Bar Association of San Francisco Yosemite Conference

New Laws and Cases for 2014

Mark I. Schickman, Esq

Cathleen S. Yonahara

schickman@freelandlaw.com

Freeland Cooper & Foreman LLP

San Francisco, CA

1187153

Whistleblower

2187153

New Law on Whistleblower Protection

Effective 1/1/14, SB 496 expands Labor Code

§ 1102.5 to:Include internal complaints.Include reports alleging a violation of a local

rule or regulation.Protect all employees, including employees

with duties related to company compliance, from whistleblower retaliation.

3187153

New Law on Whistleblower Protection

Prohibit employers from adopting policies that prevent employees from disclosing a violation of law to a supervisor or other employee who has authority to investigate, discover or correct the noncompliance.

Prohibit retaliation against employee b/c employer “believes the employee disclosed or may disclose information” to a government or law enforcement agency.

4187153

New Law Prohibits Retaliation Against Employees Asserting Rights Under

Labor CodeEffective 1/1/14, AB 263 prohibits retaliation

or adverse action against employee who assert employee’s rights under the Labor Code, including a written or oral complaint that employee is owed wages

Adds a civil penalty of $10,000 per employee per violation of Labor Code § 98.6.

5187153

Attorneys’ Fees

187153 6

New Law on Attorneys’ Fees for Wage and Hour Lawsuits

SB 462, effective 1/1/14, provides that employers who win lawsuits for failure to pay wages or benefits may recover attorneys’ fees only if a trial court finds that the employee filed lawsuit in bad faith.

7187153

Attorney’s Fees – Prevailing Party Wage Claims

SB 462 states that employers who win wage-claim lawsuits may recover attorneys’ fees and costs from the employee only if a trial court finds that the employee filed the lawsuit in bad faith.

8187153

Privacy

187153 9

Background Checks

SB 530 amends Labor Code section 432.7 to prohibit an employer from asking any applicant to disclose information concerning a conviction that has been judicially expunged, sealed or dismissed. The law also prohibits employers from considering any such information as a condition of employment. Certain exceptions apply, such as when the employer is required by law to obtain that information.

10187153

Background Checks

AB 218 prohibits a state or local agency from asking an applicant to disclose information regarding a criminal conviction until after the agency determines the applicant meets minimum employment qualifications. There are specified exceptions, such as where a criminal history background check is otherwise required by law for the position. This legislation will not go into the effect until July 1, 2014.

11187153

Invasion of Privacy—Workplace Search

A workplace search may be unconstitutional.

Lower employee’s expectation of privacy by:

Having written policy giving employee advance notice that searches may be conducted, and all areas in workplace are subject to search.

Obtaining written authorization from an employee before conducting a search.

Objectives of any search should be job related.

Keep degree of intrusion reasonably necessary.12

Social Media PasswordsEffective 1/1/13, AB 1844 prohibits employers

from requiring an employee or an applicant to disclose a username or password for the purpose of accessing personal social media.

Prohibits employers from requiring that the employee or applicant access personal social media in the presence of the employer.

13

Social Media PasswordsExceptions: These prohibitions do not apply:

when the request is to a current employee as part of an investigation of allegations of employee misconduct or violation of law, but the request must be based upon a reasonable belief that the request seeks relevant information.

to electronic devices issued by the employer.

14

Personnel FilesEffective 1/1/13, Labor Code 1198.5 requires

employers:(1) to make personnel records available for

inspection by any current or former employee or his representative, and

(2) to provide a copy of the records.Timeframe: Within 30 calendar days from receipt

of a written request, or if the parties agree in writing, within no more than 35 calendar days.

15

Personnel FilesExceptions: The bill does not apply to

employees covered by a valid CBA if the agreement provides, among other things, for a procedure for inspection and copying of personnel records.

Retention Period: Employer must retain personnel files at least 3 years after termination of employment.

16

Personnel FilesPenalty if employer fails to permit inspection,

or to provide a copy, of personnel records within the required timeframe after receiving request: Penalty of $750; costs; attorneys’ fees; and

injunctive relief.

17

Jury Instructions

187153 18

California Supreme Court Limits Liability on Mixed Motive Cases

What if employer fires employee for both discriminatory reasons and legitimate performance reasons?

19187153

California Supreme Court Limits Liability on Mixed Motive Cases

If employee establishes discrimination was “substantial factor” in employment decision, employer can still avoid liability for monetary damages, back pay and reinstatement if employer proves:Legitimate reasons for termination;Legitimate reasons would’ve led to termination even if the

discriminatory motives hadn’t played a role; andEmployer was actually motivated by legitimate reasons when it

made the decision.

