Employment Law

California Cannabis Unions

The passage of California’s Senate Bill 643 established a comprehensive licensing and regulatory framework for the cultivation, manufacture, transportation, storage, distribution, and sale of medical cannabis.  The new law provides that all state commercial cannabis applicants or licensees with 20 employees or more (not counting some management) must operate under a Labor Peace Agreement (“LPA”).  This requirement includes all types of license classifications (cultivation, manufacturing, testing, dispensary, distributor, transporter), with limited exceptions. 
 

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Marijuana in the Workplace

With the passage of Proposition 64, the “Adult Use of Marijuana Act,” employers may have some concern about whether the new law affects their right to enforce drug-free workplace policies.  While employers should always make employment decisions with great care, the Act clearly preserves the rights of private employers to maintain drug free workplaces.  The actual language for that preservation of employer rights is currently found at California’s Health and Safety Code section 11362.45(f).  Nothing about California’s new recreational use law requires an employer to permit the use of marijuana

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New Unisex Bathroom Requirements Effective March 1

Beginning March 1, 2017, all single-user restroom facilities in California businesses, public accommodations, and state and local government agencies, must be designated as all-gender facilities, accessible to all people, regardless of gender. “Single-user toilet facilities” include all bathrooms that contain, at the most, one toilet and one urinal, and a lock that is controlled by the user.

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Unpaid Internships

When is it permissible to hire an unpaid intern and when should an intern be paid as an employee? To answer this question, one must evaluate the work the intern performs, how such work impacts the company and the intern, and what supervision and training the intern receives. Both the California DLSE and the Federal Department of Labor use a six factor test to determine if an intern may properly be unpaid or should be considered an employee and receive at least minimum wage. These factors include:  

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Exempt Employee Minimum Salary Increases for 2017

Humboldt County employers must remember that with California’s minimum wage increase on January 1, 2017, the corresponding base minimum annual salary to qualify any employee as exempt from overtime has a corresponding increase.  As always, to qualify for exempt status, employees must make at least twice the minimum wage on an annual basis.  If you have any questions about whether your employees qualify as exempt, please contact an experienced employment law attorney.

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Minimum Wage and Exempt Status Require Review in 2017

A reminder to all Humboldt County employers, as of January 1, 2017 the minimum wage for all employers with 25 or fewer employees is $10 per hour and $10.50 per hour for all employers with 26 or more employees.  The minimum salary thresholds for all exempt employees are also increasing.  Check to make sure that all of your current exempt employees meet the minimum threshold amounts in 2017!

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"More Money, More Problems”—The New Theme Song at the DOL

A new federal overtime rule from the Department of Labor was set to take effect on December 1, 2016.  The rule doubles the current federal salary that must be made by an employee before the employee can be classified as exempt from overtime—known as the executive, administrative and professional exemptions.  The new rule requires a minimum salary of $913 per week—even higher than California’s minimum salary threshold for overtime exemption.

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Farmworkers Now Entitled to Additional Overtime Pay

On September 12, California Governor Jerry Brown signed legislation granting farmworkers the right to overtime pay on par with other California workers.  Assembly Bill 1066 provides for incremental overtime pay hour increases for farmworkers over a 4-year period beginning in 2019. Currently, farmworkers are paid overtime rates if they work more than 10 hours per day or 60 hours per workweek, compared to 8 hours per day and 40 hours per workweek applicable to most other hourly California employees.
 

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EEOC - Retaliation Complaints Enforcement Guidelines

If you’re an employer in Humboldt County, you’re familiar with your obligations with respect to harassment and discrimination.  But, according to the federal governmental agency that oversees such claims, the Equal Employment Opportunity Commission (EEOC), the number one complaint against employers today is retaliation.  Retaliation complaints make up almost half of all complaints received by the EEOC.  In response to that staggering data, the EEOC revisited its enforcement guidance, and on August 25, 2016, the EEOC replaced Section 8 of its Compliance Manual—that section of its manual coverin

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California's Fair Pay Act

In October 2015, California’s Governor Brown signed into law equal pay protections for California employees.  The legislation authored by Senator Hannah-Beth Jackson to strengthen the older California Equal Pay Act and to rectify gender wage inequality.  The Fair Pay Act protects employees who discuss their pay or seek to enforce their rights from discrimination or retaliation by employers.  Employees now have a more relaxed standard for claiming—in court or before the Division of Labor Standards Enforcement—that they are not paid the same rate for substantially similar work due to gender.

