Armani v. Northwestern Mutual Life Insurance

District court, which upheld ERISA insurer’s determination that plaintiff could perform sedentary work and thus was not entitled to long-term disability benefits, erred by rejecting plaintiff’s proposed definition of sedentary work on the basis that it was drawn from the Social Security context. An employee who cannot sit for more than four hours in an eight-hour workday cannot perform sedentary work that requires sitting most of the time.

For More Information please visit our website at:

http://www.beverlyhillsemploymentlaw.com/

Growing Trend in Sick Leave Policies

John L. Litchfield

https://www.laboremploymentperspectives.com/2016/07/18/the-second-city-adopts-paid-sick-leave-following-burgeoning-national-trend/#more-3649

July 21, 2016

Late last month, the Chicago City Council unanimously approved a new paid sick leave ordinance requiring virtually every employer in the city to provide at least some paid time off to employees for sick leave purposes. Cook County’s Board of Commissioners is expected to approve a similar ordinance later this year. Chicago is not forging any new paths by doing so — it is only the latest example of a nationwide trend to mandate that employers provide paid time off to employees to care for themselves or their families — a trend certain to continue and expand.

Although there is currently a patchwork of rules and regulations regarding paid sick leave across the country, Chicago’s ordinance is a fair representative of similar requirements in other states and municipalities. The ordinance, which will become effective on July 1, 2017, covers any employee based in and/or working inside Chicago’s city limits who works 80 or more hours within a 120-day period — essentially anyone taking home a paycheck on a regular basis. Employers must provide these workers the right to accrue and use up to five paid sick days (or 40 hours) per year, earned at a minimum rate of one hour for every 40 hours worked.

Further, workers must be allowed to roll over up to two and a half days (20 hours) of unused sick leave into the subsequent year — but employers can cap the total accrual amount at 40 hours, if they desire. Accrual of paid sick leave must begin on an employee’s first day of employment (or July 1, 2017, for existing employees — whichever is later), and accrual and use requirements are then measured from that date going forward. Employers may, however, restrict new employees’ use of paid sick leave until after they complete six full months of continuous employment.

Importantly, the Chicago ordinance does not require that employers create a separate paid sick leave scheme if they already maintain a general undifferentiated Paid Time Off (PTO) policy that meets or exceeds the required accrual rates. For example, if an employer maintains a PTO policy that provides accrual of PTO at a rate of two hours for every 40 hours worked, capping the total number of PTO days at 15, then the PTO policy exceeds the requirements. However, if PTO accrues at a rate slower than one hour for every 40 hours worked, the policy will need to be revised to meet the minimum requirements.

Sick leave may be used by employees to care for themselves or their families when they are sick, to receive medical care, including treatment, diagnosis, or preventive care, and if the employee or family member is the victim of domestic violence or sexual abuse. Employers must also give employees the ability to use their accrued sick time if the employer, or the employee’s children’s schools, are closed because of a public health emergency.

There are additional nuances to the law, some of which vary, depending on a particular workforce, including interplay with the Family and Medical Leave Act (FMLA) calculation of sick pay for tipped workers, and waiver of sick leave requirements in a collective bargaining agreement. Also, just as employers with PTO policies will want to ensure theirs is up to snuff in light of these new rules, employers without a PTO policy may want to consider adopting one to simplify their time-off benefit administration. As a result of these and other issues and trends across the country, employers should consult with counsel to ensure they are meeting or exceeding the minimum sick leave requirements in their places of work.

For more information, please visit www.BeverlyHillsEmploymentLaw.com

How Should an Employer Deal With An Employee's Workplace Stress Claim?

Bennett L. Epstein

https://www.laboremploymentperspectives.com/2016/07/18/when-is-aberrant-workplace-behavior-sufficient-to-justify-termination/#more-3651

July 21, 2016

Aberrant workplace behavior caused by stress or a psychological condition is not uncommon. However, such behavior can also cause employers to become anxious regarding how to lawfully deal with the disruption and its effect on co-workers. The United States Court of Appeals for the Seventh Circuit (covering Illinois, Indiana, and Wisconsin) recently provided guidance.

The former employee in the case worked for the Wisconsin Department of Transportation (WisDOT) administering road tests to new drivers (a job that would cause anxiety in the most sound of minds …) and front desk services. She suffered from a variety of psychological afflictions including post-traumatic stress disorder, anxiety, obsessive compulsive disorder, and a medical phobia. However, aside from her afflictions, she was a substandard worker who, for many years, received unsatisfactory reviews, which culminated in being placed on probation.

Shortly after the probation, the employee broke down crying at work and exhibited signs of having self-inflicted wounds on her wrist. WisDOT placed her on a mandatory medical leave and required her to undergo an independent medical examination evaluation to determine whether she posed a threat to herself or others. Based on its observations (including her statement that she regrets that the knife was dull and that she wanted to die) and the report of the psychiatrist, which stated that “[The employee] continues to be at increased risk of potentially violent behavior to herself and others within the workplace,” WisDOT terminated her employment because it concluded that she continued to pose a threat of violence to herself and others. The former employee sued based on the Rehabilitation Act, but the trial court dismissed her case. The Seventh Circuit confirmed that dismissal.

The Rehabilitation Act (as well as the Americans with Disabilities Act) applies a different legal framework for analyzing an employment action based on intolerable conduct at work (a traditional disparate treatment analysis) and an employment action based on a threat of future danger to one’s self or others (an affirmative defense). In this case, since WisDOT remained steadfast that it terminated the employee because of her workplace conduct, the appellate court agreed with WisDOT that the proper issue is not whether the employee is qualified to perform the job or whether the employer’s job criteria tends to screen out persons with psychiatric disabilities, but whether she engaged in intolerable workplace behavior – which she did. The fact that WisDOT also relied on the report of the examining psychiatrist did not alter its reliance on the employee’s workplace outburst and statements.

The ultimate guidance from this decision is that an employer whose employee engaged in intolerable behavior at work, regardless if it was as a result of a psychological condition, may take disciplinary action as long as it is non-discriminatory. However, if the employer refers the employee to a mental health professional and relies on the danger to self or others affirmative defense, it will face the higher hurdle of an affirmative defense. Thus, employers should consult with counsel as to the proper characterization of the reason for the termination.

*For more information, please visit www.BeverlyHillsEmploymentLaw.com

Hotels Take Advantage of Undocumented Workers

California Hotel Taking Advantage of Illegal Immigrants

July 10, 2016, By Jane Mundy

Perris, CARamon believes he was denied California overtime while working at a major hotel chain because they thought he was an illegal immigrant. “I look Mexican so they figured I had fake papers but they are illegally denying workers their rights,” says Ramon.

Shortly after Ramon started working at the hotel he asked the manager when he could take his 10-minute breaks. He knows that, under the California labor code, workers are entitled to a 30-minute lunch break and two 10-minute breaks in an eight-hour day. But Ramon, age 28, desperately needed this job: he was staying in a homeless shelter and going to school at the same time for a welding certificate. This job was his ticket out of the shelter.

“I worked with four maintenance men and four people worked at the front desk in shifts,” says Ramon. “If the front desk staff needed a bathroom break, they would call one of us to relieve them. I would sit at the desk and if a potential guest asked for a room, we would ask them to wait.”

Ramon says that front desk staff didn’t even get lunch breaks - they were all Hispanic. Two weeks into the job he brought up the issue again. This time Ramon went to the owner [of the franchise]. “I told him that not giving workers breaks is illegal,” says Ramon. “I was the only one complaining because everyone else was afraid of losing their jobs.”

Sure enough, Ramon lost his job. He phoned the temp agency that got him the position and they made a call to the hotel on his behalf. Ramon was reinstated, but his days were numbered. “The day I returned, the owner said I had to clock in and out if I wanted to take a 10-minute break,” Ramon explains, “but I know this is ridiculous.” Ramon printed a page from the California Labor Commission’s website regarding breaks and meal penalties and gave it to the owner.

“The owner said he would look at it later. A week later he took me aside. Apparently he heard that I complained about labor law violations and that I was looking for another job. So he told me to go ahead and find work elsewhere. I was fired again and I know that retaliation is also a California labor law violation.”

Ramon gave up school while he worked at the hotel because they kept changing his schedule. He was paid minimum wage and was supposed to be paid every two weeks but they never had a pay schedule - yet another labor law violation. Sometimes all the employees had to wait an extra week to get paid. “We were told to expect to be paid anywhere from the 1st to the 5th or the 15th to the 20th of every month. Some people have a hard time finding jobs so they won’t complain - even legitimate workers aren’t getting breaks but they are afraid to complain. Look what happened to me. But they also have a hard time paying the rent.”

A few years ago Ramon was a supervisor at a warehouse and he became familiar with California overtime law. He knows the hotel owes him for missed breaks - 20 minutes a day for every day he worked at time-and-a-half.

Whether or not you are legally authorized to work in California, you are protected by the California overtime laws and labor laws for the following: 

• To receive a minimum wage of $9.00 per hour and $10.00 per hour beginning January 1, 2016
• To earn overtime pay - with some exceptions - after working more than eight hours per day or more than 40 hours in one week
• To file wage claims with the state labor commissioner if they believe their employer has violated state wage laws
• To file workplace safety and health complaints with Cal/OSHA, the state’s workplace safety and health program
• To work in an environment free from retaliation for exercising their rights

*For more information, please visit www.BeverlyHillsEmploymentLaw.com

Overtime Class Action for Hotel Management Company

Proposed California Overtime Class Action Names Hotel Management Company

July 18, 2016, By Gordon Gibb

Los Angeles, CAThe proper payment of overtime and allowance for mandated meal and rest periods remains a basic tenet of California labor amidst a basket of rights for employees in the Golden State. And yet, employers continue to violate overtime pay laws and other basic employee rights entrenched in state laws.

One of the latest examples is an overtime pay lawsuit filed against Interstate-RIM Management Company LLC. The lead plaintiff in the proposed class action lawsuit, Nancy Ramirez, holds in her action that Interstate-RIM pays their non-exempt employees, non-discretionary incentive pay based on job performance. While the plaintiff has no issue with the payment of such incentive pay, the complaint centers on the allegation that Interstate-RIM failed to include this non-discretionary incentive pay when calculating overtime.

To that end, the incentive pay should have rightly been reflected in a non-exempt employee’s hourly rate for the purposes of computing overtime. Any missed meal breaks and rest periods, as mandated by California overtime law, should be associated as extra time worked and thus, qualify for overtime as well.

The class action unpaid overtime lawsuit alleges that not only were all overtime hours not properly compensated, but that Interstate-RIM did not have a policy in place in order to facilitate the provision of a 30-minute meal period, provided without interruption, prior to the 5th hour of work as mandated by California employment law.

The overtime pay class action identified Interstate-RIM as one of the largest hotel management companies in the US. Ramirez seeks to represent all non-exempt employees who worked for Interstate-RIM at any time during a period beginning four years prior to the date the complaint was filed (June 24, 2016), and ending on a date to be determined by the Court.

