New Independent Contractor Test Could be Game Changer

The California Supreme Court recently published an opinion that describes a new independent contractor test that is broader than the current independent contractor test.  The “Borello” multi-factor test has been applied for decades, and this new test makes it harder for businesses to properly classify a worker as an independent contractor. This opinion will affect many businesses that hire independent contractors within the State of California. The main take away from this opinion, Dynamex Operations W. v. Super. Ct., Cal. is this: There is a new independent contractor test for purposes of the obligations imposed by a wage order. Here is a breakdown to help understand the preceding statement: What are wage orders? In California, employment laws are spelled out in different places, including statutes, case law, and wage orders. This case specifically addresses the obligations that are imposed on employers by the wage orders that apply to different industries. These wage orders address issues such as the payment of wages (minimum wage), regulating meal and rest breaks, and the number of hours worked (overtime pay), for example. Since these wage … Continue reading

In: Employment Law, New Laws, Uncategorized | Leave a comment

Tip Pools – Law Changes (Again)

Two years ago, the Ninth Circuit held that employers may not share tips from tip pools to back of the house staff who aren’t in the “chain of service.”  Last month, this rule was revised by federal law.  This means that California employers in the restaurant, hotel, and other service industries where tips are common place, may now distribute tips to those who were previously excluded, such as cooks and dishwashers.  This is a welcome change that many of my clients who own restaurants and hotels believe is the fairer rule. Below is a recap on what this means for California employers: Tip pooling policies may now provide that back of the house employees can share in  tip pools. This means that tip pooling policies may now require tip pools to be distributed not only to bussers but also to cooks and dishwashers, for example.  This practice was prohibited in the last 2 years. Certain employees are still prohibited from being paid from tip pools. Owners, managers, or supervisors of the business may not share in tip pools.  Employers should … Continue reading

In: Employment Law, New Laws, Uncategorized | Leave a comment

End of Year Checklist

We are fast-approaching the end of the year, which is when most businesses evaluate the successes and challenges of the past year and make plans for improvements in the coming year.  Just like Santa goes over his list at this time of year, here is a checklist to help your business close out the year and prepare for 2018. Employee Pay Pay Audit – If your company has not performed a pay audit, this is the perfect time to do it since determining whether each employee should receive a raise and how much will require you to review each employee’s pay.  Extend that review to an analysis of whether a pay discrepancy exists between employees in the same or similar positions.  This will help mitigate your company’s risk of Equal Pay violation claims in the future.  If you discover pay discrepancies, this is the time to address those discrepancies and provide raises and bonuses where appropriate. Bonus – As you determine employee bonuses, make sure to review your written policies related to bonuses to ensure that you are meeting the … Continue reading

In: California Leave Law, Employment Law, New Laws | Leave a comment

New Law 2018 – Parental Leave Requirement Expanded to Smaller Employers

If your business employees 20 to 49 employees, you must prepare for a significant change that many small businesses deem a significant burden – job-protected parental leave.  On October 12, 2017, Governor Brown approved SB 63, which expands the leave requirements of the California Family Rights Act (CFRA) to employers who employ at least 20 employees within a 75 miles (down from the threshold of 50 employees).  If your company does not have a parental leave policy, or has one that does not meet the requirements of the new law, the next couple of months is the perfect time to create one, updated your employee handbook, and establish a contingency plan on how you will cover for employees who may take anywhere between 3 to 7 months of leave. Here is a short outline of the new Government Code Section 12945.6’s requirements: Employers with at least 20 employees within 75 miles of the worksite must now do the following: 1. Provide up to 12 weeks of parental leave to an employee who has worked for the employer for more than 12 … Continue reading

In: California Leave Law, Employment Law, New Laws | Leave a comment

New Law 2018 –Immigration Enforcement

Immigration was a hot topic this year and starting January 1, 2018, employers will see increased obligations as they relate to employees’ immigration status.  Earlier this month, Governor Brown signed AB 450 into law. Beginning January 1, 2018, employers will have the following obligations as they relate to immigration enforcement agents and the workplace: 1. No access without a warrant: Employers, and others acting on their behalf, may not voluntarily consent to immigration enforcement agents entering nonpublic areas of a place of labor without a warrant. For example, if you own a restaurant, immigration enforcement agents are free to enter the dining room but may not enter the kitchen or back office without a warrant permitting them to do so. Penalties for violating this requirement are $2,000 to $5,000 for the first violating incident and $5,000 to $10,000 for each subsequent violation. 2. No inspection of records without warrant or subpoena: Employers, and others acting on their behalf, may not voluntarily provide immigration enforcement agents the ability to access, review, or obtain the employer’s employee records without a subpoena or … Continue reading

