California Peculiarities Employment Law Blog

Changes to the S.F. Formula Retail Employee Rights Ordinances

Posted in 2015 Cal-Peculiarities, San Francisco Ordinances

(Photo) SF StreetBy Laura Maechtlen and Jason Allen

As our loyal CalPecs blog readers know, in November 2014, San Francisco passed two ordinances—“Hours and Retention Protections for Formula Retail Employees” and “Fair Scheduling and Treatment of Formula Retail Employees”—colloquially known, together, as the “San Francisco Retail Workers’ Bill of Rights.”  (Our most recent update and a recent Management Alert can be found here and here, respectively.)  On July 7, 2015, the S.F. Board of Supes proved that the Bill of Rights is a living document by passing an amendment to the SF Workers’ Bill of Rights on the final reading.

Most significantly, the amendment changes the definition of employers covered by the ordinances.  The amendment also modifies some of the requirements imposed on employers and clarifies some open enforcement issues.  The Office of Labor Standards Enforcement (“OLSE”) has posted information about the amendment here and here, and the text of the amendment here. In short: Continue Reading

The Expert Institute’s Best Legal Blog Competition

Posted in 2015 Cal-Peculiarities

(Illustration)CompetitionDear Friends and Loyal Readers,

We need your help!  The Cal-Peculiarities Employment Law Blog has been invited to participate in a “best legal blog competition” sponsored by The Expert Institute.   If you appreciate our weekly posts, we would very much appreciate your nominating us in the Labor & Employment category.

If our blog is selected for one of the top three prizes, any prize money will be donated to a worthy charity.

To nominate our blog, please CLICK on the below link, SCROLL down to the bottom of the page, and FILL IN the information on the RIGHT-HAND SIDE of the page.

https://www.theexpertinstitute.com/blog-contest/

Enter YOUR name and email
Blog address is: http://www.calpeculiarities.com/
From the drop-down list, choose “Labor & Employment”
State why you think our blog is the best: (e.g.,  we deliver prompt and insightful information that all CA employers need to know; we provide practical solutions to vexing CA employment law issues;  we are funny and have amusing graphics)

Thank you for your consideration and support!

AT LAST, Amendments to CA’s Paid Sick Leave Law Signed By Governor!

Posted in 2015 Cal-Peculiarities, 2015 Legislative Updates

Man signs document stamped handleBy Dana Peterson and Christopher Im

California’s Paid Sick Leave Law, AB 304, or the Healthy Workplaces, Healthy Families Act of 2014 as it is officially known, is a hot topic that we have blogged about a number of times. Eligible employees began accruing paid sick time under the new law on July 1st. However, proposed amendments to the Paid Sick Leave Law were still meandering through the Legislature until finally passed by the Senate on July 13th and signed into law by Governor Brown today.

Assembly Bill 304 was first introduced in February 2015, and underwent seven dizzying amendments. In our last blog, we discussed the June 2, 2015 version, which included for the first time an urgency clause. The urgency clause makes the amendments effective today, the day that Governor Brown signed the bill. To see the full text of the newly passed amendments, click here.

So what do the latest amendments do? The key changes relate to how employers are to calculate the payment of sick time accrued under the new law.

When the law was originally passed, the rate of pay was to be calculated based upon an employee’s hourly rate. For employees who earn different hourly rates of pay, are paid by commission or piece rate, or are nonexempt salaried employees, the rate of pay was calculated based upon the wages paid, not including overtime premium pay, and the hours worked in the full pay periods that the employee worked during the prior 90-days.

A different method of calculation was proposed in the original text of AB 304. However, to keep things interesting, subsequent amendments proposed different methods of calculation, including the final June 22nd amendment. While this left many employers scratching their heads over how to update their policies (“Should we incorporate the original method of calculation for  now?”  “Should we incorporate this version or wait and see if it’s going to be amended again?”  “What?  Another amendment?  It’s been only 3-days since the last one!  I give up!”) the good news is that the amended version signed by the Governor today contains a greatly simplified method of calculation.

Now,

a) For nonexempt employees, employers may choose one of two options: (1) calculate paid sick leave in the same manner as the regular rate of pay for the workweek in which the employee uses the paid sick time; or, (2) calculate paid sick leave by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked during the full pay periods that the employee worked during the prior 90 days.

b) For exempt employees, paid sick leave is calculated in the same manner as the employer calculates wages for other forms of paid leave time.

