Contributed by Heather Bailey
Federal: Attention Federal Contractor/Subcontractor Employers! In order to be in compliance with affirmative action obligations, applicable employers must start tracking those applicants and employees who are disabled and/or are qualified protected veterans, who choose to self-identify. This also means having a written affirmative action plan with utilization goals for these classes of individuals. For those employers who are affected, this will begin applying to all plans drafted as of March 24, 2014 and after. It is a good idea to start meeting with your IT and HR professionals now on how such data is going to be collected and analyzed for the upcoming new plans.
California: Effective January 1, 2014, California cracks down on those employers who choose to discriminate against or threaten those employees or applicants due to an employee’s or family member’s citizenship or immigration status or involvement in protecting such rights.
Illinois: As of January 1, 2014, employers now have the ability to seek protection orders against employees who create or threat workplace violence. Prior to now, this protection was not available for workplace violence created by employees. Starting June 1, 2014, employers must recognize the marital status of those employees who have entered into same-sex marriages.
Missouri: Minimum wage = $7.50 starting January 1 and $3.75 for tipped employees (due to inflation regulations).
New Jersey: Starting January 6, 2014, all employers with 50 or more employees must post and distribute (with a signed acknowledgment) the new NJ poster re: state and federal equal pay laws and discrimination prohibitions. Get your latest copy here.
Contributed by Karuna Brunk
On September 24, 2013, Governor Jerry Brown signed a bill to extend California’s Paid Family Leave program to relatives beyond parents, spouses, children, registered domestic partners, and same-sex spouses. Under this program, employees will be able to take up to 6 weeks off from work with partial pay from the state to take care of extended family members such as grandparents, grandchildren, siblings, or parents-in-law.
California’s Paid Family Leave guarantees up to 55% of an employee’s average weekly salary for up to 6 weeks within a 12-month period. Employees pay for the partial salary through a 1% deduction in their paychecks on the first $95,585 they earn annually. To be eligible for the partial payment, employees must have earned $300 in the preceding 12 months.
What does this mean for employers? Essentially, employees in California can now take paid time off to take care of grandparents, grandkids, and other extended family. Already the Federal Family Medical Leave Act and the California Family Rights Act allow employees to take up to 12 weeks of job protected but unpaid leave. Although Paid Family Leave does not guarantee job protection, the new additions to the act allow employees to take paid time to care for additional persons. In accordance with this new legal expansion, employers should update employee manuals and internal policies. They should also get ready for more employees to take leave.
Contributed by Samantha Esmond
On Wednesday, September 25, 2013, California’s Governor, Jerry Brown (D), signed into law Assembly Bill 10 (“AB 10”), which approved a two-dollar ($2.00) state minimum wage rate increase to take effect over the next three (3) years. This new law raises the minimum wage, in the most populous U.S. State, from $8.00 per hour (the current rate) to $10.00 per hour as of January 1, 2016. This will be the first minimum wage raise for the state in approximately six (6) years.
Under this new law, California’s minimum wage will go up in two separate one-dollar ($1) increments. The first bump will take effect on July 1, 2014, and raise the state minimum wage from $8.00 per hour to $9.00 per hour. While, the second one-dollar ($1) increase will take effect on January 1, 2016 and raise the state minimum wage rate to $10.00 per hour.
This scheduled wage increase will place California’s minimum wage well above the current federal minimum wage of $7.25 per hour. California employers should also beware of any additional city and county ordinances, such as San Francisco’s Minimum Wage Ordinance, which set the minimum wage for all work performed within the geographic boundaries of the City of San Francisco at $10.55 per hour. Likewise, the City of San Jose’s Minimum Wage Ordinance currently sets the minimum wage for work performed within the City limits of San Jose at $10.00 per hour. Where there are conflicting requirements in state, local, and federal laws, the employer must follow the stricter standard (i.e., the one that is the most beneficial to the employee).
IMPACT: California employers should be cognizant of these new statewide minimum wage requirements, including updating any and all employee handbooks and policies together with any required employee postings and notices. Employers must also make any necessary changes to their payroll systems to ensure that these minimum wage increases are applied as they become effective.
