2018 New Employment Laws. Numerous laws impacting employee rights in California go into effect this year. Be sure you are aware of the changes.

Salary  History

In a move to bring greater equality in compensation between the sexes, a new law prohibits employers from considering an applicant’s salary history when determining employee wages.

Minimum Wage

Each state has its own laws regarding minimum wage. The state of California’s minimum wage increased by $0.50 beginning on the first day of the year. Employers with more than 25 employees will need to pay workers at least $11.00 per hour this year. Employers with 25 or fewer employees are only required to pay $10.50 per hour in 2018. Other minimum wage increases are scheduled for each year between 2019-2022. California cities may have different minimum wage rates, over and above the State minimum. For example, the minimum wage in Los Angeles is $12.00, and will increase to $13.25 this summer.

Parental Leave Law

If you work for an employer that employs between 20-49 people, a new parental leave law may give you the right to take up to 12 weeks of unpaid leave. The law applies equally to natural parents and parents who are adopting or welcoming a foster child into their home. Several factors must be met in order to qualify for the leave:

The employee must have worked for the employer for a minimum of one year prior to taking the leave of absence.

The employee must have worked a minimum of 1250 hours for the employer within the last year.

The employee must work at a job site where there at least 20 other employees working for the same employer within 75 miles.

Parents can take this leave within one year of the child’s birth, adoption, or foster care placement. As long as the leave is taken within the one-year timeframe, it is protected leave under the new law.

Ban the Box

This law prohibits employers of five or more employees from including questions about an applicant’s criminal record on a job application. It also prevents employers from asking an applicant about their criminal history throughout the interview process. The topic cannot be discussed until after an offer has been made. If, after an offer is made, an applicant is determined to have a criminal history that is incompatible with the position offered, an employer can withdraw the job offer. If an employer decides to revoke an offer of employment, it must notify the applicant of their decision as soon as possible, explain its decision, include a copy of the conviction report, and outline how the applicant can respond to the revocation. The applicant then has the right to respond within five days—the employer’s decision is not final until this five-day period has passed. This gives applicants the chance to explain why their convictions should not be used to preclude them from the employment sought.

A number of changes to California Employment Law have taken effect or were recently amended. The laws are summarized below. If you are experiencing difficulties at work regarding these situations, or would like to speak with an attorney regarding your employment rights, please give us a call.

Changes to the new law regarding Paid Sick Leave include requirements that:

-An employee must work for the same employer for 30 or more days within a year of the commencement of employment to be eligible to use PSL.

-Allow for alternative accrual methods for all leave banks.

-“Grandfather” in leave banks existing as of January 1, 2015.

-Allow employers with unlimited or undefined leave banks to indicate “unlimited” on the employee’s itemized wage statement.

-Allow employers to calculate the rate of pay for employees using any of three methods.

-Make other clarifications and exclusions from the PSL law, and delay its effective date for some employers.

California’s equal pay statute, first enacted in 1949, was significantly modified to lower the burden of proof for plaintiff’s claims, to greatly increase the burden of proof for an employer’s defenses, and to allow employees to ask other employees about the amount of their wages for the purpose of ascertaining whether there may be a factual basis for an equal pay claim.  Governor Brown has referred to the new law as “the strongest equal pay law in the nation.”

Employment retaliation protections are extended to an employee who is a family member of a person who engaged in, or is perceived to have engaged in, legally protected conduct. This bill also exempts household goods carriers from the client employer and labor contractor liability provisions in this law.

Employers are prohibited from retaliating or otherwise discriminating against an employee for requesting accommodation of his or her disability or religious beliefs, regardless of whether the accommodation request was ultimately granted.  The new law is intended to clarify a portion of the holding in the published decision of Rope v. Auto-Clor System of Washington, Inc. 220 Cal. App. 4th 635 (2013).

The Labor Commissioner is authorized to file a lien on real estate, or a levy on an employer’s property, or impose a stop order on an employer’s business in order to assist an employee in collecting unpaid wages where there is a judgment against the employer. Any employer, or individual acting on behalf of an employer, who violates any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission, or who violates other related provisions of law may be held liable as the employer for such violation. A bond of up to $150,000 may be required of an employer who does not promptly pay a judgment for unpaid wages.

The Labor Commissioner will have the authority to issue a citation to enforce local minimum wage and overtime laws, including against an employer or person acting on behalf of an employer for violations of existing law related to reimbursements for expenses.

The duration of the “disability benefit period” is extended from 14 days to 60 days.

Two statutory provisions containing the term “alien,” used to describe any person who is not born in or a fully naturalized citizen of the United States, will be deleted from the Labor Code.

The Family School Partnership Act is expanded to broaden the authorized reasons for which an employee can take job-protected time off of work without the fear of discrimination or discharge by allowing workers to take time off work to: (1) find, enroll, or re-enroll his or her child in a school or with a licensed child care provider, and (2) to address a child care provider or school emergency, as defined.  (SB 579; amends Labor Code sections 230.8 and 233).

