In October 2013, Governor Brown signed several significant bills that increase and protect the earnings of low-wage and immigrant workers.  After years of stagnation and prior unsuccessful attempts, the state minimum wage will finally see an increase after the approval of AB 10 (Asm. Alejo).  The new law raises the $8 an hour minimum wage to $9 an hour, effective July 1, 2014, and from $9 an hour to $10 an hour, effective Jan. 1, 2016.

Domestic workers will also see an increase in wages after scoring a historic victory with AB 241 (Asm. Ammiano), known as the “Domestic Workers Bill of Rights.”  This law mandates overtime compensation for domestic workers in California who work over 9 hours in a day and over 45 hours in a week.

Bills to protect wages were also a highlight of this year’s legislative session.  SB 496 (Sen. Monning), signed by the Governor this year, makes it easier for workers to pursue a claim for unpaid wages by eliminating the threat of potentially ruinous liability if they ultimately do not succeed on their claim.

Car wash workers gained much-needed protections when Governor Brown eliminated the sunset date on one of the most effective tools for combating wage theft in the car wash industry.  AB 1387 (Asm. Hernandez) now permanently requires car washes to register and obtain a bond to fund an account for car wash workers who cannot collect their wages.

The Fair Paycheck Act, which would have helped all workers collect their unpaid wages, unfortunately suffered a defeat this year due to heavy lobbying by special interest groups in big business and banking.  This bill would have authorized an employee to record and enforce a wage lien upon an employer’s property.  Though unsuccessful, the Fair Paycheck campaign, led by a broad coalition of low wage worker advocates, will continue to fight and will make another legislative attempt next year.

AB 263 (Asm. Hernandez) and SB 666 (Sen. Steinberg) constitute a huge victory for low wage and immigrant workers. These bills protect and promote the rights of immigrant workers who suffer from pervasive abuse in the workplace.  The bills help workers assert their rights by clarifying that retaliation protected under Labor Code 98.6 broadly includes any adverse actions (including threats of deportation).  Additionally, these bills clarify that workers do not have to go through the cumbersome process of filing administrative complaints unless the Labor Code expressly requires it.  Another immigrant workers’ rights bill signed this year, AB 524 (Asm. Mullin), makes it a crime for employers or their attorneys to use threats of deportation to exploit immigrant workers.

Whistleblowers also receive some added protection under SB 496 (Sen. Wright), which expands Labor Code 1102.5 to cover workers who are preemptively fired before they can report any wrongdoing and to cover a broader range of disclosures.

SB 770 (Sen. Jackson) was the only family care bill signed by the Governor into law.  This bill expands the Paid Family Leave Program to provide wage replacement for workers taking care of seriously ill grandparents, grandchildren, siblings, and parents-in-law.

Governor Brown also signed several bills to help strengthen California’s workplace anti-discrimination and anti-harassment laws.  He also signed bills that expand workplace protections for veterans and those in the military. Significantly, SB 400 not only prohibits discrimination against victims of domestic violence, it also requires employers to provide victims with reasonable accommodations.  The Governor also approved SB 292 (Sen. Corbett), which strengthens sexual harassment protections, particularly with same-sex harassment, by clarifying that harassing conduct need not be motivated by sexual desire.

Former offenders will also find some added protections and help securing employment with the approval of AB 218 (Asm. Dickinson).  This new law prohibits state and local agencies from asking an applicant to disclose information regarding a criminal conviction until after the agency has first determined whether the applicant meets minimum qualifications for the position.

All of the bills signed this year will take effect January 1st of 2014 and represent huge victories for workers and working families in California.

As of today, the Governor has signed 8 significant employment-related bills into law, covering:

Minimum wage increase, from $8 to $10/hour, over two years

Change in definition of sexual harassment to provide broader protection for employees

Recovery of defense attorney’s fees in wage claims only if bad faith

Expansion of coverage of Paid Family Leave

Mandatory overtime for domestic workers who work over 9 hours/day or 45 hours/week

Criminal background checks for youth sports leaders

Employment contracts for minor actors

New penalties for violation of posting requirements for garment manufacturers

To view the signed bills, as well as the passed bills awaiting Governor Brown’s action, as well as failed bills, click here.  Governor Brown has until October 13 to act on bills awaiting signature. If you have questions on how these bills affect your rights, give us a call today.

