Transcript Employment Law Presentation

2014 EMPLOYMENT LAW
UPDATE
Daniel J. Muller
Slater Hersey & Lierberman LLP
160 W. Santa Clara Street, Suite 1575
San Jose CA 95112
[email protected]
408-512-3025
NEW LEGISLATION - MINIMUM WAGE
 Labor Code 1182.12 defines the minimum wage. New
amendments will take effect in July 2014 and January
2016.
 The minimum wage as of July 1, 2014 will be $9.00
 The minimum wage as of January 1, 2016 will be
$10.00
NEW LEGISLATION - PAID FAMILY
BENEFITS
 SB 770 amends, repeals, and adds provisions to the
Unemployment Insurance Code relating to the Paid Family Leave
(PFL) benefit program administered by the California Employment
Development Department (EDD).
 The PFL program is similar to the California State Disability
Insurance (SDI) program and provides up to six weeks of monetary
benefits (but not time off or leave) to employees who take time off
to care for a sick “family member.”
 The new provisions, which become effective on July 1, 2014,
expand the definition of “family members” to include
grandparents, grandchildren, siblings, or parents-in-law.
NEW LEGISLATION - LEAVES FOR CRIME
VICTIMS
 SB 288 amends the Labor Code to add section 230.5.
 Section 230.5 prohibits employers from discharging, discriminating against, or
retaliating against employees who are victims of certain offenses who take time
off from work to appear in court involving the crime at issue. The leave is unpaid
and employers are authorized to review court records to verify the need for leave.
 The specified offenses covered by this law include vehicular manslaughter while
intoxicated, felony child abuse likely to produce great bodily harm or a death,
assault resulting in the death of a child under eight years of age, felony domestic
violence, felony physical abuse of an elder or dependent adult, felony stalking,
solicitation for murder, “serious felony,” hit-and-run causing death or injury,
felony driving under the influence causing injury, and sexual assault.
NEW LEGISLATION - ACCOMMODATION
FOR CRIME VICTIMS
 SB 400 amends Labor Code sections 230 and 230.1 and extends the protections provided
to employees who are victims of domestic violence and sexual assault to employees who
are known or suspected victims of stalking.
 The new law prohibits employers from discharging, discriminating against, or retaliating
against employees because of an employee’s known status as a victim of stalking and
allows employees to take unpaid protected time off from work to attend to legal, safetyrelated, and personal issues resulting from being a victim of crime.
 Employers are required to engage in the interactive process and provide reasonable
accommodations for a victim of domestic violence, sexual assault, or stalking who
requests an accommodation.
 Reasonable accommodations may include implementing safety precautions at work. The
employer may require certification of the employee’s continued victim status for the time
off and reasonable accommodation.
NEW LEGISLATION - CRIMINAL
BACKGROUND CHECKS
 SB 530 – Creates New Limitations on the use of Criminal Background Checks.
 New law amends Labor Code 432.7 and adds section 4852.22 to the Penal Code.
 Employers are prohibited from asking applicants to disclose information concerning
convictions that have been judicially dismissed or ordered sealed unless:
 The Employer is required by law to ask;
 The Applicant is seeking a position that requires possession or use of a firearm; or
 The applicant is legally prohibited from obtaining the position.
 Absent the listed exceptions, the Employer cannot consider judicially dismissed or sealed
convictions when making an employment decision.
NEW LEGISLATION – MILITARY / VETERAN
STATUS
 AB 556 adds "military and veteran status" to the list of
categories protected from employment discrimination,
harassment, and retaliation under the Fair Employment and
Housing Act (FEHA).
 "Military and veteran status" is defined as a member or veteran
of the United States Armed Forces, United States Armed Forces
Reserve, the United States National Guard, and the California
National Guard.
 The new law provides an exception for an inquiry by an
employer regarding military or veteran status for the purposes
of awarding veterans' preference points.
NEW LEGISLATION – SEXUAL
HARASSMENT
 SB 292 – Amends the California Fair Employment & Housing Act
so that employees asserting claims for sexual harassment no
longer need to prove “sexual desire” in order to prevail.
 The legislation is in response to the Court of Appeal’s decision in
Kelly v. Conco Companies (2011) 196 Cal. App. 4th 191. In that
case, the Court ruled that a plaintiff failed to prove sexual
harassment because the alleged male harasser was neither a
homosexual nor exhibited any sexual desire toward the target of
the harassment.