According to the unpaid overtime lawsuit, the amount of damages sought is under $5 million.

The lawsuit also holds that Interstate-RIM required their non-exempt employees to work off the clock on a consistent basis. The conduct is described as requiring non-exempt employees to clock out, only to be detained for the purposes of answering emails and text messages on behalf of the employer, without benefitting from compensation.

“Defendant’s uniform policy and practice not to pay Plaintiff and other California Class Members for all time worked, including overtime worked, is evidenced by Defendant’s business records,” the lawsuit states.

The complaints include unfair competition in violation of the California labor code, failure to pay all overtime wages, failure to provide accurate itemized statements, and failure to reimburse employees for required expenses.

The lawsuit is Nancy Ramirez et al v. Interstate-RIM Management Company, LLC, Case No. BC624979, filed June 24 of this year in the Superior Court of the State of California, in and for the County of Los Angeles.

*For more information please visit www.BeverlyHillsEmploymentLaw.com

Price tag for sex and age discrimination: $250k

July 18, 2016
Tim Gould

http://www.hrmorning.com/price-tag-for-sex-and-age-discrimination-250k/

The EEOC just struck a blow on behalf of over-40 female employees across the country.  

RCH Colorado, owner and operator of the Reserve Casino Hotel, a prominent hotel and casino in Central City, CO, will pay $250,000 to settle an age and sex discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC).

EEOC’s lawsuit charged that RCH Colorado, formerly known as Luna Gaming Central City, bought the casino, formerly known as the Fortune Valley Hotel and Casino, in January 2011, and violated federal law by choosing to hire younger candidates over older candidates and male candidates over female candidates with equal or greater qualifications.

According to EEOC’s suit, RCH Colorado refused to hire four older women applicants in the positions of slot attendant and cocktail server. Out of the 14 applicants for the slot attendant position, only the three oldest female applicants were not hired. RCH Colorado also refused to hire the oldest cocktail server, who was 63 years old.

EEOC’s lawsuit also claimed that prior to the sale of Fortune Valley, casino managers went around and took photos of employees on the casino floor. These photos were later used by RCH Colorado to screen out older, less attractive employees. EEOC’s investigation found a significant disparity in the hiring of female applicants and/or applicants age 40 and older.

EEOC filed its lawsuit in U.S. District Court for the District of Colorado after  an attempt to reach a pre-litigation settlement failed.

In addition to requiring RCH Colorado to pay monetary damages to the four women, the consent decree settling the suit requires the organization to:

• conduct semi-annual anti-discrimination training for its employees, managers, supervisors and human resources employees
• revise and distribute its anti-discrimination policies, and
• report to EEOC if there are any complaints of age or gender discrimination.

EEOC Denver trial attorney Laurie Jaeckel said in a press release: “A growing body of research finds that older women face discrimination that is more prevalent and acute than other subcategories of the workforce, including that of younger women and older men. This litigation shows EEOC’s commitment to ensuring the protection of older women from discriminatory hiring practices.”

*For more information, please visit www.BeverlyHillsEmploymentLaw.com

Price tag for sex and age discrimination: $250k

July 18, 2016
Tim Gould

http://www.hrmorning.com/price-tag-for-sex-and-age-discrimination-250k/

The EEOC just struck a blow on behalf of over-40 female employees across the country.  

RCH Colorado, owner and operator of the Reserve Casino Hotel, a prominent hotel and casino in Central City, CO, will pay $250,000 to settle an age and sex discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC).

EEOC’s lawsuit charged that RCH Colorado, formerly known as Luna Gaming Central City, bought the casino, formerly known as the Fortune Valley Hotel and Casino, in January 2011, and violated federal law by choosing to hire younger candidates over older candidates and male candidates over female candidates with equal or greater qualifications.

According to EEOC’s suit, RCH Colorado refused to hire four older women applicants in the positions of slot attendant and cocktail server. Out of the 14 applicants for the slot attendant position, only the three oldest female applicants were not hired. RCH Colorado also refused to hire the oldest cocktail server, who was 63 years old.

EEOC’s lawsuit also claimed that prior to the sale of Fortune Valley, casino managers went around and took photos of employees on the casino floor. These photos were later used by RCH Colorado to screen out older, less attractive employees. EEOC’s investigation found a significant disparity in the hiring of female applicants and/or applicants age 40 and older.

EEOC filed its lawsuit in U.S. District Court for the District of Colorado after  an attempt to reach a pre-litigation settlement failed.

In addition to requiring RCH Colorado to pay monetary damages to the four women, the consent decree settling the suit requires the organization to:

• conduct semi-annual anti-discrimination training for its employees, managers, supervisors and human resources employees
• revise and distribute its anti-discrimination policies, and
• report to EEOC if there are any complaints of age or gender discrimination.

EEOC Denver trial attorney Laurie Jaeckel said in a press release: “A growing body of research finds that older women face discrimination that is more prevalent and acute than other subcategories of the workforce, including that of younger women and older men. This litigation shows EEOC’s commitment to ensuring the protection of older women from discriminatory hiring practices.”

*For more information, please visit www.BeverlyHillsEmploymentLaw.com

EEOC Updates

July 18, 2016

http://www.hrmorning.com/eeoc-updates-pay-reporting-proposed-rule-whats-new/

This past winter, the EEOC issued a proposed rule what would change the EEO-1 reporting requirements of employers. Now, after having listened to public comments on that proposal, the agency has issued an update. Here’s what you need to know. 

