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California Employment Law Blog

July 2016 California Employment Law Notes

Posted in Employment Law Notes

We invite you to review our newly-posted July 2016 California Employment Law Notes, a comprehensive review of the latest and most significant developments in California employment law. The highlights include:

 

San Diego Voters Approve Ordinance to Raise Minimum Wage and Provide Paid Sick Leave

Posted in Minimum Wage, Paid Sick Leave

Voters in San Diego have approved an ordinance that would immediately raise the city’s minimum wage to $10.50 per hour (up from the current $10 per hour) and boost the wage again in January 2017 to $11.50 per hour.  Increases consistent with the consumer price index would begin on January 1, 2019 and continue annually thereafter.  The increase is currently slated to take effect immediately following certification of the election results.

The ordinance further provides for employers to begin providing paid sick leave for employees who perform at least two hours of work in San Diego per year.  Eligible employees will be entitled to accrue one hour of paid sick leave for every 30 hours worked in the city with no cap on total accrual, though employers may cap usage at 40 hours per year.

Pursuant to the ordinance, paid sick leave will be available for the following covered purposes:

  • the employee’s own physical or mental illness, injury, or medical condition or to obtain diagnosis, treatment, or other medical reasons, including pregnancy or obtaining a physical examination;
  • to provide care or assistance to a family member with a physical or mental illness, injury, or medical condition or who requires diagnosis or treatment;
  • when necessary for the employee or an employee’s family member to obtain medical attention or other services due to domestic violence, sexual assault, or stalking; or
  • if the employee’s place of business or child’s school or child care provider is closed due to a public health emergency.

Unused leave must be carried over from year to year, but need not be paid out upon termination of employment.  Similar to the minimum wage portion of the ordinance, the paid sick leave provisions are slated to go into effect immediately upon certification of the election results, though the city may provide a grace period for employers to come into compliance.

The referendum vote followed protracted political wrangling, beginning with the San Diego City Council’s vote in July 2014 to approve the ordinance, which was subsequently vetoed by the city’s mayor.  The City Council in turn voted to override the mayor’s veto, following which opponents of the ordinance successfully collected enough signatures to force the referendum.

California Assembly Approves Measure Requiring Single-Occupancy Restrooms to Be Designated “All Gender”

Posted in Discrimination, Gender Identity

The California Assembly has voted to approve A.B. 1732, which would require all single-occupancy restrooms in any business, public accommodation, or government agency to be branded as “all gender” and ban any single-user bathroom from being designated male- or female-only.  The bill also authorizes building inspectors or other local officials responsible for code enforcement to inspect for compliance with this measure.  The bill now heads to a California Senate committee for consideration and would go into effect in March 2017 if ultimately approved.

May 2016 California Employment Law Notes

Posted in Employment Law Notes

We invite you to review our newly-posted May 2016 California Employment Law Notes, a comprehensive review of the latest and most significant developments in California employment law. The highlights include:

San Francisco Approves City Ordinance Providing For Fully Paid Parental Leave

Posted in Leaves of Absence, New and Proposed Laws and Legislation, Pregnancy Leave, San Francisco

In yet another recent development on the hot topic of paid family leave, the San Francisco Board of Supervisors has unanimously approved local legislation requiring businesses to provide employees with up to 6 weeks of fully paid parental leave for the birth or adoption of a child.  With this ordinance, San Francisco becomes the first city in the United States to offer parental leave at 100 percent of an employee’s salary.

The new ordinance intends to “supplement” the current California Paid Family Leave program, which entitles eligible employees to receive leave paid at up to 55% of their salary for up to 6 weeks to care for newborns or newly adopted children.  The state program is funded entirely by worker contributions and administered through a state insurance fund.  The San Francisco ordinance will require employers to privately fund the remaining 45% of an employee’s salary during the 6 week period.

The ordinance will go into effect on January 1, 2017 for businesses with 50 or more employees, and will gradually expand protection to businesses with 35 or more employees beginning July 2017, and finally for businesses with 20 or more employees beginning July 2018.  Employees who work 8 hours or more per week and spend at least 40 percent of their work week within San Francisco boundaries will be eligible for the leave.  New employees will become eligible after they have worked for a company for 180 days.

