2017 HOT TOPICS LABOR AND EMPLOYMENT LAW

Transcription

1 2017 HOT TOPICS LABOR AND EMPLOYMENT LAW Presented by Jennifer M. Schermerhorn, Esq. and, Kevin P. Cleveland, Esq. This PowerPoint Presentation was created by The Saqui Law Group and is 2017 by The Saqui Law Group. All rights reserved.

2 LEGISLATIVE UPDATE AND TRENDS New California and Federal Legislation

3 SB 1063: Pay Equity Expands the Fair Pay Act, which prohibits discrimination in pay based on gender, to include race and ethnicity; Prohibits employers from paying employees a wage less than the wage paid to employees of a different race or ethnicity for substantially similar work. Effective January 1,

4 AB 1676: Pay Equity Amends the 2015 Fair Pay Act; Prohibits employers from considering prior salary as the sole justification for disparity in compensation. Effective January 1,

5 AB 2535: Itemized Wage Statements Amends and clarifies Labor Code section 226. Employers do not need to list the number of hours worked on wage statements for any employee who is exempt from minimum wage and overtime requirements under the applicable I.W.C. Wage Order or under statutes specified in Labor Code Section 226(j). Effective January 1,

6 AB 908: Paid Family Leave Expansion Amends Unemployment Insurance Code section 2655 and adds Unemployment Insurance Code sections and Increases the benefits paid to employees on paid family leave and state disability leave. Minimum weekly benefit of $50. Effective January 1, 2017, but benefits will not increase until January 1,

7 SB 1001: Unfair Immigration- Related Practices Creates Labor Code section It is unlawful to: Request more or different documents than required under federal law to verify they are authorized to work; Refuse to honor documents that appear to be genuine; Attempt to re-verify an incumbent employee s authorization to work using an unfair immigrationrelated practice. A violation of these provisions can result in a penalty of up to $10,000. Effective January 1,

8 AB 1843: Criminal History Amends Labor Code Section Employers cannot ask an applicant for information regarding juvenile convictions or utilize juvenile arrests, detentions, or court dispositions as a factor in employment determinations. Employers cannot inquire into an applicant s sealed juvenile criminal records. Effective January 1, Change your applications! 8

9 AB 1289: Background Checks Creates Public Utilities Code section Requires a transportation network company ( TNC ; e.g., Uber) to conduct criminal background checks on drivers. Prohibits a TNC from contracting with a driver who is: Currently registered on the DOJ s National Sex Offender Public Website; Convicted of terrorism-related or violent felonies; and/or Has been convicted of misdemeanor assault or battery, domestic violence, or DUI within the past 7 years. Effective January 1,

10 AB 2687: Driving Under the Influence Amends Vehicle Code section Makesitunlawfulforapersontodriveavehiclewitha blood alcohol level (BAC) of 0.04% or more when a passenger for hire is in the vehicle. Effective July 1,

11 AB 2337: Employment Protections Expands Labor Code section Employers must give notice to new employees regarding domestic violence protections under existing law. Effective July 1,

12 SB 1167: Employment Heat Safety Creates Labor Code section The Division of Occupational Safety and Health must develop heat-related illness and injury standards among workers working in indoor places of employment by January 1, Current standards only address outdoor heat standards. Anticipate new standards to be put in place regarding indoor heat and illness prevention. Effective January 1,

13 AB 1732: Single-User Creates Article 5 to Chapter 2 of Part 15 of Division 104 of the Health and Safety Code. All single-user toilet facilities in any business establishment, place of accommodation, or government agency must be identified as allgender toilet facilities. Effective March 1, Restrooms 13

14 AB 1066: OT for Agricultural Workers Amends Labor Code Sections 554 and adds Sections Requires employers to pay Wage Order 14 employees overtime for any days where hours exceed 8 hours in a day or more than 40 hours in a week. Provides double time for work over 12 hours in a day. May have removed all exemptions to overtime under Wage Order 14. Effective January 1,