But, employee may still be entitled to injunction and attorneys fees and costs.

Harris v. City of Santa Monica (2013) 56 Cal.4th 203. 20187153

California Supreme Court Limits Liability on Mixed Motive Cases

“In light of today's decision, a jury in a mixed-motive case alleging unlawful termination should be instructed that it must find the employer's action was substantially motivated by discrimination before the burden shifts to the employer to make a same-decision showing, and that a same-decision showing precludes an award of reinstatement, back pay, or damages.” Harris v. City of Santa Monica (2013) 56 Cal.4th 203.

187153 21

PAGA

187153 22

California Labor CodePrivate Attorneys General Act (PAGA)Prevailing employee entitled to attorneys’ fees

and costs.Creates civil penalty for all Labor Code

violations (except those for which a civil penalty is specifically provided):$100 for each employee per pay period for initial violation, and

$200 for each subsequent violation.

Employees entitled to 25% of any civil penalty recovered; remaining 75% given to the Agency.

Employers prohibited from retaliating against employee for bringing action under PAGA.

23

Class Actions: PAGA v. Unfair Competition Law

CA Unfair Competition Law (Bus & Prof. Code section 17200) allows employees to sue for wage and hour violations occurring within 4 years from date of filing suit.

Prevailing employees entitled to “disgorgement of profits.”

Prevailing employees not entitled to attorney’s fees. In order to represent other employees, suit must be

brought as class action.In contrast, an employee bringing a PAGA case

does not need to bring a class action.24

Disability Discrimination/ PDL

187153 25

New FEHC Disability Rags

Applicants and employees must prove he is “otherwise qualified”

Defines assistive animals to include “support” animals that provide emotional or other support to person with disability, including traumatic brain injuries or mental disabilities such as major depression

26187153

New FEHC Disability Rags/Interactive Process

Employer’s obligation to engage in interactive process triggered when:

(1) request for accommodation is made by applicant or employee with a known physical or mental disability or medication condition;

(2) an employer is made aware of need for an accommodation by a third party or by observation; or

(3) disabled employee exhausted leave under workers’ comp, FMLA/CFRA for employee’s own SHC and HCP indicates further leave is required.

27187153

New FEHC Disability Rags/Medical Certification

An employer receiving requests for accommodation where existence of disability or need for accommodation is not obvious may ask for “reasonable medical documentation confirming the existence of the disability and need for reasonable accommodation.”

28187153

New FEHC Disability Rags/Medical Certification

Employer may ask the employee to provide information from the HCP (1) stating that employee has a physical or mental condition that limits a major life activity or medical condition and (2) a description of why the employee needs a reasonable accommodation.

The disclosure of the nature of disability is not required!

29187153

PDL/Health Care Coverage

Effective 1/1/12, employers must maintain and pay for coverage under its group health plans for the duration of the PDL, up to 4 months, at the level and under the conditions that coverage would’ve provided if the employee had continued in employment continuously for duration of the leave.

For state agencies, the CBA governs the employee’s receipt of health care coverage during PDL.

30187153

PDL/Health Care Coverage

Employers may recover from the employee the health care premiums the employer paid if the employee fails to return from leave after the expiration of the leave, provided the failure to return is not due to: the employee taking CFRA leave, a continuing disability, or other circumstances beyond the

employee’s control. 31187153

New PDL Regs/Health Care Coverage

New regs provides that the time employer maintains group health coverage during PDL can’t be used to meet its obligations to pay for 12 weeks of group health coverage under FMLA/CFRA.

New regs require employers to provide group health coverage for up to 7 months for a woman who takes both PDL and CFRA! Note– conflicts w/ CFRA regs.

32187153

New PDL Regs/ Calculating 4 Months PDL

It’s not 16 weeks! It’s 17 1/3 weeks. For employees working 40 hrs/wk => 693 hours

of PDL.Employees working part time schedule =>

prorata or proportional leave amountEmployee working varied schedule => monthly

average hours worked for 4 months prior to beginning of PDL

33187153

New PDL Regs/ Reinstatement

New regs remove employer’s ability to deny reinstatement when preserving the job or duties for employee would substantially undermine employer’s ability to operate the business safety and efficiently.

If employee’s original position is eliminated, she must be given comparable position for which she’s qualified that’s available on her scheduled reinstatement date or within 60 days.

