Commission-Only Employees Entitled to Separately Paid Rest Periods
A California Court of Appeal recently ruled that employers who pay their non-exempt sales employees on commission must separately compensate them for mandatory rest periods. All California employers with commission-based plans, especially those with commission-only pay, should carefully review their policies to ensure compliance with the court's holding.
Negotiating the Maze of Overlapping Leave Laws
Our experienced employment lawyers will review major federal and California laws regarding employee leaves of absence and how they impact employers in 2017 and beyond.
Bio-Rad Verdict Could Spur GC Whistleblower Claims
February 10, 2017 - Rod Sorensen, managing partner of the Silicon Valley office of Payne & Fears, was interviewed by The National Law Journal. Regarding the popular legal topic - whistleblower claims.
Payne & Fears LLP Announces New Partners for 2017
Distinguished business, employment, and insurance law firm, Payne & fears LLP is pleased to announce that two attorneys based at the firm's Irvine, California office - Andrew K. Haeffele and Ray E. Boggess - have been elected to the partnership effective January 1, 2017.
Los Angeles Enacts "Ban-the-Box" Legislation
On December 9, 2016, Los Angeles Mayor Eric Garcetti signed into law the Los Angeles Fair Chance Initiative for Hiring ("Ordinance"). This ordinance is the latest of the so-called "Ban-the-Box" laws, which aim to restrict the use of criminal background histories for employment applications. The law goes into effect on January 22, 2017.
Three Payne & Fears Attorneys Speaking in CEB "Employment Law Practice: Year in Review"
Payne & Fears has three attorneys speaking in the Continuing Education of the Bar series on "Employment Law Practice: Year in Review" in various cities throughout California.
January 22nd: Eric Sohlgren will moderate and Amy Patton will speak on the Los Angeles panel, and Rod Sorensen will moderate the Sacramento panel
January 29th: Rod Sorensen will moderate the San Francisco panel
For more information on these programs, please visit: https://ceb.com/employment-law-practice-2016-year-in-review
Partner Eric Sohlgren Will Be Speaking at the HR Prescriptions Legal Update on 1/29
Partner Eric Sohlgren will be speaking at the January 29th HR Prescriptions Legal Update taking place at the Mission Viejo Country Club. Eric will join Terri Olson and Maggie Hattan of HR Prescriptions by adding a "legal touch" to the new employment regulations and hot topics for 2016 being discussed.
On the Horizon: Laws Going Into Effect in Early 2017
The California Legislature continues to be very active in passing pro-employee legislation, creating additional compliance burdens and litigation risks for employers. The following summary contains the key new laws employers should be aware of as we begin the new year.
New Form I-9
Employers have long been required to verify the identity and legal work authorization of employees through the federal Form I-9. The United States Citizenship and Immigration Services (USCIS) released a new I-9 form in November 2016. Employers are required to use the new version of the form by January 22, 2017. (The form is available online at https://www.uscis.gov/i-9). And a new provision of the California Labor Code makes violations of the I-9 documentation requirements illegal under California law, subjecting employers to a penalty of up to $10,000.
Minimum Wage (SB 3)
A number of minimum wage changes take effect in 2017.
On the federal level, effective January 1, 2017, the minimum wage for all work on federal contracts is now $10.20 per hour.
Under the new California law, the minimum wage will increase incrementally through 2022, ultimately reaching $15.00 an hour. Effective January 1, 2017, the minimum wage for employers with 26 or more employees has been increased to $10.50 an hour, an increase of 50 cents over the prior rate. For employers with 25 or fewer employees, the minimum wage rate for 2017 remains at $10.00 an hour, but the rate will increase to $10.50 an hour effective January 1, 2018.
Expansion and Clarification of the California Fair Pay Act (SB 1063 and AB 1676)
The California Fair Pay Act has been expanded (under SB 1063) to reach beyond gender, and now also prohibits pay disparities on the basis of either race or ethnicity.
Once an employee establishes unequal pay for substantially similar work, the employer must show that the disparity is based on (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality of productions; or (4) a bona fide factor other than gender, race or ethnicity (including factors such as education, prior experience, or training). In evaluating disparities, employees may be compared across different work locations, and even if they do not hold the same or substantially equal jobs.
The Legislature also mandated (in AB 1676) that an employee's prior salary, by itself, is not sufficient to justify a pay disparity. In other words, prior salary does not qualify as a bona fide factor other than sex, race or ethnicity under the Fair Pay Act.