15 AB 1066: Increases in Overtime for Farm Workers The 10-hour threshold will be reduced to: January 1, 2019 * January 1, 2022 January 1, 2020 * January 1, 2023 January 1, 2021 * January 1, 2024 January 1, 2022 * January 1, 2025 over 9.5 hours per day or over 55 hours per workweek over 9.0 hours per day or over 50 hours per workweek over 8.5 hours per day or over 45 hours per workweek over 8.0 hours per day or over 40 hours per workweek 15

16 AB 2899: Minimum Wage Violation Challenges Amends Labor Code section Requires employer, before appealing a decision by the Labor Commissioner (LC) relating to a violation, to file a bond that covers the total amount awarded. The total amount of the bond is forfeited to the employee if the employer fails to pay the amounts owed within 10 days from the conclusion of the proceedings. Effective January 1,

17 SB 667: State Disability Insurance Adds/Amends Unemployment Insurance Code section 2608 and Expands the period between disability periods to 60 days for two periods to be considered separate periods for disability benefits. Waives the seven-day waiting period for an individual who has already served the seven-day waiting period for the same or a related condition within the previous 60 days as of July 1,

18 SB 1241: Choice-Of-Law Limitations Adds Labor Code 925. For contracts entered into, modified, or extended on or after January 1, Prohibits an employer from requiring a California employee to agree to adjudicate outside of California any claim arising in California. 18

19 Wage Increase Alert! Effective January 1, 2017, California s minimum wage is raised from $10.00/hour to $10.50/hour. (26 or more employees) (25 or less employees) $11.00/hour January 1, $12.00/hour January 1, $13.00/hour January 1, $14.00/hour January 1, $15.00/hour January 1,

20 Multiple Bills Regarding Smoking/Vaping Treats the use of e-cigarettes as smoking. Expands smoke -free workplace protections. Cannot have employer-designated smoking break rooms. Expands the workplace ban to include owner-operated businesses and small businesses. Raises the legal smoking age from 18 to 21, except for active military personnel. Effective June 9,

21 Proposition 64 Marijuana Legalization Controls, regulates, and taxes adult use of marijuana. Allows adults age 21+ to possess, transport, purchase, consume and share up to one ounce of marijuana. Using marijuana and driving while impaired will remain illegal. Imposes a 15% excise tax on all marijuana sales. Greatly reduces and in many cases eliminates criminal penalties for marijuana offenses. Does not restrict employers rights to maintain a drug-free workplace. 21

22 Prop 55: Income Tax for High Earners Extends the 2012 approved tax increase on highincome earners which was set to expire in Applies to single-income filers making over $250k per year, or joint-income filers making over $500k per year. The amount of the increase depends on the amount of income. Increases will be set to expire in

23 State/National Trend Report

24 Wages Are Rising There has been an ongoing push for, and debate about, establishing a living wage. Though such efforts have not passed, wages have been rising. For example: AB DOL change to salary requirement. New CA minimum wage up to $15. Pushes in cities for higher minimum wages (or to reach $15 faster). New administration may push back against any such federal efforts but state efforts will likely continue. 24

25 Concerns About Income Equality Wage gaps are becoming an increasing point of contention in the workplace. Gender pay Executive pay Recent state and municipal efforts have taken efforts to curb wage gaps. For example: CA passed anti-discrimination laws regarding pay differences based on gender and race/ethnicity. Portland just passed a law limiting CEO pay. 25

26 EEOC Strategic Enforcement Plan The EEOC recently updated its Strategic Enforcement Plan ( SEP ) for Fiscal Years Sets forth specific priorities and the EEOC s strategies for advancing equal opportunity and discouraging discrimination in the workplace. Continues to prioritize protecting immigrant and migrant workers, eliminating barriers in recruiting and hiring and ensuring equal pay protections. A new priority identified is addressing complex employment relationships and structures in the 21st century workplace. 26

27 Medical Marijuana in the Workplace Americans with Disabilities Act (ADA) prohibits discriminating against qualified individuals on the basis of disability. Employers are required to provide reasonable accommodations to the disabled employee so that the employee can perform essential duties of his job, as long as such accommodations do not impose an undue hardship on the employer. 27

