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What’s New in 2015 California Employment Law Update.

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Presentation on theme: "What’s New in 2015 California Employment Law Update."— Presentation transcript:

1 What’s New in 2015 California Employment Law Update

2 Agenda Review 2015 California laws that affect employers  Leave of Absence  Discrimination, Harassment & Retaliation Protections  Wage and Hour  Background Checks  Workplace Safety

3 HigherUp Experience 10 years experience 250,000 payrolls processes $3 billion paid Broader Focus Full suite of human capital solutions Business Analytics to enhance profitability & organizational effectiveness Full service HR consulting

4 Your Presenter Dr. Carlyle Rogers Director of HigherUp’s HR Consulting Services Team 24 Years Strategic & Tactical HR Leadership Doctorates in Jurisprudence (Law) and Psychology Expertise in CA, Multi-State & Federal Employment Laws Author of HR & Management Book ‘Dirty Little Secrets: Declassifying the Employment Game’

5 LEAVES OF ABSENCE Paid Sick Leave Law Time Off for Emergency Duty

6 AB 1522: Paid Sick Leave Law Overview Effective July 1, 2015 Applies to all employers with CA employees. Applies to part and full-time employees. Employees will be entitled to at least 24 hours of paid sick leave per year.

7 AB 1522: Employer Options Accrual Method 1 hour earned for every 30 hours worked. Can limit the amount taken to 24 hours per year. Unused carries over. Lump Sum Method Provide employees 24 hours paid sick leave at beginning of the year. Not subject to accrual or carry over.

8 AB 1522: Paid Sick Leave Payments Regular rate of pay If pay fluctuates (i.e., commissions): o Divide total compensation for previous 90 days by the number of hours worked to get the Regular Rate.

9 AB 1522: Employer Requirements Paystub o # of hours of sick leave available Maintain records reflecting hours earned and used for 3 years

10 AB 1522 and Termination Not compensable at termination. If rehired by same employer within 12 months, employee can reclaim previously accrued and unused sick leave.

11 AB 1522 and Time Off Plans Unlimited Plans Not clearly defined Recommendation o Provide bank of time employees can use for sick leave o Track sick leave separately PTO Plans Paid Time Off Plans o Vacation, Sick & Personal Days A separate sick leave policy isn’t required as long as: o 24 hours per year of paid leave can be used for health care o Accrual, carryover and use are consistent with new law

12 AB 2536: Time Off for Emergency Duty Current California Leave Voluntary Firefighting, Reserve Officer & Emergency Rescue Personnel Leave Employers with 50+ employees Up to 14 days protected leave per year

13 AB 2536: Adding Personnel New for 2015 Adds new personnel to the list of employees eligible for protected emergency duty leave. Employee’s who are health care providers o Employee must notify employer that they are designated as emergency rescue personnel. o Must notify employer when learns that they will be deployed for emergency duty

14 AB 2536: Covered Individuals Includes o Officers o Employees o Member of disaster medical response entity Health Care Provider defined as: o Licensed/certified under CA B&P Code o Licensed under Osteopathic Initiative Act o Licensed under Chiropractic Initiative Act

15 DISCRIMINATION, HARASSMENT & RETALIATION PROTECTIONS Protections for Unpaid Interns and Volunteers Immigration Related Protections Driver’s Licenses for Undocumented Persons Prohibition of Discrimination Against Public Assistance Recipients Harassment Prevention Training

16 AB 1443: Protections for Unpaid Interns and Volunteers Existing Law The California Fair Employment and Housing Act, protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment without discrimination, abridgment, or harassment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. Makes these provisions applicable to: o Employers o Labor organizations o Employment agencies o Specified training programs

17 AB 1443: Unpaid Interns and Volunteers New for 2015 Adds Unpaid Interns and Volunteers to the list of protected classes from harassment. Prohibits discrimination against any person in the selection, termination, training, or other terms or treatment of that person in an unpaid internship, or another limited duration program to provide unpaid work experience for that person.

18 AB 2751: Immigration Related Protections Existing Law Prohibits an employer or any other person from engaging in, or directing another person to engage in, an unfair immigration-related practice against a person for the purpose of, or with the intent of, retaliating against any person for exercising a right protected under state labor and employment laws or under a local ordinance applicable to employees. Subjects a person who violates these provisions to a civil penalty of up to $10,000 per violation.