All Gender Restrooms (AB 1732)
Effective March 1, 2017, all single-user toilet facilities in any business establishment in California must be identified specifically as all-gender toilet facilities (as opposed to designating certain single-user toilet restrooms for males or females, or simply labeling such facilities as restrooms).
Prohibition on Background Checks Regarding Juvenile Criminal History Information (AB 1843)
Effective January 1, 2017, employers may not ask applicants about juvenile convictions, and must not seek or use information about juvenile arrests, detentions, or court dispositions as a factor in determining whether to hire the applicant. The law includes certain exceptions for health facility employers. Employers should also be aware of local laws restricting use of criminal background checks, such as the City of Los Angeles "ban the box" ordinance.
Limitation on Choice of Law Provisions (SB 1241)
Employers are now prohibited from requiring an employee who primarily resides and works in California, as a condition of employment, to agree to a provision that would require the employee to adjudicate outside of California a claim arising in California, or deprive the employee of the substantive protection of California law with respect to any controversy arising within the state. With limited exceptions, employers may not use such language in labor or employment contracts entered into after January 1, 2017.
Notice Requirements Regarding Protections for Victims of Domestic Violence, Sexual Assault and Stalking (AB 2337)
Under existing law, employers are prohibited from discriminating or retaliating against an employee who is a victim of domestic violence, sexual assault or stalking for taking time off to deal with having been a victim of such actions. Employees are entitled to reinstatement and reimbursement for lost wages and benefits in the event of a violation.
New law now requires employers with 25 or more employees to inform all employees of these rights in writing upon hire, and to all existing employees upon request. The notice requirement will take effect once the Labor Commissioner develops and publishes a notice form (which the law requires must happen no later than July 1, 2017). Employers should keep an eye out for this notice to be posted.
Janitorial Employers (AB 1978)
Effective January 1, 2017, janitorial employers are required to keep accurate records of specific information regarding their employees for three years. The same bill includes requirements that will take effect in 2018 and 2019, including annual registration of janitorial employers, as well as sexual violence and harassment prevention training for employees.
Agricultural Workers (AB 1066)
As of January 1, 2017, agricultural employees are no longer exempt from state law provisions regarding meal and rest breaks, including the provision requiring weekly rest days. Under the new law, agricultural employees will be entitled to receive overtime pay on a gradually increasing basis, beginning in 2019.
Private School Teachers (AB 2230)
Effective July 1, 2017, private school teachers will be exempt from overtime requirements only if the teacher earns no less than either (1) the lowest salary offered by any school district, or (2) the equivalent of 70% of the lowest schedule salary offered by the school district of county in which the private school is located, whichever is greater.
Salon Employers (AB2437)
Effective July 1, 2017, salon employers (barbers, cosmetologists, estheticians, manicurists, etc.) are required to post a notice in English, Spanish, Vietnamese and Korean regarding workplace rights and wage and hour laws. Failure to post will be punishable with an administrative fine. The notice will be developed and posted by the Labor Commissioner before this requirement takes effect.
Payne & Fears Recognized by U.S. News and Best Lawyers in 2017 Best Law Firms List
Payne & Fears LLP is pleased to announce the firm was recently recognized as one of the “Best Law Firms” by U.S. News & World Report and Best Lawyers. The firm received a Tier 1 ranking in Orange County for Commercial Litigation, Employment Litigation, Employment Law and Labor Law.
Amy Patton Presents at the Annual CEB Basics Conference
On September 16, 2016, Payne & Fears partner Amy Patton presented at the California Continuing Education of the Bar (CEB) Annual Conference. Patton spoke on the following topics:
• Performance Problems and Litigation Avoidance
Patton is a partner in the firm’s Employment Law Group. She represents employers in state and federal courts in a broad range of labor and employment law matters, including claims for wrongful termination, discrimination, harassment, retaliation, trade secret misappropriation and wage and hour violations. Patton handles both single-plaintiff litigation and class actions in state and federal court and has appeared before various administrative agencies, including the Equal Employment Opportunity Commission, the National Labor Relations Board, the California Department of Fair Employment and Housing and the California Division of Labor Standards Enforcement.
Patton served as the 2016 Chair of the Orange County Bar Association Labor and Employment Law Section.
CEB is a self-supporting program of the University of California that is cosponsored by the State Bar of California. To access the conference materials please visit https://ceb.com/the-basics-employment-law.