United States: Fenwick Employment Brief - Spring 2017 Update

NEW PUBLICATIONS CLARIFY SF PAID PARENTAL LEAVE ORDINANCE

The City of San Francisco has issued helpful guidance regarding its Paid Parental Leave Ordinance. Employers should revisit their existing, or begin drafting their new, paid parental leave policies to comply with upcoming changes.

Although the Ordinance went into effect on January 1, 2017 for employers with 50 or more employees, on July 1, 2017, it will apply to employers with 35 or more employees. On January 1, 2018, it will apply to employers with 20 or more employees. Further, the waiting period for PFL benefits for leaves commencing after January 1, 2018 will be eliminated.

In a recent webinar containing helpful information for employers, the City clarified that the threshold number of employees (i.e., 50 or more employees as of January 1) includes all employees worldwide (not just living or working in San Francisco or California) and that seasonal, temporary, and part-time employees are counted to determine the threshold number.

The City also issued new FAQs, which address the revisions made to the Ordinance and other issues. In addition, the City published a step-by-step guide for employees that walks them through the process of applying for Paid Family Leave benefits through the California Employment Development Department and benefits under the Ordinance. This is a great resource for employers to provide to employees.

CITY OF SAN JOSE INTRODUCES REQUIREMENTS FOR HIRING TEMPORARY WORKERS

Starting March 13, 2017, San Jose's The Opportunity to Work Ordinance will require San Jose employers to offer existing, qualified part-time employees additional work hours before hiring any temporary, part-time or new workers. Below are highlights from the ordinance.

A covered employer is any private San Jose employer with 36 or more non-exempt employees, which is subject to San Jose's business tax or maintains a place of business in San Jose that is exempt under California law from the City's business tax. A qualified employee is an employee who, (1) in a calendar week, performs at least two hours of work for the covered employer within the geographic boundaries of San Jose, and (2) is a non-exempt employee. The Ordinance also applies to temporary or seasonal employees if these two factors are met.

Once an employee qualifies under the Ordinance, the covered employer must exercise good faith and reasonable judgment as to whether the qualified non-exempt employee has the skills and experience to perform the work. Employers must use a transparent and nondiscriminatory process to distribute the hours or work among those existing employees. Retaliation against employees for exercising their rights under the Ordinance is strictly prohibited.

Employers should post an official notice of employee rights and should retain for a minimum of four years: (1) work schedules, (2) payroll records, (3) copies of written offers to current and former part-time employees for additional work hours, and (4) any other records that the San Jose Office of Equality Assurance may require that employers maintain to demonstrate compliance. Violations of the Ordinance can trigger fines of $50 per employee for each day of violation. Also, an employee can bring a private action to recover lost wages, penalties and attorneys' fees. Additional information is available in the Office of Equality Assurance's FAQs.

LOS ANGELES ISSUES NEW REGULATIONS ON ITS BAN-THE-BOX ORDINANCE

The City of Los Angeles' Fair Chance Initiative for Hiring became effective on January 22, 2017, with enforcement to start July 1, 2017. Violations between January 22, 2017 and June 30, 2017 may result in a written warning.

The Ordinance and the new implementing rules and regulations impose various prohibitions on private Los Angeles employers, including prohibiting employers from (1) asking about an applicant's criminal history in employment applications, (2) considering arrests (or pending records), and (3) requiring employers to conduct a criminal background check only after extending a conditional offer that is only conditioned on the results of the check. Also, an employer cannot take adverse action against an individual because of his or her criminal history without first conducting a written individualized assessment that effectively links the specific aspects of the individual's criminal history with risks inherent in the duties of the position sought. To this end, the City has provided a form for employers' use.
Employers should be aware of the growing number of local jurisdictions enacting background check ordinances, including San Francisco.

NYC EMPLOYERS CANNOT ASK APPLICANTS ABOUT PAY HISTORY

Under a new New York City law, both private and public employers cannot ask applicants for prior salary information. One of the key objectives of the law is to combat pay inequality, especially between men and women. Employers in New York City should inform their hiring managers, recruiters, and others who may interview job candidates about this development to avoid legal liability.

CASE LAW

Seventh Circuit Expands Title VII To Include Sexual Orientation Discrimination

In Hively v. Ivy Tech Community College, the U.S. Court of Appeals for the Seventh Circuit (Illinois, Indiana, and Wisconsin) held that Title VII of the Civil Rights Act of 1964, a federal antidiscrimination law, prohibits discrimination on the basis of sexual orientation. Although several state laws—including the California Fair Employment and Housing Act—forbid this type of discrimination, Title VII has historically been construed to exclude sexual orientation as a protected category. This ruling represents a significant shift in federal law interpretation, one that may require resolution by the U.S. Supreme Court.

Including Additional Information in Wage Statements Does Not Violate California Labor Code

The U.S. Court of Appeals for the Ninth Circuit held in an unpublished decision, Apodaca v. Costco Wholesale Corp. (January 10, 2017), that the inclusion of a line for "vacation pay/nonexempt salaried vacation or float overtime" did not constitute a violation of California Labor Code § 226. According to the Court, the inclusion of information on vacation pay deals with paid time off that an employer is not specifically required to provide under Section 226, and, accordingly, the inclusion of this additional information or the purported failure to provide corresponding hourly rates did not violate Section 226.

Separately, the plaintiff argued that the wage statements failed to identify the total hours worked and the corresponding hourly rates. But the Court found that there was no violation of Section 226 because the employees could engage in basic math to calculate total hours and determine the applicable hourly rate for the hours worked.

While the Apodaca decision provides some relief to employers, employers should note that litigation around wage statements remains hyper-technical and plaintiffs will continue to argue that an employer must comply to the letter with each and every requirement under Section 226. Employers should partner closely with their payroll provider to ensure that they comply with Section 226's itemized requirements and with any other wage statement requirements under local laws (for example, for San Francisco employers, the requirement that they track San Francisco paid sick leave accrual).

FEDERAL AGENCY ACTION

EEOC Proposes Anti-Harassment Guidance

Earlier this year, the EEOC issued a proposed Enforcement Guidance on Unlawful Harassment for which the Agency invited notice and comment. Among other things, the Guidance defines what constitutes unlawful harassment and sexual harassment, sets out the fundamental framework for employer liability, and offers guidance on preventive practices (including an anti-harassment policy, a complaint system and investigations process, and anti-harassment training).

It is unclear whether the current administration will seek to support, modify or altogether remove this Guidance. Regardless, for California employers, much of the content of the Guidance is already required by California law.

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
20 Sep 2018, Other, California, United States

CoinAlts is designed to bring together the thought leaders in the cryptocurrency investment space to discuss the investment, legal and operational is​sues for cryptocurrencies as a new asset class.

25 Sep 2018, Conference, California, United States

We're excited to introduce Women's IP Strategy, a 2-day conference that tackles both the IP, legal as well as broader career development obstacles, risks and rewards for women lawyers working in male-dominant industries.

2 Oct 2018, Webinar, California, United States

This CLE webinar will offer suggestions to litigators to help them comply with the new GDPR during e-discovery.

Similar Articles
Relevancy Powered by MondaqAI
Fenwick & West LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Fenwick & West LLP
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