From the promontory of the first full week in January, we look out over the California employment law landscape and offer our fearless predictions for the coming year.
- State enforcement agencies are on the prowl. Employers are increasingly finding themselves the targets of California enforcement agencies, particularly the Department of Fair Employment and Housing (DFEH) and the Employment Development Department (EDD). The DFEH is particularly focused on employer compliance with disability and pregnancy leave notices and medical certification forms. And, in the wake of statutory changes last year that increased potential penalties for incorrectly classifying independent contractors, the EDD is increasing payroll and employment-status audits. Aggressive enforcement activity is expected to increase.
- More leave rights = more leave-based claims. The uptick we have seen in client calls about managing employee leaves of absence, particularly disability-related leaves, is expected to continue throughout 2014. Clients seek guidance in following the FEHC Disability and Pregnancy Regulations, and in otherwise ensuring their compliance with FMLA/CFRA, ADA/FEHA, workers’ compensation, and other laws that allow or mandate leave time. New for 2014 are statutes permitting leaves for victims of stalking and other crimes, and for volunteer firefighters, peace officers and emergency rescue personnel. And, if you happen to employ people in San Francisco, your employees are newly entitled to request time off or a modified work schedule, without fear of retaliation, for family care obligations. We need no crystal ball to foresee that the more employees who have leave rights, the more claims there may be if such rights are ignored or abused.
- Mandatory “recovery periods” could spur more litigation. Just when you thought you had all of the post-Brinker rest break rules straightened out, along comes an amendment to Labor Code § 226.7, which prescribes a new one-hour wage penalty for employees who fail to give their employees who work outside, in high heat conditions, five-minute, work-free, recovery breaks to cool down. These heat illness prevention breaks, mandated by Cal-OSHA and certain IWC Wage Orders, are not new, but the penalty for not permitting the cool-down recovery breaks, is new, as is the proviso that employees be relieved of all duties during the break. You should be familiar with this new law and ensure that your recovery break policies and training plans are compliant. Even further requirements apply in high-heat situations occurring in the agriculture, construction, landscaping, oil & gas extraction, and transportation and delivery industries.
- Rights of immigrant workers may provoke more claims. As reported here, new Labor Code §§ 244 and 1024.6 provide job protections for employees who were undocumented at the time of hire and who wish to make corrections to the information they previously provided, without adverse repercussions from the employer. Employers must not retaliate against such workers, and must not report an employees’ citizenship or immigration status to any government agency because the employee has exercised any rights under the Labor Code, including the right to update personal information. As immigrants and children of immigrants continue to join the California work force, and with immigration issues likely to remain at the forefront of the public consciousness during this election year, we see immigrant-rights issues as a prime area for employer caution in 2014.
Workplace solutions: Remember the old adage: “Forewarned is forearmed!” Now is the time to see that your policies are correct and that your business complies with all of the latest developments. If you are interested obtaining help to review and update your policies, please contact a Seyfarth Shaw attorney.
Next week, we begin our series on “On Boarding” (i.e., recruitment and hiring issues). You won’t want to miss it.