Tag Archives: California

UPDATED: California Bans Applicant Salary History Inquiries

Contributed by Noah A. Frank, November 8, 2017

Add salary history to the growing list of topics that may be off limits on employment applications and during interviews, depending on where your business operates.

32420632 - law gavel on a stack of american moneyCalifornia joins a growing list of jurisdictions banning salary history inquiries. On October 12, 2017, California Governor Brown signed Assembly Bill 168, which prohibits employers from seeking or relying upon applicants’ salary history and using such information as the basis for establishing compensation. The new law takes effect on January 1, 2018.

Like ban-the-box legislation (banning inquiries into criminal conviction history) and sick leave ordinances, this is likely the start of a national trend enacted on a jurisdiction-by-jurisdiction piecemeal basis.  California joins Massachusetts, Oregon, and Delaware, along with several municipalities, such as New York City, Philadelphia, Pittsburgh, and U.S. territory Puerto Rico, to enact such legislation in an emerging national trend.  Indeed, since we reported on Illinois’s forestalled HB1462 amending the Equal Pay Act in September, the Illinois House has overridden the governor’s veto, and the bill is on its way to the Illinois Senate for similar consideration.

The Basics

Like the other jurisdictions’ laws, California’s legislation is meant to remedy past gender-based compensation discrimination.  However, given the broad language, this bill will apply to all protected classes such as (and not limited to) race, religion, military status. Under AB-168, all employers in the state of California:

  1. May not inquire directly or indirectly into an applicant’s compensation and benefits (unless publicly available as provided by other laws).
  2. May not rely on salary history as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant.
  3. Must provide the pay scale for the position to an applicant applying for employment “upon reasonable request.”  Note that this is a fairly unique provision in California’s law (at least for now).
  4. May not allow prior salary alone to justify any disparity in compensation.

Notably, if an applicant “voluntarily and without prompting discloses” compensation history, the employer may then consider it as a factor in determining the salary to offer an applicant.

Compliance Made Easy

In light of these trends in the workplace, employers must ensure that they are compliant with new and emerging laws as enacted, and to also perform routine audits – including employment forms, handbooks, policies, and templates.  As it relates to these salary inquiry laws, employers should (1) ensure job applications are compliant and do not include salary/wage inquiries, and (2) review interview questions, especially “scripts” used by management, and ensure that those conducting interviews are aware of the new unlawful inquiry.

What’s the Bottom Line on Salary History Inquiry Bans? Don’t Ask.

You may not ask applicants “how much do you currently make?” But you may ask: “how much would you like to earn in this position?” or “What are your compensation expectations?” or other similar future-oriented inquiries.

Attention CA & MA Employers – Paid Sick Leave Goes Into Effect July 1!!

California

Gov. Jerry Brown signed into law Assembly Bill 1522, the “Healthy Workplaces, Healthy Families Act of 2014.” Under this new law, effective July 1, 2015, California employers, with few exceptions, must provide at least 24 hours (3 working days) of paid sick leave per year to their employees.  Read more here!

Massachusetts

On November 4, 2014, Massachusetts voters approved a ballot referendum requiring Massachusetts employers to provide paid sick leave. The new law will take effect on July 1, 2015. Massachusetts joins California and Connecticut as states requiring employers to provide paid sick leave, along with cities such as San Francisco, Newark and New York City.  Read more here!

Medical Marijuana Update: Colorado Supreme Court Upholds That Employers May Enforce Drug Free Workplace Policies

Contributed by Michael Wong

On June 15, 2015, the Colorado Supreme Court upheld the appellate court’s ruling that employers can lawfully terminate employees for use of medical marijuana outside of work in compliance with a drug free workplace policy in Coats v. Dish Network, 2015 CO 44 (June 15, 2015).

This is an important decision for employers as many of the state laws “legalizing” marijuana for medical and/or recreational use have been recognized as providing protections from criminal laws, but are unclear as to how much, if any, civil or employment protections are provided to employees under those laws and other state laws.

In Coats v. Dish Network, an employee in an administrative position tested positive during a random drug test. The employee advised the employer that he had a state-licensed medical marijuana card and only used marijuana at home outside of work. After reviewing this information the employer terminated the employee for violating its drug free workplace policy.