During 60 day period, employer has new affirmative duty to notify employee of available positions.

34187153

New PDL Regs/New Notices

Posting: Employers must post applicable PDL notice (“Notice A” for employers < 50 employees; and “Notice B” for employers with 50+ employees).

Distribution: Provide a copy of the notice asap after the employee tells employer of pregnancy or sooner if the employee inquires about reasonable accommodation, transfer, or pregnancy disability leaves.

New model certification form provided.35187153

New PDL Regs/ Conditions That Qualify for PDL

Severe morning sicknessGestational diabetes Pregnancy induced hypertensionPreclampsiaMastitisPost-partum depressionPrenatal or postnatal careBedrestChildbirthLoss of end or pregnancyRecovery from childbirth or loss or end of pregnancy

36187153

New PDL Regs/Reasonable Accommodation

You must provide accommodation to pregnancy employee if the accommodation is “reasonable” and HCP certifies it’s “medically advisable”

What’s reasonable?Look at totality of circumstances– employee’s medical needs, duration

of accommodation, employer’s past and current practices

No undue hardship defenseNo second opinions

37187153

Can You Terminate Employee Who Has Exhausted PDL?

Employer gave employee 19 weeks of leave, then fired her b/c she was unable to return to work. Employee sued.

Employer claimed that 4 months was max leave a pregnant employee could take under PDL or FEHA.

Wrong! Employee had valid claim under FEHA for discrimination and failure to provide reasonable accommodations.

Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331.38187153

Interplay AmongFMLA, CFRA and PDL

FMLA and PDL may run concurrently

CFRA and PDL don’t run concurrently.

At end of employee’s pregnancy disability, or end of 4 months PDL, whichever is first, a CFRA-eligible employee may take up to 12 workweeks for reason of birth of child.

Maximum possible combined statutory leave for both PDL and CFRA leave due to birth of child is 4 months and 12 workweeks.

39187153

Other Leaves of Absence

187153 40

New Law Prohibiting Discrimination for Taking Crime Victims Leave

Effective 1/1/14, SB 288 prohibits employers from discriminating or retaliating against an employee who is a victim of a specified serious crimes for taking time off from work, upon the victim’s request, to appear in any proceeding in which a right of the victim is at issue.

41187153

New Law Leave for Stalking Victims

SB 400, effective 1/1/14, employers must provide leave for stalking victims (in addition to domestic violence and sexual assault victims).

Employers may not discriminate or retaliate based on employee’s status as victim of domestic violence, sexual assault or stalking.

Employers must provide reasonable accommodation to victims of domestic violence, sexual assault or stalking, including transfer, reassignment or other safety measures. 42187153

Paid Family Leave

Employees may receive wage replacement benefits for up to 6 weeks in any 12 month period to care for seriously ill child, spouse, parent, domestic partner, or to bond with minor child within 1 year of birth or placement of child in connection with foster care or adoption.

Covered Employers: Employers with 1+ employees covered by SDI program or voluntary plan in lieu of SDI.

Leave is not job protected

Like SDI, PFL fully funded by employees’ contributions (up to 55% of base wage, capped at weekly maximum).

43187153

New Law on Paid Family Leave

Effective 7/1/14, SB 770 expands PFL benefits for employee to include time off taken to care for a seriously ill:GrandparentGrandchildSibling orParent-in law

44187153

Companionship/ Personal Attendant Exemption

187153 45

Personal Attendant Exemption Under California Law

“Personal attendants” are exempt from statutory overtime and meal and rest break provisions, but are not exempt from minimum wage requirements.

Personal attendants are defined as babysitters and any person employed by a private householder or any third party employer recognized in the health care industry to work in a private household, to supervise, feed or dress a child or a person who by reason of advanced age, physical disability or mental deficiency needs supervision. In order to have the status of personal attendant, the employee may not spend more than 20% of the employee’s weekly time engaged in other work.

46187153

New Law on Overtime Payfor Personal Attendants

AB 241 (aka “Domestic Worker Bill of Rights”) provides for overtime for a domestic worker, including a live-in domestic worker, who is a personal attendant. This provision doesn’t apply to casual babysitters.

Overtime must be paid at the rate of one and one-half times the employee’s regular rate of pay:for all hours worked > 9 hours in a workday and for all hours worked > 45 hours in a workweek.

This law takes effect on 1/1/14 with a 3-year sunset provision.

47187153

Companionship Exemption Under Federal Law

Under current federal law, domestic workers employed to provide “companionship services” for an elderly person or a person with an illness, injury or disability are exempted from FLSA’s minimum wage and overtime provisions.