If you have any questions about the newly adopted amendments, you can always reach out to our California Counseling and Workplace Solutions team.

Edited by Jeffrey Berman and Colleen Regan

A “Hotbox” Of Legal Issues: California’s Workplace Marijuana Laws

Posted in 2015 Cal-Peculiarities

(Illustration) California MarijuanaBy Geoff Westbrook

With New York joining in last year, nearly half the country has laws permitting state residents to use marijuana for medical purposes, and a handful even permit recreational use. California led the movement when it passed the so-called “Compassionate Use Act” in 1996. At present, use and distribution of marijuana remain federal offenses, although unenforced per current U.S. Department of Justice policy.

The increasing accessibility of marijuana over the years, as well as its acceptance into mainstream culture, have led to serious misconceptions regarding its permissibility in the workplace. We offer here a few reminders to help clear up this this sometimes “hazy” area of California law.

  •  I can weed out marijuana users in the job application process, right? Wrong. With few exceptions for certain industries, public and private California employers may not require job applicants to disclose information concerning an arrest that did not result in a conviction or their referral to or participation in a pretrial or post-trial diversion program. Marijuana convictions older than two years are expressly off limits, as well as an applicant’s criminal history that has been expunged, sealed or dismissed. None of this criminal information may be considered in making employment decisions. Some California cities, such as San Francisco and Richmond, prohibit private employers from asking about conviction history altogether on an application via so-called “Ban The Box” laws, or until after the first live interview and the employer has determined that the applicant meets job qualifications. Significant civil and criminal penalties, in addition to attorney’s fees and costs, may serve as a major buzzkill for violating employers.
  • How about background checks to smoke out users? Employers conducting criminal background checks and considering recent marijuana convictions must be mindful of federal and state discrimination laws. Criminal background check polices that disparately impact protected groups of employees will be heavily scrutinized by the Equal Employment and Opportunity Commission and the California Department of Fair Employment and Housing. Using third-party vendors to screen job applicants and employees on the other hand triggers complex rules under the federal Fair Credit and Reporting Act and California’s more stringent counterpart. This is a smoking hot area for litigation as class action lawsuits in recent years challenge both approaches to employer background checks.
  • One toke over the line? Drug tests and positive results. In California, once a job offer has been made, employers can require job applicants to pass a drug test as a condition of employment, so long as all prospective employees are subject to the same requirement. Drug tests performed after the person has been hired are essentially prohibited without a reasonable suspicion that the worker is under the influence (certain transportation and safety-sensitive jobs have looser restrictions for when one can test), or pursuant to a narrowly-drafted post-accident testing policy. In the event of a positive test, California employers have wide discretion to decline to hire, to discipline and even to terminate employment regardless of whether the individual has a medical marijuana card due to an underlying medical condition. Neither federal nor California law prohibit making employment decisions based on marijuana use and so it is a legitimate basis to terminate. Additionally, while businesses must engage in a good faith interactive process with all disabled employees, employers are not obligated to permit continued marijuana use as a reasonable accommodation. The legality of marijuana use for medical purposes in California does not change the analysis.

The 411 on California’s “420” Laws. Employers have substantial rights with respect to keeping marijuana out of the workplace. California’s legislative endorsement of marijuana as a treatment option for certain conditions does not tie the hands of management if there is a positive test. However, marijuana-related arrests not leading to conviction and old convictions cannot be thrown into the pot when making hiring, firing and other employment decisions.

Proposed workplace solution. As marijuana use for medical purposes has become much more prevalent in California, this is an excellent time for employers to assess their written policies, job applications, background check procedures, and interview materials—especially nationwide companies using form documents—to ensure compliance with California law, where the grass is not always greener.

Edited by Chelsea Mesa

Nonprofit Volunteers: We’ll work for free … unless we get hurt

Posted in 2015 Cal-Peculiarities

injured businessman in bandages and crutches with dollar pile and falling money vectorBy Ofer Lion

If your company is a nonprofit or has a nonprofit foundation, are you covered if something happens to your volunteers while they’re engaged in service to your organization?

The concern is real. There were 287 fatal occupation injuries among volunteers from 2003-2007. Prudent nonprofits carry insurance, called “volunteer accident insurance,” to cover injuries to volunteers.