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420 Employees

The California legislature recently enacted the Medical Marijuana Regulation and Safety Act.  The Act consists of three separate bills which create a comprehensive state licensing system for the commercial cultivation, sale, transport, and distribution of medical marijuana.  Assuming the Act is signed into law by California’s Governor Jerry Brown, January 1, 2016 is its effective date.  Any person operating pursuant to the Act must abide by its many regulations—including those that apply to the employer-employee relationship.  
 

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U-be a Class of Employees

Recently, a federal court in California certified a class action of Uber drivers who claim they are really employees and were misclassified by Uber as independent contractors.  Uber defended the class status of the Uber drivers, arguing that each driver, as independent contractors, had a special contractual relationship with Uber and couldn’t prosecute their individual claims as a class. 
 
Drivers for a similar service, Lyft, are also suing and alleging class claims under California’s Labor Code. 
 

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California Labor Commissioner Opines on Sick Leave

This month, the California Labor Commissioner has offered an opinion letter to help California employers interpret the requirements of the new Healthy Workplaces, Healthy Families Act of 2014—otherwise known as the new sick leave law in California.  The opinion letter provides guidance to employers who have employees who do not work a traditional 8-hour per day schedule.  Humboldt County employers should recognize that the opinion letter is not legally binding, but it does indicate how the Division of Labor Standards Enforcement will interpret the new sick leave laws for non-traditional work s

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Put the “Self” Back into Self-Employed

Recent data available from the Census Bureau suggests that almost 11,000 Humboldt County residents identify as self-employed.  If you own and operate your own business, you’ve likely had occasion to consider California’s employment laws.  There is a great local resource for employers in Humboldt and Del Norte counties.  The Northcoast Employer’s Advisory Council meets regularly, typically in Eureka, to discuss the state of the law and help employers keep up to date on information.  You can visit the website here.       

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California's New Sick Leave Law Now in Effect

As of July 1, 2015, California’s new sick leave law is in effect.  At this time, Humboldt County employers need a written policy that specifically caps sick leave, or they will be subject to the required statutory accrual rate of one hour of sick pay for every 30 hours worked.
 
For more background on the sick leave law, see our earlier post http://janssenlaw.com/blog/remember-what-ails-you-0.
 

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Multi-Agency Enforcement Unit Issues Guidance

California’s Labor Employment Task Force ("LETF") has just provided written guidance to employers about obligations for employing workers and what to expect during an inspection.  The LETF is a multi-agency enforcement task force in California charged with enforcing labor laws, particularly for underground employment industries, like car washes, restaurants, manufacturing, roofing, construction, agricultural and auto repair businesses.

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Medical Marijuana Use and Employment

While California law allows individuals to possess and use medical marijuana as prescribed by their physicians, its use and possession is still illegal under federal law and under California law without a valid prescription.  For California medical marijuana users and their employers, this legal framework complicates questions concerning employees' rights to use prescribed medical marijuana and employers' rights to discipline employees for marijuana use.

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Not Too Social in the Workplace

California law actually prevents employers from requiring access to an employee's social media as a condition of employment.  California Labor Code section 980 very specifically limits an employer's access - except where (1) access is required for an employer-issued device, or (2) an employer reasonably believes the employee's social media to be relevant to an investigation of allegations of employee misconduct or violation of employment-related laws and regulations.

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Independent Contractors Get an Uber Lyft

In mid-March, two federal court judges in Northern California determined that juries will decide the question of whether the drivers for the ride services Uber and Lyft have been misclassified by those services as independent contractors. Employee plaintiffs in each case are alleging that they—and a class of similarly situated drivers—should be classified as employees. The two cases are Cotter v. Lyft, No. 13-4065 and O’Connor v. Uber, 13-3826 (U.S. District Court, Northern District of California).

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CA Requires Training to Prevent Abusive Conduct

California’s law that requires employers to provide annual sexual harassment training to all supervisors was amended to include prevention of abusive conduct. The new law defines abusive conduct as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.