Live-in domestic workers are exempted from overtime, but not minimum wage requirements, under the FLSA.

48187153

New DOL Rule on Companionship Exemption

DOL issued a 9/17/13 Final Rule, effective 1/1/15:

(1) Extending FLSA’s minimum wage and overtime provisions to domestic workers employed to provide companionship services for an elderly person or a person with an illness, injury or disability.

(2) Narrowly defining “companionship services” so that many direct care work workers will be covered by the FLSA.

(3) Provides that third party employers of domestic workers (such as home care staffing agencies) may not claim the exemption for companionship services or the exemption for live-in domestic workers.

49187153

Wage and Hour

187153 50

New Minimum Wage Law

California$8 per hour currently$9 per hour by July 1, 2014$10 per hour by January 1, 2016

CitiesSan Francisco: $10.74 effective 1/1/14San Jose: $10.15 effective 1/1/14

51187153

Damages for Minimum Wage Violations

AB 442 expands the penalty available for citations issued by the Labor Commissioner for failing to pay minimum wage to include a requirement that the employer pay liquidated damages to the employee, in addition to existing penalties.

52187153

Increased Minimum Wage Increases Minimum Salary for Exempt Employees

The minimum salary requirement exempt executive, professional and administrative employees under state law is twice California minimum wage.

That minimum salary will increase from $2,773.34 per month to$3,120 on July 1, 2014, and $3,466.67 on January 1, 2016.

53187153

Employee Wage Withholdings – Criminal Penalty

SB 390 creates a criminal penalty for an employer that fails to remit withholdings from an employee’s wages that were made pursuant to state, local or federal law.

54187153

Immigration

187153 55

New Law on “Unfair Immigration Practices”

Effective 1/1/14, AB Bill 263, creates a new cause of action for engaging in “unfair immigration-related practices” in retaliation for an employee’s exercise of any right protected by the Labor Code or local ordinance.

The new law creates a rebuttable presumption that any adverse action taken within 90 days of the employee exercising a protected right is retaliatory.

56187153

New Law on “Unfair Immigration Practices”

An “unfair immigration-related practice” means:

(1) requesting more or different documents than required for Form I-9 or refusing to honor documents that appear genuine;

(2) using the E-Verify system to check the employment authorization status of a person at a time or in a manner not required under federal law;

(3) threatening to file or filing a false police report; or

(4) threatening to contact or contacting immigration authorities.

57187153

New Law on “Unfair Immigration Practices”

Court has authority to suspend an employer’s business licenses.

If an employee prevails, the employee is entitled to reasonable attorney’s fees and costs.

58187153

New Law on License Revocation for Reporting Citizenship or Immigration

Status Effective 1/1/14, AB 666 provides a business license may be subject to suspension or revocation if the court or Labor Commissioner determines licensee reported or threatened to report the suspected citizenship or immigration status of an employee, former employee, prospective employee, or such employee’s family member to a federal, state, or local agency because that employee exercised a right under the Labor Code, the Government Code, or the Civil Code. 59187153

New Law on Criminal Extortion for Reporting Immigration Status

AB 524, effective 1/1/14, provides that a threat to report the immigration status or suspected immigration status of the individual, his relative or family member may induce fear sufficient to constitute extortion.

60187153

Driver’s License for Undocumented Immigrants

AB 60 requires the DMV to issue a driver’s license to an undocumented person who can prove identity and California residency and who can meet all other licensing requirements, such as the written and behind-the-wheel exams.

The card will bear a notation stating that the card is not acceptable for federal purpose, such as verifying eligibility for employment.

AB 60 takes effect on January 1, 2015, or on the date the DMV director executes a specified declaration, whichever is sooner. The DMV must adopt regulations to implement the new law, including documents acceptable for the purposes of proving identity and California residency, as well as procedures for verifying authenticity of documents. 61187153

New San Francisco Family-Friendly Workplace Ordinance

187153 62

New San Francisco Family-Friendly Workplace Ordinance

Applies to employers with 20+ employees and covers employees with more than 6 months of service who work at least 8 hours per week on a regular basis, and work in SF.

Requires employers to consider employee requests for “flexible or predictable working arrangement to assist with care giving responsibilities.”

Prohibits retaliation for making a request and protects employees from adverse action based on caregiver status.

63187153

Trial

187153 64

TrialOpening StatementsUse of technologyTrial Pad

187153 65