28 Medical Marijuana in the Workplace California Employers do not have to accommodate medical marijuana. Ross v. Raging Wire Telecomms., Inc. the voters did not intend to affect an employer s ability to take adverse employment actions based on the use of medical marijuana. In Shepherd v. Kohl s Dep t Stores Plaintiff did not have a discrimination claim under Fair Employment and Housing Act ( FEHA ). Plaintiff could proceed on a claim of wrongful termination that Kohls broke its own company policy in terminating him. 28

29 Marijuana in the Workplace Three Steps to Protect Your Company. 1. Know the law. 2. Know your obligations. 3. Know your rights. 29

30 Marijuana in the Workplace Institute a zero tolerance policy, at minimum, for those workers in safety-sensitive positions. Have a drug testing program in place. Develop and publish a written policy. Create employee awareness and get consent. Make an ongoing good faith effort to maintain a drug-free workplace. These rules should not be affected by the passage of Prop. 64, which legalizes recreational Marijuana. 30

31 EEOC s Final Enforcement Guidance on Retaliation On August 29, 2016 the EEOC issued its final guidance. Prohibits employers, employment agencies, or unions from punishing job applicants or employees for asserting their rights to be free from employment discrimination, including harassment. Asserting EEO rights is called "protected activity." 31

32 EEOC Final Enforcement Guidance on Retaliation Engaging in EEO activity does not shield an employee from discipline or discharge. Employers may discipline or terminate workers for nonretaliatory and non-discriminatory reasons that would otherwise result in such consequences. An employer may not take action in response to EEO activity that would discourage someone from resisting or complaining about future discrimination. 32

33 EEOC Final Enforcement Guidance on Retaliation The ADA prohibits disability discrimination, limits an employer's ability to ask for medical information, requires confidentiality of medical information, and gives employees with disabilities the right to reasonable accommodations. The EEOC has also clarified that employers cannot retaliate against an employee for raising ADA rights, and also cannot interfere with ADA rights. 33

34 EEOC Final Enforcement Guidance on Retaliation Qs & As What can employers do to reduce their chances of violating the law? Education and Training Document and Review Employment Actions Prompt Reporting and Investigation Support Employees 34

35 Newly Proposed DOJ Rule On Immigration Department of Justice recently issued a notice of proposed rulemaking on the Standards and Procedures for the Enforcement of the Immigration and Nationality Act. The proposed rule would establish a strict liability rule. It also makes submitting charges and investigating those charges much easier for employees and the DOJ by creating grace periods, lengthening times to file complaints, and broadening what counts as investigation. 35

36 FLSA: Overtime Rule The Final Rule focuses on updating the salary and compensation levels for Executive, Administrative and Professional workers to be exempt. 1. Sets a standard salary level for the exemption which would nearly double the current level; 2. Sets the total annual compensation requirement for highly compensated employees (HCE); and 3. Establishes automatic updates to the salary and compensation levels every three years. Amends the salary basis test to allow employers to use nondiscretionary bonuses/incentive payments to satisfy up to 10% of the standard salary. Effective date: was December 1, 2016; but it is on hold. Future automatic updates to those thresholds will occur every three years, beginning on January 1,

37 FLSA: Overtime Rule California Employers Are Subject to Different Salary Thresholds At Different Times. Pay careful attention to how the thresholds change over time to ensure employees are properly classified. For example, beginning January 1, 2019, when California s minimum wage reaches $12 per hour, the threshold for California employers will be $49,920 higher than the federal threshold, which may necessitate another classification change unless the employer raises the employee s salary. 37

38 Joint Employment Theory utilized by Enforcement Agencies and Plaintiff attorneys is to hold more than one entity responsible as the employer when it is determined that: Employees are CONTROLLED Employees are DIRECTED Employees are ECONOMICALLY DEPENDANT Employees are SUBJECT TO WAGE DETERMINATIONS IS THERE MORE? 38

39 Joint Employment (Federal Standard) Browning-Ferris Industries (2015) (BFI) Before this case, a business was a joint employer if they exercised direct and immediate control over the terms and conditions of employment. Under BFI, employers are joint employers if they share or codetermine, or even have the potential to indirectly control, those matters. 39

40 Joint Employment In 2014 the State of California enacted AB 1897 (now codified in California Labor Code Section ) making employers who hire the services of a labor contractor jointly liable for their: Contractor s violations of wage and hour laws; Failure to provide workers' compensation; and Workplace safety violations. 40

