• California Expands National Origin Discrimination to Include Driver’s Licenses

    Existing law requires the Department of Motor Vehicles (DMV) to issue an original driver’s license to a person who is unable to submit satisfactory proof that the applicant’s presence in the United States is authorized under federal law if he or she meets all other qualifications for licensure and provides satisfactory proof to the department of his or her identity and California residency.  AB 1660, signed by Governor Brown, makes it a violation of the California Fair Housing and Employment Act (FEHA) for an employer or other covered entity to discriminate against an individual because he or she holds or presents a driver’s license issued under these provisions or to require a person to present a driver’s license, except in specific situations.

    Effective January 1, 2015, FEHA’s definition of “National origin” discrimination will include, but is not limited to, discrimination on the basis of possessing a driver’s license granted under Section 12801.9 of the Vehicle Code.  The new laws do not alter an employer’s rights or obligations under Section 1324a of Title 8 of the United States Code regarding obtaining documentation evidencing identity and authorization for employment. An action taken by an employer that is required by the federal Immigration and Nationality Act (8 U.S.C. Sec. 1324a) is not a violation of law.

    Driver’s license information obtained by an employer must be treated as private and confidential, is exempt from disclosure under the California Public Records Act, and can not be disclosed to any unauthorized person or used for any purpose other than to establish identity and authorization to drive.

    HR professionals and persons involved in the hiring process need to ensure they do not discriminate against individuals on the basis of possessing a driver’s license obtained under these provisions.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
     
    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • New Laws Require Additional Training and Prohibit Harassment of Unpaid Interns

    Governor Brown signed AB 1443 and AB 2053 amending California’s Fair Employment and Housing Act.  AB 1443 expands FEHA’s anti-harassment protection to unpaid interns.  AB 2053 requires employers to add an anti-bullying module to their sexual harassment prevention training.  Employers and employees (and now volunteers) need to be mindful of the new protections and requirements.

    Protection for Unpaid Interns and Volunteers

    Existing law protects employees and applicants from unlawful discrimination and harassment in the workplace on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sexgender, gender identity, gender expression, age, sexual orientation, or military and veteran status.   AB 1443 expands FEHA’s protections to persons in unpaid internships or other volunteer positions.  The law does not make it lawful to employ unpaid interns, and the Labor Commissioner and the Department of Labor have taken strong positions that make it very difficult to use unpaid interns.  Regardless of whether the intern or volunteer is required to be paid as an employee, effective January 1, 2015, employers and employees may not discriminate or harass unpaid interns and volunteers in violation of FEHA.

    Employers should communicate to its employees that unpaid interns and volunteers are afforded the same rights to a harassment-free workplace as other employees.

    Anti-Bullying Training

    Employers with 50 or more employees are required to provide sexual harassment prevention training to supervisory employees every two years.  AB 2053 requires the training include a module regarding “prevention of abusive conduct.”  The law does not actually prohibit abusive conduct, unless such conduct otherwise violates FEHA, but it does require employers to train supervisory employees regarding conduct “that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.”

    AB 2053 instructs, “Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.”

    While abusive conduct unrelated to a protected category may not be illegal (yet), an employer could theoretically be cited for failing to train supervisors regarding such abusive conduct.  There is no indication that an employee could sue an employer for a failure to provide the requisite training, but the failure to provide the training, or a violation of a company’s anti-bullying policy, may certainly be evidence of a hostile work environment in the right case.

    Employers should ensure their next sexual harassment prevention training includes an anti-bullying module.  Employers may also want to consider updating their handbooks to ensure they have a policy prohibiting “abusive conduct.”

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
     
    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • California’s Proposed Sick Leave Law Does More Than Provide Paid Time Off

    UPDATE:  Governor Brown has announced he will sign AB 1522 today. This means that effective July 1, 2015, any employee who works in California for 30 or more days within a year from the commencement of employment is entitled to paid sick days. Unless otherwise exempt from the law, California employees will accrue paid sick days “at the rate of not less than one hour per every 30 hours worked.” Employees can use the accrued paid sick days “beginning on the 90th day of employment, after which day the employee may use paid sick days as they are accrued.” Unused accrued paid sick days carry over to the following year of employment. An employer may “limit an employee’s use of paid sick days to 24 hours or three days in each year of employment.”

    Employers doing business in California should revise their handbooks to reflect the new laws.

    Last week AB 1522 made it one step closer to becoming law. Hailed as the Healthy Workplaces, Healthy Families Act of 2014, this bill does more than just provide for mandatory sick leave for employees. It also contains significant penalties for failure to comply with the law, prohibits employers from retaliating against individuals for engaging in certain protected conduct, and mandates new record-keeping requirements.

    The new law will apply to almost all employers. Unlike some bills, there is no distinction between small employers and larger employers that can more easily absorb the additional costs. The only employees exempt from the proposed law are employees with collective bargaining agreements that provide for similar benefits and employees working under the In-Home Support Services program.

    Effective July 15, 2015, employers must allow employees to accrue up to 3 days of paid time off to be used for their own illness or a family-member’s illness each year. The sick leave begins to accrue after 30 days of employment and must carry over to the following year. Employers can cap the paid sick leave to a maximum of 6 days, but employees must be allowed to use sick leave in increments not to exceed 2 hours. Employers can limit an employee to using no more than 3 sick days per year.

    Unwary employers may not realize that this new law will require employers to track the hours worked by salaried employees who are otherwise exempt from California’s overtime laws. The paid sick leave law will apply to exempt and non-exempt employees. The bill requires employers to track the hours worked by all employees (including exempt employees) and the sick leave taken, and to report those hours on the employee pay stubs or a separate written statement with each pay period. This means employers may need to require exempt employees to start reporting hours worked. Alternatively, an employer could allow the paid sick leave to immediately accrue and forego the time tracking for exempt employees, but the employer must still report the available sick time to the employee each pay period.

    Employees paid on a piece-rate, commission basis, or paid with different hourly rates, must be paid the average effective hourly rate, not including overtime premium pay, based on the employee’s earnings over the 90 days preceding the time off.

    Employers may not discharge, threaten to discharge, demote, suspend or in any other manner discriminate against an employee for using accrued sick leave, or who complains to the Labor Commissioner or participates in an investigation regarding a violation of the new paid sick leave law. There is a rebuttable presumption of retaliation if an employer takes action against an employee within 30 days of the employee opposing any policy or practice prohibited by the statute.

    The Labor Commissioner can issue penalties for various violations of the new statute, including treble damages when an employer fails to provide the paid time off. Employees terminated in violation of the law are entitled to reinstatement and back pay.

    Given the fact that Governor Brown pushed for the bill, I suspect the governor will soon sign the bill into law. If passed, employers will need to modify handbooks, provide new notices to all employees regarding the new paid sick leave, and post new posters identifying the employee’s rights and employer’s obligations.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
     
    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.