Workers Compensation

There are significant differences in how states address workers’ compensation coverage for volunteers. Workers’ compensation coverage can limit employer liability for injuries to an employee or, in some cases, a volunteer.

Under California law, a nonprofit can opt into workers’ compensation coverage with respect to their volunteers. But absent such an affirmative election, volunteers for nonprofit organizations generally are excluded from the definition of “employee” and therefore are not covered by the workers’ compensation and insurance laws (Labor Code § 3352(i)).

“[A] person who performs voluntary service without pay for a private, nonprofit organization, as designated and authorized by the board of directors of the organization, shall, when the board of directors of the organization, in its sole discretion, so declares in writing and prior to the injury, be deemed an employee of the organization for purposes of [workers’ compensation and insurance] while performing such service.” (Labor Code § 3363.6(a)). As a result, opting into workers’ compensation coverage effectively requires an affirmative resolution of the nonprofit’s board to have volunteers be deemed employees for purposes of workers’ compensation and insurance coverage.

For this purpose, “ ‘voluntary service without pay’ shall include the performance of services by a person who receives no remuneration other than meals, transportation, lodging, or reimbursement for incidental expenses.” (Labor Code 3363.6(c)). A volunteer who is an “employee,” by a written declaration of the board, would be entitled to full coverage as an employee.

Nonprofits that do opt in may wish to contact their workers’ compensation insurer to preempt coverage disputes that may arise after an illness or injury claim is made by a volunteer. Workers’ compensation insurance premiums are often based on gross payroll amounts. Because volunteers are not paid, a different allocation could be requested by the insurer to increase premiums accordingly.

Workplace Safety

Nonprofits should seek to prevent injury to their volunteers (and employees) by providing a safe workspace. At a minimum, while the federal Occupational Safety and Health Act’s (“OSHA”) and California’s similar statute do not appear to protect volunteers, OSHA has indicated that its coverage provides that any charitable or non-profit organization that employs one or more employees must comply with OSHA’s requirements and regulations. In any case, the proper supervision of volunteers should include the provision of a safe working environment.

Workplace Solution

The use of volunteers by nonprofits comes with legal risks, including those arising from injuries that volunteers incur. Those nonprofits fortunate enough to have people willing to serve without compensation are advised to consider carefully the possible legal implications before accepting services from such individuals. Nonprofits with volunteers must provide safe workspaces, consider procuring volunteer accident and volunteer liability policies, and consider formally opting into workers’ compensation insurance, if available.

Edited by John Giovannone and Chelsea Mesa

Can that Doggie in the Window … Enter my Store?

Posted in 2015 Cal-Peculiarities

(Photo) Dog Outside WindowBy Andrew McNaught

Readers will recall that we recently corralled the law on “Assistive Animals” in the workplace, here. Now, in part two of our mini-series, we pony up an explanation of the rules governing the use of service animals by customers and patrons (as opposed to employees) in places of public accommodation, e.g., grocery or other stores, hotels, and movie theaters (as opposed to the workplace). While there are a few similarities, the California law covering service animals in places of public accommodation differ in significant ways from that governing such animals in the workplace. Reconciling these differences can be like herding cats, causing confusion for customers, employees, and employers that operate places of public accommodation. Please read on to ensure that when confronting these issues you will not be barking up the wrong tree.

What Is a “Service Animal,” Anyhow? While the workplace use of assistive animals is analyzed under the California Fair Employment & Housing Act and Title I of the federal ADA, the use of service animals by disabled individuals in places of public accommodation is governed by the California Unruh Act and Title III of the ADA. While some states define “service animals” more broadly, California (remarkably) adopts the more restrictive federal guidelines set forth in Title III. A “service animal” under Title III and California law is limited to any dog or miniature horse (yes, miniature horse) that is individually trained to do work or perform tasks for individuals with disabilities. Other species of animals—whether wild or domestic, trained or untrained—are not “service animals,” and are thus not permitted in places of public accommodation in California. So there is no special protection for the use of cats, rabbits, turtles, monkeys, llamas, or other animals sometimes said to provide service. See Patricia Marx, Pets Allowed, How to Take Your Pet Everywhere, THE NEW YORKER, (Oct. 20, 2014), http://www.newyorker.com/magazine/2014/10/20/pets-allowed.

