2014 EMPLOYMENT LAW UPDATE

Daniel J. MullerSlater Hersey & Lierberman LLP

160 W. Santa Clara Street, Suite 1575San Jose CA 95112

dmuller@slaterhersey.com408-512-3025

NEW LEGISLATION - MINIMUM WAGE

NEW LEGISLATION - PAID FAMILY BENEFITS

SB 770 amends, repeals, and adds provisions to the Unemployment Insurance Code relating to the Paid Family Leave (PFL) benefit program administered by the California Employment Development Department (EDD).

The PFL program is similar to the California State Disability Insurance (SDI) program and provides up to six weeks of monetary benefits (but not time off or leave) to employees who take time off to care for a sick “family member.”

The new provisions, which become effective on July 1, 2014, expand the definition of “family members” to include grandparents, grandchildren, siblings, or parents-in-law.

NEW LEGISLATION - LEAVES FOR CRIME VICTIMS SB 288 amends the Labor Code to add section 230.5.

Section 230.5 prohibits employers from discharging, discriminating against, or retaliating against employees who are victims of certain offenses who take time off from work to appear in court involving the crime at issue. The leave is unpaid and employers are authorized to review court records to verify the need for leave.

The specified offenses covered by this law include vehicular manslaughter while intoxicated, felony child abuse likely to produce great bodily harm or a death, assault resulting in the death of a child under eight years of age, felony domestic violence, felony physical abuse of an elder or dependent adult, felony stalking, solicitation for murder, “serious felony,” hit-and-run causing death or injury, felony driving under the influence causing injury, and sexual assault.

NEW LEGISLATION - ACCOMMODATION FOR CRIME VICTIMS SB 400 amends Labor Code sections 230 and 230.1 and extends the

protections provided to employees who are victims of domestic violence and sexual assault to employees who are known or suspected victims of stalking.

The new law prohibits employers from discharging, discriminating against, or retaliating against employees because of an employee’s known status as a victim of stalking and allows employees to take unpaid protected time off from work to attend to legal, safety-related, and personal issues resulting from being a victim of crime.

Employers are required to engage in the interactive process and provide reasonable accommodations for a victim of domestic violence, sexual assault, or stalking who requests an accommodation.

Reasonable accommodations may include implementing safety precautions at work. The employer may require certification of the employee’s continued victim status for the time off and reasonable accommodation.

NEW LEGISLATION - CRIMINAL BACKGROUND CHECKS

NEW LEGISLATION – MILITARY / VETERAN STATUS

AB 556 adds "military and veteran status" to the list of categories protected from employment discrimination, harassment, and retaliation under the Fair Employment and Housing Act (FEHA).

"Military and veteran status" is defined as a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.

The new law provides an exception for an inquiry by an employer regarding military or veteran status for the purposes of awarding veterans' preference points.

NEW LEGISLATION – SEXUAL HARASSMENT

SB 292 – Amends the California Fair Employment & Housing Act so that employees asserting claims for sexual harassment no longer need to prove “sexual desire” in order to prevail.

The legislation is in response to the Court of Appeal’s decision in Kelly v. Conco Companies (2011) 196 Cal. App. 4th 191. In that case, the Court ruled that a plaintiff failed to prove sexual harassment because the alleged male harasser was neither a homosexual nor exhibited any sexual desire toward the target of the harassment.

NEW LEGISLATION – WHISTLEBLOWER PROTECTION

SB 496 – Provides expanded whistleblower protected by amending Section 1102.5 of the California Labor Code.

Prohibits an employer from making, adopting, or enforcing any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency if the employee has reasonable cause to believe that the information discloses a violation of, or noncompliance with, a local rule or regulation.

Prohibits retaliation against an employee where an employer believes that a protected disclosure has taken place or will take place.

Prohibits retaliation against an employee who refuses to participate in an activity that would result in a violation of, or noncompliance with, a local rule or regulation

NEW LEGISLATION – WAGE COMPLAINTS

AB 263 – Expands the Definition of Protected Conduct.

Definition of protected conduct is expanded to include written or oral complaints made by employees who believe they are owed unpaid wages.

Employees who face retaliation or adverse actions will be entitled to reinstatement and reimbursement of lost wages.

Violations may result in penalties of up to $10,000.00 per violation.

The new provisions also make it unlawful for employers to engage in, or direct others in, unfair immigration practices. In other words, it is unlawful to threaten to report employees to immigration authorities.

NEW LEGISLATION – RECOVERY OF ATTORNEYS’ FEES

SB 462 – Amends Labor Code Section 218.5 to make it more difficult for employers to recover attorneys’ fees.

Section 218.5 pertains to the awarding of attorneys’ fees in lawsuits for unpaid wages.

Generally, if the employee wins, he or she will be awarded reasonable attorneys’ fees.

If the employer wins, it will only be awarded reasonable fees if it can prove that the employee brought the claims in “bad faith.”

COURT DECISIONS – LEAVES OF ABSENCE

Sanchez v. Swissport, Inc. (2013) 213 Cal. App. 4th 1331

Employee disabled by pregnancy may be entitled to leave beyond four months as a “reasonable accommodation.”

Court ruled that the Pregnancy Disability Leave Law’s remedies augment rather than supplant the remedies of other disability laws.

According to the Court, even if an employee has exhausted her PDDL leave, the employer must still consider whether additional leave should be granted as a reasonable accommodation under the FEHA.

COURT DECISIONS – INDEPENDENT CONTRACTORS

Beaumont-Jacques v. Farmers Group, Inc. (2013) 217 Cal. App. 4th 1138

Trial Court properly granted summary judgment against plaintiff because she was an independent contractor

Court ruled that employer did not exercise sufficient control over plaintiff to create an employment relationship.

Key facts: Plaintiff determined her own hours; decided which meetings to attend; hired and trained her own staff; paid her own operating expenses; identified herself as self-employed on her tax returns

COURT DECISIONS – DISABILITY DISCRIMINATION

Lawler v. Montblanc North Am., LLC (9th 2013) 704 F.3d 1235

Retail store manager who could not be present as store due to disability could not make prima facie showing of disability discrimination due to inability to perform essential duties.

A single, intimidating or gruff encounter with a corporate vice president was not enough to constitute harassment.

Furtado v. State Pers. Bd. (2013) 212 Cal. App. 4th 729

Employer was not required to eliminate essential physical functions of a job by modifying correctional officer position or creating a new administrative position.

COURT DECISIONS – WAGE AND HOUR

Negri v. Koning & Assocs., (2013) 216 Cal. App. 4th 392

An employee paid an hourly rate with no guaranteed minimum weekly salary is not exempt from California overtime pay requirements under the administrative exemption.

COURT DECISIONS – LIABILITY FOR EMPLOYEE ACTS

Halliburton Energy Servs., Inc. v. Dep’t of Transp., (2013) 220 Cal. App. 4th 87Employer was not liable for damages caused by employee driving a company vehicle for personal reasons. The employee was on a personal trip that had no bearing on any work-related activity

Moradi v. Marsh USA, Inc., (2013) 219 Cal. App. 4th 866Employer was liable for employee accident involving employee’s personal vehicle because Employer required employee to use the vehicle for work purposes such as attending client meetings and transporting other employees.

COURT DECISIONS – PUNITIVE DAMAGES

Davis v. Kiewit Pac. Co., (2013) 220 Cal. App. 4th 358

An employer may be liable for punitive damages when managing agents act with oppression, fraud, or malice in a working environment.