Certain grocery stores that are sold to another entity will have specified obligations to retain grocery workers for a limited period of time.

The definition of an “unlawful employment practice” is expanded to prohibit an employer or any other person or entity from using the E-Verify system at a time or in a manner not required by federal law, or not authorized by a federal agency memorandum of understanding, to check the employment authorization status of an existing employee or an applicant who has not received an offer of employment. There is a civil penalty of up to $10,000 for each violation of the provisions of the bill.

Pedicab businesses might have the option of allowing alcohol to be served and consumed on board, if their employees are properly trained.

STATE OF CALIFORNIA | GOVERNOR EDMUND G. BROWN JR.

DEPARTMENT OF FAIR EMPLOYMENT & HOUSING DIRECTOR PHYLLIS W. CHENG
2218 Kausen Drive | Suite 100 | Elk Grove | CA 95758-7115
(916) 478-7251 | TTY (800) 700-2320 | Fax (916) 478-7329
www.dfeh.ca.gov

May 20, 2014 Contact: Fahizah Alim
For Immediate Release (916) 743-2374
fahizah.alim@dfeh.ca.gov

MULTIMILLION-DOLLAR SETTLEMENT LEVELS THE PLAYING FIELD FOR PEOPLE WITH DISABILITIES IN LAW SCHOOL ADMISSIONS

ELK GROVE – The California Department of Fair Employment and Housing (DFEH)
announced today a multimillion-dollar settlement that prohibits the Law School Admission
Council (LSAC) from discriminating against people with disabilities who take the Law School
Admission Test (LSAT). (HTML | PDF) Requiring reasonable accommodations for test takers
with disabilities, the more than $8 million agreement was a successful collaboration between
state and federal civil rights agencies and the private bar.

“This settlement ensures fairness and levels the playing field for persons with disabilities to enter
the legal profession,” said Anna Caballero, Secretary of the Business Consumer Services and
Housing Agency. “The Department of Fair Employment and Housing continues to take steps to
ensure that the underrepresented are helped.”

The settlement, filed Tuesday in federal court for entry of an order by U.S. District Judge
Edward M. Chen, includes an $8.73 million payment, of which $6.73 million will be equally
distributed to an estimated 6,300 individuals nationwide who applied for testing accommodations
on the LSAT from January 1, 2009 through May 20, 2014. This total includes attorney’s fees and
costs to DFEH.

“DEFH took down a longstanding barrier to entering the legal profession for people with
disabilities,” said Phyllis Cheng, DFEH Director. “California once more leads the way in
opening doors for all who strive to become future attorneys regardless of disability.”

The complaint arose from DFEH’s two-year investigation which began after the Department
received complaints of discrimination from individuals who had requested testing
accommodations on the LSAT, the examination required for admission to most law schools.

In July 2010, Cheng issued a Director’s complaint alleging that LSAC denied reasonable
accommodations to prospective test takers with disabilities, and that whenever a test-taker
received testing accommodations, LSAC sent a letter which informed law schools that 1) the
applicant was an individual with a disability; 2) the applicant’s LSAT scores “did not have the
same meaning” as other applicant’s test scores; and 3) that the applicant’s test scores had to be
viewed “with great sensitivity and flexibility.” (HTML | PDF) The U.S. Department of Justice
joined in the federal court case, expanding it to encompass nationwide claims. (HTML | PDF)

“This nationwide settlement illustrates the important role that government enforcement agencies
can play in helping to secure relief for students with disabilities,” said Jocelyn Larkin, Executive

Director of The Impact Fund a nationally recognized expert in civil rights and systemic
litigation. “Given the difficulties that private plaintiffs can sometimes face in obtaining class
certification in disability rights cases, DFEH’s ability to pursue systemic litigation can help
protect our significant civil rights principles for all Californians.”

The mission of the DFEH is to protect the people of California from unlawful discrimination in
employment, housing and public accommodations and from hate violence. For more information,
visit the Department’s Web site at www.dfeh.ca.gov.

President Obama intends to direct the Department of Labor to significantly change the Fair Labor Standards Act (FLSA) regulations that relate to overtime exemptions so that a larger number of employees will qualify for overtime pay.  While the details of the intended revisions have not yet been announced, it is reported that Obama will be urging at least two major changes: (1) an increase in the amount of minimum compensation that must be paid to an employee in order for the employee to qualify for exempt status (the minimum currently is $455 per week under the FLSA [please note: in California it is $640 already, so it may not represent a big change for California employees], and Obama is expected to direct that the minimum be substantially increased, with some urging that it be doubled); and (2) replacing the FLSA “primary duty” test with a more quantitative test that requires an employee to spend a certain percentage of his or her time (likely at least 50%) on exempt duties in order to qualify for exempt status. These changes would substantially increase the number of employees who qualify for overtime pay under the FLSA.