The employee then sued the employer under Colorado’s Lawful Activities Act, Colo. Rev. Stat. Ann. § 24-34-402.5 (West), which prohibits employers from disciplining or terminating an employee for lawful activities engaged in off the premises of the employer during non-working hours. Colorado’s Lawful Activities Act is similar to many other state laws, including Illinois, California, Minnesota and New York, which were primarily enacted to prohibit employers from having policies that would prohibit employees from engaging in lawful activities, such as tobacco and alcohol use, outside of work.

The Colorado Supreme Court held that the Colorado Lawful Activities Act only protected outside-of-work activities that are lawful under both Colorado law and federal law. As such, any activities that are unlawful under federal law, like the use of marijuana (medically or recreationally), are not protected under Colorado’s Lawful Activities Act.

This is important, as Colorado employers are able to enforce drug free workplace policies without violating Colorado’s Lawful Activities Act. Additionally, it provides employers in other states some indication that their state courts may follow the Colorado Supreme Court’s lead and find that employers may still enforce drug free workplace policies without violating their state laws. It should be noted that the Colorado Supreme Court relied in part on the federal classification of marijuana as a Schedule I drug that has no medically accepted use, a high risk of abuse and a lack of accepted safety for use under medical supervision, and that a change to the federal classification of marijuana could impact this decision.

The takeaway from the Coats v. Dish Network decision for employers is that until there is clear statutory language or case law stating otherwise, employers are able to enforce their drug free workplace policies. That being said, since this is an issue in which case law is still developing and each state has different statutory language and regulations, employers should consult with legal counsel in addressing these types of issues prior to making any discipline or termination decision.

California Law Update: New Family Rights Act Regulations Starting July 1, 2015

Contributed by Heather BaileyCalifornia

As California employers are well aware, the California Family Rights Act (CFRA) gives employees certain leave rights for medical conditions, similar to the federal Family & Medical Leave Act (FMLA).  However, starting July 1, 2015, the regulations are updated to align more with FMLA in certain areas and to clarify areas where CFRA is different than FMLA.

CFRA alignment includes:

  • “Covered employers” now contains successors in interest and joint employers are defined similar to FMLA;
  • Spouse is defined to include same-sex spouses as FMLA;
  • When calculating the 12 months of eligibility cut off, the break in service is now seven years or more like FMLA;
  • Employer has five business days to respond to the need for CFRA leave;
  • Key employees are defined as those in the highest 10% of the workforce; and
  • Employers have the ability to deny reinstatement if an employee fraudulently uses CFRA leave, doesn’t cooperate with the medical certification process or fails to cooperate with employer questions re: leave.

It is important to highlight some of the key variances that remain between the two very alike, but different medical leave laws:

  • If your workforce has 10% or more employees who speak another language as their primary one, you must translate the CFRA notice in that language.
  • New CFRA Certification of Health Care provided should be used.
  • Although under FMLA, an HR professional or administrator may contact the doctor to authenticate or clarify a medical certification, under CFRA, they may only contact the doctor to authenticate.
  • Second opinions? More difficult under CFRA.  You need a “good faith, objective reason” to request one, and don’t bother asking for one unless it’s for the employee’s serious health condition.
  • During the certification process, employers may not ask for additional information such as the underlining diagnosis of the need for leave or symptoms.
  • Medical continuation must be provided for employee’s entire unpaid pregnancy disability leave (4 months) including the subsequent CFRA leave (12 weeks).
  • While an employee is on Paid Family Leave, employer cannot require they exhaust/use any accrued paid leave during this time even if it’s covered under the CFRA.

Practice Tips:

  • Use the new CFRA medical certification form;
  • Update your handbooks and related policies with the new changes;
  • Update the poster with the revised CFRA poster;
  • Survey your existing workforce to determine if at least 10% speak a different language;
  • Vet out a reputable translation service for the new notices (in the event the department does not do so on its own);
  • Train, train, train your management so they understand the triggers so they know when to get HR involved in employee leaves; and
  • When in doubt, contact your labor and employment counsel.

No Bullies Allowed!