San Francisco’s new legislation follows just on the heels of New York’s enactment of a statewide paid family leave law, which will entitle eligible employees to up to 12 weeks of partially paid leave that can be used for the birth, adoption, or foster placement of a child, as well as to care for a seriously ill family member, or to deal with exigencies arising from a family member being called into active military service.  The New York law will be funded entirely through employee contributions to a state insurance program, similar to the current state program in place in California.

We will be following up with additional details on this new ordinance as more guidance is made available for employers.

California Raises Minimum Wage to $15 Per Hour and Increases Minimum Salary for Exempt Employees

Posted in Exempt Employees, Minimum Wage, New and Proposed Laws and Legislation

On April 4, 2016, Governor Brown signed Senate Bill 3, which will increase California’s minimum wage annually, reaching $15 per hour for employers with at least 26 employees by January 1, 2022.  This bill enacts the highest statewide minimum wage in the nation, on par with New York, which enacted a bill mandating a $15 minimum wage last week.

Governor Brown opposed the bill just a few months ago, stating that it “would put a lot of poor people out of work.”  However, during a press conference touting the signing of the bill on April 4, Governor Brown stated that, while the minimum wage “may not make sense” economically, it makes sense “morally and socially and politically.”

For employers with at least 26 employees, California’s minimum wage will increase on the following schedule:

  • January 1, 2017 through December 31, 2017: $10.50 per hour.
  • January 1, 2018 through December 31, 2018: $11 per hour.
  • January 1, 2019 through December 31, 2019: $12 per hour.
  • January 1, 2020 through December 31, 2020: $13 per hour.
  • January 1, 2021 through December 31, 2021: $14 per hour.
  • Beginning January 1, 2022: $15 per hour.

Employers with 25 or fewer employees will follow a minimum wage schedule that lags behind the above schedule by one year.  Accordingly, for these employers, the minimum wage will be $10.50 per hour starting on January 1, 2018, $11 per hour on January 1, 2019, and continuing on this schedule until reaching $15 per hour on January 1, 2023.

Beginning on August 1, 2022, and recurring on August 1 of each year thereafter, California’s Director of Finance will increase the minimum wage for the following year based on statistics from the United States Bureau of Labor Statistics.

The Governor has the ability to suspend the above minimum wage increases if certain economic factors indicate that the state is in recession.

Notably, California’s salary basis test for exempt employees is directly tied to the state’s minimum wage.  Exempt employees must earn at least twice the state’s minimum wage for full-time employment, meaning that under the current $10 per hour minimum wage, exempt employees must earn an annual salary of $41,600 ($10 per hour x 2 x 40 hours per week x 52 weeks per year).  Under a $15 per hour minimum wage, the minimum annual salary jumps to $62,400 ($15 per hour x 2 x 40 hours per week x 52 weeks per year).

Employers are encouraged to start assessing their workforce and compensation policies to prepare to adjust compensation for, at a minimum, nonexempt employees who earn less than $15 per hour and exempt employees who earn less than $62,400 per year.

New California Regulations Regarding Discrimination, Harassment and Pregnancy Disability Leave

Posted in California Labor & Employment Law, Discrimination, Harassment, Pregnancy Leave, Retaliation, Sexual Harassment

New California anti-discrimination, anti-harassment, and pregnancy disability leave regulations go into effect on April 1, 2016.  The substantive law regarding these issues has not changed.  However, the new amendments enumerate detailed requirements regarding anti-harassment policies and investigations, and institute additional notice and recordkeeping requirements.

Anti-Discrimination and Harassment Regulations

The new anti-discrimination and harassment regulations clarify an employer’s duty to take reasonable steps to prevent discriminatory and harassing conduct.  Specifically, the amended regulations require employers to create written policies that meet the requirements detailed below.

