San Francisco Employment Attorneys Blog

Understanding New Wage and Hour Laws in California




wages

In 2017, the state of California Governor Jerry Brown signed into law various employment and labor bills upon passing by the California Legislature. The new laws mostly relate to wage and working hours, leaves and multiple benefits, health and safety in the workplace, hiring practices among other workplace protections. As most of the laws became effective on Jan. 1, 2018, employees are doing all they can to ensure they are compliant with the new laws. The following are some of the notable changes employees have to take note of.

 

Section SB3

According to the new section SB3, the minimum wage was increased to $11 per hour from $10.50 per hour for employees of businesses with 26 employees or more. Therefore, for businesses having 26 or more employees, the minimum annual salaries for exempt employees under California law have increased to $45,760 from $43,680.

For companies with 25 or fewer workers, the minimum wage will increase to $10.50 per hour from $10 per hour. Therefore, for businesses with 25 or fewer workers, the minimum annual salaries for exempt employees under California law have increased to $43,680 from $41,600. The governor can temporarily suspend the new wages based on certain determinations.

 

Direct Contractor

Where a Direct Contractor has subcontracted a job, the direct contractor is liable for any debts owed by the subcontractor to wage claimants. The direct contractor is responsible for any unpaid wages, other benefit payment or fringe benefits, including accrued interest but not extending to liquidated damages or penalties. Under the new section, there is a one-year statute of limitations for the wage claimants to bring an action after the completion of the work.

 

SB 63

The new SB 63 section has been introduced to provide protected bonding leave to eligible employees of smaller employers with 20 to 49 employees. The existing California Family Rights Act only caters for California businesses having 50 or more employees whereby employees are allowed to take up to 12 work weeks off to bond with their newborn child, newly adopted child or child recently placed with the employee for foster care.

Under the new SB 63 section, it is unlawful to deny employees bonding leave if they are eligible for the set parameters. A request for bonding leave can be made within a year of the child’s birth, foster care placement or adoption.

The SB 63 section additionally protects employees taking parental leave against any form of discrimination or retaliatory action by employers like fines, suspension, discharge, expulsion or refusal to hire. Employers are also required to pay group health plan coverage for employees on parental leave.

A Quick Look on Consolidated Omnibus Budget Reconciliation Act

COBRA

If you lose your coverage on health insurance, it’s important to observe the Consolidated Omnibus Budget Reconciliation Act (known more commonly by the acronym COBRA.) This is important in case of a qualifying event, you may end up losing your cover and it’s important to seek COBRA intervention for the sake of restoring it. One of the common mistakes that most people make is to fail to send notices in advance as it’s required by the law.

 

Similar Coverage for Employees That Are Active

The COBRA health insurance states that the coverage for those in it should be similar in terms of various factors. They should include deductibles, terms of benefits and the coverage limits. Whenever there is a change in these factors, it should reflect all the participants. These changes will also include the termination of the plan; not just the deductibles and the benefits.

This is also applicable when the person who is covered chooses to include other participants in the insurance cover. Every qualified beneficiary should be included whenever the notices are sent to all employees.

 

 

What Are Health Plans Covered in COBRA?

As per the Consolidated Omnibus Budget Reconciliation Act, it will state whether the group will be included in the plan or not. Special consideration will be taken into account to determine when the cover will be applicable to a specific employee or not. A person’s region or the Medical Spending Accounts could be used to factor out this.

 

 

Employers Who Are Under COBRA

The Consolidated Omnibus Budget Reconciliation insurance plan is applicable to those employers who have employed more than 20 people. The major challenge here in determining which employee can qualify is whether one is employed on either part or full time. The employer acquiring another business can also be a challenge. How about determining the change in the workforce?

 

 

You can be eligible for COBRA insurance plan in the event of the following:

 

  • Retirement Status
  • Reason for Termination
  • Divorce and Remarriage
  • Medicare Entitlement

 

According to the act, the employer is supposed to send several COBRA notices if there is a qualifying event for the employees. They should also send the employees notices in case they aren’t eligible. The administrator of the COBRA insurance plan should also be notified regarding the qualifying event. The last but not the least is that the employees should also notify their employers when there is such an event.