NEW LEGISLATION – WHISTLEBLOWER
PROTECTION
 SB 496 – Provides expanded whistleblower protected by amending Section 1102.5 of the
California Labor Code.
 Prohibits an employer from making, adopting, or enforcing any rule, regulation, or policy
preventing an employee from disclosing information to a government or law enforcement
agency if the employee has reasonable cause to believe that the information discloses a
violation of, or noncompliance with, a local rule or regulation.
 Prohibits retaliation against an employee where an employer believes that a protected
disclosure has taken place or will take place.
 Prohibits retaliation against an employee who refuses to participate in an activity that
would result in a violation of, or noncompliance with, a local rule or regulation
NEW LEGISLATION – WAGE COMPLAINTS
 AB 263 – Expands the Definition of Protected Conduct.
 Definition of protected conduct is expanded to include written or oral complaints made by
employees who believe they are owed unpaid wages.
 Employees who face retaliation or adverse actions will be entitled to reinstatement and
reimbursement of lost wages.
 Violations may result in penalties of up to $10,000.00 per violation.
 The new provisions also make it unlawful for employers to engage in, or direct others in,
unfair immigration practices. In other words, it is unlawful to threaten to report
employees to immigration authorities.
NEW LEGISLATION – RECOVERY OF
ATTORNEYS’ FEES
 SB 462 – Amends Labor Code Section 218.5 to make it more
difficult for employers to recover attorneys’ fees.
 Section 218.5 pertains to the awarding of attorneys’ fees in
lawsuits for unpaid wages.
 Generally, if the employee wins, he or she will be awarded
reasonable attorneys’ fees.
 If the employer wins, it will only be awarded reasonable fees if it
can prove that the employee brought the claims in “bad faith.”
COURT DECISIONS – LEAVES OF ABSENCE
Sanchez v. Swissport, Inc. (2013) 213 Cal. App. 4th 1331
 Employee disabled by pregnancy may be entitled to leave beyond four months as
a “reasonable accommodation.”
 Court ruled that the Pregnancy Disability Leave Law’s remedies augment rather
than supplant the remedies of other disability laws.
 According to the Court, even if an employee has exhausted her PDDL leave, the
employer must still consider whether additional leave should be granted as a
reasonable accommodation under the FEHA.
COURT DECISIONS – INDEPENDENT
CONTRACTORS
Beaumont-Jacques v. Farmers Group, Inc. (2013) 217 Cal. App. 4th 1138
 Trial Court properly granted summary judgment against plaintiff because she was
an independent contractor
 Court ruled that employer did not exercise sufficient control over plaintiff to
create an employment relationship.
 Key facts: Plaintiff determined her own hours; decided which meetings to attend;
hired and trained her own staff; paid her own operating expenses; identified
herself as self-employed on her tax returns
COURT DECISIONS – DISABILITY
DISCRIMINATION
Lawler v. Montblanc North Am., LLC (9th 2013) 704 F.3d 1235
 Retail store manager who could not be present as store due to disability could not
make prima facie showing of disability discrimination due to inability to perform
essential duties.
 A single, intimidating or gruff encounter with a corporate vice president was not
enough to constitute harassment.
Furtado v. State Pers. Bd. (2013) 212 Cal. App. 4th 729
 Employer was not required to eliminate essential physical functions of a job by
modifying correctional officer position or creating a new administrative position.
COURT DECISIONS – WAGE AND HOUR
Negri v. Koning & Assocs., (2013) 216 Cal. App. 4th 392
 An employee paid an hourly rate with no guaranteed minimum
weekly salary is not exempt from California overtime pay
requirements under the administrative exemption.
COURT DECISIONS – LIABILITY FOR
EMPLOYEE ACTS
Halliburton Energy Servs., Inc. v. Dep’t of Transp., (2013) 220 Cal.
App. 4th 87
 Employer was not liable for damages caused by employee
driving a company vehicle for personal reasons. The employee
was on a personal trip that had no bearing on any work-related
activity
Moradi v. Marsh USA, Inc., (2013) 219 Cal. App. 4th 866
 Employer was liable for employee accident involving
employee’s personal vehicle because Employer required
employee to use the vehicle for work purposes such as
attending client meetings and transporting other employees.
COURT DECISIONS – PUNITIVE DAMAGES
Davis v. Kiewit Pac. Co., (2013) 220 Cal. App. 4th 358
 An employer may be liable for punitive damages when
managing agents act with oppression, fraud, or malice in a
working environment.