Showing posts with label new laws. Show all posts
Showing posts with label new laws. Show all posts

Tuesday, 27 August 2013

New California Law re Attorney's Fees in Wage Cases

Governor Jerry Brown signed SB 462 (here). This law amends Labor Code Section 218.5, which allows attorney's fees to be awarded to the prevailing party in lawsuits over unpaid wages, fringe benefits, or pension fund contributions.  The law previously permitted either the employee or employer to seek attorney's fees as the prevailing party. The revised statute authorizes attorney's fees to employers (or any other party that is not the "employee") only if the court determines the lawsuit was brought in "bad faith."   So, employers, say goodbye to attorney's fees in wage cases.

Friday, 2 November 2012

2013 New California Employment Laws

Our friends at the California Chamber of Commerce sent out this list of new California employment laws taking effect in 2013 (here).  These new statutes are only part of the story though, as the California courts are busy issuing rulings that shape California employment laws.   Let's not forget the federal agencies and courts doing their part as well.

Where will you learn about the most important federal and state rulings and laws changing workplace law in 2013?  That's right, at our annual legal update.  We are offering a live session and a webinar.  Get information here

Greg

Wednesday, 19 September 2012

California Workers' Compensation Reform Bill

Governor Jerry Brown just signed SB 863, a big workers' compensation reform package, supported by the Cal. Chamber. 

We don't practice in this area, but we know workers' comp. premiums are expensive for employers and administration is employers' responsibility. So, the bill is here.  If I see a good summary I will post it as well.

Much of the bill addresses how the workers' compensation appeals board and medical providers will go about their business.  The Cal Chamber believes it will result in improved efficiency and reduced fraud.  See here. I hope so!




Monday, 24 October 2011

AB 469 - Read Our Article

We've summarized AB 469 - California's Wage Theft Prevention Act in an article here. This one will require employers' attention soon.

DGV

Thursday, 13 October 2011

AB 469 -California Adopts NY "Wage Theft" Law

When I covered some of Governor Jerry Brown's last minute bill signings, I left out perhaps the most obnoxious new law.  That's what I get for hurrying. 

Effective 1/1/12, employers are going to have to begin complying with Labor Code Section 2810.5.  This law requires employers to provide new hires with a written notice of various items of information:

(A) The rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or otherwise,including any rates for overtime, as applicable.
(B) Allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances.
(C) The regular payday designated by the employer in accordance with the requirements of this code.
(D) The name of the employer, including any "doing business as" names used by the employer.
(E) The physical address of the employer's main office or principal place of business, and a mailing address, if different.
(F) The telephone number of the employer.
(G) The name, address, and telephone number of the employer's workers' compensation insurance carrier.
(H) Any other information the Labor Commissioner deems material and necessary.

The good news is that the law requires the Labor Commissioner to prepare a template and make it available.
More good news - this provision does not apply to exempt employees (although if someone claims to be "misclassified" then there will be a dispute over whether this notice was due.) So, employers may want to provide the notice to exempt employees anyway.

Mostly bad news though - If an employer makes changes to the above listed information, the employer must provide notice of the change within seven days either by providing a written amendment, a whole new notice, or via paycheck stub if that information is contained in the paycheck stub.

Naturally, even though items C and G are already covered by required posters, the law does not repeal the poster requirement.

Public employers need not worry about this because they are exempt from the requirement!
Most employees covered by a valid collective bargaining agreement also are not entitled to the notice (if they make more than 30% more than minimum wage).

This provision is contained in AB 469. This new law contains other provisions, such as increasing a variety of penalties.  It also imposes more disclosure requirements on Farm Labor Contractors.

Of significance, it increases the statute of limitations for the DLSE to collect penalties from 1-3 years. That new statute of limitations does not appear to apply to private enforcement actions, though.

Again, this applies only to new hires, but it takes effect on 1/1/12. Employers will have to put in place procedures very quickly.  However, employers already operating in New York will recognize that this new law is quite similar to a NY law enacted a year or two ago.

