New California Department of Fair Employment & Housing (“DFEH”) Procedural
Regulations

1. The DFEH no longer requires a claimant to sign the complaint, but instead, permits the claimant’s  attorney or any other person whom the claimant has designated to sign on his or her behalf.

2. The DFEH will also now accept an unsigned complaint when  neither the claimant nor an authorized representative is able to sign it before  the statute of limitations expires.

3. The “liberal construction of  complaints” is now codified to extend to all claims that are or could have been  asserted based on the facts alleged. So, where the claimant checks only the box  for discrimination but the facts alleged could support a harassment claim as well, the DFEH will construe the complaint to include both claims. This may make  it more difficult for employers to successfully argue a failure to exhaust administrative remedies and obtain an early dismissal of those claims not  expressly alleged in the administrative complaint at the litigation stage.

4. In yet to be defined circumstances, the DFEH may now accept  complaints filed after the one-year statute of limitations period. The new regulations provide that “where there is doubt about whether the statute of  limitations has run [the complaint will be accepted and timeliness] investigated and analyzed” during the investigation. This may make it more difficult for employers to establish a statute of limitations bar to the administrative claim.

Significant changes to California employment laws may have an effect on your job or your business. New employment laws in California for 2012 include:

• Employers subject to the pregnancy disability leave law must maintain and pay for group health insurance during the leave, up to 4 months in a 12-month period.

• Employers are now generally prohibited from using consumer credit reports to screen candidates for employment. Exceptions exist for employees with access to trade secrets or $10,000+ of cash of the employer, or to confidential information or $10,000+ of cash of others, executive employees, etc.

• Upon hire, an employer must now provide the employee with a written notice specifying certain information about the employer and the employee’s job, including workers’ compensation insurance carrier information.

• Penalties for willfully misclassifying workers as independent contractors instead of employees are increased (a new civil penalty of $5,000 to $15,000 per violation is added to existing penalties).

• The minimum salary for exempt computer professionals increases, as does the minimum hourly rate for physicians paid hourly.

• California now prohibits state and local governments in most instances from requiring employers to use the federal E-Verify system to ensure candidates are legally permitted to work in the United States. California employers may voluntarily choose to use E-Verify, however, and must do so if it’s a condition of the receipt of federal funds or federal law.

• If you are a San Francisco employee, your minimum wage was increased. San Francisco is the first city in the nation mandating a minimum wage greater than $10 per hour. The law was passed several years ago, but includes a mandatory adjustment each year to keep pace with inflation. The minimum wage for most California cities without a higher local rate remains at $8.00 per hour for 2012.

If you have a question regarding how these new laws impact your job or your business, give us a call.

From CalCoastNews.com

Another Arroyo Grande sex harassment claim

December 28, 2011

By KAREN VELIE

Another Arroyo Grande police officer says she was sexually harassed and discriminated against, and that department and city officials ignored reports of illegal acts.

Michelle Cota is suing the city, the police department, Chief Steven Annibali and former Commander John Hough for lost wages and damages.

Cota’s ability to advance in the department ended in 2007, under the leadership of Annibali, according to a lawsuit filed Dec. 22. In the suit penned by Santa Barbara based attorney Christine Adams, Cota accuses Annibali and Hough of retaliating against her and two other women who complained that former Sergeant Barry Bridge sexually harassed them.

“Ms. Cota has been subjected to severe discrimination and harassment at the Arroyo Grande police department under the command and direction of Chief Annibali,” Adams said in an email to CalCoastNews. “Chief Annibali’s statements make clear that he is not at all happy that women stand shoulder to shoulder with men on the police force.”

For example, the lawsuit says Annibali ordered a male officer to enter the lady’s locker-room and remove all personal items and pictures the women had posted on their lockers. The women said Annibali enacted a new policy that prohibited the posting of items on the outside of lockers belonging to women while allowing male officers to post photos on their lockers.