The proposed rule, as it now stands after having been updated, will still require employers with at least 100 employees to submit to the EEOC employees’ W-2 earnings data and actual hours worked.

This reporting is to be completed using a new “component” for the old EEO-1 report many employers are already used to.

The EEO-1 report in use today requires employers to report the gender, race and ethnicity of its employees. The new component will add pay data to the equation. Employers will be required to report aggregate W-2 wages and hours worked in 12 pay bands for each of the 10 EEO-1 job categories and 14 gender, race and ethnicity categories on the current form.

What you need to know

What changes did the EEOC make from its winter proposal?

• You’ve got more time to gear up. The new proposal sets the due date for the first revised EEO-1 report at March 31, 2018. The deadline under the initial proposal was Sept. 30, 2017. The current reporting requirements have not changed, however. Those required to submit an EEO-1 report must still submit their 2016 reports by Sept. 30, 2016.
• No EEO-1 reports will be filed in 2017. This gives employers some time to get their ducks in a row for the new reports.
• The filing deadline will be changed moving forward. The March 31 deadline will be the new, annual drop-dead date by which EEO-1 reports will have to be filed — instead of Sept. 30.
• The “snapshot” period will change. The new proposed rule will change the “workforce snapshot” to a pay period between Oct. 1 and Dec. 31. The current snapshot period is July 1 through Sept. 30. The EEO-1 report due March 31, 2018 will be the first to use the Oct. 1 through Dec. 31 snapshot period.
• Report income provided in Box 1 of W-2. The winter proposal didn’t specify which box on workers’ W-2 forms to use when reporting wages. The new proposal says to use the info from Box 1.

Pay bands

The pay bands the EEOC plans to include in the report for which it’ll collect aggregate pay data are as follows:

1. $19,239 and under
2. $19,240 – $24,439
3. $24,440 – $30,679
4. $30,680 – $38,999
5. $39,000 – $49,919
6. $49,920 – $62,919
7. $62,920 – $80,079
8. $80,080 – $101,919
9. $101,920 – $128,959
10. $128,960 – $163,799
11. $163,800 – $207,999
12. $208,000 and over

*For more information, please visit www.BeverlyHillsEmploymentLaw.com

Cal OSHA Dig May Result in Fines, Lawsuit

Contractor Fined by Cal-OSHA, Lawsuit Cites Personal Injuries in Blast

July 18, 2016

https://calaborlawnews.com/legal-news/big-deep-ag-development-co-jeff-alexander-joseph-21608.php

McFarland, CA: It was in November of last year that an industrial accident involving a natural gas pipeline led to an explosion that killed one man and badly injured two women living in a nearby home destroyed in the blast.

While a personal injury lawsuit has been filed by family members of the two injured women, Cal-OSHA in late May undertook its own due diligence and fined Big & Deep Ag Development Co. $40,250 in total sanctions for a number of deficiencies the agency had identified.

To wit, the contractor was cited by Cal-OSHA for digging with an expired permit, failing to properly inform the bulldozer operator as to the true location of the pipeline and failure to properly train the operator.

According to The Bakersfield Californian (5/25/16), the owner of Big & Deep admitted to the expired date on the permit, placing the blame on himself. However, in a telephone interview with The Bakersfield Californian, Jeff Alexander stressed that in his view the expired permit had no bearing on the accident, adding that the operator was experienced and knew exactly where the pipeline was.

It was on November 13 of last year when Joseph Michael “Mike” Ojeda, age 44, was operating what was identified as a Caterpillar dozer and ripper in order to prepare land and facilitate the planting of almond trees. While operating the dozer, Ojeda hit a high-pressure transmission pipeline, three feet in diameter.

The spark initiated by the strike ignited the gas, and the resulting explosion killed Ojeda instantly and ripped through an adjacent home where Amalia Leal and her daughter Gloria Ruckman lived, with Ruckman’s newborn baby. While Leal and Ruckman sustained second- and third-degree burns, the infant escaped serious injury.

It is not known if the family of Ojeda is considering a Cal-OSHA lawsuit for wrongful death and alleged unsafe working conditions. It was noted that Ojeda was well- experienced with some 4,000 hours logged working with and around underground utilities.

It should also be noted that one year earlier, in 2014, the same underground pipeline was struck by a worker toiling for the same contractor. In that incident there was no explosion, but evacuations were required until the gas leak was brought under control and the danger passed.

Various state statutes governing California health and safety on the job are designed to guide employers toward maintaining a safe work environment for employees, and to safeguard employees from undue harm while on the job. Cal-OSHA has the authority to investigate and issue fines and sanctions to any employer viewed as having circumvented the rules.

Cal-OSHA has not filed a lawsuit. Nor has the California Public Utilities Commission, which, as of May 25, had still not completed its investigation.

However, the personal injury lawsuit filed by family members of the two burn victims injured when their home was destroyed by the blast is continuing and is expected to go to trial in March of next year.

*For more information, please visit www.BeverlyHillsEmploymentLaw.com

Modern-Day Slavery Doesn’t Pay

June 27, 2016, 08:00:00AM. By Jane Mundy https://www.lawyersandsettlements.com/articles/california_labor_law/california-labor-law-lawsuit-178-21564.html?opt=b&utm_expid=3607522-13.Y4u1ixZNSt6o8v_5N8VGVA.1&utm_referrer=https%3A%2F%2Fwww.lawyersandsettlements.com%2Flegal-news-articles%2Fcase%2Fcalifornia_labor_law%2F%3Fopt%3Db

Sacramento, CAEmployers take note: It doesn’t pay to violate California labor laws and workers. That also applies to overseas Filipino workers and foreign contract laborers.

