Posts Tagged 'Employment Law'

Los Angeles Mandates Minimum Wage Increase and Paid Sick Leave

Los Angeles Mandates Minimum Wage Increase and Paid Sick Leave

New Minimum Wage Ordinances in the City of Los Angeles have increased the minimum wage for employees who work for an employer within the City limits for a minimum of two hours during any particular week. The new ordinances also require employers to provide employees with paid sick leave.

Under the new ordinances, which first went into effect on July 1, 2016, the minimum wage rate will continue to rise over the next five years until reaching $15/hour for all employees working in the City of Los Angeles by the year 2021. The applicable minimum wage rates and annual increases depend on the number of people employed by a particular employer as detailed in the following Minimum Wage Chart:

Increase Date Employers with 25 or fewer Employees Employers with 26 or more Employees
7/1/2016 $10.00 $10.50
7/1/2017 $10.50 $12.00
7/1/2018 $12.00 $13.25
7/1/2019 $13.25 $14.25
7/1/2020 $14.25 $15.00
7/1/2021 $15.00 $15.00

 

In addition to the minimum wage increase, under the new ordinances, employees who work in the City of Los Angeles for the same employer for 30 days or more within a year, will now be entitled to 48 hours of paid sick each year based on the following guidelines:

  • Employees will be entitled to take up to 48 hours of sick leave in each year of employment, calendar year, or 12-month period.
  • Employers must provide sick leave either: 1) by providing the entire 48 hours to an employee at the beginning of each year of employment, calendar year, or 12-month period; or 2) by providing the employee one hour of sick leave per every 30 hours worked.
  • Paid sick leave shall accrue on the first day of employment or July 1, 2016, whichever is later.
  • An employee may use paid sick leave beginning on the 90th day of employment or July 1, 2016, whichever is later.
  • Accrued unused paid sick leave shall carry over to the following year of employment and may be capped at 72 hours. An employer may set a higher cap or no cap at all.
  • If an employer has a paid leave or paid time off policy or provides payment for compensated time off, that is equal to or no less than 48 hours, no additional time is required.
  • An employer shall provide paid sick leave upon the oral or written request of an employee for themselves, a family member or for any individual related by affinity whose close association with the employee is the equivalent of a family relationship. An employee may also be required to provide reasonable documentation of an absence from work for which paid sick leave is or will be used.
  • An employer is not required to provide compensation to an employee for accrued or unused sick days upon termination, resignation, retirement, or other separation from employment.
  • If an employee separates from an employer and is rehired by the employer within one year from the date of separation, previously accrued and unused paid sick time shall be reinstated.

Employer Requirements

Under the new minimum wage ordinances, employers are required to do the following:

  • Pay hourly minimum wage for hours worked by employees within the City of Los Angeles.
  • Post the Office of Wage Standards Wage Notices in a conspicuous place at any workplaces or job sites in multiple languages, including any language spoken by at least five percent (5%) of the employees at the workplace or job site.
  • Keep payroll records for a period of four (4) years.
  • Provide employees with the employer’s name, address, and telephone number in writing at the time of hire.
  • Employers are prohibited from retaliating against any employee exercising rights under the Minimum Wage and Wage Enforcement Division Ordinances.

Remedies

Employees who are denied the required minimum wage increases or paid sick leave are entitled to the following, among other, remedies:

  • Payment of wages unlawfully withheld;
  • Payment of Sick Time Benefits unlawfully withheld; and/or
  • An additional penalty of up to $120 to the Employee and up to $50 to the City for each day that either violation occurred or continued.
  • In cases of retaliation, the employee may be entitled to reinstatement, as well as triple the wages, sick time and penalties owed.
  • An employee may also file a lawsuit in civil court.

Additionally, employers who violate the provisions of these Minimum Wage Ordinances may be subject to administrative fines for each and every day that a violation occurs.

Resources:

Los Angeles Minimum Wage Ordinance

Los Angeles Office of Wage Standards Ordinance

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Changes to California Equal Pay Act

California recently passed Senate Bill No. 358, which amends Labor Code Section 1197.5 known as the California Equal Pay Act, to make it easier for an employee to successfully pursue a wage discrimination claim.

According to the California legislature, in 2014 the gender wage gap in California was at 16 cents on the dollar. That means a woman working full-time earned an average of 84 cents to every dollar a man earned. The wage gap extended across almost all occupations and was far worse for minority women. For example, Latina women in California made only 44 cents for every dollar a white male made, which was the biggest gap for Latina women in the U.S. Women working as full-time employees in California lose approximately $33,650,294,544 each year as a result of this wage disparity. The wage gap also contributes to higher statewide poverty rate among women, particularly among minority women and single women with children.

