What You Need To Know When Hiring a Domestic Worker – AB 241

In the past couple of weeks, I’ve had many conversations with members of the “sandwich generation” and baby boomers about the challenges they face as their parents age. The heartbreak of watching parents age and lose their independence coupled with raising their own children is stressful enough. Yet, many are now finding themselves as employers for the first time (or first time in a long time) and must navigate the complicated terrain of employment regulations. If you are personally hiring your first live-in caregiver, here are a few basics you should know. You must pay at least minimum wage  As of January 1, 2016, the minimum wage in California is $10.00 per hour. Caveat: San Francisco’s minimum wage is currently $12.25 per hour and goes up to $13.00 per hour in July 1, 2016. Domestic Workers Entitled to Overtime Pay AB 241, also known as the Domestic Worker Bill of Rights defines a domestic worker as any person who provides services related toe the care of people in the home, or maintain private households or their premises. Domestic workers includes nannies, … Continue reading

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New Year Plan for 2016: Checklist for California Businesses

I love this time of year because in addition to the holiday parties and good cheer, it’s a time of reflection, taking stock of what we did well, where we could improve, and creating a plan for next year’s targets. You are probably doing the same thing for your business. Here is a checklist for business’s New Year Plan to help your California business prepare for 2016. Hiring Employment Applications – Check for compliance with California’s laws related to questions about arrest and criminal records. San Francisco is one of the 100 cities and counties that has implemented a “ban the box” law prohibiting those questions entirely. Interview and Hiring Protocols – Review your interview questions and hiring protocols to ensure that your hiring decisions won’t give rise to discrimination claims. Systemic discrimination is a hot enforcement area. Salaries – assess your starting (and incumbent) salaries to make sure that you can justify any pay discrepancies between people who perform similar duties. California’s new, tougher equal pay law goes into effect on January 1, 2016. Policies and Procedures Employee Handbook Review – make … Continue reading

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Holiday Party Checklist for Employers

When you host a holiday party, how do you walk the tightrope of wanting your employees to have a great time without getting sued for sexual harassment, wage and hour claims, or workers’ compensation liability? Each company has its own work culture, which generally defines their party culture as well. I’ve attended holiday lunches sans alcohol as well as those where alcohol was free flowing. Although the presence of alcohol tends to make the event more festive and the conversation free-flowing, it’s usually at those parties that I’ve looked over and asked myself “did I really just see that?” Here are 10 Things to help your company host a holiday party without getting sued. 1. Skip the Mistletoe   This one is self-explanatory. 2. Address employer-sponsored social functions in your handbook Your harassment policy should specifically address company-sponsored social events. In particular, consider providing specific examples of unacceptable behavior at these functions. If you do gift exchanges, remind employees that risqué or adult-themed gifts should not be exchanged with co-workers. 3. Host the holiday party at a restaurant or other off-site location … Continue reading

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Hiring an Employee – “Have You Ever Been Convicted?”

I received a lot of questions from employers who have read my post on job application questions related to arrests and criminal records. The main concerns that businesses have are related to managing risks in hiring an employee and the desire to ensure that they do not engage in negligent hiring. Most wanted to know whether they could ask about criminal convictions. The answer is yes, but . . . Inquiries into criminal convictions must: Come after you’ve determined that the applicant meets the qualifications for the job; Not be related to marijuana convictions two years or older; Be accompanied by a statement that a conviction will not automatically prohibit employment (unless it is for a position that where federal or state law prohibits one with a criminal conviction from holding); Be job related and consistent with business necessity.  There are 3 factors to consider when making the determination: The nature and gravity of the offense or conduct Careful consideration of the nature and gravity of the offense or conduct is the first step in determining whether a specific crime may be relevant to concerns about risks … Continue reading

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Job Application Questions – Arrest and Criminal Records

I’ve received a number of calls from colleagues who are California criminal defense attorneys whose clients have run into employment problems because of their criminal arrest records. As an employer do you know what job application questions you can and can’t ask when it comes to arrests and criminal records? California Labor Code section 432.7 makes it illegal for any employer to request job applications to disclose, or considering as a factor in determining any condition of employment, information concerning: An arrest or detention that did not result in a conviction; Referral to, or participation in, a pretrial or posttrial diversion program; Conviction that has been expunged, sealed or dismissed; Marijuana possession convictions two or more years old; or Misdemeanor convictions for which probation was completed or otherwise discharged and the case has been dismissed. Employers may ask an employee or applicant for information about arrests for which the employee or applicant is out on bail or on his own recognizance pending trial. There are additional exceptions for a health facility employer to ask applicants who will work with patients … Continue reading

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Paying Tips & Tip Pooling in California

Clients in the restaurant and food services industry often ask me about California laws on paying tips. Here are the basics on paying tips in California. General Rules on Paying Tips in California Definition of gratuity – “Gratuity” is defined by the California Labor Code as a tip, gratuity, or money that has been paid or given to or left for an employee by a patron of a business over and above the actual amount due for services rendered or for goods, food, drink, articles sold or served to patrons. It also includes any amount paid directly by a patron to a dancer covered by IWC Wage Order 5 or 10. Rule #1 – Gratuities are the sole property of the employee or employees to whom they are given. Rule #2 – According to California Labor Code Section 351, employers may not share in or keep any portion of a tip or gratuity that a patron left for or gave to one or more employees. Rule #3 – It is illegal for employers to deduct the employee’s wages from the tips, … 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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10 Business Events that Should Trigger a Call to Your Lawyer

As an owner of a small business, I understand the external demands faced by small and medium-sized business owners.  Sometimes we think we can do it all . . . until we realize that we can’t.  At some point, a business owner wonders “when should I contact a lawyer?”  Unfortunately, many businesses wait until a problem that would have cost a few hundred dollars to fix turns into a $10,000 problem before finding a lawyer. Here is a list of when to call a lawyer for a quick consultation. As Desiderius Erasmus said, “prevention is better than cure.”  This is not an exhaustive list and the prevention is not absolute ,but at the very least, it will minimize your potential risks.  1.  Before hiring your first employee The Prevention: Violations of federal and California anti-discrimination laws; Misclassification of exempt and non-exempt employees; Violations of the Fair Credit Reporting Act and California laws on backgrounds checks and consumer reports; and Violations of federal and California employment laws on overtime pay, meal and rest breaks, and pay stub violations. 2.  Before firing an employee … Continue reading

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Post-Labor Day: Employment Law Blog Carnival

For many of us, Labor Day marks the end of summer – the last hurrah as the kids go back to school – the last day you could wear white (who came up with that rule anyway?). But since this is an Employment Law Blog Carnival, I thought we’d learn a little about the history of Labor Day as we get our monthly employment law update. What is Labor Day? Labor Day, the first Monday in September, was created by the labor movement and is dedicated to the social and economic achievements of American workers. Speaking of the labor movement, Janette Levey Frisch at The EmpLAWyerologist Firm did a great job of breaking down the NLRB’s recent ruling in the post “What Did the NLRB Say in its Ruling on Joint Employment–and Why?”  Donna Ballman at Screw You Guys, I’m Going Home outlines the steps to starting a union in the post “Is It Time to Start a Union at Your Workplace?” The growth of labor organizations brought about increased protections for workers. Jana Grimm’s post at Employment Essentials on “Workplace … 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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