In addition, Cota’s suit says Annibali overloaded her with calls, refused to allow female officers overtime, gave men the more desirable shifts and promoted men over more qualified female officers.

“Annibali and Commander Hough have withheld mentoring, training and promotional opportunities to female police officers who have dedicated their careers to protecting Arroyo Grande and its citizens,” Adams said in the email.

Annibali did not return requests for comment.

Congressional member, Senator Hagan,  recently introduced a bill that would greatly expand the exemption to the Fair Labor Standards Act for IT employees, eliminating
overtime benefits for many employees, including network, database and security specialists.

Currently, California law and the FLSA mandates that employees get time-and-a-half (1.5x) overtime pay for working more than 40 hours in a week or 8 hours in a workday, unless they qualify under one of the exemptions. Many exemptions exist and the current text related to IT workers exempts “any employee who is a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker,” whose primary duties fall under categories including “systems analysis techniques and procedures,” and “design, documentation, testing, creation, or modification of computer programs.”

But a bill sponsored by Sen. Kay Hagan (D-NC), titled the “Computer Professionals Update Act,” takes the exemption’s 131-word text and bumps it up to 205, adding job classes such as database and network specialists and security professionals.  The proposed language of the bill would exempt “any employee working in a computer or information technology occupation (including, but not limited to, work related to computers, information systems, components, networks, software, hardware, databases, security, internet, intranet, or websites) as an analyst, programmer, engineer, designer, developer, administrator, or other similarly skilled worker,” with primary duties including “the application of systems, network or database analysis techniques and procedures, including consulting with users, to determine or modify hardware, software, network, database, or system functional specifications.”

The bill would also label all employees listed in the exemption as part of the “bona fide executive, administrative, or professional” class exempt from overtime and minimum wage laws. However, the proposed modification keeps the exemption’s current text limiting affected employees to those who are on salary or make at least $27.63 an hour.

One IT administrator who blogged about the bill commented that “I think that I may have originally underestimated the importance of this bill to us SysAdmins in the United States…see, I was under the impression that we were almost all salaried and exempt—in other words, that overtime wasn’t an option anyway. I’ve been informed by a couple of friends of mine that this isn’t the case at all, and that there are a lot of hourly SysAdmins who get overtime.”

If you are an IT employee who is curious whether you are being paid correctly under California or Federal wage and hour laws, contact Adams Law today.

ELK GROVE, CA – The California Department of Fair Employment and Housing, the state’s civil rights agency, announced that its first-ever procedural regulations became effective today. The Department’s regulations were approved by the Office of Administrative Law on September 7, 2011 and filed with the Secretary of State. In a succinct and clear format, they replace nearly all of the formerly voluminous Department directives adopted over 30 years, making the Department’s procedures readily accessible and easy to understand.

The new rules capture existing procedures within the Department for handling complaints related to employment, housing, and public accommodation discrimination and incidents of hate violence. All complaints within the Department’s jurisdiction, for example, workplace harassment, discriminatory hiring or firing or refusal to rent on a discriminatory basis, are covered. Public testimony and written comments helped shape the final regulations.

“I am excited that the Department finally has procedural regulations that are clear, user friendly and citable as legal authority,” said Department of Fair Employment and Housing Director Phyllis Cheng. “These new rules comply with the Administrative Procedures Act and streamline the Department’s processes. We appreciate the public’s valuable feedback that made these regulations possible.”

The regulations formalize existing procedural steps for the Department’s administrative process, including intake, complaint filing, investigation, conciliation, and prosecution; they also cover the procedures of the Department’s new Mediation Division. The rules benefit employees, tenants, employers, businesses and housing providers alike. The regulations can be found in the California Code of Regulations, title 2, sections 10000 through 10066.