Contributed by Carly Zuba
Beginning January 1, 2013, the California Fair Employment and Housing Act (FEHA) took on an entirely new look, thereby amending, repealing and adding to various provisions of FEHA. These changes affect any employer with five or more employees working in California.
Notably, the new FEHA differs from the old FEHA in the following respects:
- Elimination of the Fair Employment and Housing Commission (FEHC).
- Creation of new authority for the Department of Fair Employment and Housing (DFEH) in enforcing FEHA and promulgating rules. FEHC’s former regulatory and rulemaking functions were handed over to a seven-member Fair Employment and Housing Council within DFEH. As such, employers should anticipate possible new regulations coming down the pike sometime this year. Hopefully, some of these regulations will provide clarification to employers on some of the more complex areas of California employment discrimination law. In addition, the council will conduct hearings on FEHA regulations and civil rights issues. Employers can participate in the rulemaking process by providing feedback and comments to the council.
- Authorization for DFEH to file cases directly in court. If a discrimination claim before the DFEH is not resolved through mediation, conference, etc., DFEH can now bring a civil action against the employer on behalf of the Complainant, thereby standing in the place of the individual who originally brought the claim. Employers will need to begin evaluating the differences between defending cases brought by DFEH versus cases brought by private attorneys. And, most significantly, the former caps on damages for claims brought to the FEHC have vanished – in contrast, there are essentially no caps on damages plaintiffs may recover in court.
- Creation of mandatory dispute resolution procedure, before DFEH can proceed to court. DFEH has a new Dispute Resolution Division. Dispute resolution is now mandatory for all cases in which DFEH intends to file a civil action. These dispute resolution services are provided to the parties free of charge. The good news for employers and employees alike is that DFEH’s dispute resolution services boast an 80% settlement rate.
- Ability for DFEH to collect attorneys’ fees and costs when it is the prevailing party in FEHA litigation. If DFEH prevails in court, it can now obtain reasonable attorneys’ fees and costs, including but not limited to expert witness fees. These fees and costs will be deposited into a Litigation Fund in the State Treasury.
Of course, it is a bit too early to predict how these changes will truly affect the substance and volume of FEHA employment discrimination litigation. Stay tuned, California employers…
Contributed by Heather Bailey
California: Effective January 2013, in governmental cost cutting efforts, the California Fair Employment and Housing Commission will be eliminated and the employment regulatory functions will be handled by the Fair Employment and Housing Council, which should prove to be interesting.
Louisiana: Beginning in August, employers may not discriminate against those employees who lawfully participate in working with law enforcement when reporting co-workers’ sexual abuse of minors.
Maryland: Employers, effective October 1, employers cannot ask employees for their personal user name and passwords for personal social media accounts, electronic devices, etc., nor can you retaliate if they refuse to comply with that request.
Rhode Island: It is now illegal to discriminate against those applicants or employees who are homeless and seeking or maintaining employment because such individuals lack a permanent mailing address or because their mailing address is for a shelter or social service provider. Penalties can include paying for actual damages, attorneys’ fees and costs.
Minimum Wage increases to $7.75 per hour on January 1, 2013.
South Carolina: In June, SC joined the ranks of a right-to-work state whereby employees – with their employers’ permission – can post SC’s right-to-work notice in a conspicuous place.
Tennessee: Employers can now post right-to-work notices.
ALERT – Many States Are Enacting Their Own Versions Of The Following:
- New Hire Procedures: Many states are updating and amending what employers need to report when hiring new employees (e.g., in Illinois, employers must now report new hires’ anticipated monthly wages). Know your state’s requirements!
- Health Continuation Coverage for Small Employers: Many states are now requiring that smaller employers must give continuation coverage for health insurance in certain circumstances, such as when a covered employee passes away. It is best to confirm whether your size company has obligations as COBRA may not be your only benchmark anymore.
- Using Handheld Devices While Driving: Lastly, many states are taking a stance on talking and texting on cell phones – especially while driving for work purposes. You need to know what to do when your employee gets the ticket because sometimes the employer could be left paying the bill. Having a solid cell phone policy in place is a plus to reducing such liability.