The former owners of L’Amande bakeries have been handed a default judgment of $15.2 million in damages and fees for trafficking 11 Filipinos to the United States to serve as domestic servants and back-of-the-house employees at the two bakeries owned by defendants Analiza and Goncalo Moitinho de Almeida. This incident is nothing short of modern-day slavery.

The Almeidas subjected the workers to “abusive conditions, including workdays as long as 17 hours and wages as low as three dollars an hour,” reported Asian Americans Advancing Justice (May 23, 2016). “They verbally abused the workers, referred to them as ‘dogs,’ and imposed $11,000 in debt bondage on each worker. [The workers had to work for them for three years] The defendants also threatened to cancel the workers’ visas and harm them and their families in the Philippines.”

The plaintiffs have also been given T visas, which gives human trafficking victims temporary legal status and work authorization. They can also bring their families to the United States. (The Victims of Trafficking and Violence Protection Act, which was passed in 2000, gives law enforcement agencies more strength to investigate and prosecute human trafficking, and also offers protection to victims.)

The Almeidas also tried to sell all their assets, including their million-dollar residence, and in 2015 they went back to the Philippines. The lawsuit also sought increased damages for fraudulent transfers of assets whereby the Almeidas “absconded and removed assets to the Philippines.” Analiza Almeida wrote the following to the Filipino Chronicle:

“We needed to find funding somewhere…We are accused of hiding assets. I ask you this - do you think we wanted to lose the bakeries, where we have poured our lifetime savings and such hard work? Do you think we wanted to lay off the other 35 U.S. hired workers who have invested their time and careers with us? Do you think we wanted to use the proceeds of the building to finance this lawsuit? Again I ask you, who is now the victim?” The Almeidas may conduct business like this in the Philippines, but the California labor code gets in their way here.

Workers at Tesla Motors made two dollars an hour more than the Filipino workers. According to investigative reporters at First Digital’s Bay Area News Group, Tesla Motors paid its foreign contract laborers $5 per hour, 10 hours a day and six days a week to expand its government-subsidized California auto plant. Wait, it gets worse…

Tesla collected $517 million selling government-mandated environmental credits to competing automakers and used the cash to fund operating losses, build out sales distribution and add to the manufacturing facility. In 2015, Tesla hired a foreign contractor to ship 140 workers from Croatia and Slovenia. They were building a new paint shop at the carmaker’s Fremont plant when one of the contractors sustained a severe injury on the job and he filed a whistleblower lawsuit.

This isn’t the first time Tesla has violated California labor laws. In March, approximately 350 construction workers walked off the job complaining about low wages of $12 to $14 per hour and complaining about the outsourcing of work to non-union labor. (Experienced workers would typically be paid about $48 per hour in wages and benefits and get California overtime after eight hours.)

Tesla may be facing federal fines of $5,000 per worker, $15,000 for each and every violation of the California Labor Code, and be banned from the B1/B2 and HB-1 Visa programs for life. And it may be required to top up all its illegal under-payments, including overtime.

*For more information, please visit www.BeverlyHillsEmploymentLaw.com

One Year Later: Implementing California’s Paid-Sick-Leave Law

By Lisa Nagele-Piazza, SHRM-SCP, J.D. Jul 8, 2016

http://www.gosanangelo.com/news/sexual-harassment-issue-persists-37259341-5ef0-2b09-e053-0100007f3387-386087271.html

Employers in California have had a year to fine-tune their policies implementing mandatory paid-sick-leave benefits for workers in the state. However, ambiguities in the law—and new city ordinances that provide more-generous sick-leave benefits—have left some employers unsure if their policies measure up. 

Starting on July 1, 2015, employers were required to provide paid sick leave to workers in California under the Healthy Workplaces, Healthy Families Act of 2014 (HWHFA). 

With some exceptions, the act covers employees who work in the state for 30 or more days in a 12-month period, regardless of whether they are full-time, part-time, temporary or seasonal workers. Covered employees must accrue one hour of sick leave for every 30 hours worked.

Employees can use the sick leave after 90 days of employment for their own illness, to care for certain family members, or for "safe time" if they are victims of sexual assault, domestic violence or stalking.

Many of the law's provisions, however, weren't clear when it was first enacted. Employment attorneys told SHRM Online that ambiguities in the law have prompted additional legislation.

Clarification Was Needed

Thirteen days after the initial law went into effect, Governor Jerry Brown signed A.B. 304, which clarified a few aspects of the state paid-sick-leave law, said Anthony Zaller, an employment litigation attorney with Van Vleck Turner & Zaller in Los Angeles.  "For example, the amendment provided for an alternative accrual method other than the one hour of paid sick leave for every 30 hours worked by the employee." 

"The amendment made it possible for employers to use an alternative accrual method as long as it is on a regular basis, and the employee has no less than 24 hours or three days paid sick leave or paid time off by the 120th calendar day of employment, or each calendar year, or in each 12-month period."

Stephanie Lowe, an attorney with Liebert Cassidy Whitmore in San Diego, said that "while we are now aware that there are several ways to provide sick leave accruals, the language is still unclear."

However, the new bill did clarify some of the confusing aspects of the law, Lowe noted. As an example, she said it clearly states that employees have to work for the same employer for 30 days in a 12-month period in California to be eligible for paid sick leave.

Upfront Leave or Accruals?

Under the accrual method, banked sick leave must carry over to the following year. However, employers can cap accrued leave at 48 hours. They can also limit the amount an employee may use per year to 24 hours.

