United States: Legislative Updates Employers Should Know About To Avoid Wringing In The New Year

The California legislature played an active role in 2015 by enacting new rules and amendments in many employment areas.  The following covers some of the key highlights, some of which became effective on January 1, 2016.

Equal Wages for Substantially Similar Work (SB 358).  Known as the "Fair Pay Act," SB 358 will amend Labor Code Section 1197.5 with the aim of improving gender wage equality.  We blogged about the bill's controversial provisions when it was first introduced in March of this year.  To summarize, Section 1197.5 currently prohibits an employer "from paying an employee wages less than the rates paid to the opposite sex within the same establishment for equal work."  But under the new language, an employer will now be prohibited from paying any of its employees lesser wages than the amounts paid to employees of the opposite sex for "substantially similar work."  Whether employees perform "substantially similar work" is determined by analyzing a composite of skill, effort, and responsibility.  Notably, SB 358 does not confine the "substantially similar work" analysis to "the same establishment" of the employer.  The bill also increases the burden of defense by requiring an employer to demonstrate that any wage differential is not based on or derived from a sex-based differential in compensation, is related to the job at issue, and is consistent with business necessity.  This new law became effective on January 1, 2016.

Increased Minimum Wage.  As we pointed out last week, on January 1, 2016 the minimum wage increases to $10.00 an hour. This also bumps the annual salary minimum for exempt employees to $41,600.

Separate Pay for Rest and Recovery Under Piece-Rate Plans (AB 1513).  This bill adds Section 226.2 to the Labor Code, which provides that piece-rate workers must be "compensated for rest and recovery periods and other nonproductive time" at an hourly rate that is separate from any other piece-rate compensation.  The statute further defines "other nonproductive time" as "time under the employer's control, exclusive of rest and recovery periods, that is not directly related to the activity being compensated on a piece-rate basis."

In conjunction with this new requirement, AB 1513 also amends Labor Code Section 226(a) to impose additional administrative obligations upon employers of piece-rate workers.  Those workers' wage statements must now also reflect the total hours worked for compensable rest and recovery periods and other nonproductive time, as well as the rates of compensation and gross wages paid for those periods of time.  This new law became effective on January 1, 2016.

Opportunity to Cure Noncompliant Wage Statements After Receiving a PAGA Notice (AB 1506).  By way of background, the California Private Attorneys General Act of 2004 ("PAGA," codified at Labor Code Section 2699, et seq.) authorizes allegedly aggrieved employees to sue employers to recover civil penalties for Labor Code violations.  Following PAGA's enactment, however, were actions that sought significant monetary penalties for technical violations of wage statement requirements that undisputedly caused no actual injury.  AB 1506, immediately effective on October 2, 2015, was designed to reduce the frequency of these wage statement claims.  The new law amended PAGA to provide employers with 33 days from the postmarked date of notice to cure wage statements that omit the inclusive dates of the period for which the employee was paid or the name and address of the legal entity that is the employer.  According to the amended terms, a violation is "cured" once an employer has provided a fully compliant, itemized wage statement to each aggrieved employee for each pay period for the three-year period prior to the date of the written notice.  Aside from the short timeframe to cure, it is also important to note that an employer may use this cure provision only once for the same violation of the statute during each 12-month period.  This change became effective on October 2, 2015.

Complying with California's Sick Leave Requirements (AB 304).  Don't forget about California's new paid sick leave law, which went into effect in July 2015. Read our prior blog posts on the original law and the subsequent amendments.

Requests for Accommodation Constitutes "Protected Activity" (AB 987).   California's Fair Employment and Housing Act ("FEHA," codified at Government Code Section 12940, et seq.) requires employers to provide reasonable accommodations for known disabilities and prohibits retaliation against an employee who "oppose[s] any practices forbidden" by the statute.  However, in 2013, the Court of Appeal in Rope v. Auto-Chlor System of Washington Inc., 220 Cal. App. 4th 635, held that a request for accommodation, without more, is not a protected legal activity and does not support a claim of retaliation under FEHA.

The Legislature passed AB 987 in direct response to the Rope decision.  The law amends FEHA to make clear that a request for reasonable accommodation on the basis of religion or disability constitutes a "protected activity"; and that an employee who makes such a request for accommodation is protected from retaliation, regardless of whether the request was granted.  This new law became effective on January 1, 2016.

Prohibition on Adverse Action Against Family Members of Employee Engaged in Protected Activity (AB 1509).  AB 1509 expands certain protections against retaliation and adverse action.  The Labor Code currently prohibits an employer from discriminating, retaliating, or taking any adverse action against an employee or applicant for engaging in specified protected conduct. As a result of AB 1509, an employer, or a person acting on behalf of the employer, will also be prohibited from retaliating against an employee who is a family member of a person who engaged in, or is perceived to have engaged in protected conduct.  This new law became effective on January 1, 2016.

