Our State legislature was busy last year and Governor Brown approved many new laws. Here are a few that could affect you beginning January 1, 2016, unless otherwise noted.
Kin Care leave is expanded to match Paid Sick Leave (Labor Code §245 et seq.)
The Kin Care law (CA Labor Code §233) is now expanded to allow employees to use six months of accrued sick leave to care for the illness or for preventative care for a family member as defined by Labor Code §245.5 [(1) A child, which for purposes of this article means a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis (in the place of a parent). (This definition of a child is applicable regardless of age or dependency status.) (2) A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child. (3) A spouse. (4) A registered domestic partner. (5) A grandparent. (6) A grandchild. (7) A sibling.]
An employee can use time off of work under the Kin Care law for the following purposes as defined by Labor Code §246.5: (1) Diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member or (2) For an employee who is a victim of domestic violence, sexual assault, or stalking, for the purposes described in subdivision (c) of Labor Code §230 and subdivision (a) of Labor Code §230.1.
This law includes an anti-retaliation provision and recovery of attorneys’ fees if the employee prevails in a civil lawsuit against his or her employer for violation of this law.
Family School Partnership Act is expanded to cover more situations.
Pursuant to Labor Code §230.8, employers with 25 or more employees are required to let employees take up to 40 hours of unpaid time off of work each year (but not more than 8 hours in a calendar month) for certain licensed child care provider (“LCCP”) or school related activities (regarding a child of the age to attend K – 12). SB 579 expanded the law to allow employees time off from work to find, enroll, or re-enroll children in a school or with a LCCP, to participate in school or LCCP activities, or to address certain emergencies (with notice to their employer). Such emergencies mean the child cannot stay at the school or with a LCCP due to one of the following:
1) the school or LCCP has requested the child to be picked up, or
2) the school or LCCP has an attendance policy (excluding planned holidays) that requires the child be picked up from the school or LCCP or prohibits the child from attending the school or LCCP, or
3) behavioral or discipline problems, or
4) closure or unexpected unavailability of the school or LCCP, excluding planned holidays, or
5) a natural disaster, including but not limited to, fire, earthquake, or flood.
Employees who are entitled to this time off now include parents, guardians, grandparents, stepparents, foster parents, or a person who stands in loco parentis (in the place of a parent) to a child.
Fair Pay Act modifies the Equal Pay Act to broaden employee protection
California’s Equal Pay Act (Labor Code §1197.5 et seq.) (“EPA”) was amended by SB 358 [Fair Pay Act] to expand protection against unequal pay based on gender in its definition of terms and in other ways. “Equal work” is now “substantially similar work” and involves an analysis of a composite of skill, effort, and responsibility. Working at the same location is no longer required for comparing pay for substantially similar work. Exceptions, which must explain the entire differential in pay, can include pay based on a seniority system, merit system, a system that measures quality and quantity of production, or a bona fide factor other than sex, which is related to the job in question and must be consistent with business necessity. A bona fide factor can include a difference in education, training, or experience that is related to the job in question. Retaliation against an employee who invokes the enforcement of this law or assists in the enforcement of this law is prohibited. Additionally, an employer cannot prevent employees from discussing their pay rates or inquiring about another employee’s wages. However, an employer is not obligated to disclose wages.
Requesting an Accommodation for Disability or Religious Belief or Observance are Protected from Retaliation
California’s Fair Employment and Housing Act, which contains most of the discrimination protection for employees in California, was amended by AB 987 to respond to some California appellate decisions which had held that requesting an accommodation was not an activity protected from retaliation by an employer. The amendment states that requesting an accommodation for a disability or religious belief or observance is protected. Therefore, employers are prohibited from retaliating against an employee who makes such a request.
Minimum Wage Increases
California’s minimum wage became $10.00/hour as of January 1, 2016. San Jose’s current minimum wage is $10.30/hour and Santa Clara’s is $11.00/hour. Other cities/counties in California have minimum wages that are higher than $10.00/hour. The State minimum wage affects the California test for determining if an employee is exempt or not from overtime law. The wage portion of the test is two times the State minimum wage.
California’s Labor Commissioner has new powers to collect an unpaid judgment for wages on behalf of an employee and even stop an employer’s business.
After an employee files a claim with the California Labor Commissioner and if they obtain a favorable Order, Decision, or Award (“ODA”) from a Deputy Commissioner, the employer must pay the amount specified in the ODA within 10 days of receiving notice of the ODA or file an appeal for a trial de novo with the Superior Court. If the employer fails to make such payment or file an appeal, the Labor Commissioner would petition the court to make the ODA a judgment against the employer.
