EMPLOYMENT ADVISORY: NEW LAWS FOR 2017

The California legislature has been busy creating additional protections for employees. Employees and employers must be aware of the changes for their own protection.

The minimum wage in California for employers with 26 or more employees goes to $10.50 per hour on January 1, 2017. The minimum wage for employers with 25 or fewer employees will remain at $10.00 per hour for 2017.

Minimum wage violations (AB 2899): An employer seeking a writ of mandate to contest a Labor Commissioner citation for failure to pay minimum wages must first post a bond with the Labor Commissioner issued in favor of the employee in an amount equal to the unpaid wages, liquidated damages, and overtime compensation assessed, excluding penalties. Proceeds are forfeited to the employee if the employer fails to pay the amounts owed within 10 days after the proceedings.

DLSE enforcement authority ( AB 2261 ): The Department of Labor Standards Enforcement (DLSE) authority under Labor Code section 98.7 to bring an action, with or without an employee complaint, against an employer who terminates or discriminates against an employee in violation of any law under the Labor Commissioner’s jurisdiction.

Salary history (AB 1676): An individual’s prior salary cannot, by itself, justify a wage differential between genders.

Juvenile criminal history (AB 1843): Labor Code section 432.7 restrictions on inquiries regarding criminal history are expanded to prohibit asking an applicant to disclose juvenile convictions and information related to a juvenile arrest, detention, processing, diversion, supervision, adjudication, or court disposition; or seek from any source or utilize as a factor in determining any condition of employment any of the same information. Health may inquire about an applicant’s juvenile criminal background if a juvenile court made a final ruling or adjudication that the applicant had committed a felony or misdemeanor relating to certain sex or controlled substances crimes within five years preceding the employment application. Inquiries regarding sealed juvenile criminal records are prohibited.

Choice of law and forum in employment contracts (SB 1241): New Labor Code section 925 prohibit makes voidable the employee’s request any contractual provision that (1) requires an employee who lives and works in California to litigate or arbitrate outside of California claims that arise in California; or (2) deprives the employee of the protection of California law with respect to a controversy arising in California. The law applies to contracts entered into, modified, or extended on or after January 1, 2017. It does not apply where the employee is represented by legal counsel in negotiating the choice of law or forum.

Work experience education programs ( AB 2063 ): Expands the opportunity to participate in a work experience education program for credit to students at least 14 years old (previously this only applied to students at least 16 years old). Students may job shadow for up to 40 hours if the school principal certifies that it is necessary for participation in a career technical education program.

Background checks by “transportation network companies” (AB 1289): Companies like Uber or Lyft will be required to conduct or have a third party conduct local and national criminal background checks on each driver. Companies are barred from hiring a driver who is currently registered on the National Sex Offender Public Website, has been convicted of terrorism-related or violent felonies or, has been convicted of misdemeanor assault or battery, domestic violence, or driving under the influence within the previous seven years.

Removal of age from actors’ online profiles (AB 1687): A commercial online entertainment employment service provider may longer the actor’s age on its website.

Wage statements for exempt employees (AB 2535): Employers of exempt executive, managerial, professional, outside sales, or computer software professionals need not show the employee’s “total hours worked” on their pay stubs. It also applies to parents, spouses, children, or legally-adopted children of the employer; participants, directors, and staff of a live-in alternative to an incarceration rehabilitation program for substance abuse; exempt crew members of licensed commercial passenger fishing boats; and participants in national service programs.

Overtime for agricultural workers (AB 1066): Currently , workers engaged in agricultural occupations covered by IWC Wage Order 14-2001 get overtime after 10 hours a day in a work day or 60 hours in a week The Phase-In Overtime for Agricultural Workers Act creates new overtime protections for. Starting in 2019 the daily and weekly hours that an agricultural worker must work to receive overtime pay, will decrease to eight hours in a work day and 40 hours in a work week by 2022.

Pay equity based on race and ethnicity (SB 1063): A new Wage and Equality Act extends California’s Fair Pay Act protections in Labor Code section 1197.5 to race and ethnicity. It is now unlawful to pay employees less than employees of another race or ethnicity for “substantially similar work.”

Single-user restrooms must be “all gender” (AB 1732): Effective March 1, 2017, a business establishment with no more than one bathroom and one urinal with a lock controlled by the user must have “all gender” signs.

Smoking in the Workplace (ABX2-7) : Effective June 9, 2016, Expands Labor Code Section 6404.5’s prohibition on smoking in all enclosed places of employment to all employers of any size, including a place of employment where the owner-operator is the only employee ( i.e. , owner-operated business). “‘Enclosed space’ includes covered parking lots, lobbies, lounges, waiting areas, elevators, stairwells, and restrooms that are a structural part of the building.” A violation is punishable by a fine not to exceed $100 for a first violation, $200 for a second violation within one year, and $500 for a third and for each subsequent violation within one year.