Contributed by Noah A. Frank

Beginning January 1, 2015, California employers (with 50 or more employees) must provide anti-bullying training to supervisors within 6 months of assuming a supervisory role, and during biannual anti-sexual harassment training.  California broadly defines workplace bullying as: “Conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.”  This may include:

  • Repeated infliction of verbal abuse (e. g., derogatory remarks, insults, and epithets),
  • Verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or
  • Gratuitous sabotage or undermining of a person’s work performance.

There is no question that bullying has negative impacts in the workplace.  It lowers morale and productivity, and may lead to union organizing activity – especially when the bully is a supervisor.  Tennessee is the only other state with an anti-workplace bullying law (which applies only to public employers); and all states (except Montana) have school anti-bullying laws to protect students.  Many other states require or highly encourage some form of employment anti-harassment training (including Colorado, Connecticut, Florida, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, Texas, Utah, Vermont, Washington, and Wisconsin).

However, California’s law signals a dangerous shift in human resources management.  While there is no private cause of action, an employer that fails to incorporate anti-bullying into their biannual training will certainly see this as part of a discrimination/harassment/retaliation claim – and worse, will likely see claims for deficient training and enforcement.

Practical Advice

Audit your policies to ensure a productive workplace, free of illegal and otherwise unproductive harassment and discrimination.  For example:

  • Open Doors: provide employees with a retaliation-free mechanism to report concerns and have open dialogue with management.  Make sure they know about it.
  • Stop bullying.  If you don’t do it now, a new union may form tomorrow.
  • Establish appropriate conduct policies and enforce them.
  • Train supervisors to recognize and correct unproductive and inappropriate conduct.
  • Take proactive steps, such as moving, disciplining, or terminating bullies.

But use caution: implementing rules only after concerted protected activity (“once it is too late”) could also lead to unfair labor practice charges (see, Care One at Madison Avenue, 361 NLRB No. 159 (12/16/2014), discussed in our February 3, 2015 blog).  Thus, seek the advice of counsel when difficult or compound situations arise.

Paid Sick Leave? Ban The Box? Pregnancy? Equal Pay? Smoker Retaliation Poster? Here’s Your State Employment Law Update

Contributed by Heather Bailey

Reminder: EEO-1 Surveys Due To Be Filed By September 30th! 

US Map

Arizona:  In July, the Attorney General confirmed that the AZ smoking restrictions do not apply to e-cigs.

California: Employers, get ready to start having to offer paid sick leave beginning July 1, 2015 if you aren’t already!  See our September 16, 2014 post for more details.  Also, beginning January 1, 2015, unpaid interns and volunteers are getting the same nondiscrimination and harassment treatment as paid workers, including non-harassment training.

Connecticut:  Starting October 1, 2014, workers may obtain certificates of rehabilitation related to their arrests and convictions of which employers are prohibited from retaliating against employees and applicants when they present one for initial or continuing employment.

Delaware:  Your minimum wage increased to $7.75 per hour on June 1, 2014!

Illinois:  In case you missed our other blog posts, effective January 1 2015, Illinois joined the ranks of the “Ban the Box” campaign, which prohibits employers (with 15 or more employees) from asking applicants about criminal records on a job application.  You cannot do so until they have either been selected for an interview or been given a conditional offer of employment (with a few select exceptions).  Also effective January 1, the Illinois Human Rights Act related to pregnancy was expanded (more than any other state) so employers must now reasonably accommodate any condition related to pregnancy.

Indiana:  On September 2, 2014, the right to work law was upheld once again – this time by the 7th Circuit Court of Appeals.

MassachusettsPlease note your minimum wage hikes: January 1, 2015, $9 per hour ($3 an hour for tipped employees); $10 an hour ($3.35 for tipped employees) on January 1, 2016, and to $11 ($3.75 for tipped) beginning January 1, 2017.

Michigan: Your minimum wage increased to $8.15 per hour on September 1, 2014.

Missouri: The Missouri Supreme Court recently held that the state’s statutory cap on punitive damages is unconstitutional as is applied to certain common law claims. (Lewellen v. Franklin, case SC92871). The holding is limited to common law causes of action that existed when the Missouri Constitution was adopted in 1820.  In the short-term, this decision may raise the cost of litigation as plaintiff’s attorneys will undoubtedly try to add common law claims to employment lawsuits hoping that the threat of unlimited punitive damages will result in more generous settlements.  However, given that traditional common law claims have been increasingly difficult to sustain in the employment context and have been largely supplanted by statutory and more recently-recognized common law actions, Lewellen is ultimately unlikely to raise the stakes for Missouri employers.  Read more about this here.

