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
25 Oct 2017, Conference, California, United States

CALOBA is excited to bring you our General Counsel (GC) roundtable event. Our distinguished panel of top legal counsel will share their experiences at the helm of some of the top technology companies.

30 Oct 2017, Seminar, California, United States

This program will address some of the hottest legal and policy topics that online platforms have brought to the fore: free speech, hate speech, fake news, privacy and surveillance, artificial intelligence, augmented reality, changing notions of “ownership” of information and software-enabled consumer products, and the perennial issue of copyright.

8 Nov 2017, Conference, California, United States

Fenwick & West is proud to be participating in PLI’s 49th Annual Institute on Securities Regulation scheduled for November 8-10, 2017 at The Roosevelt Hotel in New York City. The Institute is considered the premier conference, as well as one of the longest running, in the securities law field.

 
In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.