To visit the Department of Fair Employment and Housing, go to http://www.dfeh.ca.gov

Social Media pervades our lives – including the workplace. Recently, the National Labor Relations Board (“NLRB”) has sought to define the parameters of an employee’s right to engage in “protected concerted activity” given the role that Facebook, Twitter, LinkedIn and other such social media and internet based forums play in our lives. The NLRB issued three Advice Memorandums on the topic in July 2011. Those agency memorandums reveal an effort to establish a more consistent approach to evaluating whether social media communications constitute “protected concerted activity.” In each, the NLRB recognized that “circumstances where individual employees seek to initiate or to induce or to prepare for group action,” or where “truly group complaints” are being brought to management’s attention constitute or implicate “protected concerted activity.” Engaging in a protected concerted activity is necessary to find protection under the relevant law. In each of the three cases the NLRB looked at, it found that no protected concerted activity existed.

In the first case, a bartender complained on Facebook to a relative about his employer’s tip policy and other compensation issues and referred to his employer’s customers as “rednecks” and other offensive terms. In the second case, a Walmart employee’s Facebook wall contained his comment, “Wuck Falmart” and other more profane comments. The third case the NLRB examined involved an employee of a homeless shelter who logged into his Facebook account during work hours and made inappropriate comments about the shelter’s residents. In each of the three cases, the NLRB found that there was no protected concerted activity because each employee was voicing purely individual concerns.

For employees terminated for making comments on Facebook and other social media, an attorney can analyze whether the employee was protected from termination or discipline for the comments made by examining whether the employee is noting a purely personal concern or airing a personal grievance, or whether they are raising complaints designed to persuade others to bring about change through group action. One significant factor to consider is whether the employee’s coworkers also made comments agreeing with the posts. If they did, the termination may have been wrongful. It must be noted, however, that even if you have engaged in protected activity, if you used Facebook during company time, while “on the clock” or included profane or otherwise inappropriate comments, you could lose the protection afforded under the law.

If you have been terminated or disciplined within the last year for comments made on Facebook, Twitter, or other social media websites, we can analyze whether you were wrongfully terminated or disciplined.

If you are an employer considering terminating or disciplining an employee for such comments, you may need to exercise caution if the employee was posting a comment that concerns the terms and conditions of employment. We would be happy to analyze whether an employee’s comments constitute protected activity.

If you would like to read the full text of the Advice Memoranda, please go to http://www.laborrelationstoday.com

The IRS has announced a 4.5 cent increase in the standard mileage rate to be in effect for the last six months of 2011. Effective July 1, 2011, employers who use the IRS rate to reimburse employees for business mileage must pay 55.5 cents per mile. If you use your own vehicle during the course of discharging your job duties and have not been paid for mileage, you may be owed compensation.

The Ninth Circuit’s recent decision in Campbell v. PricewaterhouseCoopers (PWC) is significant. In that case, a group of 2,000 unlicensed junior accountants, sued their employer under California law for alleged unpaid overtime wages.  During the litigation, Plaintiffs filed a motion for summary judgment, seeking to establish that as a matter of law, the junior accountants did not qualify for any overtime exemption.  In response, PWC argued that they did qualify, under the professional and/or administrative exemptions.  The district court disagreed, holding that unlicensed accountants are categorically ineligible for the professional exemption and that there was insufficient evidence to support a finding that they met the administrative exemption. At that point, the plaintiffs won the lawsuit on that issue.

Unfortunately, the Ninth Circuit disagreed.  With respect to the professional exemption, the court held that unlicensed accountants are not categorically ineligible for the exemption simply because of their unlicensed status.  The court held that unlicensed accountants may qualify as “learned professionals.”  The court did not go so far as to hold that the plaintiffs in this case actually qualified for the exemption as a matter of law, but rather held that some of the employees might qualify,  depending on their actual job duties, and as a result, the district court had erred in ruling that unlicensed, or junior, accountants could never qualify for the professional exemption in any circumstance.  According to the court, such a holding “ignore[s] the potential for substantial variance [in job duties] from one unlicensed accountant to another.”  The court emphasized that “[e]ach case will require a fact-specific inquiry into whether the unlicensed accountant meets the subsection’s various benchmarks–e.g., engaging in work that is  ‘predominantly intellectual and varied in character.”  The court held that the evidence before it revealed significant differences in skill level, responsibility and experience among the class member accountants.