Policies and Investigations

Beginning April 1, 2016, all California employers must develop a harassment, discrimination, and retaliation prevention policy that:

  • is written;
  • lists all current protected categories covered under the Fair Employment and Housing Act (“FEHA”)—so it is no longer permissible to list only some protected categories and have a catch-all “or any other characteristic protected by law”;
  • states that the law prohibits coworkers, third parties, supervisors and managers from engaging in conduct prohibited by the FEHA;
  • creates a complaint process that ensures: confidentiality (to the extent possible under the circumstances); a timely response; impartial, fair, thorough, and timely investigation by qualified personnel; appropriate due process, documentation and tracking; that appropriate conclusions will be made and remedial actions will be taken, and timely closure;
  • provides a complaint mechanism that allows employees the option of complaining to an individual or entity other than his or her immediate supervisor;
  • instructs supervisors to report any complaints of misconduct to a designated company representative; and
  • makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in a workplace investigation.

Employers must also make their employees aware of their written anti-discrimination and harassment policy by doing one or more of the following: distributing copies of the policy with an acknowledgment form for employees to sign; posting the policy in the workplace; discussing the policies upon hire, or via another method that ensures employees receive and understand the policy.

Further, employers must translate the policy into every language that is spoken by at least 10 percent of its workforce.

Recordkeeping For Sexual Harassment Training

Employers are now required to keep documentation of sexual harassment training for a minimum of two years, including but not limited to, the names of the supervisory employees trained, the date of the training, the sign-in sheet, a copy of all certificates of attendance or completion issued, a copy of all written or recorded materials that comprise the training, and the name of the training provider.

Impact of New Regulations on Employers

Employers should update their anti-discrimination and harassment policies to ensure compliance with the new regulations.  Further, Employers should review their investigation procedures and institute any changes necessary to comply with the requirements described above.  Finally, employers should update their record retention policies to meet the new regulation’s recordkeeping requirements.

Pregnancy Disability Leave Regulations

Also effective April 1, 2016, employers must comply with new policy and notice requirements related to Pregnancy Disability Leave (“PDL”).

The California Department of Fair Employment and Housing has created a new poster, entitled “Your Rights and Obligations as a Pregnant Employee,” which replaces “Notice A,” a document previously used for providing PDL notice.  Employers can meet the new regulation’s posting requirements by posting this notice in a conspicuous place on its premises. While we recommend that employers post this notice in the workplace as soon as possible, the DFEH’s website states that employers will not be penalized if they do not post the new notice immediately upon April 1.

Further, when an employee provides an employer with notice of pregnancy or the need for leave or reasonable accommodation related to pregnancy, employers should provide the employee with the new “Your Rights and Obligations as a Pregnant Employee” notice, instead of the notice previously used by the employer.

Finally, employers are required to either (1) provide employees with notice of their PDL rights in the next version of their employee handbook or (2) send employees a notice of such rights on an annual basis.  We recommend including the notice of PDL rights in the employee handbook in order to avoid the administrative burden of distributing an additional annual notice.

Impact of New Regulations on Employers

As discussed above, we recommend posting the updated “Your Rights and Obligations as a Pregnant Employee” notice in the workplace as soon as possible.  Also, employers should ensure that they replace their old PDL notices with the “Your Rights and Obligations as a Pregnant Employee” document, and distribute this notice to relevant employees.  Additionally, when employers create the next edition of their employee handbook, we recommend ensuring that the new version contains a section notifying employees of their PDL rights that complies with the new regulations.

As always, Proskauer attorneys are available to answer any questions you may have and assist in updating handbooks and polices in order to comply with these new regulations.

March 2016 California Employment Law Notes

Posted in Employment Law Notes

We invite you to review our newly-posted March 2016 California Employment Law Notes, a comprehensive review of the latest and most significant developments in California employment law. The highlights include:

 

January 2016 California Employment Law Notes

Posted in Employment Law Notes

We invite you to review our newly-posted January 2016 California Employment Law Notes, a comprehensive review of the latest and most significant developments in California employment law. The highlights include:

November 2015 California Employment Law Notes

Posted in Employment Law Notes

We invite you to review our newly-posted November 2015 California Employment Law Notes, a comprehensive review of the latest and most significant developments in California employment law. The highlights include:

Newly Enacted California Statutes

New Case Law