Although California law has prohibited gender-based wage discrimination since 1949, the California Equal Pay Act is rarely used to enforce wage disparity claims due to the difficult in establishing a successful claim. The amendment to the Equal Pay Act is designed to eliminate the gender wage gap in California by making it easier for an employee to establish a successful claim of gender-based wage discrimination.

Changes to the California Equal Pay Act

Under prior law, an employer was prohibited from paying an employee at wage rates less than the rates paid to employees of the opposite sex “in the same establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.”

To ease the requirements for maintaining a successful suit under the Equal Pay Act, the new law prohibits an employer from paying any of its employees at wage rates less than those paid to employees of the opposite sex for “substantially similar work,” when viewed as a composite of skill, effort, and responsibility. There is no longer a requirement that the jobs consist of equal work performed in the same establishment.

In addition, the new law now places the burden of proving an exception to the equal pay requirements squarely on the employer. To establish an exception, an employer must affirmatively demonstrate that a wage differential is based upon one or more specified factors. These factors include a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or a bona fide factor other than sex, such as education, training, or experience. An employer is also required to demonstrate that factors relied upon were applied reasonably and account for the entire wage differential. In other words, the employer must prove that any wage disparity is entirely unrelated to the employee’s gender.

Finally, the new law prohibits an employer from terminating, or in any manner discriminating or retaliating against, any employee for enforcing his or her rights to equal pay. To facilitate enforcement of the new law, an employer cannot prohibit an employee from disclosing the employee’s own wages, discussing the wages of others, inquiring about another employee’s wages, or aiding or encouraging any other employee to exercise his or her rights to equal pay.

An employee who was the victim of wage discrimination in violation of the equal pay laws is entitled to recover twice the wages he or she lost due to the employer’s discrimination, plus interest and attorney’s fees.

Resources:

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Federal Court Vacates Tom Brady’s Four-Game Suspension by NFL

In a decision and order published this morning, Federal Court Judge, Richard M. Berman, ruled in favor of Tom Brady and against the NFL, vacating Tom Brady’s four-game suspension imposed by the NFL in connection with his role in the alleged use of under-inflated footballs by the New England Patriots.

In reaching his decision, Judge Berman found that Tom Brady had inadequate notice of the possible discipline for the alleged offense, or that a four-game suspension could be imposed. Moreover, Judge Berman found that NFL Commissioner, Roger Goodell, improperly denied Tom Brady equal access to investigative files and the opportunity to examine certain witnesses.

Judge Berman noted:

“It is the ‘law of the shop’ to provide professional football players with (advance) notice of prohibited conduct and of potential discipline. Any disciplinary program requires that individuals subject to that program understand, with reasonable certainty, what results will occur if they breach established rules. Because there was no notice of a four-game suspension in the circumstances presented here, Commissioner Goodell may be said to have dispensed his own brand of industrial justice. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” (Decision and Order, pg. 25, internal citations and quotations omitted.)

Based on his review of the record and applicable legal authorities, Judge Berman overturned Tom Brady’s four-game suspension, effective immediately.

Complete Decision and Order by Judge Richard M. Berman

 

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Employment Law Updates

The Healthy Workplaces Healthy Families Act 2014

The Healthy Workplaces Healthy Families Act of 2014 went into effect on July 1, 2015. Under the new law, California employers are now required to provide paid sick days to certain employees.  Paid sick time accrues at a minimum rate of one hour of paid sick time for every 30 hours worked. Employees are entitled to use accrued sick days beginning on the 90th day of employment. Accrued paid sick days will carry over to the following year of employment.

No Retaliation for Accommodation Request

On July 16, 2015, California enacted Assembly Bill No. 987, making it unlawful for an employer to retaliate or otherwise discriminate against an employee for “requesting” accommodation for a physical or mental disability or religious belief or observance, regardless of whether the accommodation was granted. The new law clarifies that a request for reasonable accommodation based on religion or disability constitutes protected activity under Government Code Section 12940 of the Fair Employment and Housing Act. An employee may not be subject to relation for making such a request.

California Cheerleaders are Employees

On July 15, 2015, California passed a new law adding section 2754 to the California Labor Code. Under the new law, cheerleaders working for California professional sports teams must now be classified as employees, and are  protected by existing State and Federal employment laws, including minimum wage and overtime laws and anti-discrimination and harassment statutes.