Notice of domestic violence leave and accommodation rights (AB 2337): The Labor Commissioner must develop a model notice of the time off and accommodation rights under Labor Code sections 230 and 230.1 protecting victims of domestic violence, sexual assault, and stalking. Employers will not be required to provide this notice until this sample is available.

Unfair immigration-related practices ( SB 1001 ): Labor Code section 1019.1 defines an “unfair immigration-related practice” to do any of the following in verifying authorization to work: (1) request more or different documents than required by the I-9 process; (2) refuse to honor documents reasonably appear to be genuine; (3) refuse to honor documents or work authorization based on the specific status or term that accompanies the authorization to work; or (4) attempt to re-verify an existing employee’s work authorization using an unfair immigration-related practice. An aggrieved person can file a complaint with the DLSE for enforcement. Violations carry a penalty of up to $10,000.

Questions You Should Ask Before Your Mediation Session

Mediation

Mediation can be an effective way to settle many different kinds of disputes, but it is natural to have some questions about what to expect. Your mediation lawyers in San Jose, CA , are available to address all of the questions you have before you enter into mediation. Consider asking your mediation lawyers these questions in the run-up to your session. mediation - lawyer

Why is mediation right for my case?

Mediation can be beneficial for many different reasons, but it is not right for every case. If your lawyer believes that there is a chance that you could settle your dispute outside of court, then he or she may recommend mediation to save you the time, stress, and costs of taking a case to court. During mediation, you can come to an agreement that is legally binding much quicker than waiting for a date on the court schedule. However, if your case is contentious and your lawyer believes that coming to an agreement is not possible, he or she may recommend that you go to court instead of attempting mediation.

What happens during mediation?

The focus of legal mediation is to come to an agreement on a dispute in a way that is acceptable to both sides. No one in a mediation should feel like he or she is the winner or the loser. During mediation services, a neutral mediator will ask questions and guide both sides through a negotiation process with the goal of helping each party come to a conclusion that feels fair to him or her. Your lawyer will also be there to represent you and make sure your rights are protected.

What happens if mediation is not successful?

Trying mediation doesn’t mean that you can’t pursue court at a later date. If you cannot come to an agreement in mediation, your lawyer can help you choose the right next step, including filing a court case, if necessary.

When Should You Take Your Discrimination Case to Court?

Discrimination

In a workplace discrimination case, you may have the option of attending mediation to come to a resolution to your complaint rather than attending court. While mediation services in San Jose, CA , can be the right answer for some discrimination cases, others belong in the courtroom. When should you consider mediation services and when should you follow through in taking your case to court? Here is what you need to know.

Mediation services are appropriate when both sides are willing to negotiate to come to an agreement that is mutually beneficial. There are no winners and no losers in mediation, but rather a solution that both parties find acceptable. If you believe that your discrimination can be dealt with during this kind of interaction with an employer, then mediation services save both time and money. However, if it seems unlikely that you will get an adequate response to your complaint or that dealing with your case in mediation won’t impact company culture to prevent future discrimination, then court may be the right answer. In court, you will be able to present your case and possibly be vindicated as a winner.

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Educating Employees About Sexual Harassment

Woman Interviewing

Sexual harassment is a significant issue in the workplace that every employer has an obligation to take steps to prevent. In some cases, employees simply may not understand what does and doesn’t constitute sexual harassment without appropriate training, and employers are legally obligated to provide it. Likewise, training employees to avoid sexual harassment is smart for business. It can help you avoid lawsuits and issues with employee morale. Your employment law attorney in San Jose, CA , can help your draft an effective plan for educating employees about sexual harassment. These tips will also help. employment - laws

Have a Policy

Every business requires a sexual harassment policy that is clear and is provided to each employee. The policy should give a definition of sexual harassment, state your business’s no-tolerance policy and the consequences for engaging in harassment, and make guarantees that anyone who reports harassment will be protected from retaliation. The policy should also state a clear procedure for filing a sexual harassment complaint and an explanation of your process for investigating claims. Your employment law attorney can help you draft a policy that is in line with your legal requirements.

Provide Training

Training for sexual harassment should happen during onboarding of new employees and at least once a year for the company as a whole. These training sessions should be refreshers of your expectations for maintaining a harassment-free workplace as well as a chance to bring staff up to date on any changes to employment law that have occurred since your last session. Your employment law expert may be able to help you lead these sessions.

Training Supervisors Is Mandatory For Organizations With 50 Or More Employees or Contractors

Educating your leadership team on sexual harassments and their roles in maintaining a non-hostile workplace. Supervisors and managers should understand the procedures for dealing with sexual harassment complaints and know their responsibilities for both stopping harassment when they see it and for preventing retaliation when an employee files a complaint.