Now (pursuant to SB 588), if an employer fails to appeal a final judgment for unpaid wages and fails to pay the judgment within 30 days after the expiration of the time to appeal the judgment (a violation of Labor Code §238), the employer is required to stop conducting business in California, unless the employer obtains a bond from a surety company and files a copy of the bond with the Labor Commissioner. [See Labor Code §238] In lieu of maintaining the bond, an employer may provide the Labor Commissioner with a notarized copy of an accord (agreement) between the employee with the unsatisfied judgment and the employer. If the accord entails installment payments and the employer fails to make an installment payment, the employer is no longer excused from the bond requirement.
A “judgment” also includes any final arbitration award where the time to file a petition for a trial de novo or a petition to vacate or correct the arbitration award has expired and no petition is pending.
An employer who violates Labor Code §238 is subject to a civil penalty of $2,500 or much more if the employer failed to pay a prior similar penalty.
Additionally, if the employer violated Labor Code §238, the Labor Commissioner may issue a stop order to the employer prohibiting the use of employee labor until the employer complies with §238. Failure by an employer, owner, director, officer or managing agent of the employer to observe the stop order can result in a misdemeanor with jail time, a fine, or both. [See Labor Code §238.1]
Additionally, if the employer violated Labor Code §238, the Labor Commissioner may create a lien on real property of the employer or successor employer. [See Labor Code §238.2]
Additionally, if the employer violated Labor Code §238, the Labor Commissioner may create a lien on the employer’s personal property. [See Labor Code §238.3]
Also, 20 days after a judgment is entered in court pursuant to Labor Code §98.2, the Labor Commissioner may begin collecting a judgment in its favor or in favor of any employee. The Labor Commissioner may use a levy process against the employer’s credit, its money, or related property other than real property (real estate) or against a debt owed to the employer by someone else, to recover the amount of the judgment. [See Labor Code §96.8]
Officers, Directors, and Managing Agents can be personally liable for various wage related violations.
SB 588 now makes officers, directors, and managing agents [as defined by CA Civil Code §3294(b)] liable for various Labor Code violations, including minimum wage, overtime, hours and days worked, and indemnification of employees under Labor Code §2802. [See Labor Code §558.1]
Electronic Reporting to the Employment Development Department Becomes Mandatory
Beginning January 1, 2017, pursuant to AB 1245, unless a waiver is authorized, employers with 10 or more employees must electronically file their report of contributions, a quarterly return, a report of wages paid, and remit contributions of unemployment insurance premiums by electronic funds transfer. Beginning January 1, 2018, all employers must file these reports and pay premiums electronically, unless a waiver is authorized. Certain employers would be exempt from the penalty imposed for noncompliance until January 1, 2019.
Paid Sick Leave law began July 1, 2015
You probably already know that as of July 1, 2015, California’s Paid Sick Leave law (CA Labor Code §245 et seq.) became effective. Within two weeks, the law was amended to add clarification. It generally provides employees the right to accrue paid sick leave at the rate of 1 hour for every 30 hours of work after working 30 days for one employer. Alternative accrual plans are allowed if they meet minimum requirements. An employee can begin using the accrued paid sick leave after 90 days of employment. An employer can limit use of accrued paid sick leave to 24 hours (or 3 days) of paid sick leave in each year of employment, calendar year, or 12-month period. Accrued and unused paid sick leave must be carried over to the next year of employment unless the employer provides 24 hours (or 3 days) of paid sick leave at the beginning of each year of employment, calendar year, or 12-month period. Additionally, no accrual of paid sick leave is necessary if 24 hours (or 3 days) of paid sick leave is provided at the beginning of each year of employment, calendar year, or 12-month period. An employer can cap the accrual of paid sick leave at 48 hours (or 6 days), regardless of how long the employee has worked for the employer. The accrued paid sick leave time available must be reflected on the pay statement that comes with the employee’s check [See Labor Code §226] or on another statement on the designated pay date. The employee is not entitled to payment for unused paid sick leave when their job ends. But if the employee is reinstated with the same employer within one year of their termination, their unused paid sick leave is also reinstated. If the need for paid sick leave is foreseeable, the employee is required to provide reasonable advance notification to his or her employer. Employers who already had a PTO or sick leave plan can keep those plans instead of adopting a new plan, so long as the plan meets specific criteria. Employees can use their accrued paid sick leave for the purposes [Labor Code §246.5] and concerning the employee or a family member [Labor Code §245.5] noted above about Kin Care leave expansion.
Jeff Park is a Partner at Habbu & Park Inc.
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