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“Personnel File” - The Everchanging Landscape

If you’re a Humboldt County employer, you’ve likely been asked over the years by an employee to see the employee’s personnel file.  For many years, the Division of Labor Standards Enforcement helpfully offered some examples of what documents comprised such a file.  In January 2013, however, the California State Legislature added a wrinkle to the works.  Since that date, California Labor Code section 1198.5(a) suggests that personnel files now include “records that the employer maintains relating to the employee's performance or to any grievance concerning the employee

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Volunteers are Now Protected Under FEHA

New this year, volunteers and unpaid interns are now protected under the Fair Employment and Housing Act ("FEHA") against unlawful discrimination and harassment. Assembly Bill 1443, signed by Governor Jerry Brown in September 2014, added to the list of protected people those who work at companies and organizations without pay. Likely a result of the number of people taking unpaid work in a competitive job market where neither federal nor California state law protected unpaid workers, the 2015 amendments to FEHA close that loophole.

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Remember What Ails You

As Humboldt County employers conduct their annual employee handbook reviews, be sure to remember that California now requires all employers to provide three days (24 hours) of paid sick leave. Effective July 1, 2015, the new sick leave law applies to all employees—exempt and non-exempt—who work at least 30 days per calendar year in California. (Some exceptions apply for those providing in-home support services and those represented under certain collective bargaining agreements.) Additionally, all employers must inform employees about the new sick leave laws.

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Independent Contractor: Is It Worth the Risk?

Humboldt County employers should know that the Division of Labor Standards Enforcement (“DLSE”) has been cracking down on employers who misclassify employees as independent contractors. In California, the DSLE has various enforcement responsibilities, including the inspection of workplaces for wage and hour violations, the adjudication of wage claims and retaliation complaints, as well as enforcing wage rates.

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Update - Misclassification Class Actions

As promised, here is an update on the misclassification class action case we highlighted back on March 12, 2014. As you might recall, the case was Duran v. U.S. Bank (2012) 275 P. 3d 1266 in which loan officers sued U.S. Bank alleging they were misclassified as exempt employees and were entitled to overtime pay. Last Thursday, the Supreme Court issued its decision.

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New Farm Bill Raises New Questions in Wage Law

If you haven’t heard, President Obama recently signed into law the new Agricultural Act of 2014, otherwise known as the Farm Bill. While being generally well-received, the bill has a few wrinkles in response to recent controversies regarding wages paid to agricultural workers. Prior to the recent Farm Bill, the Labor Department, with authority from the “hot goods” provision of the Fair Labor Standards Act of 1938, had the power to block the transportation, shipment, delivery or sale of goods produced by workers not being paid minimum wage or required overtime.

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Arbitration Provisions in Employment Applications

California employers need to be careful when including mandatory and binding arbitration provisions and other similar provisions in their employment applications.

In a recent Ninth Circuit case – Schavarria v. Ralph’s Grocery Company (9th Cir. 2013) 733 F 3rd, the Court upheld the district court’s finding that Ralph’s arbitration clause in its employment application was procedurally unconscionable and substantively unconscionable.

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Overtime and Misclassification Class Actions

Here at Janssen Malloy LLP, we have handled overtime class actions on behalf of local workers, obtaining in excess of $1 million dollars for clients.  Currently, oral argument is being heard on a case that could have a tremendous impact on overtime and misclassification class actions that we are watching very closely.

The case is Duran v. U.S. Bank Nat. Assn., (2012) 275 P. 3d 1266 (granting cert.). One of the issues presented to the court is whether a statistical sample of class members may be used to prove class-wide liability in a wage and hour misclassification case.

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Executive Minimum Wage Order

Beginning January 1, 2015, a new minimum wage for workers paid under federal contracts and subcontracts takes effect. According to an Executive Order signed by President Obama on February 12, 2014, the new minimum wage for workers paid under federal contracts and subcontracts must be at least $10.10 per hour. The wage will adjust annually for inflation, as determined by the U.S. Secretary of Labor in accordance with the Consumer Price Index.