Labor Unions in California

labor unions

Labor unions can be described as working persons standing together. There are many benefits for people working together including being able to bargain for better pay and better working conditions. When workers can speak the same voice, they have the power and strength to achieve a lot in a workplace. Below are vital things you need to know about labor unions.

 

Is it essential to form a labor union?

For many years, workers who have stood together to form a loud voice at their places of work have numerous benefits. However, this concept can only work if a form a union. With a union, you can be able to have fundamental rights such as safety and security mostly denied to most workers. Labor unions also help remedy discrimination since all workers must be treated fairly and equally. Once there is a dispute on the job, management and the union can sit together to solve the problem.

 

How are labor unions formed in California?

When workers come together with the aim of improving their working conditions, they need to form a union. In most cases, when the majority of workers decide they want to join a labor union, the employers have no choice but to accept. They then ask the government to help them hold an election.

If they win, they discuss a contract with their employer. The agreement defines rights and responsibilities of the workers in the workplace, and both parties are expected to honor the contract.

 

Are workers joining unions protected by the law?

Workers joining a union are supposed to be protected by the law. According to the law, workers should not be fired or discriminated for deciding to join a union. For instance, it is unlawful for any manager to take away benefits or to fire workers if they choose to form a union. But in most cases, employers ignore the law because the penalties are very weak.

 

Do we have specific kind of workers who cannot form a union?

No, all workers are free to form a labor union. Today, almost every kind of workers are forming unions. Some of them include nurses, doctors, immigrants, women, digital news staffs, auto parts workers, and home health care workers among many others.

 

Do unions help working families?

Yes. Unions are formed to help working families. Through labor unions, workers can get better pay and decent working benefits for them and their families. With a good union, it means stronger communities. According to numerous studies, union workers earn more than non-union workers and receive pension and health care benefits that workers without a union.

What You Need to Know About Emergency Leave


Each and every employee is entitled to emergency leave in his/her tenure for  a number of reasons. It’s the role of the 
employer via the Human Resource manager to offer leave to the employees. The leave could range from that of sickness, pregnancy and baby bonding among many 
more. There exist State and Federal laws whose main role is to ensure that matters
 that have to do with leave are observed in the right way. There is Family and 
Medical Leave Act which promotes the rights of the employees. For example, you
 may be given an emergency leave if you fall ill or one of your family 
members does. The employers must be held liable if they deny you such leave.





What the State and Federal Law Protects

If there were no laws that safeguard the rights of the employees, there is no doubt that they will all be working in a harsh
 environment. The employers will do whatever they want with no fear because as
 an employee, you will have nothing to do. One of the common mistakes that this
 law protects is to make sure that you are offered an emergency leave anytime there is a need. For example, the employer isn’t supposed to force you to work
 when you are not feeling well. In fact, you will be unproductive if he does so.

 

What the Family and
 Medical Leave Act Calls For

The FMLA law requires the employers 
to provide their staff who are registered with time off due to some reasons
such as illness of the person or kin. During pregnancy, emergency leave must also be awarded to the person or her partner.

 

How Long Does the Leave Take?

In general, it will be wise to state
 that this leave can take as long as 12 weeks per year depending on the cause. It can be applied to the following cases:

 

  • 
Employee’s Sickness

 

  • 
Bonding with a child (It could be yours or adopted)

 

  • 
To look after a family member who is seriously ill

 

  • 
An urgent need for a person who has a family member who worked in the military. (If one of your family members once worked in the military, when there is an 
emergency need to look after him/her, the leave could be as long as up to 26
 months)

What You Shouldn’t Forget About Emergency Leave

During your emergency leave, you should know that your health
 insurance still covers you. Once you are done with your FMLA leave, you should 
get back to your original position without demotion.

What You Need To Know About Paternity Leave

paternity leave

Welcoming a child is among the biggest happenings in an employee’s life. But, due to different reasons employees are unable to secure enough time which they can spend with their babies. The state of California has passed several legislations to offer maximum paternity leave to employees so that they can welcome their newborn or even adopted children.

 

What is a paternity leave?