Yep, I can smell the number of jobs this one is going to create. At the DLSE and law firms!  OK, I kid, I kid. ::cough:::

We will have more information about this as it becomes available...

AB 469 is here.

Tuesday, 11 October 2011

Governor Jerry Brown's Actions on Pending Workers' Compensation Legislation

Our friends at the California Chamber of Commerce prepared a nice summary of what became of the proposed workers' compensation bills this year:  Your can find the roundup here

Monday, 10 October 2011

California Governor Brown Signs Employment Bills at Last Minute

In my last post, I said that Governor Jerry Brown vetoed a bunch of ill-conceived laws.  Well, I posted too soon, and I take that back.

On October 9, the final day he could do so, Governor  Brown signed some employment law bills that make significant changes to employment law for California employers -

AB 22 - available here.  This new law bans most employers (not financial institutions or businesses required by law to perform credit checks) from obtaining credit information about applicants or employees, except in limited circumstances.  The law does not preclude criminal background checks, references, etc. - only credit information.  It does not apply to managers covered by the executive exemption (creating another basis for liability where there is a dispute / lawsuit over misclassification).  There are a few other exceptions as well. This is a huge issue for many employers who will have to change their practices.

AB 592 - available here.  This law adds an express prohibition of  "interference" with California Family Rights Act leave, similar to what is contained in the FMLA's text.  This is not a big change.

SB 299 - available here.  This provision seems to overlap AB 592, but also requires employers to extend group health coverage to employees taking PDL for the entire four month duration of PDL.  The extension of health coverage will apply even if there is no FMLA entitlement.  Between 592 and 299, it appears that the 12-week cap on employer paid benefits that applied to combined PDL/CFRA leave is gone.  Will ERISA preempt this provision?  Does the health care reform law affect it?  Stay tuned.  If this provision holds, get ready to modify all your policies again.

 AB 1236 - available here - allows employers to choose to use E-Verify, but prohibits cities or counties from requiring private employers to do so.  So, this is not a ban on E-Verify.  Breathe. 

AB 887 - available here - further defines "gender" in a variety of laws, including the Fair Employment and Housing Act.  Here's new Section 12940(p) - which already prohibited discrimination and harassment based on "gender."  This law specifically defines "gender" some more.
(p) "Sex" includes, but is not limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. "Sex" also includes, but is not limited to, a person's gender. "Gender" means sex, and includes a person's gender identity and gender expression. "Gender expression" means a person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth.
SB 459 - Available here - This new law imposes a fine of between $5000 and $25,000, for "willfully" misclassifying someone as an independent contractor, and makes it a crime and imposes joint liability for a non-attorney consultant to advise an employer to do so.  Employers also will not be able to make deductions from contractors' pay that they would not have been able to make had the contractors been employees.  What's "willful" misclassification? 
"Willful misclassification" means avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.
This is going to be big.  I wish I had one of those Drudge Report siren thingies. 
 



OK, that's all the valuable information I can impart for now. (There may be more bills that I missed, which I will cover later.) But I have to go to work and get ready for all these laws! 



DGV

Friday, 11 February 2011

Medical Pot at Work - It's Back!

The California state senate apparently is taking up another attempt to stop "discrimination" against the stoned at work.  (Yes, there are some exceptions, e.g., they can't be too stoned - impaired - or work at a safety sensitive job). Just read the bill....The text of SB 129 is here.

Like the failed Prop 19, which the voters rejected last year, this bill is too vague and makes it harder for employers to fire people who come to work buzzed than it is to fire people who come to work drunk.  There, I said it.  Unlike Prop. 19, this bill allegedly applies only to "medical marijuana" users, not recreational users.

For the record, I have nothing against pot, medical marijuana, caring cannabis, or wacky weed.  I don't care if pot is legal or illegal.  But I care if people are stoned when making my dinner, caring for my relative in the hospital, fixing my car, or doing my books, etc. The new bill is too solicitous of pot smokers.  Sorry to harsh your mellow.