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New CA Law - Overtime for Personal Attendants

Along with resolutions, the new year often brings new laws into effect.  2014 is no exception, as multiple new California laws became effective on January 1.  California Assembly Bill 241, singed by Governor Brown in September 2013 and effective January 1, 2014, establishes the Domestic Worker Bill of Rights and affects personal caregivers and other personal attendants and their eligibility for overtime pay, adding sections 1450 – 1454 to the California Labor Code.  The new law provides that caregivers and personal attendants employed in private homes in California are entitled to one and a

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Whistleblowers: Not Just Whistling Dixie

Beginning in January 2014, California’s whistleblower laws expand, and Humboldt County employers should be aware of the changes. Where employees who did, in fact, report violations of laws to governmental agencies were protected by California’s whistleblower law, in 2014 the law is extended to cover those employees who whistleblow internally (i.e., up the chain of command).

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FEHA Extends to Military and Veterans

Humboldt County employers should know that the California Fair Employment and Housing Act (“FEHA”) now extends its protections from employment discrimination to those with “military and veteran” status.  Beginning January 1, 2014, such status is defined as "a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard."  Employers may still, however, inquire into military or veteran status, but only for awarding veteran preference where allowed by law.

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A Sobering Look at Employer Liability

Any Humboldt County employer knows that a holiday party is fraught with the possibility of bad behavior—particularly when alcohol is added to the mix. Employers may now be liable, however, when employees injure others after non-required events at which an employer serves alcohol—such as holiday parties. In 2009, a Southern California employer held a holiday party at which it served alcohol. One of the employer’s employees, with a blood alcohol level above the legal limit, drove home and arrived safely, but then decided to drive another co-worker home.

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Minimum Wage Violations - Maximum Penalities

Governor Jerry Brown has signed into law an increase in California’s minimum wage.  Effective July 1, 2014, California’s $8.00 per hour minimum wage will increase to $9.00 per hour.  A second increase to $10.00 per hour is effective January 1, 2016.  This increase represents the first increase in the state’s minimum wage in six years.

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Are You Covered?

While some employer provisions of the Affordable Care Act (“ACA”) have been delayed, October 1, 2013, was still the deadline for Humboldt County employers who are covered by the Fair Labor Standards Act (“FLSA”) to provide a notice of health care coverage options to their employees.  If you’re a Humboldt County employer who is covered by the FLSA (see below), you were required to provide all provide current employees with written notice regarding their new health insurance marketplace coverage options—to us, that’s Covered California

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California Clarifies "Pregnancy Regulations"

California‘s Fair Employment and Housing Commission (FEHC) has had changes to regulations concerning pregnancy leave definitions approved.  Beginning December 30, 2012, the new regulations law will amend the definitions of key terms or concepts used in the Fair Employment and Housing Act (FEHA) concerning pregnancy, childbirth or related medical conditions.  The purpose of the amendments was to provide clarity for employers and employees alike, so that clear terms under FEHA will decrease litigation.

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Protected Leave for Victims of Domestic Violence

It’s sad, but it happens.  Humboldt County employers encounter employees who are the victims of domestic violence.  What employers may not know is that those employees are entitled to certain protections.  California Labor Code sections 230 & 230.1 provide that employers may not discharge, discriminate or retaliate against victims of domestic violence or sexual assault if they must take time off to obtain or attempt to obtain judicial relief, such as a restraining order.  Unless it is not possible, the employee must give the employer reasonable notice before taking leave, and the employ

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Recordkeeping Critical in New DLSE Actions

Humboldt County employers have more incentive than ever to keep accurate wage records for their employees.  The California Labor Commissioner released a summary  (available here) of enforcement actions by its Division of Labor Standards Enforcement (“DLSE”), the agency that scrutinizes and enforces wage laws for California employers, for the last two years.  According to the Labor Commissioner, 2011 and 2012 resulted in more minimum and overtime wages found owing to Ca

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Agreements Not to Solicit Employees

Recently, a good friend of mine who used to practice law in Humboldt County, called me to tell me he was retiring from a business management position in Oregon. He wanted to discuss his severance package which included an agreement not to solicit his former employer’s employees.
All I could relate to my friend was the current state of the law in California. The question is whether an agreement not to solicit employees is subject to the same limitations provided in California Business and Professions Code §16600 dealing with non-compete agreements.

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The Late Lunch

Many employees would appreciate taking a late lunch for a variety of reasons: to pick kids up from school, to visit elderly friends or relatives before going home, or just to get any number of errands done before the close of the business day.  It may seem like late lunch requests increase in the summer season.  Many employers would like to accommodate such requests.  Despite recent case law clarifying that employers just have to make meal periods and rest breaks available to employees, the "late lunch" could still get California employers into (expensive) hot water.  Failing to record meal

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Wage Theft Protection Act of 2011

Under what is commonly called the Wage Theft Protection Act of 2011, beginning January 1, 2012, California employers must provide all non-exempt new hires with certain written information at the time of hire, including: (1) rate(s) of pay, (2) meal or lodging allowances claimed as part of the minimum wage, (3) the regular payday(s), (4) the name(s) of the employer, including any “doing business as” names, (5) the employer’s physical address or principal place of business, and a mailing address if different, (6) the employer’s telephone number(s), (7) the name, address and telephone number o

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DLSE Increased Enforcement Mechanisms for 2012

AB 469, signed by Governor Brown and effective January 1, 2012, adds some expensive teeth to the enforcement of the Labor Code by the Division of Labor Standards Enforcement (DLSE).  Among the many changes harkened by AB 469, the Labor Code has now been amended to make the willful violation of specified wage statutes or orders a misdemeanor.   Additionally, the law is amended to expand from one year to three years the time in which the DLSE may collect statutory penalties or fees.

 

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2012 Notice Requirements for New Hires

California employers have new notice requirements beginning January 1, 2012.   AB 469 goes into effect on January 1, 2012, and as a result, private employers in California must provide written notice to non-exempt new hires of the following: (1) rate(s) of pay, (2) meal or lodging allowances claimed as part of the minimum wage, (3) the regular payday(s), (4) the name(s) of the employer, including any “doing business as” names, (5) the employer’s physical address or principal place of business, and a mailing address if different, (6) the employer’s telephone number(s), (7) the name, address

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Pregnancy Discrimination

Discrimination based on pregnancy is illegal.  These days, a number of factors are making pregnancy discrimination and the rights associated with an employee’s pregnancy more relevant than ever.  Women are more likely to work while pregnant.  About 66 percent of first-time mothers between 2006 and 2008 worked during their pregnancy, compared with 44 percent in the early 1960s.  First-time mothers are working later into their pregnancies than before.

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DFEH Procedural and Practice Regulations

On October 7, 2011, the procedural and practice regulations for the Department of Fair Employment and Housing became effective in the California Code of Regulations.   The regulations can be found beginning at California Code of Regulations, Title 2, section 10000 through section 10066.  The regulations govern the Department's practices and procedures with respect to the filing, investigation and conclusion of complaints alleging violations of any law the Department enforces (employment discrimination, Unruh Civil Rights Act, Ralph Civil Rights Act, Disabled Persons Act and housing discrimi

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What is a "disabled" employee under FEHA?

California’s Fair Employment and Housing Act (“FEHA”) prohibits employment discrimination based on a disability, real or perceived.  In employment discrimination cases, it is the employee’s burden to demonstrate that he/she (1) suffered from a disability, (2) could perform the essential duties of the job with or without reasonable accommodation, and (3) suffered an adverse employment action (termination, demotion, etc.) because of the real or perceived disability.

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Medical Group Settles DFEH Claim

A recent Department of Fair Employment and Housing (DFEH) case highlights the potential costs of failing to engage in the interactive process with employees or making adverse employment decision against an employee based on an employee’s disability.  The settlement is a reminder that employees should be accommodated so long as they are capable of performing the essential functions of their jobs.

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Accommodating Nursing Mothers

Humboldt County employers should be aware that California law provides that every employer, including state and any political subdivisions, provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee's infant child, assuming that such breaks do not seriously disrupt the operations of the employer.  If possible, the breaks should run concurrently with any break periods already provided to the employee. Breaks that do not run concurrently with the employee’s authorized rest time need not be paid.

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What’s Required on a Wage Statement?