41 NLRA/NLRB Attack On Employer Policy The National Labor Relations Board (NLRB) has been taking increasingly aggressive stances regarding any employer policies which may chill employees right to exercise Section 7 Rights under the National Labor Relations Act. Even simple apparently benign rules that prohibit insubordination or other disrespectful conduct have come under fire as prohibiting employee complaints because complaints could be seen as a challenge to supervisor authority. We will have to see how this stance changes under an NLRB established by Trump. 41

42 New Anti-Discrimination and Harassment Policy Requirements! The new rule as of April 1, 2016: Requires mandatory training for supervisors on preventing sexual harassment; Provides clearer definitions of gender expression, gender identity, sex stereotype and transgender; Extends national origin protections to undocumented immigrants holding AB60 driver licenses; The regulations also impose requirements for conducting discrimination and harassment investigations; and more. * Applies to California employers with five or more employees. 42

43 New Anti-Discrimination and Harassment Policy Requirements! (con t) In addition to the already-existing requirement for employers to distribute the DFEH brochure on sexual harassment, they must now also have anti-discrimination and harassment policies that: Are in writing. List the categories of individuals protected by FEHA. Make clear that FEHA prohibits coworkers, third parties, supervisors and managers from engaging in discriminatory, harassing, or retaliatory conduct. Must be in English and any other languages spoken by at least 10% of the workforce. 43

44 New Anti-Discrimination and Harassment Policy Requirements! (con t) Employers must provide a defined process that ensures complaints are: kept confidential (to the extent possible); responded to in a timely manner; investigated by qualified personnel in a timely and impartial manner; and documented and tracked. The complaint process also must provide for appropriate remedial actions, resolution of complaints, and timely closure of investigations. Complaint mechanism must not require an employee to complain directly to an immediate supervisor. 44

45 New Anti-Discrimination and Harassment Policy Requirements! (con t) New harassment policies must: Instruct supervisors to report any complaints of misconduct to a designated company representative so the company can try to resolve the claim internally. Make clear that the company will not retaliate against employees for lodging a complaint or participating in an investigation. 45

46 Reasonable Accommodation 46

47 The Death of Arbitration? California Supreme Court continues to limit the use of class action waivers. NLRB has been finding class action waivers unlawful. Federal Courts limiting the application of class action waivers. California passed limitations on choice of law and forum. 47

48 OSHA Heat Illness Prevention Program Section 3395 s Heat Illness Prevention requirements apply to all outdoor places of employment. (8 CCR 3395 (a)(1).) It is not based on industry. The key question is whether or not the Company is characterized as an outdoor or indoor workplace. OSHA explained that an outdoor place of employment is a workplace with a roof and enclosed sides is generally considered an indoor workplace. OSHA contrasts an indoor workplace to open areas like agricultural fields, forests, parks, equipment and storage yards, outdoor utility installations, tarmacs, and roads, which are obvious examples of outdoor workplaces. An important caveat: outdoor areas adjacent to buildings, (e.g., loading docks) are also considered outdoor places of employment. 48

49 The 2016 Election: Implications for Employers

50 The Supreme Court The next justice will be a swing vote and will decide some major issues in the employment area. A more conservative judge will likely mean more wins for employers. Upcoming issues may include: Joint employment under BFI Class action waivers in arbitration agreements ObamaCare ERISA Exemptions (religious) EEOC limitations Qualified disabilities under ADA Labor/Union issues 50

51 The Affordable Care Act (Obamacare) Trump = replace and repeal. Requires that any business with over 50 full-time employees (FTE) must provide 95% of these employees and their dependents with health insurance. If they do not, the employer will face a fine of $2,000 per month for every FTE after the first 30 employees. Creates an incentive to hire fewer than 50 people or relegate employees to only part-time status. 51

52 Federal Minimum Wage Republicans remained firmly opposed to any minimum wage hike. Donald Trump believes a low minimum wage is not a bad thing for the country. 52