 

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Supreme Court rules against Abercrombie

The United States Supreme Court rules against Abercrombie & Fitch in a case of religious discrimination. 

Abercrombie & Fitch Stores, Inc., operates several lines of clothing stores, each with its own “style.” Consistent with the image Abercrombie seeks to project for each store, the company imposes a Look Policy that governs its employees’ dress. Abercrombie’s Look Policy prohibits employees from wearing “caps” as too informal for Abercrombie’s desired image. Samantha Elauf is a practicing Muslim woman who wears a headscarf consistent with her religious obligations. Elauf applied for a position in an Abercrombie store, and was interviewed by the store’s assistant manager. Based on Abercrombie’s ordinary system for evaluating applicants, Elauf received a rating that qualified her to be hired. However, Abercrombie decided not to hire Elauf because her headscarf conflicted with Abercrombie’s employee dress policy.

The Equal Employment Opportunity Commission (EEOC) filed a lawsuit suit on Elauf’s behalf for religious discrimination in violation of Title VII of the Civil Rights Act of 1964.The Supreme Court ruled in favor of Elauf holding that the Civil Rights Act prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship.

The Court concluded that an employer may not make an applicant’s religious practice a fac­tor in employment decisions. To prevail on such a claim, an applicant must show only that his or her need for an accommodation was a motivating fac­tor in the employer’s decision. This applies regardless of whether the employer had knowledge of the prospective employee’s need for an accommodation. 

Elauf was awarded $20,000 in damages at trial. 

EEOC v. Abercrombie & Fitch Stores, Inc. (US 14–86 6/1/15)

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$300,000 punitive damages award to sexual harassment victim

Court upholds $300,000 punitive damages award to sexual harassment victim under Title VII.

Angela Aguilar was employed by Asarco, LLC at the Mission Mine complex near Tucson, Arizona from December 2005 through November 2006. The Mission Mine includes a copper mine from which copper ore is extracted and a mill facility in which the ore is crushed, filtered, and refined. Ms. Aguilar started as a mill laborer and became a car loader operator in March 2006. She then became a filter operator in the filter plant and later, a rod and ball mill person. Angela Aguilar claimed that during her time at Asarco, she was subjected to sexual harassment, retaliation, intentional infliction of emotional distress, and was ultimately forced to resign from her employment. She filed a lawsuit against Asarco, alleging harassment, constructive termination, and retaliation under Title VII of the Civil Rights Act of 1964 (Title VII).

After the conclusion of an eight-day trial, the jury found Asarco liable on Aguilar’s sexual harassment claims. Although Angela Aguilar was awarded only $1 in actual damages, she was awarded the maximum of $300,000 in punitive damages against Asarco. In addition, the Court awarded Angela Aguilar $350,902.75 in attorneys’ fees and costs. These awards were later determined to be appropriate by the Federal Court of Appeals.

In upholding theses amounts, the Court of Appeals concluded that an award of $300,000 in punitive damages — the maximum amount permitted under Title VII, 42 U.S.C. § 1981a — comports with due process even though the jury only awarded $1 in actual damages.  

Resources:

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Security guards entitled to compensation for on-call hours

Security guards entitled to compensation for on-call hours

CPS Security Solutions, Inc., employed on-call guards to provide security at construction worksites. Part of each guard’s day was spent on active patrol. Each evening, guards were required to be on call at the worksite and to respond to disturbances should the need arise.

While on-call, the guards were required to reside in onsite trailers provided by CPS.  An on-call guard who wanted to leave the worksite had to first notify a dispatcher where he or she would be and for how long. The on-call guard would only be permitted to leave if another employee was available for relief.  If no reliever was available, the on-call guard was required to remain onsite, even in the case of a personal emergency. Even if relieved, an on-call guard was required to stay close enough to the site to be able return within 30 minutes, and had to be available by pager or telephone.

The CPS security guards were paid hourly for time spent patrolling the worksite, however, they received no compensation for on-call time unless they were required to perform certain work duties during their on-call period, such as responding to an alarm or conducting an investigation.

The CPS security guards filed suit, alleging that CPS’s on-call compensation policy violated minimum wage and overtime obligations. 

The California Supreme Court concluded that the security guards’ on-call time constituted hours worked within the meaning of California’s labor laws and was subject to minimum wage and overtime requirements. The  Supreme Court ruled that security guards are entitled to compensation for on-call hours spent at their assigned worksites under their employer’s control, including sleep time. 

Mendiola v. CPS Security Solutions (SC S212704 En Banc 1/8/15)

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Supreme Court denies wage claims by Amazon.com warehouse workers

The United States Supreme Court denies wage claims by Amazon.com warehouse workers. 