19 AB 2751: Immigration Related Protections New for 2015 Includes in the definition of unfair immigration-related practice the threatening to file or the filing of a false report or complaint with any state or federal agency. Authorizes a civil action for equitable relief and any applicable damages or penalties by an employee or other person who is the subject of an unfair immigration-related practice. Authorizes a court to order, upon application by a party or on its own motion, the appropriate government agencies to suspend certain business licenses held by the violating party for prescribed periods based on the number of violations.

20 AB 2751: Immigration Related Protections New for 2015 Prohibits an employer from discharging or in any manner discriminating, retaliating, or taking any adverse action against an employee because the employee updates or attempts to update personal information based on a lawful change of name, social security number, or federal employment authorization document. Requires the $10,000 penalty to be awarded to the employee or employees who suffered the violation

21 AB 1792: Prohibition of Discrimination Against Public Assistant Recipients Existing Law Provides for the Medi-Cal program, which is administered by the State Department of Health Care Services, and under which qualified low-income persons receive health care benefits. The information obtained in the administration of the Unemployment Insurance Code is for the exclusive use and information of the Director of Employment Development in the discharge of his or her duties and is not open to the public. New for 2015 Prohibits an employer from discharging or in any manner discriminating or retaliating against an employee who enrolls in the Medi-Cal program and from refusing to hire a beneficiary for reason of being enrolled in the Medi-Cal program. Prohibits an employer from disclosing to any person or entity that an employee receives or is applying for public benefits, unless authorized by state or federal law.

22 AB 1660: Driver’s Licenses for Undocumented Persons Existing Law Requires the Department of Motor Vehicles to issue an original driver’s license to a person who is unable to submit satisfactory proof that the applicant’s presence in the United States is authorized under federal law if he or she meets all other qualifications for licensure and provides satisfactory proof to the department of his or her identity and California residency. Makes it a violation of law, including, but not limited to, a violation of the Unruh Civil Rights Act, to discriminate against an individual because he or she holds or presents a driver’s license issued under these provisions. Prohibits using a driver’s license issued under these provisions as a basis for a criminal investigation, arrest, or detention in circumstances where a person whose driver’s license was not issued under these provisions would not be criminally investigated, arrested, or detained.

23 AB 1660: Driver’s Licenses for Undocumented Persons New for 2015 Make it a violation of the FEHA for an employer or other covered entity to discriminate against an individual because he or she holds or presents a driver’s license issued under these provisions or to require a person to present a driver’s license. Makes changes to FEHA to specify that discrimination on the basis of national origin includes, but is not limited to, discrimination on the basis of possessing a driver’s license granted under these provisions.

24 AB 1660: Driver’s Licenses for Undocumented Persons New for 2015 Prohibits a governmental authority, or agent of a governmental authority, or person acting on behalf of a governmental authority, from discriminating against an individual because he or she holds or presents a license issued pursuant to those provisions. Provides that an action taken by an employer to comply with any requirement or prohibition under the federal Immigration and Nationality Act is not a violation of law.

25 AB 2053: Harassment Prevention Training Existing Law Makes specified employment practices unlawful, including the harassment of an employee directly by the employer or indirectly by agents of the employer with the employer’s knowledge. Requires every employer to act to ensure a workplace free of sexual harassment by implementing certain minimum requirements, including posting sexual harassment information posters at the workplace and obtaining and making available an information sheet on sexual harassment. Requires employers with 50 or more employees to provide at least 2 hours of training and education regarding sexual harassment to all supervisory employees. Requires each employer to provide that training and education to each supervisory employee once every 2 years.

26 AB 2053: Harassment Prevention Training New for 2015 Requires that the mandatory sexual harassment training for supervisors include prevention of abusive conduct. “Abusive conduct” means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. It may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.

27 SB 1087: Harassment Prevention Training Existing Law Requires an applicant for licensure as a farm labor contractor to have taken a written examination that demonstrates an essential degree of knowledge of current laws and regulations concerning farm labor contractors and authorizes the Labor Commissioner to charge a fee of not more than $100 to cover the cost of administering the examination. New for 2015 Requires that the examination cover laws and regulations concerning sexual harassment in the workplace. Require that the applicant must not have violated laws and regulations related to workplace harassment. Increase the requirement to 9 hours of classes and require that those classes include at least one hour of sexual harassment prevention training.

28 WAGE & HOUR Increased Liability for Employers that Contract for Labor Waiting Time Penalties Rest and Recovery Periods Prevailing Wages Protections for Complaints Under the Labor Code Timeframe for Recovery of Wages (Liquidated Damages) Child Labor Law Violations ( Increased Remedies)

29 AB 1897: Increased Liability for Employers that Contract Labor Existing Law Regulates the terms and conditions of employment and establishes specified obligations of employers to employees. Prohibits a person or entity from entering into a contract for labor or services with a construction, farm labor, garment, janitorial, security guard, or warehouse contractor, if the person or entity knows or should know that the contract or agreement does not include sufficient funds for the contractor to comply with laws or regulations governing the labor or services to be provided.