53 Time Off to Vote Act (H.R. 2350) This law is less likely to pass with the Republican victory. Requires all employers with more than 25 workers to give workers 2 hours of paid leave to vote during federal elections on election day. Employers who restrict their workers from taking paid leave would be penalized (up to $10,000). 24 states grant workers two hours of paid compensation in order to vote. 19 states have no laws requiring paid leave. 53

54 Federal Restrictions May Ease, State Restrictions Are Unlikely To Decrease Though early indications are that Trump s presidency will be very pro-business which may result in lower taxes and less federal restrictions, there is good reason to believe the state will continue to impose significant imposition on employers. New AG pick is pro-union and pro-increased wages. Signals intend to fight the feds. Recent statements indicate that CA s legislature and governor do not intend to change state-level climate action. Governor has vowed to defy federal attempts to deport. CA is slated for continued raises to the minimum wage over the next several years. 54

55 The National Labor Relations Board The National Labor Relations Board will be dramatically restructured. In early 2017 Trump will get to appoint two new NLRB members and a new general counsel. May result in a rollback of the NLRB s recent expansion into nonunion workplaces to review employee handbooks and social media policies. May also lessen the active approach taken by the board to expand the definitions of joint employment, pursue claims of worker misclassification, and expand the power of the NLRB. 55

56 Agricultural Update 2017

57 AB 1066 Q & A What is Assembly Bill 1066? AB1066 is a new law affecting Wage Order 14 employers. Effective January 1, 2017; however, the bill phases in new overtime pay requirements. The most significant impact of AB 1066 is the removal of the agricultural employee exemption. By the time the law is phased-in completely, employers will be required to pay one and a half times the regular rate of pay for any hours worked over 8 hours in any one day, or any hours worked over 40 hours in one week, and twice the regular rate of pay for all hours worked in excess of 12 hours in one day. 57

58 AB 1066 Q & A (con t) Who does AB 1066 apply to? The new law affects all persons employed in an agricultural occupation, as defined by Wage Order 14. Wage Order 14 defines employed in an agricultural occupation as almost any occupation related to agricultural or horticultural farming, including, among others, the preparation of farm land, sowing, planting, irrigating, cultivating, fumigating, harvesting, loading, and the raising of livestock and fish. 58

59 AB 1066 Q & A (con t) How will AB 1066 affect Wage Order 14? AB 1066 removes the Labor Code s exemption of agricultural employees from its requirements. At this point, the California Legislature has directed the Department of Industrial Relations ( DIR ) to update Wage Order 14 to comply with AB Based on the language of AB 1066, we know that Wage Order 14 will be changed to: Phase-in new overtime pay requirements; Remove Irrigator Exemption; Remove Truck Driver Exemption; Modify the collective bargaining exemption; and Require a Day s Rest. 59

60 AB 1066 Q & A (con t) What is the Day s Rest Requirement? No employer shall cause its employees to work more than six days in every seven days. The rule does not apply if the employee works less than 30 hours in any week or six hours in any one day. However, if the nature of the work reasonably requires that an employee works seven or more days, the employer needs to make sure that every month the employee gets the equivalent of one day s rest for every seven days. Previously, Wage Order 14 employees were not required to have one day s rest in every seven days. Under AB 1066, this rule now applies to all Wage Order 14 employees. 60

61 AB 1066 Q & A (con t) When and how will the overtime payment provisions of AB 1066 take affect? January 1, 2019 (January 1, 2022) over 9.5 hours per day or over 55 hours per workweek* January 1, 2020 (January 1, 2023) January 1, 2021 (January 1, 2024) January 1, 2022 (January 1, 2025) over 9.0 hours per day or over 50 hours per workweek* over 8.5 hours per day or over 45 hours per workweek* over 8.0 hours per day or over 40 hours per workweek* Parentheses = implementation date for companies under 25 employees. * Net hours worked excluding unpaid periods. 61

62 Survey on Minimum Wage and AB 1066 The survey indicates that increases in the CA minimum wage combined with the changes to agriculture s OT laws would increase labor costs nearly 20% for vegetable growers and more than 25% for fruit growers. Some of the highlights of the Western Growers survey indicate that the continued rise in labor costs and changes to OT laws is jeopardizing the growth of agriculture in California. Employers may look to cut back on employee hours, find less labor intensive crops/move to mechanization, or find other means to cut down on costs which could have negative effects for consumers and employees alike. 62

63 H-2A Program Wages Rise in CA Processing and procedural delays are leading to losses from unharvested crops across the nation. The H-2A program allows employers to bring foreign workers to the United States to fill temporary agricultural jobs. From 2012 to 2015 there has been a significant increase in H-2A positions certified by the US Government. The USDOL is set to raise the standard for minimum wage rates for H-2A workers in California agriculture. The AEWR, a rate specifically set by the DOL for each state as the minimum to be offered to H-2A workers, changes each year. The rate is expected to rise from $11.89 per hour to $12.57 per hour in California. 63

64 Important Reminders for 2017

65 Rest/Meal Periods Hours of Work in Workday * Rest Periods Meal Periods Less than 3 1/2 hrs. 0 0 More than 3 1/2 hrs. but not more than 5 hrs. 1 0 More than 5 hrs. but not more than 6 hrs. 1 1** More than 6 hrs. but not more than 10 hrs. 2 1 More than 10 hrs. but not more than 11 hrs. 3 2** More than 11 hrs. but not more than 14 hrs. 3 2 More than 14 hrs. but not more than 15 hrs. 3 3** More than 15 hrs. but not more than 18 hrs. 4 3 * Net hours worked excluding unpaid periods. ** Meal period may be waived by mutual consent if a work period of not more than six hours will complete the day s work. A meal period must be provided for each work period of not more than five hours. 65

66 Piece Rate Employers Must Pay NPT All employers who pay piece rate had to begin paying rest breaks at the average hourly rate as of January 1, This is a weekly rate, not a daily rate. This rate must be calculated before overtime can be calculated. Please check how your calculation is being performed. We have found that many employers are still not calculating payments correctly. All employers who pay piece rate had to begin paying other non-productive time on January 1, Must be at least minimum wage. Can only include activities which do not contribute to the production of the piece. 66

67 AB 2751: Retaliation Unfair Immigration Practices Expansion Amended Labor Code sections 98.6, 1019, and in Expands unfair immigration-related practice to include employer threats to file false reports with state or federal agencies in retaliation for exercising a protected right. Civil penalties permitted up to $10,000 per employee per the violation and suspension of business licenses. Additionally, prohibits taking adverse action against employees for updating personal information. 67

68 AB 60: Driving Privilege Only Adds/Amends Vehicle Code sections and et seq. California residents who are ineligible for a social security can still apply for a Driving Privilege Only license. The DMV reports that more than 750,000 such licenses have been provided to date since January

69 AB 1660 Amends Government Code section and Vehicle Code sections and and Expanded the definition of discrimination under California s Fair Employment & Housing Act. As of 2015, it is now discrimination on the basis of national origin to discriminate on the basis of possessing a driver s license granted under AB

70 AB 524: Amends Penal Code section 519 and labor Code section Expanded the possible definition of extortion to include threatening to report the immigration status. Labor Code prevents discrimination or adverse action based upon attempts to update personal information. 70

71 Labor Regulatory Compliance! Don t put your head in the sand 71

72 Questions Roseville Office: 1410 Rocky Ridge Dr. Suite 330 Roseville, CA Tel: (916) Fax: (916) Central Coast Office: 512 Pajaro Street Suite 14 Salinas, CA Tel: (831) Fax:(831) Copyright Notice and Disclaimer: This PowerPoint presentation was created by The Saqui Law Group, and is 2017 by The Saqui Law Group. All rights reserved. The information contained in this PowerPoint presentation is provided solely for the general interest of clients and friends of The Saqui Law Group. This information should not be relied upon or construed as legal advice and is not a substitute for obtaining legal advice from an attorney licensed in your state. The Saqui Law Group assumes no liability or responsibility for any errors or omissions in the content of this PowerPoint presentation. The use of our PowerPoint presentation is not intended to and does not establish an attorney-client relationship. Please do not send us confidential information via without first obtaining permission to do so from one of our attorneys. Questions regarding this PowerPoint presentation may be sent to administrator@laborcounselors.com or Client Services at