Expanded Rights to Take Time Off for Health and Childcare (SB 579).  California's current "Kin Care" law (Labor Code Section 230.8) generally prohibits covered employers from discharging or discriminating against an employee who is a parent, guardian, or grandparent with custody of a child in a licensed child day care facility, kindergarten, or grades 1 to 12, for taking off up to 40 hours each year to participate in school activities.  SB 579 will expand those rights of leave to include time off work to find, enroll, or re-enroll a child in school or with a childcare provider; or to address childcare provider or school emergencies.  The bill also redefines "parent" to further include a stepparent, foster parent, or a person who stands in loco parentis to a child, thereby extending leave to individuals who hold such status..

In addition, SB 579 will also amend the paid sick leave law (codified at Labor Code Section 233) to, among other things, permit employees to use sick leave for the purposes set forth in the Healthy Workplaces, Healthy Families Act of 2014.  As a result, employees will be able to take paid time off to address a greater range of health needs or to provide care for a broader group of "family members." This new law became effective on January 1, 2016.

Military Leave for National Guard Members of Other States (AB 583).  California provides military leave protections to members of the National Guard who are called into active duty by the Governor of California or the President.  With some exception, returning National Guard members are generally entitled to be restored to their former positions, or ones with comparable pay, status, and seniority.  AB 583 expands these protections to members of the National Guard of other states who are ordered to serve by the Governor of their respective states or the President, and who have left a position in private employment in California.  These rights became effective on January 1, 2016.

Prohibitions Against the Unlawful Use of E-Verify (AB 622).  Federal law permits companies to employ only individuals who are authorized to work in the United States.  E-Verify is an electronic system administered by various federal agencies that allows employers to determine the work eligibility of their employees.  The E-Verify program, however, has come under fire over the years amid reports of it being misused for unlawful, discriminatory purposes.  AB 622 adds Section 2814 to the Labor Code, generally prohibiting employers from using the E-Verify system to check the employment authorization status of existing employees or applicants who have not received an offer of employment, or in a manner not required under federal law or authorized under any federal agency memorandum of understanding.  The new law does not otherwise restrict an employer's right to use E-Verify in accordance with federal law.  Further, if an employer receives notice of a tentative non-confirmation issued by the Social Security Administration or the Department of Homeland Security , the employer will be required to provide the notification to the affected person, as soon as practicable.  This new law became effective on January 1, 2016.

Procedures for the Labor Commissioner to Enforce Judgments (SB 588).  SB 588 adds several new sections and an entirely new chapter to the Labor Code.  These new rules do not necessarily create any additional requirements for employers, but rather establish new procedures that the Labor Commissioner can use to enforce judgments or awards arising from unpaid wages.  In general, these rules enable the Labor Commissioner to use any remedies available to a judgment creditor, and to act as a levying officer when enforcing a judgment pursuant to a writ of execution.  The Labor Commissioner, for example, will be permitted to issue liens on credits, money, or property belonging to an employer.  Should a final judgment for unpaid wages remain unsatisfied for 30 days after the time to appeal the judgment has expired, and there is no appeal pending, the employer must obtain a surety bond that covers the value of the judgment or otherwise must cease business operations in California.  SB 588 also amends Labor Code Section 588.1, extending individual liability to owners, directors, officers, and managing agents of the employer for any willful failure to pay wages, failure to issue pay stubs, failure to provide cooldown, rest, or meal periods, or failure indemnify business expenses.  These laws became operative on January 1, 2015.

Don't delay—make sure your company's policies and practices comply with these new laws so you and your employees can have a Happy New Year!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
26 Sep 2018, Seminar, Tokyo, Japan

Orrick’s Global Japan Practice is hosting a series of “Orrick Library” seminars to explore legal issues in various fields in Japan as well as the United States, Asia and Europe

26 Sep 2018, Conference, New York, United States

Employment Partner, Mandy Perry and Chair of Orrick's Global Employment Law Practice, Mike Delikat will be participating in the Global Business Protections 2018: International Restrictive Covenants and Confidential Information Conference.

10 Oct 2018, Conference, Florida, United States
Julie Totten is Program Chair of this year’s conference, Lynne Hermle is speaking on women in the courtroom, boardroom, and c-suite, and Erin Connell is speaking on pay equity and pay transparency.

Similar Articles
Relevancy Powered by MondaqAI
Sheppard Mullin Richter & Hampton
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Sheppard Mullin Richter & Hampton
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions