Transcript Bar Association of San Francisco Yosemite ConferenceNew

Bar Association of San Francisco
Yosemite Conference
New Laws and Cases for 2014
Mark I. Schickman, Esq
Cathleen S. Yonahara
[email protected]
Freeland Cooper & Foreman LLP
San Francisco, CA
187153
1
Whistleblower
187153
2
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.
187153
3
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.
187153
4
New Law Prohibits Retaliation
Against Employees Asserting Rights Under
Labor Code
 Effective 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.
187153
5
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.
187153
7
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.
187153
8
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.
187153
10
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.
187153
11
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 Passwords
 Effective 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 Passwords
 Exceptions: 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 Files
 Effective 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 Files
 Exceptions: 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 Files
 Penalty 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?
187153
19
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; and
 Employer 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.
187153
20
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 Code
Private 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
187153
26
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.
187153
27
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.”
187153
28
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!
187153
29
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.
187153
30
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.
187153
31
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.
187153
32
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 amount
 Employee working varied schedule => monthly
average hours worked for 4 months prior to
beginning of PDL

187153
33
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.
187153
34
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.
187153
35
New PDL Regs/
Conditions That Qualify for PDL
 Severe morning sickness
 Gestational diabetes
 Pregnancy induced hypertension
 Preclampsia
 Mastitis
 Post-partum depression
 Prenatal or postnatal care
 Bedrest
 Childbirth
 Loss of end or pregnancy
 Recovery from childbirth or loss or end of pregnancy
187153
36
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 defense
 No second opinions
187153
37
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.
187153
38
Interplay Among
FMLA, 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 CFRAeligible 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.
187153
39
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.
187153
41
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.
187153
42
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).
187153
43
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:
 Grandparent
 Grandchild
 Sibling or
 Parent-in law
187153
44
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.
187153
46
New Law on Overtime Pay
for 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.
187153
47
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.
187153
48
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.
187153
49
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
Cities
 San Francisco: $10.74 effective 1/1/14
 San Jose: $10.15 effective 1/1/14
187153
51
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.
187153
52
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.
187153
53
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.
187153
54
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.
187153
56
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.
187153
57
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.
187153
58
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.
187153
59
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.
187153
60
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
187153 of documents.
61
verifying authenticity
New San Francisco FamilyFriendly 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.
187153
63
Trial
187153
64
Trial
 Opening Statements
 Use of technology
 Trial Pad
187153
65