With respect to the administrative exemption, the court similarly concluded that there were issues that required resolution by a trier of fact and that the issue could not be decided as a matter of law. Of significance was whether plaintiffs performed work under only general supervision and whether their work was of substantial importance to their employer’s clients.

Are you a junior accountant or in a similar position? If you are not currently earning overtime, an inquiry into your work environment, job duties and work history may reveal that you are exempt under the law and entitled to that premium  compensation. Give us a call to see how we may be of assistance. We are glad to help.

Do you employ junior accountants or similar paraprofessionals? While the Ninth Circuit’s decision is a favorable one for California employers, that Court made clear the need to individually examine whether a particular employee qualifies for exempt status based on a review of the employee’s actual job duties and how the employee spends his or her time to ensure your compliance with the law. Give Adams Law a call today and we would be glad to help analyze your employment practices.

If you are an “App User,” the U.S. Department of labor launched its first smartphone application – the DOL-Timesheet that may be useful to you in tracking your hours worked. This timesheet application, which is available in English and Spanish versions, provides a record keeping system that enables you to keep track of your work hours and determine the wages your employer owes you.

Users can track regular work hours, break time, and overtime hours. Users can also add notes or comments (project name, work site, etc) and view summaries of their work time (and wages owed) in daily, weekly, and monthly formats. Even better? You can email the summary as an attachment to ensure your record – and your paycheck – is accurate.

This application is a huge boon to employees who no longer have to rely on their employer’s records. In the event of a wage and hour dispute, the employee’s records could assist in winning a wage claim, particularly where the employer has failed to maintain accurate records as required by law.

If you do not have a smartphone, you can download a timesheet calendar that will help you maintain the same information. Both  can be downloaded from the DOL’s Wage and Hour Division homepage.

In California, it is unlawful for an employer to terminate you because you suffer from a disability. What happens when you have been injured and attempt to return to work? Many employers offer light duty assignments to employees who are temporarily unable to perform the essential duties of their positions, some do not. While there is no hard and fast rule that an employer must offer permanent light duty, a recent decision gives hope to those who seek to remain productive members of the workforce following an injury.

In Cuiellette v. City of Los Angeles, a California court found an employer liable for disability discrimination because it failed to provide an employee with a 100% disability rating a permanent light duty assignment.  It is significant to note that the employer had available (and permanent) light duty positions and routinely made use of those positions to accommodate injured employees.  The employer argued that it had never provided a permanent light duty position to an employee with a workers’ compensation rating of 100%. The court dismissed the employer’s argument, reasoning that a workers’ compensation disability rating does not absolve the employer of the obligation to engage in the interactive process and determine whether the employee can perform the essential functions of an open alternative position.  The employer’s decision to
rely on the workers’ compensation disability rating (and the advice of a third party workers’ compensation administrator to terminate the employee) was wrong and supported a finding for violation of the law.

The Cuiellette decision makes clear that the legal parameters of Workers’ Compensation and the Fair Employment and Housing Act, or FEHA. Your legal rights under those two systems are different and your employer’s legal obligations are not the same, nor do they always coincide.  If you have been injured and are returning to work with restrictions, you owe it to yourself to be aware of your legal rights. Fighting disability discrimination is a passion of our law firm. We are here to help.

If you are an employer faced with the decision of accommodating a disabled employee, you should  focus on the employee’s actual restrictions in relation to the essential functions of the employee’s existing position and/or open alternative positions. If you have a number of facilities or locations, the required decision-making process may
dictate that you look outside the original facility where the employee worked before making an offer of accommodation or denying accommodation.  The process of returning a previously injured employee to work is a complicated one that presents traps for the unwary. Give us a call if you have any questions.


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