It is also referred to as a bonding leave. The time is set aside for you to spend time with your baby also referred to as parental leave. In some states such as California, the parental leave is combined with pregnancy disability and parental leave.

 

Employers who must provide paternity leave

There are some groups of employers who are supposed to provide the paternity leave. The law has different sections which describe employers who are supposed to be given the leave. For example, if an employer has more than 50 employees, the employer is required to offer a 12-week unpaid leave so that the parent can bond with the baby. In the new parent’s act, employers with more than 20 employees will be required to provide the same amount of time so that employees can bond with their babies.

 

People who are eligible for paternity leave

  • You must have word with a covered employer for more than 12 months. If you were recently employed, then the law may exclude you from enjoying the leave for you to bond with your baby.
  • You should have worked for at least 1,250 hours in the months preceding the parental leave.
  • The employees should work in an area where the employer has more than 50 employees in a radius of fewer than 75 miles.
  • Under NPLA, the requirements are the same but the employee should work in an area where the employer has more than 20 employees in a radius of fewer than 75 miles.

Amount of time you get for paternity leave

An employee can take 12 weeks leave during the arrival of the child. The child can arrive in the family of an eligible employee in different ways. For instance, you can decide to adopt, by birth or even a foster placement. Both genders are given the same amount of time. But, because mothers are the only one who becomes pregnant, they may be offered more time to cover for the pregnancy leave.

 

Do you get paid during parental leave?

Normally, you are offered unpaid leave so that you can bond with your baby. In some circumstances, the employer may opt to pay you. You should consult with your employer for you to have it clear.

 

What You Need To Know About The Firing Process And Severance Pay In California

severance pay

Employees are very important to any organization. You will note that these individuals normally make organizations and companies run. Without them, a company can just close down. This is the reason why you need to value your employees. However, there are circumstances that require you to fire an employee. If you have a company or a business in California, you should follow a certain procedure when firing an employee.

 

These procedures include the following:

 

  1. Verbal Warning

Once an employee has made mistakes in their work, he or she is generally warned first. Here, the employer and the employee normally discuss about the issue that should be settled.

  1. Written Warning

If the employee fails to adhere to the notice that was given by the employer, he or she is typically given a warning in written form. The notice is to be given face to face. A duplicate of this warning remains with the HR department.

 

  1. SuspensionIf the employee fails to adhere to the warning above, he or she generally gets suspended. This means that he or she will be given time off without pay.

Are You Entitled to Severance Pay After You Have Been Fired?

 

You will note that severance pay can be provided by your employer if you or other employees have been laid off, fired or even voluntarily resigned. These packages usually include both a continuation of money and benefits.

Ideally, you should get these packages if they are included in your contractual obligation or employment policy. However, you will note that employers in California are not required to provide severance pay to employees. In this case, you need to negotiate for your severance package.

 

When Are You Entitled to Severance Pay?

 

You will note that an employee is entitled to severance pay if:

  1. The employer made an oral promise that he or she will offer this pay.
  2. The terms of a written contract providing for this pay.
  3. The employer has a history of offering this pay to other employees in the same position.
  4. This pay is documented in the employment policy.

Those are some of the common questions asked about severance packages in California. You will note that most companies normally offer this pay. However, this depends on the length of employment and the reason for termination.

 

If you want this package, you can negotiate with your employer. If you want to fire an employee in California, you should follow the above-mentioned procedure.

 

California Laws on Drug Testing

drug testing

Drug testing employees in California may constitute a breach of the right to privacy as stipulated in the state Constitution. So, while the Federal law does not expressly advocate or prohibit drug tests, save for certain safety-sensitive professions, the state has specific laws that protect the employees from certain intrusive tests. Interestingly, the protection covers all employees both in private sector and in the government.

It is, nonetheless, important to note that drug testing is not entirely illegal; California courts, while determining such cases consider the concerns of both parties. Below is a detailed description of the various laws on Drug Testing in California.

 

Drug Tests on Job Applicants

The state law permits employers to conduct drug tests on job applicants with the view of hiring those who pass the test. However, such an employee is under obligation to test all candidates for a particular employment position as opposed to identifying only a few because of their protected characteristic.