As in the employment context, pets in the public accommodation context do not qualify as “service animals” unless they meet the criteria above. Moreover, while an assistive animal may be a “reasonable accommodation” for a disabled employee in the workplace, assistive animals need not be permitted in places of public accommodation if their sole function is to provide emotional support, comfort, therapy, companionship, or crime deterrence (even if they are dogs or miniature horses). So when a customer claims some entitlement to bring a “therapy ferret” or “comfort Chihuahua” into your place of public accommodation, you know that is horse-feathers. Continue Reading

What the Doctor Ordered? AB 304’s Cure For Sick Pay Law

Posted in 2015 Cal-Peculiarities, Sick Leave Series

Funny doctorBy Dana L. Peterson and Christopher Im

Just weeks before California’s Paid Sick Leave Law fully takes effect on July 1, 2015, the California Legislature has formulated amendments to what is officially known as the Healthy Workplaces, Healthy Families Act of 2014 (a frequent subject of our blogs).

The proposed amendments, appearing in Assembly Bill 304, would treat some of the Paid Sick Leave Law’s worst maladies. To read the full text of the proposed amendments, click here.

The amendments should be chicken soup for the soul of employers who have found cold comfort in the FAQs issued by the Labor Commissioner. (See CA Paid Sick Leave Update). And AB 304, first introduced in February 2015, now has an “urgency clause” (added on June 2), which would make the amendments effective as soon as Governor Brown signs the bill. Without the urgency clause, the amendments would not be effective until January 2016.

The key proposed amendments include: Continue Reading

2015 Employment Bills Moving Through The CA Legislative Process

Posted in 2015 Legislative Updates

(Photo) CA LegBy Kristina Launey, Christina Jackson, Brad Doucette

Thursday, June 5 marked the last day for bills to pass out of their house of origin in the California Legislature. Here is a summary of some key employment bills that made it through (followed by some significant bills that did not), and how they may affect California businesses if they make it all the way to the Governor’s approval with their current language.

Leaves of Absence

Paid Sick Leave. AB 304. We’re all watching Assembly Member Lorena Gonzalez’s attempt to clean-up some of the language in her Healthy Workplaces, Healthy Families Act of 2014, which took effect January 1, 2015, but which largely becomes operative July 1, 2015. On June 2, the Assembly approved inclusion of an urgency clause, which would allow the bill’s provisions to take effect immediately upon the Governor’s signing the bill; and exempts the bill from the house of origin deadline (the Assembly did not vote on it last week).

But, will the bill receive the Senate and Governor’s approval prior to July 1? It would have to move quickly, as would employers in adapting to these new provisions. Some key provisions in the current version of the bill are: (i) changing the rate of pay from a 90-day look-back to the regular rate, (ii) relieving employers of a duty to inquire or record the reason for an employee taking paid sick leave, (iii) allowing employers with unlimited time-off policies to comply with the written accrual notice by stating “unlimited” on the employee’s pay stub, and (iv) delaying until 2016 the written notice requirement for employers subject to Wage Orders 11 and 12. Look for an in-depth analysis on this bill here in coming days.

Meanwhile, Gonzalez’s AB 11, which would have included in-home support services under the definition of “employees” under the Healthy Workplaces, Healthy Families Act, did not make it out of the Assembly.

Kin Care. SB 579 seeks to amend California’s Kin Care law to tie its protections to the use of sick leave for the reasons specified in the Healthy Workplaces, Healthy Families Act of 2014. The bill also would expand coverage of California’s school activities leave (Family School Partnership Act) to include day care facilities and cover child care provider emergencies, and the finding, enrolling, or reenrolling of a child in a school or day care, and would extend protections to an employee who is a step-parent or foster parent or who stands in loco parentis to a child.

CFRA Leave. SB 406 would narrow the California Family Rights Act (“CFRA”) small business exemption. CFRA would now apply to businesses that employ 25—as opposed to the current 50 –within 75 miles. CFRA’s protections would also now extend to care for grandparents, all children (removing any age restriction), and grandchildren, as well as siblings, domestic partners, and in-laws.