DGV

Tuesday, 28 December 2010

NY Government: Going to California...

We sent out an email blast to our clients with known NY Operations, but I'm reposting it here in case I missed anyone... If you don't care about NY wage and hour law, stop reading.  And I mean it.


The NY Legislature took a big step towards full employment for wage and hour lawyers with the passage of the Wage Theft Protection Act. This new law, signed by outgoing NY Governor David Patterson on December 13, 2010, will become effective on April 12, 2011. Employers should start preparing now.

To summarize, this new law requires employers to provide additional information regarding wage payments, and imposes stiff penalties for employers who fail to comply with their wage payment obligations.

Highlights of the New Legislation

Ø Enhanced Notice Requirements: New York wage law already requires employers to give new employees written notice of their rate(s) of pay, overtime rate (if applicable) and regularly scheduled paydays. Employers must also state whether the employee is paid by the hour, shift, day, week, piece, commission, etc., and any intent to claim allowances (e.g., tip, meal or lodging allowances) as part of the minimum wage. Additionally, the notice must include the employer's name, any "doing business as" name, and the employer's physical address, mailing address (if different) and telephone number.

The Act requires employers to give employees notice not only at the time of hire, but also annually, on or before February 1 of each year. Notice must be given in both English and the employee's native language, and employees must acknowledge receipt in writing. Also, employers must provide at least seven calendar days' notice of any changes to the information required to be disclosed, unless the changes are reflected in new wage statements accompanying employees' pay.

Employers must maintain employee notice and acknowledgment records for a period of six years. If notice is not provided to employees within 10 days of initial employment, employers will be subject to penalties of $50 per employee, per week (up to $2,500), in addition to costs and reasonable attorney's fees. The Act permits the New York Labor Commissioner to bring an enforcement action and to seek additional penalties for noncompliance with this requirement.


Ø Employee Wage Statements: The Act requires employers to provide wage statements to their employees with each paycheck specifying the: (1) dates of the applicable pay period; (2) employee's name; (3) employer's name, address and telephone number; (4) rate and basis of pay; and (5) allowances, if any, claimed as part of the minimum wage. For non-exempt employees, the statement must also include the applicable regular and overtime pay rates, in addition to the number of regular and overtime hours worked during the pay period. Payroll records containing this information must be maintained for six years (up from three years). Violations can result in civil damages of $100 for each workweek that the violation occurred (not exceeding $2,500), in addition to costs and reasonable attorney's fees. Additional penalties may be sought and awarded in actions for noncompliance brought by the New York Labor Commissioner on an employee's behalf.

Ø Increased Civil/Criminal Penalties: The Act provides for increasingly strict penalties against employers who fail to pay their employees properly. First, the Act permits liquidated damages against an employer of up to 100% of the total amount of wages found to be due (up from 25% under existing law), unless an employer can prove it had a good faith basis for believing that it was in compliance with the law. Additionally, employers found liable who fail to pay the amount owed pursuant to a final judgment within 90 days will now be assessed an additional 15% in damages. The Act provides for the employee's recovery of prejudgment interest and reasonable attorney's fees in any civil action to recover unpaid wages.

The Act also imposes more stringent criminal penalties for failure to pay minimum wage or overtime wages due. It provides that an employer (including the officers or agents of any corporation, partnership or limited liability company)found not to have paid an employee's wages is guilty of a misdemeanor and will be fined between $500 and $20,000 or be imprisoned for less than one year for each offense. The Act treats each failure to pay employee wages within any workweek as a separately actionable offense. Repeat offenses may result in felony charges, more fines, and up to one year in jail. The Act threatens similar criminal penalties against employers who fail to maintain adequate employee wage records. Initial violations will be deemed misdemeanors, with fines between $500 and $5,000, or up to one year of imprisonment. For subsequent record violations, employers may face felony fines of between $5,000 and $20,000, imprisonment for a period of not more than a year and one day, or both.

Ø Posting Requirement: Employers found liable under the Act may be ordered by the Labor Commissioner to conspicuously post documentation explaining the violation(s) for up to one year.