In a unanimous decision, the United States Supreme Court held that warehouse workers who packaged deliveries for Amazon.com customers, were not entitled to compensation under the Fair Labor Standards Act of 1938 (FLSA) for time spent undergo­ing security screenings before leaving the warehouse each day. 

Integrity Staffing Solutions, Inc., required its hourly warehouse workers, who retrieved products from warehouse shelves and packaged them for delivery to Amazon.com customers, to undergo a security screening before leaving the warehouse each day. Several former employees sued Integrity Staffing Solutions, Inc. alleging they were entitled to compensation under the Fair Labor Standards Act for the time they spent each day waiting to undergo and undergoing those screenings. The former employees further alleged that the screenings were for the sole benefit of the employers and their customers, rather than the employees, as they were intended to prevent employee theft.

Applying the Portal-to-Portal Act, which exempts employers from liability for certain work-related activities, including preliminary or postliminary activities, “which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities” (29 U. S. C. §254(a)), the Court held the security screenings at issue in the case were not compensable postliminary activities, since they were not integral and indispensable to the employee’s job duties.

The Court explained that “an activity is integral and indispensable to the principal activities that an employee is employed to perform—and thus compensable under the FLSA—if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.”

Relative to the security screenings at issue in the case, the Court determined they were not the “principal activity or activities which [the] employee is employed to perform,” as “Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers.”  Indeed, “Integrity Staffing could have eliminated the screenings altogether without impairing the employees’ ability to complete their work.”

Since the Court concluded the employees’ time spent waiting to undergo and undergoing Integrity Staffing’s security screenings is not “an activity is integral and indispensable to the principal activities that an employee is employed to perform,” the Supreme Court denied the employees’ claims for compensation for such time under the Fair Labor Standards Act.

Resources

Integrity Staffing Solutions, Inc. v. Busk 574 U.S. ___ (2014)

Fair Labor Standards Act of 1938

Los Angeles Employment Lawyers

 

 

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The Healthy Workplaces Healthy Families Act 2014

The Healthy Workplaces Healthy Families Act 2014

California enacted The Healthy Workplaces Healthy Families Act of 2014 granting employees mandatory paid sick days.

Beginning on July 1, 2015, California employers will be required to provide paid sick days to certain California employees. Employees who work for 30 or more days within a year from the date of commencement of employment are entitled to receive paid sick days. The paid sick days accrue at a rate of no less than one hour for every 30 hours worked. Employees will be entitled to use accrued sick days beginning on the 90th day of employment. An employee’s accrued paid sick days will carry over to the following year of employment.

An employer may limit use of paid sick days to 24 hours or three days in each year of employment. However, employer’s are prohibited from discriminating or retaliating against an employee who requests paid sick days.

Purpose of the Law

The Healthy Workplaces Healthy Families Act of 2014 was enacted to provide protection to California employees. The law accomplishes this purpose by doing the following: 

  1. Ensuring that California workers can address their own health needs and the health needs of their families with paid sick days;
  2. Decreasing health care costs by enabling workers to seek early and routine medical care for themselves and their family members;
  3. Protecting California workers from losing their jobs while using sick days; and 
  4. Providing economic security to California employees who take time off from work for reasons related to domestic violence or sexual assault.
Sick days may be used for “diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member.” Family members who are covered by the law include children, parents, spouses, domestic partners, siblings, as well as grandchildren and grandparents. Sick days may also be used for an employee who is a victim of domestic violence, sexual assault, or stalking.
An employer may satisfy the requirements of the The Healthy Workplaces Healthy Families Act of 2014 if the employer has a paid leave policy or paid time off policy that satisfies the accrual, carry over, and use requirements of the Act.  

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FedEx Drivers are Employees Not Independent Contractors

FedEx Drivers are Employees Not Independent Contractors

In a class action lawsuit brought on behalf of approximately 2300 full-time FedEx delivery drivers in California between 2000 and 2007, the Ninth Circuit Court of Appeals ruled that by law the FedEx drivers were employees under California’s right-to-control test.  The Court held that labeling of the drivers as independent contractors in FedEx’s Operating Agreement did not make them so.

The Court explained that the most important factor in determining employee versus independent contractor status is the right-to-control test. The Court held that since FedEx had broad rights to control the manner in which its drivers perform their work under, the right-to-control test strongly favored employee over independent contractor status   On that basis, the Court held the drivers were employees as a matter of law.  

For the Full Court Opinion click here

Employee v. Independent Contractor

 

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