30 AB 1897: Increased Liability for Employers that Contract Labor New in 2015 Requires a client employer to share with a labor contractor all civil legal responsibility and civil liability for all workers supplied by that labor contractor for the payment of wages and the failure to obtain valid workers’ compensation coverage. Prohibits a client employer from shifting to the labor contractor legal duties or liabilities under workplace safety provisions with respect to workers provided by the labor contractor. “Worker” does not include an employee who is exempt from the payment of an overtime rate of compensation for executive, administrative, and professional employees pursuant to wage orders by the Industrial Welfare Commission described in Section 515.

31 AB 1897: Increased Liability for Employers that Contract Labor Summary The purpose of the law is to hold companies accountable for wage-and-hour violations when they use staffing agencies or other labor contractors to supply workers.

32 SB 1360: Rest and Recovery Periods Existing Law Prohibits an employer from requiring an employee to work during a meal or rest or recovery period mandated by an applicable statute, or applicable regulation, standard, or order of the Industrial Welfare Commission (IWC), the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health and establishes penalties for an employer’s failure to provide a mandated meal or rest or recovery period. Existing wage orders of the IWC require that a rest period be counted as hours worked, for which there shall be no deduction from wages. Recovery period” means a cool-down period afforded an employee to prevent heat illness.

33 SB 1360: Rest and Recovery Periods NEW for 2015 Provides that a rest or recovery period mandated pursuant to a state law, including, but not limited to, an applicable statute, or applicable regulation, standard, or order of the IWC, the board, or the division, shall be counted as hours worked, for which there shall be no deduction from wages.

34 AB 1723: Waiting Time Penalties Existing Law Provides for criminal and civil penalties for violations of statutes and orders of the commission regarding payment of wages. Authorizes the Labor Commissioner to recover liquidated damages for an employee who brings a complaint alleging payment of less than the minimum wage fixed by an order of the commission or by statute.

35 AB 1723: Waiting Time Penalties Existing Law Subjects any employer, who pays or causes to be paid to any employee a wage less than the minimum fixed by an order of the commission to a citation that includes a civil penalty, the payment of restitution of wages, and payment of liquidated damages to the employee. Provides for a penalty imposed upon an employer for the willful failure to timely pay wages of an employee who resigns or is discharged.

36 AB 1723: Waiting Time Penalties New for 2015 Expands that penalty, restitution, and liquidated damages provision for a citation to subject the employer to payment of any applicable penalties for the willful failure to timely pay wages of a resigned or discharged employee (waiting-time penalties). Does not create new penalties…creates new method for Labor Commissioner to enforce existing penalties.

37 AB 1939: Prevailing Wages Existing Law Authorizes a contractor to bring an action in a court of competent jurisdiction to recover from an awarding body specified labor costs, penalties, and legal fees if either the awarding body previously affirmatively represented to the contractor that the work to be covered by the bid or contract was not a “public work” or the awarding body received actual written notice from the Department of Industrial Relations that the work to be covered by the bid or contract is a “public work” and failed to disclose that information to the contractor.

38 AB 1939: Prevailing Wages New in 2015 Authorizes a contractor, as defined, to bring an action in a court of competent jurisdiction to recover from the hiring party, as defined, that the contractor directly contracts with, any increased costs, including labor costs, penalties, and legal fees incurred as a result of any decision by the Department of Industrial Relations, the Labor and Workforce Development Agency, or a court that classifies, after the time at which the hiring party accepts the contractor’s bid, awards the contractor a contract when no bid is solicited, or otherwise allows construction to proceed, the work covered by the project, or any portion thereof, as a public work.

39 AB 1939: Prevailing Wages Summary Allows a contractor to bring an action against “hiring parties” to recover any increased costs (including labor costs, penalties and legal fees) incurred because of a determination that the work performed on the project was a covered public work and is subject to prevailing wage laws.

40 AB 2751: Protections for Complaints Under the Labor Code Existing Law Prohibits an employer from discharging an employee or in any manner discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant has engaged in protected conduct. Provides that an employee who made a bona fide complaint, and was consequently discharged or otherwise suffered an adverse action, is entitled to reinstatement and reimbursement for lost wages. Makes it a misdemeanor for an employer to willfully refuse to reinstate or otherwise restore an employee who is determined by a specified procedure to be eligible for reinstatement. Subjects a person who violates these provisions to a civil penalty of up to $10,000 per violation. New for 2015 Requires the $10,000 penalty to be awarded to the employee or employees who suffered the violation.

