Seyfarth Synopsis: Although the concept of working remotely may seem simple, employers must consider several issues before allowing employees to work from home.
There’s No Place Like Home
Today’s technology allows many employees to work nearly as well in their pajamas at home or in their jeans at a local coffee shop as they can
Continue Reading Home Sweet Home Office: Considerations With Remote Employees
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
Continue Reading A “Hotbox” Of Legal Issues: California’s Workplace Marijuana Laws
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 Can that Doggie in the Window … Enter my Store?
By 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 2015 Employment Bills Moving Through The CA Legislative Process
By 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
Continue Reading From Backyard To Workplace: Corralling The Law On Assistive Animals (Part I)
By 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:
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 How Transparent is Your Supply Chain? California AG Issues Guidance
By Laura Maechtlen and Dana Howells
As of January 1, 2015, new California Labor Code section 2810.3 requires a “client employer” to share civil liability with “labor contractors” (aka payrolling, temporary staffing, or employee leasing agencies) for (1) payment of wages of the contract employees, and (2) failure to procure worker’s compensation coverage. Client employers will also have non-delegable responsibilities for worksite occupational health and safety.
What Does The New Law Provide?
What Can Client Employers Do To Minimize Liability Under This New Law?
To try to protect against potential liability under the new law, client employers can:
Continue Reading How Do We Treat the Leased Among Us? New Law on Joint Liability With Labor Contractors
Earlier this year, the Paycheck Fairness Act, which would have functioned to ban “pay secrecy” policies in the workplace and prohibit retaliation against employees for disclosing compensation information, languished in Congress. President Barack Obama then sidestepped the Congress and signed Executive Order 13665: Non-Retaliation for Disclosure of Compensation Information. EO 13665 includes the same pay secrecy prohibitions previously set forth in the proposed Paycheck Fairness Act, but its scope is far more limited, as it applies only to federal contractors. Similar anti-pay secrecy protections have existed, under an interpretation of Section 7 of the National Labor Relations Act. And California employers have their own peculiar version of anti-pay secrecy rules to worry about.
California Labor Code section 232—banning pay secrecy policies and prohibiting discipline on the basis of wage disclosure—emerged on the scene way back in 1985. (That was when Marty McFly first introduced the “hover board”; you’re so late to the party, Tony Hawk.) Although Section 232 has rarely been litigated, President Obama’s hard push for anti-pay secrecy laws has raised employee consciousness of this issue, and we expect an uptick of related claims in this area.
Section 232 states that an employer must not:
Continue Reading California’s Anti-Pay Secrecy Law: It’s Not Just a Federal Contractor Problem
By Duwayne A. Carr and Laura J. Maechtlen
We previously blogged about pending legislation in San Francisco titled the “Retail Workers Bill of Rights,” a comprehensive set of policies introduced as two separate pieces of legislation (here and here) by San Francisco Supervisors Eric Mar and David Chiu.
We learned that the Board of Supervisors tentatively—and unanimously—passed both pieces of proposed legislation this week. A confirmation vote is scheduled to occur on November 25, 2014, and, if the legislation passes at that time, the ordinances will become law in San Francisco 180 days after the effective date.
While amendments might be considered prior to the final confirmation vote, we summarize the notable aspects of the two pieces of legislation here, in anticipation of that vote. Of particular note to employers, the legislation provides a private right of action. Any person aggrieved by a violation of the ordinance, any entity a member of which is aggrieved by a violation, or any other person or entity acting on behalf of the public, may bring a civil action in court against an employer for violating the ordinance.
Board of Supervisors File No. 140880: Hours and Retention Protections for Formula Retail Employees
This proposed ordinance would apply to Formula Retail employers with 20 or more employees in the City. “Formula Retail” establishments are defined for purposes of the new legislation as businesses with at least 20 retail sales establishments located worldwide.
The proposed ordinance would require employers to:
Continue Reading San Francisco Board of Supervisors Tentatively Passes “Retail Workers Bill Of Rights” – Final Vote Expected On November 25
By Nick Geannacopulos and Emily Barker
With the election upon us, political expression at work likely has intensified and at times may have led to disharmony. We all understand that political speech receives the highest protection in the civil arena—but how far does that protection extend in the California workplace? What if your at-will employee goes on the radio to assert a political stance directly adverse to your company’s interests? Can you stop the company-wide email that asks for contributions to the local independent candidate? Can you require your nostalgic baby boomer to take down his “Nixon’s The One” poster in his office?
A reasonable employer might think that it can regulate, or stop entirely, potentially disruptive workplace conduct that occurs on company premises. But let’s remember once again that California is peculiar: employers here must navigate around strong protections for political activities that apply both in and outside the workplace. Specifically, California Labor Code sections 1101 and 1102 prevent private employers from controlling or attempting to restrict employees from participating in political actions or activities.
Now let’s revisit the examples we mentioned above:
Continue Reading Managing the Two P’s: Profanity and Politics in the Workplace