On October 5, 2013, Governor Brown signed SB 666 (Steinberg) into law. SB 666 does the following:

It overturns MacDonald v. State of California (discussed here), in which the Court of Appeal held that an employee must exhaust the administrative remedy set forth in Labor Code section 98.7 before pursuing a civil claim for retaliatory discharge or wrongful termination in violation of Labor Code section 1102.5 and retaliatory and discriminatory discharge in violation of Labor Code section 6310.

Significantly, the new law also makes it clear that an employer who retaliates or takes adverse action against any employee or applicant for employment because he or she has engaged in protected conduct may be subject to a civil penalty of up to $10,000 per violation.

The law also subjects attorneys to discipline for reporting or threatening to report the suspected immigration status of a witness or party to a civil or administrative action or his or her family member, to a federal, state, or local agency because the witness or party exercises or has exercised a right related to his or her employment. It also subjects certain licensed professionals and businesses to license suspension or revocation if the Labor Commissioner or a court determines that they have violated certain provisions of California law.

 
Further information on SB 666, including the text of the bill, is available here.

1) Increase in the State Minimum Wage

Governor Brown signed AB 10. This bill raises the minimum wage in two $1.00 increments, from the current $8 per hour rate to $9 per hour effective July 1, 2014. Then to $10 per hour effective January 1, 2016.

2) Paid Family Leave Coverage Expanded

SB 770 was also signed into law. This bill expands the familial relationships covered by California’s paid family leave program. Currently, employees who are permitted to take unpaid time off to care for a seriously ill child, spouse, parent, domestic partner, or to bond with a minor child within one year of the birth, adoption or foster care placement of the child, can receive up to 6 weeks of wage replacement benefits under California’s family temporary disability (paid family leave) program. Beginning July 1, 2014, a seriously ill grandparent, grandchild, sibling and parent-in-law will also be included.

California has fee-shifting provision in place for claimants seeking unpaid minimum wages and unpaid overtime pay, by which the prevailing employee is entitled to attorney’s fees. Many employer defendants have sought to scare away a former employee plaintiff by “reminding” them that if the employee loses, the employer will go after them for their fees and costs. Many employees have considered the risk and opted not to pursue legitimate claims based on that fear.

Good news….

Effective January 1, 2014, Labor Code § 218.5 will provide that a prevailing employer can recover its defense costs only if it proves to the court that the employee brought the action “in bad faith.” “In bad faith” is not defined in the statute, but it will probably require that the employer prove that the employee knowingly filed a false claim purely withy the intent to harm their former employer.
The history behind the change reveals California’s long-established “pro-employee” position. Governor Brown signed the legislation, SB 462, making this change on August 26, 2013. The bill’s author, Sen. Bill Monning, D-Carmel, stated that this amendment corrects “an historic injustice” and “brings California into conformity with the overwhelming majority of states in the country.
The amendment was prompted by a 2012 California Supreme Court ruling holding that a prevailing employer in a meal-rest penalties case could not recover attorneys’ fees because such penalties are not “wages” and the Labor Code statutes permit fee recovery only in actions involving wages. Kirby v. Immoos Fire Protection, 53 Cal. 4th 1244 (2012).

Although there was no applicable fee-shifting statute in Kirby, the case implied that if the claims had involved wages instead of penalties, an award of attorneys’ fees to the prevailing employer could have been appropriate. The reaction from SB 462′s sponsor — the California Employment Lawyers Association — was to try to protect plaintiff employees from that eventuality by requiring successful employers to prove bad faith. A true win for employee plaintiffs!

Un empleado puede tomar tiempo fuera del trabajo, sin miedo de perder su trabajo, para:
1. Permiso de ausencia para actividades honorables – Código laboral §§ 230.3-.4; 1501-1507.
Se requiere de los empleadores en California que dejen a los empleados tomar permiso de ausencia no pagado para servir como bomberos voluntarios, policía de reserva, personal de rescates de emergencia, o como miembro de la patrulla aeronáutica civil. Cualquier empleador que discrimine contra un empleado por tomar tiempo permitido bajo la ley es culpable de un delito menor criminal, y el empleado afectado tiene derecho a reincorporación, pagos perdidos y beneficios.