California Labor Code section 226 requires that California employers furnish employees with wage statements that contain specific information. Generally, wages statements must include:
(1) gross wages earned;
(2) total hours worked by the employee, except for any employee whose compensation is solely based on a salary and who is exempt from payment of overtime;
(3) the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis;

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Reasonable Accommodation: It Takes Two!

In Humboldt County, as throughout California, the law requires that all employers “engage in a timely,  good faith,  interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.”  (California Government Code section 12940, subdivision (n).)   An employer who fails to engage in the interactive process will be liable under the Fair Employment and Housing Act ("FEHA").

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US Dept of Labor Employment Law Guide update

The U.S. Department of Labor recently updated its Employment Law Guide, as useful starting point for answering basic employment questions for employers. The updated Guide can be found here.

Remember that many federal laws are not as broad as California employment laws, and employers in Humboldt County must comply with both federal and state laws.

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A Long and Expensive Race Harassment Case

On September 18, 2008, the U.S. Equal Employment Opportunity Commission (“EEOC”) filed a race harassment lawsuit against Big Lots, Inc. (EEOC v. Big Lots, Inc., CV-08-06355-GW(CTx).)  The EEOC alleged that Big Lots violated Title VII of the Civil Rights Act of 1964 when it subjected a black maintenance mechanic and other black employees to race harassment and discrimination at the Big Lots Rancho Cucamonga, Calif., distribution center.  According to allegations by the EEOC, an immediate supervisor and co-workers,  all Hispanic, made racially derogatory jokes, comments, slurs and epithets.

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Goldman Sachs--A Cautionary Tale for Employers

If you follow the news, you are familiar with Goldman Sachs’ current spotlight in the hot seat.   And you may know that the Securities and Exchange Commission used a Goldman Sachs’ employee’s e-mail to draft its historic complaint against the company for fraud, which also brought Congressional hearings in which Goldman Sachs’ executives have to testify, as well as intense media scrutiny.   Local employers should use this financial giant as a cautionary tale.

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Free Speech Lawsuit Filed in Northern California

A Northern California carpenter's union has filed a civil rights lawsuit against the city for allegedly violating their right to freedom of speech by citing a group of protesting carpenters and confiscating their protest banner under a city sign ordinance.  According to the lawsuit,  protesters had set up on a public curb in November in front of a Citation Homes Central sales office to protest unfair wages. Lawyers representing the union said that since the sign was political speech and not advertising, the citation is invalid and their rights to free speech were violated.

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New Employer Posting Requirements

As of November 21, 2009, employers must post a supplement next to the 2009 Employment Poster.  The new posting includes changes to the Equal Employment Opportunity Commission (“EEOC”) notice concerning the Genetic Information Nondiscrimination Act (“GINA”),  signed into law by President Bush on May 21, 2008.  The purpose of GINA is to prohibit any improper use of genetic information (for example, any genetic predisposition to developing a disease) in health insurance and employment.  Employers may not use an employee’s genetic information when making hiring, firing, job placement or

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What to do when a DLSE notice arrives

In California, the Division of Labor Standards Enforcement (“DLSE”) is the state agency responsible for adjudicating wage claims.   Sometimes, the first an employer learns that an employee or former employee has a wage dispute is when the employer receives a complaint from the DLSE.
All documents received from the DLSE should be carefully reviewed by Humboldt County employers for response deadlines, and for conference or hearing dates.

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WAGE LAWSUIT FILED AGAINST HOME DEPOT

This month a number of former Home Depot assistant managers filed a class-action lawsuit against Home Depot for failing to pay overtime wages at its Illinois stores. The lawsuit alleges that Home Depot wrongly classified the assistant managers as exempt employees in order to require them to work more hours. The lawsuit seeks compensation for unpaid wages in addition to punitive damages.

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Federal Minimum Wage Increase on July 24, 2009

While the federal Minimum Wage will increase to $7.25 on July 24, 2009, employers here in Humboldt County must still pay the higher California state minimum wage of $8.00 per hour.  Employers also must post both the federal minimum wage poster, entitled "Employee Rights Under the Fair Labor Standards Act,” and the California Minimum Wage Official Notice, called "California Minimum Wage

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