New Hampshire:  Beginning January 1, 2015, employers have a new mandatory poster requirement for equal pay and smoker rights non-retaliation, as well as, employers may not prohibit employees from discussing pay wages or retaliate against them for doing the same.

Oklahoma:  OK jumped on the band wagon by prohibiting employers from requiring employees to give up their personal social media log-ons and passwords, effective November 1, 2014.

Vermont: Vermont’s smoking ban includes at least 25 feet from buildings and entrances.  Your minimum wage obligations also increase: January 1, 2015 = $9.15 per hour; January 1, 2016 = $9.60; January 1, 2017 = $10 and January 1, 2018 = $10.50.  All tipped employees must be paid at least one-half of the minimum wage effective January 1, 2015.

Ah-Choo! California Employers Will Soon Be Required to Pay Sick Leave

Contributed by John J. Lynch

Gov. Jerry Brown last week signed into law Assembly Bill 1522, the “Healthy Workplaces, Healthy Families Act of 2014.”  Under this new law, effective July 1, 2015, California employers, with few exceptions, must provide at least 24 hours (3 working days) of paid sick leave per year to their employees.

Who Is Covered?

Essentially all employers and employees (including part-time and temporary employees) are covered by the law.  Unlike other California leave laws (as well as other states and the FMLA), there is no minimum employee threshold; nor is there a minimum-hours-worked requirement.

The few exceptions are:

  • Employees covered by collective bargaining agreements (CBA’s) that expressly provide for paid sick days or paid time off (PTO) that permits employees to use sick days.  The CBA must have a final and binding arbitration provision concerning the application of the paid sick leave provisions.  Moreover, the CBA must provide a regular rate of pay at least 30% above the state minimum wage rate.
  • Employees in the construction industry covered by CBAs that provide a regular rate of pay at least 30% above the state minimum wage rate.  In addition, the construction industry CBA has to have been entered into before January 1, 2015, OR expressly waive the requirements of the new statute in clear and unambiguous terms.
  • Providers of in-home support services under specific sections of California law set out in the statute.
  • Individuals employed by air carriers as flight deck or cabin crew employees and covered by the federal Railway Labor Act.  But this exception only applies if those employees are “provided with compensated time off equal to or exceeding the amounts established in [the new statute].”

How, When and How Much Sick Leave is Accrued?

Once the act goes into effect on July 1, 2015, employees who have worked 30 or more days in California within a year of their employment will begin immediately accruing paid sick leave.  At a minimum (the law encourages greater benefits), they must accrue the 24 hours at a rate of one hour for every 30 hours worked beginning upon the commencement of employment or on the effective date of the statute. (So, employees who did not previously have sick time begin accruing it on July 1, 2015, not retroactive to when their employment began.)

For purposes of calculating accrual, overtime-exempt employees are presumed to work 40 hours per week.  Thus, they will accrue 1.333 hours per week.  If an exempt employee’s normal workweek is less than 40 hours, that employee will accrue sick leave based on the normal workweek.  (So, an exempt employee whose normal workweek is 30 hours would accrue 1 hour per week; an exempt employee whose normal workweek is 15 hours would accrue ½ hour per week.)

Employees can begin to use their accrued sick leave on the 90th day of their employment.  Employees may decide the amount of leave they need to use, although employers may set a reasonable minimum increment – but that minimum increment cannot exceed two hours.  (That is, an employer cannot have a rule that requires an employee to use at least three hours of sick leave per occurrence.)

An employer may (but is not required to) “lend” sick days to an employee in advance of accrual at the employer’s discretion and with proper documentation.

Employers must allow an employee to use no less than 24 hours (or three 8-hour work days) of paid sick leave per year.  Any unused sick time must be allowed to roll over to the following year, although employers may cap total accrual at 48 hours (six 8-hour work days).

The law allows an employer to avoid the accrual and carry-over issue if they provide at least 24 hours or three days of paid sick leave at the beginning of each year (calendar or other 12-month period).  That way, each employee is guaranteed to have sick leave available at the beginning of the year, instead of having to wait to accrue it.