2. Permiso de ausencia para donar órganos o medula ósea – Código laboral §§ 1508-1513.
Los empleados tienen derecho a un permiso de ausencia pagado para donar un órgano o medula ósea. Si Ud. trabaja en un lugar que emplea 15 o más empleados y ha trabajado allí por los menos 90 días, tiene derecho a tomar hasta 5 días laborales pagados durante cualquier periodo de un año para donar medula ósea y hasta 30 días laborales pagados durante un periodo de un año para donar un órgano.
Se puede requerir, sin embargo, que Ud. use hasta dos semanas de ausencia médica pagada o tiempo de vacación acumulada. Al volver de la ausencia bajo estas provisiones, tiene derecho a su reincorporación en el mismo puesto o un puesto comparable en el trabajo.

3. Permiso de ausencia para ayudar en una aula. – Código laboral § 230.8.
Si Ud. es padre, guardián, o abuelo de la custodia y trabaja para un empleador que tiene 25 o más empleados, tiene derecho a tomar permiso de ausencia (o usar tiempo personal/de vacaciones) hasta 8 horas por mes y 40 horas por año escolar para participar en las actividades de la escuela o guardería de su niño. La pena por violar esta provisión es muy seria – empleados afectados pueden obtener restauración, pagos perdidos, beneficios y una pena civil de tres vecesla la cantidad de los pagos y beneficios perdidos.

4. Ausencia de embarazo –
En California, podría ser que no hay límite a la cantidad de tiempo que una empleada puede tomar en conexión con su embarazo y parto. Una decisión reciente por una corte apelativa de California aclara que le Ley de Discapacidad por Embarazo (PDLL), que permite hasta cuatro meses de ausencia por discapacidades relacionadas con el embarazo, “aumenta en vez de reemplaza” otras provisiones de discapacidad establecidas en el Acto de Igualdad en el Empleo y la Vivienda (FEHA), además de ausencia para unirse con un niño recien nacido bajo el CFRA. Esto significa que una empleada podría tener derecho a tomar hasta cuatro meses de permiso de ausencia bajo PDLL, hasta 12 semanas de ausencia bajo CFRA y cualquier otro tiempo como acomodación razonable bajo FEHA si la empleada todavía está discapacitada después de utilizar PDLL.

5. Ausencia para adictos y personas que necesitan apoyo para leer – Código laboral §§ 1025-26; 1041. Empleadores también se encuentran obligados a dejar a los empleados a tomar permiso de ausencia no pagado como “acomodación razonable” para participar en un programa de rehabilitación de alcohol o drogas, o programas de alfabetización de adultos si emplean a más que 25 empleados. El empleador también tiene que tomar pasos responsables para asegurar la privacidad de un empleado que le haya informado al empleador sobre su participación en dichos programas.

Wet Seal, a California based retailer, has settled a national class action suit that was filed in federal district court. The employment discrimination case was based on the company’s alleged Title VII of the Civil Rights Act of 1964 violation. The act prohibits employers from discriminating against employees based on sex, race, national origin, color or religion.

The settlement is reportedly for $7.5 million and Wet Seal promises to make changes that will reduce discrimination based on race. The suit was filed after an investigation by the Equal Employment Opportunity Commission that lasted nearly three years. The EEOC determined that the retailer was indeed guilty of denying certain employees promotions and equal pay based on race.

The court has indicated that it will decide in November whether to give the settlement final approval after a review of the process for claims. Before the ink is dry on this settlement, the EEOC has filed two additional complaints against two different companies alleging that they discriminated against applicants by using background checks to disqualify them. Some say that the case against Wet Seal and these two additional complaints illustrate the fact that African Americans in California and around the country continue to face prejudices when it comes to employment.

Many people would like to believe that the days of employment discrimination based on things such as race are far from over. Unfortunately, that isn’t always the case. There are still many people who are subjected to discrimination on a daily basis simply because of the color of their skin. Any employee that feels they have been discriminated against for any reason has the right to file a complaint. If the employer fails to satisfactorily handle that complaint, the employee may seek additional advice and assistance with reaching a satisfactory conclusion.