So, testing an applicant merely because of their disability is illegal. Surprisingly, in as much as the state accords residents the right to use marijuana for medical purposes, an employer has the right to decline to employ an applicant who tests positive for the same, even when the person has the doctor’s written authorization.

 

Reasonable-Suspicion Testing

Generally, employers have the right to conduct reasonable suspicion drug testing as long as the cause is based on understandable objective facts. He or she will nonetheless be in violation of the law if the test is random unless the position is safety-sensitive.

The fact the statues do not lay down certain drug testing procedures implies provided employers put in place measures to ensure worker’s privacy expectations are catered for they stand a better chance of prevailing should a lawsuit come up. So, an employer is best advised not to seek legal redress in situations where their bosses provide a written policy that details the time drug testing will be conducted.

 

Possible Dangers Drug Testing to an Employer

Other possible legal claims include:

Discrimination against a disability – disqualifying a job applicant who tests positive for drugs prescribed for a disability constitutes disability discrimination. There are drugs that are illegal for normal persons but prescribed for persons with disability and an employer may mistakenly use the test as a basis for turning down a prospective employee leading to serious legal issues. Statutes such as Americans with Disability Act exist to champion for the right of such individuals.

Privacy violation – the procedure for conducting a drug test may in itself constitute a violation of a worker’s privacy. For instance, asking employees to provide certain samples in the presence of members of the opposite sex, may constitute invasion of privacy

Discrimination claim – an employer who conducts drug tests on a specific group of employees, for examples from one race, age group or gender only from the entire workforce, risks facing a discrimination claim.

Defamation – an employer who hurriedly publicizes positive test to a particular drug test when the employee suspects the tests might be inaccurate could face a defamation claim.

How Employers Can Streamline the Hiring Process in California

hiring

Hiring is an essential part of any firm’s expansion efforts. However, there are a couple of legal considerations when it comes to the selection process. Job postings, structuring the interview questions, verifying references, and making recruitment decisions must be made transparently to avoid exposing the company to risks.

 

Employers may put their businesses at risk by asking illegitimate or discriminatory questions. California employment laws protect employees from any form of discrimination, ranging from religion, race, gender, family status, to even sexual orientation. This excerpt will guide you in the lawful recruitment process of California and assist you in avoiding liability during the recruitment process.

 

How Employers in California Can Improve Their Hiring Process 

California has the greatest hiring difficulties of any other state in the U.S. It has a unique set of regulations that employers must strictly adhere to during the hiring process. To avoid a company’s risk of prospective discrimination claims in the recruitment process, it is imperative for California employers to gain an in-depth mastery of the numerous state and federal laws that safeguard the rights of the applicants.

 

Additionally, they should come up with innovative hiring procedures and policies to address issues such as job advertisement, job descriptions, interview questions, background checks, and employment offers.

 

Sourcing and Hiring Applicants 

Recruiting new talent is crucial for a company to attain its goals and flourish in the ever-growing market. During the recruitment process, hiring managers should guarantee equal employment opportunity to all applicants.

 

They should come up with nondiscriminatory conditions for job descriptions and put in place nondiscriminatory measures for attracting talent. Ensuring each candidate has filled out an application form is a demonstration of adherence to California Equal Employment Opportunities (EEO) laws.

 

Selection Process 

Businesses should update screening and assessment processes to reduce the selection time and to leverage the new technology and advanced screening techniques. During the interviewing process, the hiring managers must focus on picking the right candidate for the job without bringing out issues that are protected under California EEO laws.

 

The interview questions should concentrate on getting information about the qualifications of the candidate as well as his or her capability to carry out the important job functions. Asking a candidate concerning an arrest, which did not proceed to pretrial or conviction stage is against California law.

Sourcing and hiring employees in California comes with a number of challenges for companies. Claims of discrimination and other types of violations can impede the success of a company. Therefore, California employers should have a clear understanding of all employment laws and observe them strictly.

Lawful Firing Process In California

firing

Most of the contracts in California are considered voluntarily, which implies that the boss can fire a worker for any lawful reason. In any case, while the employers have reason to terminate workers, there are some justifications for firing a representative that can prompt a wrongful end claim.

