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

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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

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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

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Tip Pooling Distribution Restrictions Upheld by Ninth Circuit

Tip pooling is a common practice in the restaurant industry but the legal back and forth of how much and to whom the pooled tips could be distributed has lead to much confusion within the food services industry. Restaurants May Not Require Wait Staff to Share Pooled Tips With Back of House Staff Last month, in the case of Oregon Restaurant and Lodging Association et al. v. Perez et al., the Ninth Circuit upheld the Department of Labor’s rule barring employers from collecting tips given to waiters or other service employees and distributing to back of house staff not in the chain of service (i.e. cooks and dishwashers). Since California is within the Ninth Circuit’s jurisdiction, the Court’s decision in this case will lead to increased litigation against restaurants for unpaid wages.  Highly successful restaurants have closed their doors as a result of these wage and hour claims. PRACTICAL TIP: Enterprises with tip pooling practices should have a written tip pooling policy that specifically outlines how tips are pooled and shared. Such written policies should clearly state that pooled tips will not be … Continue reading

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California Aggressively Fights Wage Theft

Senate Bill (S.B.) 588 that went into effect on January 1, 2016, seeks to ensure recovery of unpaid wages by victims of wage theft. What is Wage Theft? Wage theft is defined as failing to pay workers for all of their work, regardless of whether it is intentional or merely an honest mistake. This includes paying below minimum wage, failing to pay overtime, violating meal and rest break requirements, and failing to pay for off-the-clock work. New Penalties for Wage Theft If an employee brings a successful wage claim against your company, the Labor Commissioner can now place a lien on the company’s property or levy on the business’ bank accounts and/or accounts receivable, including a lien or levy to recover the employee’s attorneys’ fees. SB 588 prevents a company from closing down its business and re-opening under a new name in order to avoid their debts to workers. Owners and anyone else acting “on behalf of” the employer are now individually liable for wage and hour violations. This means that the Labor Commissioner can now seize the personal property and bank accounts … Continue reading

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New California Law on Equal Pay

The new California law on equal pay between the sexes (SB 358) goes into effect January 1, 2016, and is considered the most aggressive equal pay law in the nation. The new law will create a much stricter standard for gender pay equity. California employers will want to begin preparing immediately for its impact. The Law Requires Equal Pay for Equal Work The new law will amend California’s Equal Pay Act to prohibit an employer from paying employees of one sex lower than employees of the opposite sex for “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” Limited Exceptions Available to Employers  If a wage differential exists, employers will escape liability only if they can show that the wage differential is based on: a seniority system; a merit system; a system that measures earnings by quality or quantity of production; or some other bona fide factor other than sex such as education, training, or experience. Should an employer attempt to justify a pay differential under this law as a bona fide … Continue reading

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California Paid Sick Leave Law Clarified

The new California paid sick leave law went into effect on July 1, 2015. The law was so confusing that it was clarified with a new bill soon after. Is your policy in compliance? Here are the basics: Who gets leave: Employees who work for an employer for more than 30 days within a year is entitled to paid sick days. Accrual: At least 1 hour for every 30 hours worked. Accrual may be at a different rate if it is accrued regularly and the employee accrues 24 hours or 3 days of leave by the 120th day of work. Employers may cap accrual at 48 hours or 6 days per year. Carry-over: Accrued but unused sick days must carry over into the next year, unless you give the employees 3 days of paid sick leave at the beginning of each year. Use: Employee may start using accrued paid sick days beginning on the 90th day of employment. Employers may limit use to 24 hours or 3 days in each year of employment, calendar year, or 12 month period. Written notice: Employers … Continue reading

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New Law – Request for Disability and Religious Accommodation a Protected Activity

Yesterday (July 16, 2015) Governor Brown signed AB 987 into law, making it an unlawful employment practice for an employer or other covered entity to retaliate or otherwise discriminate against a person for “requesting” an accommodation for physical or mental disability or religious belief or observance, regardless of whether the request was granted. Doing so would constitute disability discrimination and/or religious discrimination. This bill was introduced in response to the Court of Appeal’s decision in Rope v. Auto-Clor System of Washington, Inc. (2013) 220 Cal.App.4th 635, where the court found no authority that a request for accommodation, without more, supports a FEHA retaliation claim).  The new law now provides that legal authority. New Law Makes REQUESTING Disability and Religious Accommodations a Protected Activity   Existing law requires an employer to provide reasonable accommodation of, among other things, a person’s disability and religious beliefs and prohibits discrimination against any person because the person has opposed any practices forbidden under the act or because the person has filed a complaint. This new law takes it a step further and prohibits an employer from retaliating or … Continue reading

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Commission Agreement Law in California

Governor Brown signed AB 1396, which requires that as of January 1, 2013, a commission agreement for services to be provided in California must be in writing. The writing must set forth the method by which the commissions are to be computed and paid.  An employer is required to give a signed copy of the contract to the employee and obtain a signed receipt for the contract from the employee. TIP:  Although the AB 1396 does not go into effect until 2013, it is a good practice for employers to enter into a commission-based agreement in writing to ensure that each party clearly understands how commissions will be computed and paid. If you have any questions regarding this or any of the new California laws that were recently passed, feel free to contact us or call 949.529.0007.

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New California Law: Continued Health Benefits While on Maternity Leave

We continue on our review of the new California laws that go into effect on January 1, 2011.  The bill of the day is SB 299. As of January 1, 2012, employers will be required to continue group health coverage for up to 4 months for female employees who take pregnancy disability leave (maternity leave).  Currently, employers are only required to provide group coverage for up to 12 weeks while employees are on pregnancy leave. The federal Family and Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”) require employers to allow female employees to take up to 4 months of unpaid maternity leave for a “pregnancy-related condition.”  The pregnancy disability leave is in addition to the 12 weeks of “maternity leave” which is allowed for parental bonding. With the new law, employers must continue the healthcare benefits of an employee on leave for pregnancy disability for up to 4 months on the same terms and conditions as before the pregnancy leave.  For example, if the arrangement was for a 50/50 split on the premium, that arrangement must continue … Continue reading

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