Source: ThinkProgress.org, “Wet Seal To Pay $7.5 Million Class Action Race Settlement,” Joseph Diebold, June 18, 2013

An employee may also take time off work, without fear of losing their job, for:

1.   Time Off For Honorable Activities  –Lab. Code §§ 230.3-.4; 1501-1507.  Employers in California are required to allow employees to take unpaid leaves of absence to serve as volunteer firefighters, reserve peace officers, emergency rescue personnel, or as a member of the Civil Air Patrol.  Any employer who discriminates against an employee for taking time allowed under the law is guilty of a criminal misdemeanor, and the affected employee is entitled to reinstatement, lost wages, and benefits.

2.   Time Off For Donating Organs or Bone Marrow- Lab. Code §§ 1508-1513. Employees are permitted to take paid leaves of absence to donate an organ or bone marrow.  If you work at an establishment that employs 15 or more employees, and have worked there for at least 90 days, you are entitled to take up to 5 business days of paid leave during any one-year period to donate bone marrow, and up to 30 business days of paid leave during any one-year period to donate an organ.

You may, however, be required to use up to two weeks of paid sick leave or vacation time accrued. Upon return from a leave under these provisions, you are entitled to reinstatement in the same or a comparable position of employment.

3.   Time Off to Assist in a Classroom– Lab. Code § 230.8. If you are a parent, guardian, or a custodial grandparent and work for an employer that has 25 employees or more you are permitted to take unpaid time off (or use vacation/personal leave) up to 8 hours per month and 40 hours per school year to participate in your child’s school or day care activities. The penalty for violating this provision is stiff — affected employees can obtain reinstatement, lost wages and benefits, as well as a civil penalty of three times the lost wages and benefits.

 4.   Time Off For Pregnancy –  In California, there may be no cap to the amount of leave an employee can take in connection with her pregnancy and childbirth.  A recent decision by a California Court of Appeal makes clear that the Pregnancy Disability Leave Law (“PDLL”), which allows for up to four months leave for pregnancy-related disability, “augments rather than supplants” other disability leave provisions set forth in the Fair Housing and Employment Act (“FEHA”), as well as leave to bond with a new child under the CFRA.  This means that an employee may be entitled to take up to four months leave under PDLL, up to an additional 12-weeks of leave under CFRA, and any additional leave as a reasonable accommodation under FEHA if the employee is still disabled after exhausting PDLL.

5.   Time Off For Addicts And Those Who Need Help Reading – Lab. Code §§ 1025-26; 1041.   Employers are also obligated to allow employees to take unpaid leave as a “reasonable accommodation” to participate in alcohol or drug rehabilitation programs, or adult literacy programs if they employ 25 or more employees.  The employer must also take reasonable steps to safeguard the privacy of an employee who has informed the employer about enrolling in such a program.

Why Does it Matter?

Many employers ask (or require) employees to sign arbitration agreements. Once signed, the employee gives up their right to sue their employer in court over job-related issues such as wrongful termination, breach of contract, and discrimination. An employee who signs an arbitration agreement promises to pursue legal claims against the employer through arbitration, rather than through a lawsuit. It might not sound like a big deal when you’re starting a new job and settling into a new routine or making friends with the people you work with, but if your rights are later violated at work, that arbitration agreement might come back to haunt you.

So, What are the Pros and Cons of Arbitration?

First, the Cons

You may wonder why you should care where your claims get heard, as long as they are heard somewhere, whether in an arbitration proceeding or a court of law. An arbitration differs from a court case in several ways, and many of these differences work against employees.

Most important, an arbitration is heard and decided by an “arbitrator” — a private citizen (often a retired judge) who is paid by one or both sides to listen to the evidence and witnesses. That means you won’t have a jury hear your story — and juries often decide cases based on sympathy and relate better to an employee than an employer.

In addition, the arbitration process limits the amount of information each side can get from the other (a process called discovery). In employment cases, this generally hurts the employee, because the employer is usually the one in possession of most of the documents and information relating to the employee’s case.

Finally, an arbitration usually cannot be appealed, which makes arbitration awards more final than court verdicts. If you think the arbitrator’s decision is unfair or wrong, you won’t get a second chance to argue your case before a higher court — a second chance that you might have gotten had you gone to a court trial.