As an alternative to the accrual method, employers may provide 24 hours of sick leave upfront at the beginning of the year. Under this method, employees must use the leave by the end of the year. Unused leave will not carry over to the next year, but employees will be provided another 24 hours at the beginning of the new year.

"A few employers I've worked with found that it's easier to award the full amount upfront at the beginning of a 12-month period so they don't have to track accruals," Lowe said. "But I don't think one way dominates. Many employers provided sick leave prior to this, even though it wasn't required, so they continue to provide it in the same way they had before."

"Smaller employers tend to provide the sick leave in an upfront grant so that they do not have to track it every payroll period," Zaller said. "Larger employers tend to use the accrual method."

"Many payroll companies also have the function to track the accrual of paid sick leave, which makes this method very easy for any size employer to implement," he said.

Zaller said he recommends that employers check the method and process their payroll companies use to track and pay for paid sick leave. Payroll companies may be "confused about some of the legal requirements, and ultimately the liability for compliance will rest with the employer," he said.

Employers may provide the required leave as part of a paid time off (PTO) benefit, in which allotted paid-time-off days can be used for sick leave, vacation or other leave. Lowe cautioned that while other methods of providing sick leave have no requirement for cashing out when an employee leaves the organization, if sick leave is included in a PTO benefit, employees must be paid for their unused days upon their departure from the company.

Tracking Sick Leave 

Zaller suggested that organizations track mandatory paid sick leave separately from any additionally offered paid time off. 

Employers must show the number of sick days available on either an employee's paycheck or on a separate document provided on the same day as the paycheck.

It is important that employers comply with this requirement to include the amount of paid sick leave employees have accrued but not used, Zaller emphasized.

Local Laws Complicate Matters

In addition to complying with the state's paid-sick-leave law, employers in several California cities—including San Francisco, Los Angeles and San Diego—have or will soon have to adhere to additional local requirements. 

"Typically, a local law will provide more-generous offerings than the state law," Lowe said. "So the city laws generally provide even more sick-leave benefits to employees."

"Employers have to look at the specifics of the local law and determine how it differs from the state law," she noted.

"There are many unanswered questions about the city laws, and employers should not assume that each city has the same requirements regarding different aspects of paid sick leave," Zaller said.

Law on Doctors' Notes Not Clear

There hasn't been much guidance from the labor commissioner's office as to when an employer can ask for a doctor's note.

Under the paid-sick-leave law, an employee gets to choose when to use his or her allotted sick leave and how much of the allotted time to use, Lowe said. An employer can't retaliate against an employee for exercising that right.

"Employers also can't retaliate against a worker for failing to provide details about the need to use sick leave," she added. 

"It isn't clear whether those requirements are limited to just the 24 hours in a 12-month period provided under the law," she said. "Pay attention to whether we get any guidance on this from the labor commissioner's office."

Review Disciplinary Policies

It's important that employers "review their polices about absenteeism, performance evaluations and other employment matters and make sure they are not taking into account an employee's use of paid sick leave in disciplinary decisions," Lowe said.

"Employers should ensure workers aren't being disciplined for excessive absenteeism when taking sick leave that's protected under the law," she added.

*For more information, please visit www.BeverlyHillsEmploymentLaw.com

Governor Signs Law Giving California Labor Department Greater Role in PAGA Suits

By Ogletree Deakins

http://www.lexology.com/library/detail.aspx?g=ab715b79-dee5-4a6b-a3da-faa8621a6b29

On June 27, 2016, California Governor Jerry Brown signed into law a set of amendments to California’s Labor Code Private Attorneys General Act (PAGA) that will expand labor officials’ involvement in PAGA claims. PAGA gives employees the right to sue their employers for Labor Code violations on behalf of the California Labor and Workforce Development Agency (LWDA) after first giving the LWDA an opportunity to investigate.

Governor Brown has said that these amendments are intended to reduce “unnecessary” PAGA litigation by diverting some of it to the LWDA’s administrative hearing process. Among other changes, the amendments (1) increase the time the LWDA may take to review the notices PAGA plaintiffs must submit before suing, to decide whether to investigate, and to issue citations; (2) require plaintiffs to serve the LWDA with copies of PAGA complaints and proposed settlements at the time they file those documents in court; and (3) increase the LWDA’s funding by introducing a $75 fee for filing PAGA notices. Our June 23 article, “California PAGA Amendments Will Expand Labor Officials’ Involvement in PAGA Claims,” provides a closer look at the amendments and traces the history of their passage as part of the governor’s budget.

*For more information, please visit www.EmploymentLawBeverlyHills.com

McDonald's Has to Answer Whether Franchisee Conduct Merits Class Action Suit

By Dave Strausfeld, J.D.

July 13, 2016

http://www.employmentlawdaily.com/index.php/news/whether-mcdonalds-liable-for-franchisee-wage-violations-under-ostensible-agency-theory-to-be-decided-as-class-action/

Granting class certification in a suit seeking to impose liability on McDonald’s for violations of California wage laws at a franchisee’s restaurants, a federal district court in California rejected McDonald’s categorical assertion that an “ostensible agency” theory can never be adjudicated on a classwide basis because it involves individualized questions of personal belief and reasonable reliance on an agency relationship. Instead, because ostensible agency “may be implied from circumstances,” the issue of whether the franchisee’s employees “reasonably believed” the franchisee was acting as McDonald’s agent, thus providing a basis to impose liability on McDonald’s, appropriately could be decided on a classwide basis (Ochoa v. McDonald’s Corp., July 7, 2016, Donato, J.).