Contributed by Beverly Alfon
Last week, on the heels of the Brinker decision (which requires employers to make meal breaks available to their employees, without the burden of ensuring that employees take such breaks), the California Supreme Court ruled that a prevailing party cannot collect attorneys’ fees after winning a meal or break dispute under the California Labor Code.
In Kirby v. Immoos Fire Protection, Inc., the defendant employer was the prevailing party on a claim for alleged violations of the Labor Code section 226.7, which governs employee rest breaks. As the prevailing party, the employer sought to recover its attorneys’ fees under section 218.5 of the Labor Code, which provides for recovery of fees by “the prevailing party” in “any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions.” The trial court awarded attorneys’ fees to the employer. The appellate court upheld the award of attorneys’ fees to the employer on the rest break claim. However, the California Supreme Court reversed.
The court considered two questions: (i) whether meal/rest break claims fall within section 1194 (fee shifting provision) and, if not, (ii) whether section 218.5 authorizes an award for meal/rest break claims.
- The court determined that section 1194 did not apply because neither the text nor the history of section 1194 indicated that the statute is meant to refer to anything other than “ordinary minimum wage and overtime obligations” – which does not include meal/rest break claims. It also reasoned that code section 1194 is one-way shifting provision that only provides recovery of attorneys’ fees to employees who prevail under that section.
- The court acknowledged that section 218.5 is a two-way fee shifting provision that allows an award of attorneys’ fees to any prevailing party. However, it reasoned that the provision only applies to actions “brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions” – not missed meal/rest breaks.
Although the California Supreme Court’s ruling was negative for the employer in Kirby, the up-side is that this decision eliminates the potential for an award of attorneys’ fees under the Labor Code, which is often used as an incentive for plaintiffs’ attorneys with respect to meal and rest break claims.
Contributed by Carly Zuba
For countless years now, California employers have struggled with interpreting and complying with vague and ambiguous meal and rest period laws in California. For instance, what is meant by “providing” a thirty-minute meal and rest period to employees? Are employers required to ensure that employees actually take these mandatory breaks? When must these breaks be allowed during the workday? These seemingly simple questions have cost California employers hundreds upon hundreds of headaches … and millions upon millions of dollars in lawsuits.
However, as of yesterday afternoon, we anticipate that many of these headaches will subside, as the California Supreme Court provided some long-awaited clarification on these matters in Brinker Restaurant Corp. v. Superior Court of San Diego. California employers have been holding their breaths in anticipation of this ruling for three and a half years – the case has been pending before the state’s high court since 2008. And all the way from the state of Illinois, we are hearing California employers breathing sighs of relief.
All things considered, Brinker is a win for employers and will undoubtedly shape the growing number of class action lawsuits that employees are waging against employers accused of meal and rest break violations. Below are the most significant rulings within the case:
- Employers need not take on the role of “lunch police”: The court clarified that while employers are legally required to provide employees with meal and rest breaks by relieving employees of all work duties and allowing them to leave the work premises, employers are under no obligation to ensure that employees are actually taking those mandated breaks. In short, employers cannot be sued if employees choose to perform work during their breaks.
- Meal Period Timing: The first meal period must be provided within the first five hours of an employee’s shift. If an employee is entitled to a second meal period, it must be provided within the first ten hours of an employee’s shift. Beyond this, there are no additional timing requirements under the law.
- No Required Order: Rest breaks and meal periods need not be given in any particular order.
- Rest Period Clarification: Employees are entitled to ten minutes of rest for shifts from three and a half hours to six hours in length, and to another ten minutes of rest for shifts from six to ten hours in length.
- Suitability of Claims for Class Treatment: Meal and rest periods claims are suitable for class action where the employer has a uniform policy or practice which conflicts with meal and rest period requirements under the law.
Amid this mainly positive news, we close with a cautionary note for you California employers: if you know that employees are working during a mandated meal and rest break, you must immediately tell them to take their break, unless you want to pay them for that time. This is because the court stated that if an employer “knew or reasonably should have known” that an employee was working during their break, the employer will be liable for payment of that employee’s wage for time worked. So while you don’t have to police your employees’ breaks, you can’t simply turn a blind eye to an obvious violation.