41 AB 2074: Timeframe for Recovery of Wages Existing Law Authorizes an employee to bring a civil lawsuit against his or her employer for the unpaid balance of wages or compensation owed to that employee. Permits an employee to recover liquidated damages equal to the unpaid wages plus interest in a court action alleging payment of less than the state minimum wage.

42 AB 2074: Timeframe for Recovery of Wages New in 2015 States that a lawsuit seeking to recover liquidated damages for minimum wage violations can be filed any time before the expiration of the statute of limitations that applies to the underlying wage claim, which is three years. o Claims alleging payment of less than the state minimum wage Some recent court cases had held that liquidated damages claims had to be filed within one year.

43 AB 2288: Child Labor Law Violations Existing Law Child Labor Protection Act of 2014 Generally provides for a three year statute of limitations for an action upon a liability created by statute, other than a penalty or forfeiture.

44 AB 2288: Child Labor Law Violations New for 2015 Provides additional penalties for violations of California laws regarding employment of minors, including a penalty of $25,000 to $50,000 for “Class A” violations involving minors 12 years of age or younger. In addition, the statute of limitations for claims that arise from violations of employment laws is tolled, in other words, delayed or suspended, until the minor is 18 years of age.

45 BACKGROUND CHECKS Criminal History Information in Public Contracts Services to Minors

46 AB 1650: Criminal History Information in Public Contracts Fair Chance Employment Act Decrease impediments for ex- offenders trying to gain employment Applies to on-site construction relation jobs that fall under the State Contract Act Can’t be asked to disclose information convening criminal history at the time of an initial employment application. Must remove conviction history box/question from application. Doesn’t prevent employer from conducting or inquiring about criminal background during the interview.

47 AB 1852: Services to Minors Effective January 1, 2015 Businesses that provide specified services: o Provide written notice to parent or guardian of the minor receiving the services. o Must address the business’s policies relating to employee criminal background checks.

48 AB 1852: Business Defined Its primary purpose is the providing of an extracurricular service or program of instruction, including, but not limited to, academic tutors and instructors, for youth under 18 years of age. It has adult employees who have supervisory or disciplinary power over a child or children. Does not include: o Licensed child day care facility as defined in Section of the Health and Safety Code. o Day care center as defined in Section of the Health and Safety Code. o Any medical treatment facility or hospital.

49 AB 1852: Notice Requirements If criminal background checks are obtained for employees the written notice shall contain a “statement regarding whether the criminal background check includes state and federal criminal history information and the nature of the types of offenses the business looks to identify”.

50 WORKPLACE SAFETY for Workplace Safety Reports

51 AB 326: for Workplace Safety Reports Existing Law Requires immediate reporting of work relates serious injuries, illnesses, or death to OSHA by telephone or telegraph. New in 2015 Employers permitted to their reports of work related serious injury, illness or death the OSHA.

52 AB 1634: Penalties for Failure to Abate Safety Hazards Existing Law Establishes the Division of Occupational Safety and Health (DOSH) in the Department of Industrial Relations to enforce employment safety laws. Authorizes the division to conduct hearings, inspections, and investigations regarding alleged violations of employment safety laws and to issue a citation for a violation of those laws, including violations that regulations adopted by the division classify as serious, repeat, or willful violations. Requires the division, if a serious violation is not abated at the time of the initial or subsequent inspection, to require the employer to submit a signed statement under penalty of perjury that he or she has complied with the abatement terms within the period fixed for abatement of the violation.

53 AB 1634: New Regulations New in 2015 Prohibits the DOSH from granting, for serious violations, a proposed modification to civil penalties for abatement or credit for abatement unless: o The employer has abated the violation, or o Has submitted a statement to the division in accordance with existing law, and would additionally require supporting evidence with the statement where necessary. Authorizes DOSH to grant such a modification only if the violation has been abated or the signed statement and supporting evidence is received within 10 working days after the end of the period fixed for abatement. Generally prohibits the stay or suspension of a requirement to abate the hazards affirmed by the decision or order during the pendency before the appeals board of a petition for reconsideration of a citation for a violation that is classified as a serious violation, repeat serious violation, or willful serious violation.

54 AB 1634: New Regulations Summary Prohibits the state Occupational Safety and Health Appeals Board from modifying civil penalties for abatement or credit for abatement unless the employer has fixed the violation.

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