Four individuals who worked as hourly employees at McDonald’s restaurants brought a putative class action alleging they were denied overtime pay and other rights under California labor law at five McDonald’s restaurants in California owned by a particular franchisee. The franchisee settled the claims against it, and McDonald’s itself was the last standing defendant.

Ostensible agency. Previously, the court ruled on summary judgment that although McDonald’s was not a joint employer of these individuals, disputed facts precluded summary judgment on the issue of whether McDonald’s might be liable because the franchisee was its ostensible agent. Ostensible agency exists where (1) the person dealing with the agent does so with reasonable belief in the agent’s authority; (2) that belief is “generated by some act or neglect of the principal sought to be charged,” and (3) the relying party is not negligent, explained the court, citing the California Court of Appeal’s decision in Kaplan v. Coldwell Banker Residential Affiliates, Inc.

Company’s categorical objection. In opposing class certification, McDonald’s asserted categorically that “allegations of ostensible agency are incapable of being resolved on a classwide basis.” The essence of the objection was that ostensible agency involves individualized questions of personal belief and reasonable reliance on an agency relationship, necessarily rendering class treatment inappropriate.

Unconvinced, the court stated that nothing in ostensible agency “marks it as forbidden territory under Rule 23.” Ostensible agency does not “demand unique or alternative treatment, and certainly does not stand entirely outside Rule 23 as impossible to adjudicate on a classwide basis,” the court declared.

Common evidence. Since there was no a priori bar to class certification in cases involving ostensible agency, the question became whether the particular facts in this case allowed for classwide adjudication against McDonald’s. “They do,” the court concluded, because there was “substantial and largely undisputed evidence” that the restaurant crew members were exposed to “conduct in common” that would make proof of ostensible agency “practical and fair on a class basis.” For example, their declarations indicated they were required to wear McDonald’s uniforms, packaged food in McDonald’s boxes, received paystubs, orientation materials, shift schedules and time punch reports all marked with McDonald’s name and logo, and in most cases applied for a job through a McDonald’s website. “These facts are shared in common across the proposed class and make classwide adjudication of ostensible agency against McDonald’s a suitable and appropriate procedure.”

Individualized showings unnecessary. And because ostensible agency “may be implied from circumstances,” individualized evidence of each crew member’s reasonable belief that the franchisee was McDonald’s agent or reliance on such a belief would not be needed. As noted, certain common evidence “makes possible” that crew members reasonably believed the franchisee was merely McDonald’s agent—as they averred in declarations they honestly believed. “Significantly, on the other side of the ledger, McDonald’s has submitted no evidence at all indicating that any named plaintiff or putative class member did not believe that McDonald’s was their employer or that they were unjustified or unreasonable in relying on that belief.”

In short, “the mere fact that the ostensible agency inquiry will need to be made and resolved to determine McDonald’s liability in this case does not by itself stand as a bar to class certification.”

Class certified as to most claims. With McDonald’s preliminary objection to certification overruled, the court engaged in a traditional Rule 23 analysis. The court ultimately certified the following claims for class action treatment: unpaid overtime (having to do with overnight shifts and how hours were attributed to particular days), maintenance of uniforms (being required to regularly wash and iron their McDonald’s uniforms but not reimbursed for their time and expense), and miscalculated wages (using an “hour.hundredths of an hour” format rather than an “hour:minute” format), and certain derivative claims. On the other hand, the plaintiffs’ claim involving missed meal and rest break periods was not certified because it did not meet the commonality requirement, given the lack of evidence that there was a standard policy or practice of denying crew members these breaks

* For more information, please visit www.EmploymentLawBeverlyHills.com

GrubHub Faces California Labor Lawsuit

July 5, 2016By Heidi Turner https://www.lawyersandsettlements.com/articles/california_labor_law/california-labor-law-lawsuit- 179-21580.html?opt= b&utm_expid=3607522-13.Y4u1ixZNSt6o8v_5N8VGVA.1&utm_referrer=https%3A%2F%2Fwww. lawyersandsettlements.com%2Flegal-news-articles%2Femployment-news-articles%2F%3Fopt%3Db San Francisco, CAThe battle over independent contractors in the sharing economy continues to grow,  as an increasing number of companies face California labor lawsuits alleging they misclassify  employees as independent contractors to avoid offering benefits and protections typically given to  employees. Among the companies that have or are currently facing lawsuits are GrubHub, Lyft,  Uber, Amazon Prime and DoorDash. And although many lawsuits have been filed in California,  some companies now face lawsuits in other states. In 2015, a lawsuit was filed against GrubHub alleging delivery drivers were misclassified as  independent contractors. The claim is similar to those that were made against Lyft and  Uber: that drivers are treated like employees but classified as independent contractors to  avoid offering proper benefits and protections. For drivers who claim they are employees, there could be a lot at stake. Not only are independent  contractors not offered minimum wage, overtime and benefits, they are often responsible for their  own costs of doing business, including vehicle maintenance, gas and parking charges. GrubHub contracts drivers to deliver food from restaurants who do not hire their own delivery  drivers. But those drivers allege they are treated like employees, not like independent contractors.  Independent contractors are able to set their own charges for providing a service and typically  have a great deal of authority over how they carry out their job duties. According to court documents (found online at wired.com), GrubHub drivers are required to  sign up for shifts in advance, and are told where to report for shifts, how to dress and where  to go to await deliveries. Further, the drivers are given a set of requirements they must meet  or risk having their contracts terminated. Drivers allege that when their pay and their expenses are taken into account, they frequently earn less than minimum wage, and are not paid overtime  even when they work more than 40 hours in a week or 12 hours in a day. A settlement was reached in the Uber lawsuit, but that settlement was overturned by the judge,  who found that the dollar amount of the settlement was too low. US District Judge Vince  Chhabria ordered the two sides to come to a new agreement that more fairly compensates drivers  for their claims. The settlement did not result in drivers being reclassified as employees. In addition to the California lawsuit, GrubHub now faces a federal lawsuit filed in the Northern  District of Illinois. The GrubHub lawsuit is Tan, et al. v. GrubHub Inc., case number 3:15-cv-05128, District Court,  Northern District of California. *For more information, please visit www.BeverlyHillsEmploymentLaw.com