 

The Senate passed a historic piece of gay rights legislation that would ban workplace discrimination against gay and transgender employees. A 64-32 vote, the passage of this legislation marks another milestone victory for the gay rights movement in America.

 

The 64 to 32 vote to approve the Employment Non-Discrimination Act marked the first time federal lawmakers had approved legislation to advance gay rights since repealing the military’s ban on gay men and lesbians in uniform in late 2010. Approval of the measure came two days after Illinois became the 15th state to legalize same-sex marriage and four months after the U.S. Supreme Court sanctioned federal recognition of legally married gay couples.

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.

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.

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

CBS NEWS: The gay rights movement saw a significant victory at the Supreme Court today, even as the court dodged the fundamental issue of whether marriage is a constitutionally-protected right for all couples, gay or straight.

In a 5-4 ruling today in United States v. Windsor, the court struck down a provision of the 17-year-old Defense of Marriage Act (DOMA) that denies federal benefits — like Social Security benefits or the ability to file joint tax returns — to same-sex couples legally married.

“DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment,” Justice Anthony Kennedy wrote for the majority. “The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.”

Kennedy was joined in the majority by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented.

At the same time, the court ruled in another 5-4 decision that the defendants in the case of Hollingsworth v. Perry, which considered the constitutionality of California’s same-sex marriage ban (called Proposition 8), have no standing in court. Supporters of Prop. 8 brought the case to the Supreme Court after a lower court struck down the law but California’s governor and attorney general declined to defend it. By dismissing the case on procedural grounds, the court passed up the opportunity to issue a significant ruling on the issue of marriage.

“We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here,” Chief Justice John Roberts wrote for the majority, joined by Scalia, Ginsburg, Breyer and Kagan.

The practical impact of dismissing the Prop. 8 case is limited. It leaves the lower court ruling striking down Prop. 8 in place, applying statewide at best. However, the ruling may apply only to couples who directly challenged Prop. 8, or the counties in which they originally made those challenges. The lawyers who defended Prop. 8 said Wednesday that they are committed to seeing that Prop. 8 is enforced in the state.

“We are happy Prop. 8 remains the law of California,” Austin Nimocks, senior counsel with Alliance Defending Freedom, said outside of the court.

The impact of the DOMA case, by contrast, is clear. DOMA impacts around 1,100 federal laws, including veterans’ benefits, family medical leave and tax laws. There are about 130,000 married same-sex couples in the United States today who up to this point were treated as unmarried as it pertained to those federal laws.

Edie Windsor, the 83-year-old lesbian who sued the United States government for discriminatory treatment under the Defense of Marriage Act (DOMA), said she felt “honored, humbled and overjoyed” after Wednesday’s ruling came down.

Windsor sued the government because under DOMA, it did not recognize her marriage to her late partner, Thea Spyer. After living together in New York for more than four decades, Windsor and Spyer finally married in 2007, when Spyer became seriously ill. When Spyer died in 2009, she left Windsor her estate. Because DOMA didn’t recognize their marriage — even though the state of New York did — the IRS hit Windsor with $363,053 in estate taxes.

Even though the Prop. 8 case was dismissed, the two couples who initially challenged the law in court and their lawyers called both cases victories for gay rights.

Plaintiff Paul Katami, who challenged the law with his partner Jeff Zarillo, turned visibly emotional outside of the Supreme Court Wednesday. Choking up, he turned to Zarillo and said, “It’s the day that I finally get to look at the man that I love and finally get to say, will you please marry me.”

David Boies, one of the lawyers representing the plaintiffs, called Wednesday “a great day for America.” “Today the United States Supreme Court in two important decisions brings us that much closer to true equality,” he said.

While the Prop. 8 case was not decided on the merits, Boies said the DOMA ruling gave him hope. “Everything the Supreme Court said in the Defense of Marriage opinion… demonstrates that when that case finally does come to the Supreme Court on the merits, marriage equality will be the law throughout this land,” he said.

Monday’s decisions represent the latest development in a dynamic and fast-moving national dialogue – largely taking place at the state level — over gay rights, and same-sex marriage in particular. Just this year, Minnesota, Delaware and Rhode Island adopted laws recognizing same-sex marriages, bringing the number of states that do so to 12. At the same time, 35 other states have laws or constitutional amendments barring same-sex marriage.

The Supreme Court’s first foray into the subject of same-sex marriage, while limited in impact, reflects the American public’s growing acceptance of same-sex marriage. Just as the court is finally broaching the subject, a number of politicians at the federal level – both Democrats and Republicans – are taking a cue from the public and coming out in support of same-sex marriage. Even if the court had left DOMA completely intact, it would have almost surely faced a political challenge in Congress. The debate over the constitutional right to marriage, meanwhile, will continue at the state level for now.

 

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.


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