 

 

What Is The Firing Illegal Reason?

 

Bosses can terminate workers for any reason aside from:

 

Segregation: Employers can’t fire a representative in light of race, nationality, shading, religion, sex, age, or handicap. Businesses can legally fire workers for different reasons, as long as it is fair and applicable to all employees.

 

Striking Back: A business can’t fire workers for answering to government or state organizations about business law infringement.

 

Unlawful Acts: A business can’t terminate a worker if the representative declines to play out an illicit demonstration.

 

Family or Medical Leave: Employers can’t terminate a worker who requires some time off for reasons recorded in the Family and Medical Leave Act.

 

Likewise, bosses are bound by the terms of their own worker termination arrangements and the terms of any business assertion between a worker and the boss. Breaking the terms of these arrangements or assertions may likewise prompt a wrongful termination claim and long lawsuit.

 

 

What Should An Employer Consider Before Firing An Employee?

 

An employer ought to make certain that the worker’s termination is confirmed by the top-level administration before moving forward and after that follow through with the termination process. Looking for legitimate counsel if there are any inquiries with respect to the methodology and purposes for firing is always a good idea if you are coming up on a future termination.

 

Unless a worker has particularly done something that prompts firing, the worker ought to, as a rule, be told the purpose of their termination.

 

In the event that a representative is being laid off or having their work region shut down, it is a smart thought to give notice of their termination ahead of time so the worker can look for a substitute business or get ready for unemployment.

 

As a security safeguard, make certain to change any codes and passwords to deny access to the worker once their employment has been ended. This is particularly vital for representatives with access to classified data, such as secret pharmaceutical formulas or government clearance.

 

 

Would It Be Advisable For Me To Get An Attorney If I’m Thinking About Firing An Employee?

 

Terminating workers without a formal written business contract or end strategy can prompt wrongful termination suits. An employment lawyer can help you with your termination rehearsal and help you with the entire process tactfully.

A Quick Guide to California’s New Smoking Restrictions

smoking restrictions

Recent changes to California’s smoking laws have fundamentally shifted the role which smoking can play in and around public spaces and workplaces. Ignoring or misunderstanding these laws can result in a criminal conviction. To help avoid this issue we’ll go over the need to know facts of these recent changes to smoking restrictions, and what this could mean for any business or smoker.

 

The Technical

The new laws which we will be looking at are labeled the following: ABX2-7ABX2-9ABX2-11SBX2-5and SBX2-7. Those readers who are fluent in legal language can follow those links to the official California Legal Information website.

 

What These Changes Mean

Technical language can be difficult, so to avoid confusion we’ve simplified it down to just what you need to know:

  • The minimum smoking age has been raised from 18 to 21.

This means that any current smokers between those two ages are no longer going to legally be able to purchase tobacco and tobacco products until they again reach the legal age. Buying these products is also not possible until the user is at least 21 years of age.

 

  • These laws apply to traditional tobacco products such as cigarettes, chew and cigars, in addition to vaporizers and e-cigarettes.

These modern devices had slightly outpaced the laws regarding tobacco use, so changes had to be made for these laws to catch up. This means that if you were wanting or intending to use the devices to circumvent the law, this is not possible.

 

  • These smoking restrictions apply to all employers. This includes businesses which are owner-operated and without other employees, provided said businesses allow any clients or non-employees into the workplace.

The idea here is that if a workplace can be accessed by a client, an employee, or any other individual, then smoking is not allowed. This does not apply if a business owner operates out of an area which no other individual can access. There are also other exceptions when it comes to a few specific situations, such as private smoking lounges in tobacco stores, or the cabins of large trucks when no non-smoking employees are present.

 

  • Businesses which have allowed smoking up until this point are legally required to change.

There are a few common places in which smoking has long been long accepted. The most popular of these include bars, taverns, warehouses and hotel lobbies. With these new laws in play, any of these businesses which have previously allowed smoking are still required to change.

 

  • Smokers are also party to these rules.

Any tobacco users out there are also required to follow these new smoking restrictions. Any business in which smoking is not allowed by the staff also has these rules extend to the customer.

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