Family Responsibilities Leading to More Employee Lawsuits

July 7, 2016

https://calaborlawnews.com/legal-news/center-worklife-law-at-university-of-california-21579.php

A new study conducted by the Center for WorkLife Law at the University of California Hastings College of the Law suggests that discrimination against workers who take time to care for family members has resulted in more employee lawsuits being filed against employers. Those lawsuits allege violations of a number of laws, including the Family and Medical Leave Act(FMLA) and other state and federal laws. Perhaps surprisingly, men make up 38 percent of all FMLA cases reported, indicating they, too, are victims of discrimination when they take time off to care for family members.

The report, titled “Caregivers in the Workplace,” covers all types of family responsibilities discrimination - both those that involve violations of FMLA and those that violate state or other federal law. The author found that the number of family responsibilities discrimination cases increased 269 percent in the past 10 years, with cases involving care of an elderly person - usually filed under FMLA and state laws - jumping 650 percent.

“The essential conclusion of this report is that employers have not implemented effective policies and practices for managing employees who have family caregiving obligations,” Cynthia Thomas Calvert, author of the report, wrote.

Some lawsuits are being settled or have resulted in awards for the plaintiffs. The report cites a California lawsuit in which a phlebotomist who returned to work after leaving to care for an ill daughter received unwarranted discipline and negative performance reviews. The plaintiff was awarded more than $287,000 in 2014. In a different case, a production supervisor was fired after she told her employer she needed FMLA leave to care for her husband. The plaintiff in that case was awarded almost $500,000 in 2011.

FMLA lawsuits are filed by employees in a range of careers who face a variety of situations, including caring for children, taking maternity/paternity leave, caring for spouses or caring for elderly parents. The report cites the case of a surgical nurse who was approved for intermittent FMLA leave for two years to care for her mother, but was then disciplined for absenteeism even when it was covered by FMLA. The nurse was ultimately fired for violating company policy. Her lawsuit settled.

Employees have the right to protected leave when they are caring for family members. This means they cannot be fired, discriminated against, harassed, disciplined, or otherwise face consequences for using or applying for FMLA leave. Violations of these rights indicate that employers either do not understand or do not care about FMLA laws. Either way, such actions can result in lawsuits being filed against employers.

*For more information, please visit www.BeverlyHIllsEmploymentLaw.com

City of Los Angeles and Unincorporated Areas of Los Angeles County Minimum Wage Increases to $10.50 Per Hour on July 1, 2016

By: Brian E. Cole II

July 1, 2016

http://www.callaborlaw.com/entry/reminder-city-of-los-angeles-and-unincorporated-areas-of-los-angeles-county

Effective this Friday, July 1, 2016, employers with 26 of more employees, must pay employees who perform at least two hours of work within the geographic boundaries of the City of Los Angeles within a particular week at least $10.50 for each hour worked.   

Following suit, Los Angeles County’s equivalent minimum wage rate increase schedule also becomes effective on July 1, 2016.  Under the Los Angeles County wage ordinance, for employers with 26 of more employees, $10.50 per hour must be paid to employees who perform at least two hours of work in a particular week within unincorporated areas of Los Angeles County.

The equivalent Los Angeles County minimum wage rate increase has created some confusion as to its breadth of application, which only applies to unincorporated areas of Los Angeles County.  Incorporated cities in Los Angeles County may have (or will have) their own minimum wage increase schedules and requirements.  For example, the City of Long Beach’s set minimum wage increase does not take effect until January 1, 2017 for certain employers.

For the City the Los Angeles and unincorporated areas of Los Angeles County, this new $10.50 hourly rate is an increase from $10.00 per hour for employers with 26 of more employees.  For employers with 25 or fewer employees, the minimum wage rate will not increase to $10.50 until July 1, 2017.  Thereafter, the minimum wage rate increases will following the below schedules:

For employers with 26 or more employees:

• July 1, 2017: $12.00 per hour
• July 1, 2018: $13.25 per hour
• July 1, 2019: $14.25 per hour
• July 1, 2020: $15.00 per hour

For employers with 25 or fewer employees:

• July 1, 2018: $12.00 per hour
• July 1, 2019: $13.25 per hour
• July 1, 2020: $14.25 per hour
• July 1, 2021: $15.00 per hour

Despite the identical minimum wage rate increase schedules, the City of Los Angeles and Los Angeles County wages ordinances include some differences.  For example, under the City of Los Angeles wage ordinance, it permits nonprofit organizations with more than 25 employees to apply for coverage under the small business schedule.  Additionally, by example, beginning in July 1, 2022, the minimum wage rate increases will be determined by the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) in the Los Angeles metropolitan area under the City of Los Angeles wage ordinance.  Under the Los Angeles County wage ordinance, increases will be determined by an adjusted CPI measure.

*For more information, please visit www.BeverlyHillsEmploymentLaw.com