks.
-“Grandfather” in leave banks existing as of January 1, 2015.
-Allow employers with unlimited or undefined leave banks to indicate “unlimited” on the employee’s itemized wage statement.
-Allow employers to calculate the rate of pay for employees using any of three methods.
-Make other clarifications and exclusions from the PSL law, and delay its effective date for some employers.
California’s equal pay statute, first enacted in 1949, was significantly modified to lower the burden of proof for plaintiff’s claims, to greatly increase the burden of proof for an employer’s defenses, and to allow employees to ask other employees about the amount of their wages for the purpose of ascertaining whether there may be a factual basis for an equal pay claim. Governor Brown has referred to the new law as “the strongest equal pay law in the nation.”
Employment retaliation protections are extended to an employee who is a family member of a person who engaged in, or is perceived to have engaged in, legally protected conduct. This bill also exempts household goods carriers from the client employer and labor contractor liability provisions in this law.
Employers are prohibited from retaliating or otherwise discriminating against an employee for requesting accommodation of his or her disability or religious beliefs, regardless of whether the accommodation request was ultimately granted. The new law is intended to clarify a portion of the holding in the published decision of Rope v. Auto-Clor System of Washington, Inc. 220 Cal. App. 4th 635 (2013).
The Labor Commissioner is authorized to file a lien on real estate, or a levy on an employer’s property, or impose a stop order on an employer’s business in order to assist an employee in collecting unpaid wages where there is a judgment against the employer. Any employer, or individual acting on behalf of an employer, who violates any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission, or who violates other related provisions of law may be held liable as the employer for such violation. A bond of up to $150,000 may be required of an employer who does not promptly pay a judgment for unpaid wages.
The Labor Commissioner will have the authority to issue a citation to enforce local minimum wage and overtime laws, including against an employer or person acting on behalf of an employer for violations of existing law related to reimbursements for expenses.
The duration of the “disability benefit period” is extended from 14 days to 60 days.
Two statutory provisions containing the term “alien,” used to describe any person who is not born in or a fully naturalized citizen of the United States, will be deleted from the Labor Code.
The Family School Partnership Act is expanded to broaden the authorized reasons for which an employee can take job-protected time off of work without the fear of discrimination or discharge by allowing workers to take time off work to: (1) find, enroll, or re-enroll his or her child in a school or with a licensed child care provider, and (2) to address a child care provider or school emergency, as defined. (SB 579; amends Labor Code sections 230.8 and 233).
Certain grocery stores that are sold to another entity will have specified obligations to retain grocery workers for a limited period of time.
The definition of an “unlawful employment practice” is expanded to prohibit an employer or any other person or entity from using the E-Verify system at a time or in a manner not required by federal law, or not authorized by a federal agency memorandum of understanding, to check the employment authorization status of an existing employee or an applicant who has not received an offer of employment. There is a civil penalty of up to $10,000 for each violation of the provisions of the bill.
Pedicab businesses might have the option of allowing alcohol to be served and consumed on board, if their employees are properly trained.
10 Oct 2013
On October 5, 2013, Governor Brown signed SB 666 (Steinberg) into law. SB 666 does the following:
It overturns MacDonald v. State of California (discussed here), in which the Court of Appeal held that an employee must exhaust the administrative remedy set forth in Labor Code section 98.7 before pursuing a civil claim for retaliatory discharge or wrongful termination in violation of Labor Code section 1102.5 and retaliatory and discriminatory discharge in violation of Labor Code section 6310.
Significantly, the new law also makes it clear that an employer who retaliates or takes adverse action against any employee or applicant for employment because he or she has engaged in protected conduct may be subject to a civil penalty of up to $10,000 per violation.
The law also subjects attorneys to discipline for reporting or threatening to report the suspected immigration status of a witness or party to a civil or administrative action or his or her family member, to a federal, state, or local agency because the witness or party exercises or has exercised a right related to his or her employment. It also subjects certain licensed professionals and businesses to license suspension or revocation if the Labor Commissioner or a court determines that they have violated certain provisions of California law.
Further information on SB 666, including the text of the bill, is available here.
Health care facilities must comply with California Health and Safety Codes in order to ensure that patients and medical staff are not subjected to an unreasonable risk of health or safety within the facility. At times, hospital and other medical facility employees observe conditions that run the risk of creating a danger, but often worry that reporting the condition might cost them their job.
Health and Safety Code § 1278.5 protects individuals who lodge complaints about healthy or safety conditions, so that they are not subject to threats or retaliation from the health care facility in which they work. Specifically, the statute prohibits health care facilities from retaliating against or otherwise discriminating against employees, medical staff, or patients for voicing a complaint or grievance regarding the quality of care or conditions at the health care facility.
The legislative history behind the statute gives insight to its purpose: “The Legislature finds and declares that it is the public policy of the State of California to encourage patients, nurses, members of the medical staff, and other health care workers to notify government entities of suspected unsafe patient care and conditions. The Legislature encourages this reporting in order to protect patients and in order to assist those accreditation and government entities charged with ensuring that health care is safe.” To be held liable under the statute, the facility must satisfy the definition of a health care facility as defined in Health and Safety Code §1250.
As part of the objective of the statute, retaliation against employees who have complained either to an employer or to the government about the conditions of the premises are entitled to reinstatement, reimbursement, or damages. Retaliation can include: wrongful termination discharge, demotion, suspension, or any unfavorable changes in the terms or conditions of employment of the employee, member of the medical staff, or any other health care worker of the health care facility, or the threat of doing any of these actions. Further, the facility itself can be fined up to $25,000 for each of the violations.
As an example: If a nurse working at a hospital makes a complaint to the Chief of Medicine about the condition of worn out medical equipment which is being used on patients in the hospital, and the hospital Board of Directors finds out about it and subsequently fires the nurse, reduces her hours, or demotes her position, then the nurse would likely have a claim against the hospital for violation of Health and Safety Code § 1278.5.
If you have complained about risks or issues of patient safety or health and feel you have been treated differently at work (terminated, disciplined unfairly, hours reduced, shift changed, received the “cold shoulder” or something similar) give us a call today.
Meal period general requirements: One 30-minute meal period for every five hours worked.
The California Labor Code and various Wage Orders prohibit an employer from employing a non-exempt employee for more than five hours without providing an unpaid meal period of at least 30 minutes. If the employee works more than 10 hours per day, he or she must be given a second 30-minute meal period.
WHAT CONSTITUTES A MEAL PERIOD
Unpaid meal periods must meet certain requirements or else they are considered an on-duty meal period, which is counted as time worked and for which the employee must be paid. The Division of Labor Standards Enforcement (DLSE) defines an “on-duty meal period” as: a meal period during which the employee is not relieved of all duty, regardless of length.
CAN YOU WAIVE YOUR RIGHT TO A MEAL BREAK?
In short, yes, but the waiver is required to contain certain elements and is sometimes invalid if you work more than 10 or 12 hours per day.
The employer and employee are permitted to waive the 30-minute meal period in two circumstances:
- When an employee’s work period for the day does not exceed six hours, the meal period may be waived by mutual consent of both the employer and employee. But neither the employee nor the employer can be forced to waive the meal period. For example, if the employee wants to waive the meal period but the employer does not, then the meal period cannot be waived.
- When an employee works more than 10 hours per day, the second meal period may be waived if: (a)the employee works no more than 12 hours that day; (b) the employee and employer agree to waive the second meal period; and (c) the first meal period has not been waived.