In: Employer Postings, Employment Law, New Laws, Uncategorized | Leave a comment

New Law 2018 – Pay Privacy

“What did you make at your last job?” will be an illegal question when asked of a job candidate in 2018.  California’s Governor Jerry Brown signed AB-168, the salary privacy bill, into law on October 12, 2017.  The law goes into effect on January 1, 2018, and applies to all California employers regardless of size and whether they are in the private or public sector. There are three main parts to the new Section 432.3 of the California Labor Code: An employer shall not rely on an applicant’s salary history as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant. An employer shall not, in any way, either directly or indirectly through third parties, seek an applicant’s salary history information (compensation and benefits). An employer, upon reasonable request, shall provide the pay scale for a position to an applicant applying for employment. However, employment applicants may voluntarily disclose their prior salary history (without prompting), in which case, the employer may use the voluntarily provided salary history in determining that applicant’s salary.  … Continue reading

In: Employment Law, New Laws | Leave a comment

California Minimum Wage Increase 2017

The new year brings many things and one of those is a new minimum wage. Effective January 1, 2017, new minimum wage requirements go into effect at the local and state level. The minimum wage is the lowest rate per hour that an employer may pay a non-exempt employee.   However, since the salary test for exempt employees requires that they make at least twice the minimum wage for full-time employment, changes in the minimum wage will affect the minimum salary that you pay your exempt employees as well. Determining what you need to pay workers depends on: How many employees you have; and Where they work. If there is a conflict between the state, county, and/or local minimum wage rate, follow the stricter standard (i.e. the one that is most beneficial to employees). Below is a non-exhaustive chart of the effective minimum wage rates effective as of the date of this post. Location Employers with 26 or More Employees Employers with 25 or Less Employees State of California $10.50 $10.00 City of Los Angeles $10.50 (until July 1, 2017) $10.00 … Continue reading

In: Employment Law, New Laws | Leave a comment

Support Animal as a Reasonable Accommodation

New regulations related to the Fair Employment and Housing Act (FEHA) went into effect on April 1, 2016. Among the various additions, which touch on a broad range of discrimination issues in employment, is a discussion about support animals as a reasonable accommodation in the workplace. As a servant to my 3 dogs and lawyer who has worked on dog bite cases, this was of particular interest to me. The new regulations specifically discuss assistive and support animals in the area of disability accommodation and provides that an assistive animal, including support animals, may constitute a reasonable accommodation in certain circumstances. What is an “Assistive Animal”? According to the new regulations, an “assistive animal” is defined as an animal that is necessary as a reasonable accommodation. These include: guide dogs for the visually impaired, signal dogs for the hearing impaired, and trained service dogs that meet the requirements of the Civil Code related to training and licensing. Additionally, a “support dog” or other animal that provides emotional, cognitive, or other similar support to a person with a disability, including, but … Continue reading

In: Employment Law, New Laws, Uncategorized | Leave a comment

New Overtime Rules Under FLSA Approved – What You Need to Know

The Department of Labor recently approved changes to the overtime rules under the Fair Labor Standards Act (FLSA) that will have a significant impact on California employers and workers. According to the Department of Labor, the new rules will affect over 300,000 California workers who will either be entitled to overtime pay or receive raises to maintain their exempt employee status. Here are some answers to commonly asked questions about the new rules. Who is affected by the new rules? Employees who are exempt from minimum wage and overtime pay protections under the executive, administrative, and professional (EAP) exemption and the highly-compensated employee (HCE) exemption of the FLSA. (Learn about exempt vs non-exempt employees.) The FLSA covers a majority of workers. Details on who is covered by the FLSA are available from the Department of Labor. What are the changes made by the final rule? In addition to meeting the duties test, in order to meet the EAP exemption requirement, the employee must receive a salary of at least $913 per week or $47,476 annually. HCEs must receive $134,004 annually … Continue reading

In: Employment Law, New Laws, Uncategorized | Leave a comment

New Proposed Overtime Rules – Potential Effects on California Employers

There has been much discussion about the Department of Labor (DOL)’s proposed changes to federal overtime rules under the Fair Labor Standards Act (FLSA). California employers may have mostly ignored the federal overtime rules because California’s rules are more protective of employees and have a higher threshold for overtime exemptions. However, if these rules go into effect, California employers will have to make some adjustments. Failure to properly classify employees as exempt vs non-exempt and follow overtime rules could be costly for employers. What Are the Proposed Changes to Federal Overtime Rules? Under FLSA regulations, an employee is exempt from the right to overtime pay if s/he meets the following 3 requirements: Paid on a salary basis regardless of the number of hours worked; Receives a salary of at lease $455/week or $23,660/year; and Satisfies the duties tests for exempt employees (executive, administration, professional, computer, and outside sales regulations). The DOL proposed increasing the salary threshold from $455 per week to $970 per week ($50,440) annually. The salary threshold for the highly-compensated employee exemption would increase from $100,000 to $122,148 per … Continue reading

In: Employment Law, New Laws | Leave a comment
Page 1 of 3123