If you already have a sick leave or PTO policy in place, you do not have to provide additional leave, so long as your current policy: 1) satisfies the statute’s accrual, usage, and carry over requirements; and

(2) provides no less than 24 hours of paid sick leave or PTO annually.   In essence, you need to comply with the law.

Sick Leave Rate

Sick leave must be paid at the employee’s hourly wage.  If an employee is paid on commission or a piece rate, the hourly rate is obtained by dividing total wages (not including overtime premium pay) by the employee’s total hours worked in the full pay periods in the prior 90 days of employment.

No Payout Required Upon Termination

Unlike vacation time, accrued but unused sick leave under this act need not be paid to an employee upon termination.  But, if that employee should be rehired by the employer within a year, all previously accrued and unused sick time must be reinstated.

Reasons May Sick Leave Be Used

Paid sick days may be used for the diagnosis, care, or treatment of an existing health condition of, or the preventive care for, an employee or an employee’s family member.

“Family member” means a child (including step, adopted, foster, legal ward, or a child to whom the employee stands in loco parentis, and “regardless of age or dependency status”), a parent (including step-parents, parents-in-law, legal guardians, or someone who stood in loco parentis while the employee was a minor – regardless of how long ago that was), a spouse, a registered domestic partner, a grandparent, a grandchild, or a sibling.

In addition, paid “sick days” may also be used by employees who are the victims of domestic violence, sexual assault, or stalking.

Notice Requirements

Employees must provide “reasonable advance notification” of their foreseeable need to use the leave.  If the need is unforeseeable, the employee must provide notice of the need for leave “as soon as practicable.”   Requests to use sick leave may be made orally or in writing.

An employer may not require the employee to find a worker to replace her/him during her/his sick leave.

Employers must provide employees with written notice of their available amount of paid sick leave or PTO leave provided in lieu of sick leave. This notice must be either on the employee’s itemized wage statement (i.e., their pay stub) or in a separate writing provided on the employee’s pay date at the time wages are paid.

Additionally, employee usage and accrual of sick leave must be documented and retained for at least three years. These records must be made available for employee inspection within 21 days of a written or oral request for such information.  (Just as under current Labor Code Section 226.)  If an employer does not maintain adequate records, it will be presumed that the affected employee is entitled to the maximum number of accruable hours under the law unless the employer can show otherwise by clear and convincing evidence.

Each new employee must be provided notice of their entitlement to accrue and use sick leave, that they may not be terminated for exercising their rights under the act, and that they may file a complaint for retaliation if they believe they have been retaliated against.

Employers will also be required to display a poster in a conspicuous place in each workplace.  The act requires the Labor Commissioner to create a poster and make it available to employers.

Enforcement and Penalties

In an unusual move, the act establishes a rebuttable presumption of unlawful retaliation for denying the use of sick leave, for any adverse action or threat of adverse action, or any other manner of discrimination occurring within 30 days of an employee engaging in any of the following:

1) filing a complaint with the Labor Commissioner OR alleging a violation of the act;

2) cooperating with an investigation or prosecution of a violation of the act; or

3) opposing an employer’s policy, practice, or act that  is prohibited by the act.

There is no private cause of action under the act.  The Labor Commissioner is responsible for the law’s enforcement and regulation.  If, after a hearing, the Labor Commissioner finds that a violation occurred, the Labor Commissioner may order “any appropriate relief, including reinstatement, backpay, the payment of sick days unlawfully withheld,” as well as administrative penalties.

The law also authorizes the Labor Commissioner or the Attorney General to institute a civil action for a violation of the act.

There are penalties for posting violations ($100 per offense), withholding sick leave (triple damages or $250, whichever is great, up to a maximum of $4,000), any other harm to an employee ($50 per day, up to a maximum of $4,000), or failure to promptly comply with an order of the Labor Commissioner ($50 per day).  All of those penalties are cumulative.

What Should Employers Do?

California employers should update their sick leave, PTO leave, and record-retention policies to ensure compliance.  Employers should also ensure that all managers and supervisors are trained in the application of the new law and the employer’s revised policies.

Employers must also ensure that their California employees’ wage statements or pay stubs accurately reflect accrued and used sick time.

Finally, employers should update their new hire packets, Employee Handbook and/or their existing sick leave or PTO policies to make them compliant with the new law.