Ø Whistleblower Protections: The Act also strengthens protections for whistleblowers in cases involving wage violations. Significantly, the Act protects employees from unlawful reprisal (including threats of retaliation) who raise a complaint based upon a "reasonable" and "good faith" belief that their employer has violated the law--even if no violation actually occurred. It also protects employees who assist in the investigation of another employee's complaint, or who have otherwise exercised rights protected by the Act. Upon a finding of retaliation, the Labor Commissioner may award compensatory and liquidated damages (not to exceed $10,000), enjoin acts of retaliation, and order injunctive relief, which may include employee reinstatement. Employees also may make claims of retaliation in court, with similar remedies awarded. Retaliation claims must be made within two years of the alleged retaliatory act, although the two-year statute of limitation is tolled by the filing of an administrative charge with the Labor Department.

To ensure compliance, and avoid the significant penalties for violations, employers with New York operations should carefully review the full text of the New York Wage Theft Prevention Act, which can be found here: http://open.nysenate.gov/legislation/bill/S8380 . Employers must also review and revise their pay practices by the Act's April 12, 2011, effective date.

Thanks to my pal and competitor Tony Rao for pointing this out and thanks to Alex Sperry of our Sacramento office for drafting the analysis.

DGV

Sunday, 25 October 2009

New California Employment Statutes 2009

The California Bar's Labor and Employment Law Section provided this helpful list of the employment law bills Governor Schwarzenegger signed.... He vetoed the scary ones. The long list below primarily involve public sector employees and their benefits.


SB 519 by Senator Roy Ashburn (R-Bakersfield) - This one affects certain retirement benefits calulations for public employees.

SB 538 by Committee on Public Employment and Retirement - County employees’ retirement: mandatory retirement.

SB 751 by Senator Gloria Romero (D-Los Angeles) - Teacher credentials - permits California to issue teaching credentials to teachers certified in other countries.

AB 399 by Assemblymember Julia Brownley (D-Santa Monica) - Public employee retirement benefits.

SB 11 by Senator Gloria Negrete McLeod (D-Chino) - County employees retirement: San Bernardino County health benefits.

SB 37 by Senator Tony Strickland (R-Thousand Oaks) - State employees: statement of deductions. This law permits state employees to receive electronic wage statements unless they opt out.

SB 634 by Committee on Public Employment and Retirement - State Teachers’ Retirement System.

AB 65 by Assemblymember Mary Hayashi (D-Hayward) - Public employee health benefits: vision care: local, school, and university members.

AB 239 by Assemblymember Julia Brownley (D-Santa Monica) - Teacher credentialing.

AB 468 by Assemblymember Mary Hayashi (D-Hayward) - Public Employees’ Medical and Hospital Care Act: employer contributions.

AB 506 by Assemblymember Warren Furutani (D-South Los Angeles County) - State teachers’ retirement: postretirement earnings.

AB 544 by Assemblymember Joe Coto (D-San Jose) - Teaching credential: American Indian languages.

AB 854 by Assemblymember Juan Arambula (I-Fresno) - Employment regulation and supervision: unpaid wages.

AB 1319 by Assemblymember Paul Krekorian (D-Burbank) - Talent services.

AB 1584 by Assemblymember Dr. Ed Hernandez (D-West Covina) - Public employees’ retirement: retirement boards.

SB 72 by Committee on Budget and Fiscal Review - State employees: payroll: health care.

SB 752 by Senator Lou Correa (D-Santa Ana) - County employees’ retirement: Orange County.

AB 1025 by Assemblymember Connie Conway (R-Tulare) - Schools: employees and volunteers: Activity Supervisor Clearance Certificate.


AB 381 by Assemblymember Marty Block (D-San Diego) - Unemployment compensation disability benefits: academic employees.

AB 395 by Assemblymember Felipe Fuentes (D-Sylmar) - Employment: apprenticeship programs.

AB 720 by Assemblymember Anna Caballero (D-Salinas) - Peace officers: marital privilege.