The Pros

An arbitration does have some advantages over a court trial. Arbitrations are less formal than court trials, and this informality can make the process easier for all involved, especially employees who are not used to litigation. Also, cases in arbitration are heard and decided much more quickly than court cases, which can take several years from start to finish.

What Should You Do if Asked to Sign an Arbitration Agreement?

Read ALL of the Documents Carefully, or Have them Reviewed

Employees often sign arbitration agreements unintentionally. How can this happen? Some employers give new employees piles of paperwork to fill out on their first day, and some employees, in turn, sign documents without reading them. Although many employers are straightforward and present the arbitration agreement to employees openly in a separate contract, others bury arbitration agreements in other documents, such as an employment contract, a hiring letter, or an employee handbook.

When you sign a contract, letter, handbook acknowledgment form, or any other document from your employer, you agree to all the terms of the document — even the ones that you may not have read. This is a particular problem with handbooks, which might be very long. To protect yourself from unwittingly giving up your rights, don’t sign any document acknowledging you’ve read something unless you actually have read it and understood it completely. And don’t sign any document that says you agree to the terms unless you have read all of the terms and do in fact agree to them.

What if You Do Not Want to Sign the Arbitration Agreement?

If your employer asks you to sign an arbitration agreement, you can refuse, but that may put your job in jeopardy. Usually, an employer can rescind an employment offer if a prospective employee refuses to sign the arbitration agreement. And an employer can fire an at-will employee who refuses to sign one. Therefore, declining to sign the agreement could jeopardize your job.

Some employers will negotiate this point, however, especially if they are more excited about you than they are about arbitration. If you are a highly sought after prospect, or if you are a valued employee in your company, your employer may allow you to refuse to sign rather than give you up.

Another option is to agree to sign, but only if you can negotiate an agreement that is fair to you, as described below.

How Can You Make the Agreement Fair?

If your employer won’t let you refuse to sign, it may allow you to negotiate certain terms of the agreement to make it at least balanced. You may have to consult with an attorney for help negotiating the fairest agreement possible. Here are some provisions that can help create a more balanced arbitration process.

•Choice of arbitrator. You should get as much say in choosing the arbitrator as the employer. Given the power of the arbitrator, and given the fact that you probably won’t get to appeal the arbitration decision, you will want to have rights equal to those of your employer in selecting the arbitrator. You and the employer should have the right to reject at least one arbitrator without having to give a reason.

•Disclosure of information. A potential arbitrator should have to disclose information about his or her business and personal interests so you can make sure that the arbitrator is not biased in favor of the employer. For example, the arbitrator should not be someone who is a stockholder in the company. You and the employer should have the right to reject any arbitrator who has a conflict of interest.

•Costs of arbitration. Because the employer is the one who wants to use arbitration — something that costs money — the employer should have to pay for it.

•Remedies available. Make sure that you can receive through arbitration all of the remedies that you would have gotten if you had filed your claim in a court of law. For example, the agreement should not prohibit you from seeking punitive damages or damages for emotional distress.

•Attorney representation. You should have the right to be represented by an attorney throughout the arbitration process.

Jennifer Becerra, Montinique Dever, Andrea Bourke and Lauren Benge have filed a lawsuit on behalf of themselves and all other hourly, non-exempt current and former employees (“Class Members”), alleging that while working for the famed chef, he and his restaurant:

“(1) required Class Members to work through their meal and rest periods without paying compensation for missed meal and rest breaks; (2) failed to pay Class Members minimum wages for all hours worked; (3) failed to pay Class Members premium compensation for all overtime hours worked; (4) failed to pay Class Members all wages due at termination and/or resignation; (5) failed to maintain and provide Class Members with proper documentation concerning their hours worked and their compensation; (6) converted the property of the Class Members; and (7) committed unfair business practices in an effort to increase profits and to gain an unfair business advantages at the expense of the Class Members and the public.”

The Fat Cow is a Ramsay restaurant located in Los Angeles’ famous outdoor shopping center — The Grove, and is owned by defendants The Fat Cow LLC, FCLA LP and Gordon Ramsay Los Angeles.