Anti-Retaliation Continue Reading

From Backyard To Workplace: Corralling The Law On Assistive Animals (Part I)

Posted in 2015 Cal-Peculiarities

(Illustration) Dog Working.jpgBy Colleen M. Regan and Geoffrey C. Westbrook

Back in December 2012, the Fair Employment and Housing Commission (as it was then known) issued regulations greatly expanding protections to disabled job applicants and workers in California. The regulations require employers with five or more employees to permit “Assistive Animals” as a form of reasonable accommodation. These creatures include not only everyday service and signal dogs but any other “animal” providing emotional or other support to a person with a disability (with minimal additional qualifications). While support or assistive animals in the workplace are not new—they can get in the door under the Americans with Disabilities Act and other laws—California has substantially broadened their impact on day-to-day business. Below are a few tips to help businesses navigate this special breed of accommodation request.

There Must Be A Disability. California and federal accommodation laws naturally do not apply unless an employee has a disability. Where an assistive animal is sought as a reasonable accommodation, its justification will depend on the particular assistance the animal provides to enable the disabled individual to perform the essential functions of the job. Under California’s broad definition, any physical or mental condition limiting a major life activity (such as working, concentrating, and interacting with others) is sufficient to pass this initial hurdle. Employers may request certification from the employee’s health care provider, which broadly includes family therapists and social workers, stating that the employee has functional limitations requiring the presence of an assistive animal. Recertification of the need for a support animal may be done annually.

Household Pets Are Not “Assistive Animals.” At a minimum, all assistive animals must be trained to provide assistance for the employee’s disability, be free from offensive odors, display habits appropriate to the workplace, and not endanger the health or safety of others. Employers may require confirmation that the service animal meets these minimum requirements, but the regulations do not impose any formality. Challenges to the animal’s satisfaction of these standards may be made within two weeks of its entry into the workplace and only with “objective evidence of offensive or disruptive behavior.” Presumably, although the regulations do not speak to it, challenges after the two-week bar may be made if the service animal develops a new trait or threatens the safety of an employee.

Blanket No-Animal Policies Are Now Defunct. Employers must evaluate each request for accommodation on a case-by-case basis. Requests to use assistive animals must be given the same consideration. And where multiple effective accommodations to a disability are available, an employee’s preference to use an animal over alternatives should be given deference, absent undue hardship to the employer. An employee with a disability does not have an automatic right to have an assistive animal in the workplace; a thoughtful interactive process must sort out which accommodations are reasonable and do not cause undue hardship. Policies forbidding or even discouraging assistive animals as a form of reasonable accommodation should be revisited.

Has the “cat got your tongue?” The wide-ranging practicalities of bringing an animal into a workplace where it can interact with clients, vendors, and employees can be daunting. Industry-specific challenges, such as bringing animals near food preparation or manufacturing equipment, must also be creatively addressed. Employee complaints about safety, allergies, favoritism, or odors may also arise and will certainly complicate matters. Also, can assistive animals be excluded from certain areas of the office, such as the breakroom, and are businesses required to provide a regular place for the animal at work when it’s not in use? Navigating these hairy questions can make one feel like a dog chasing its tail! Our California Workplace Solutions lawyers have handled these and other issues and are prepared to guide you through each of these complex accommodation requests.

Edited by Julie Yap

How Transparent is Your Supply Chain? California AG Issues Guidance

Posted in 2015 Cal-Peculiarities

(Illustration) Shipping AirplaneBy Dana Howells

After almost five years since passage, California’s Attorney General has finally produced guidance on The California Transparency in Supply Chains Act of 2010. With the Attorney General at last weighing in (the Resource Guide is a hefty 50 pages) on this somewhat arcane legislation, covered companies may want to revisit posted disclosure statements in light of the new guidance.

Is my company covered? The law requires certain retailers and manufacturers doing business in the Golden State to disclose their efforts (or the lack thereof) towards eliminating human trafficking and slavery at every stage of production from acquiring raw materials to assembling finished goods. Your company may be covered if:

  • It identifies as a “manufacturer” or “retail seller” in its principal activity codes on California tax filings; and
  • Its worldwide gross receipts exceed $100 million, no matter where the company is domiciled; and
  • It is “doing business in California,” as defined in the California Revenue and Taxation Code (a complicated multi-part definition that includes paying just over a threshold of $50,000 for compensation in California or owning property worth just over $50,000 in California).

Every year, the California Franchise Tax Board furnishes the California Attorney General with a list of companies FTB believes are covered.

What must covered companies disclose? Covered businesses must disclose—conspicuously on their websites and within 30 days of a request—their efforts (or lack thereof) in five areas: Continue Reading