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November 22, 2016, San Diego, California – On April 4, 2016, Governor Brown signed Senate Bill (“SB”) 3 into law. SB 3 incrementally raises California’s minimum wage each year between 2017 and 2022 and also changes what constitutes an “exempt” employee from overtime pay requirements. (Had a bill not been passed, California citizens would have had an opportunity to decide on raising the minimum wage. The California $15 per hour Minimum Wage Initiative, was certified for the November ballot but then was withdrawn after SB 3 was passed and signed into law.) Absent certain economic conditions, the minimum wage will increase from $10 to $15 an hour by 2022, as follows:

1 On January 1, 2017, the minimum wage will increase to $10.50 per hour.

2 On January 1, 2018, the minimum wage will increase to $11 per hour.

3 On January 1, 2019, the minimum wage will increase to $12 per hour.

4 On January 1, 2020, the minimum wage will increase to $13 per hour.

5 On January 1, 2021, the minimum wage will increase to $14 per hour.

6 On January 1, 2022, the minimum wage will increase to $15 per hour.

There is a delay for small businesses to implement the minimum wage schedule.. Specifically, the above schedule is delayed at each step by one year for employers with 25 or fewer employees. Public employers will also be less impacted by these changes than private sector employers will be. However, K-12 school districts must comply with state minimum wage law. This is because a Court of Appeal decision from 2010, (Sheppard v. North Orange County Regional Occupational Program), considered whether the Industrial Welfare Commission (IWC) could impose a minimum wage on the public sector and held that it could for a K-12 school district.

Some California municipalities have already increased the minimum wage in their cities this year:

• El Cerrito: $11.60/hour

• Emeryville: $13/hour for businesses with 55 or fewer employees; $14.82/hour for businesses with 56 or more employees

• Los Angeles (city): $10.50/hour for employers with 26 or more employees; $15.37/hour for hotel workers

• Los Angeles County: $10.50/hour for employers with 26 or more employees

• Pasadena: $10.50/hour for employers with 26 or more employees

• San Diego: $10.50/hour

• San Francisco: $13/hour

• Santa Monica: $10.50/hour for employers with 26 or more employees;$13.25/hour for hotel workers

• Sunnyvale: $11/hour

In addition to the new minimum wage laws, employees need to be aware of a new Department of Labor (DOL) rule regarding overtime compensation (and how that law differs from California’s overtime and exempt status laws). The biggest change relates to the “white collar” exemptions for overtime pay. The DOL’s new rule increased the “white collar” exemption to at least $913 per week, or $47,476 annually. California has its own “white collar” exemption, which is calculated at 40 hours per week, times twice the state’s minimum wage (currently $800 per week and rising to $1,200 per week by 2022). This means that California employees will have to pay careful attention to how the thresholds change over time to ensure that they are being properly classified by their employers. (In the public sector, overtime exemptions will not be affected by the state minimum wage increases.)

California employers must also be aware that the “primary duty” test still applies to the determination of an employee’s exemption status. California’s standard is different than the federal standard. The state standard requires employees to be “primarily engaged” in exempt duties to qualify as exempt. This means that more than 50% of an employee’s time must be spent engaging in the activities that earn the exemption. So even if a California employer pays someone enough under the federal and state standard, it may still not qualify employees as exempt under California law.

The new DOL rule also raises the salary threshold for highly compensated workers (subject to a different duties test) from $100,000 to $134,004. This is equal to the earnings of the 90th percentile of full-time, salaried workers nationally. However, California does not have the same or a similar exemption, and therefore employees who may be exempt under the new federal law may not be exempt under California law.

When it becomes effective on January 1, 2017, SB 3 applies the new minimum wage broadly to the public sector, defining covered employers to include “the state, political subdivisions of the state, and municipalities.” Charter cities and counties might have arguments on their side that they should not have to abide by the minimum wage. Because of the changing legal landscape, employees should seek counsel to assist them in determining which minimum wage laws apply to them.

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Independent contractors are not entitled to minimum wage under California law and the federal Fair Labor Standards Act. They can work full time hours for below minimum wage.

CURRENT MINIMUM WAGE

Federal and state laws set minimum wage. Minimum wage is the minimum amount employers must pay employees for each hour worked. The purpose of minimum wage is to keep employers from paying unbearably low wages and provide employees with sufficient compensation so that they can meet their basic needs, such as food, clothing, and shelter.

      • California: California’s minimum wage is $9.00 an hour, and on January 1, 2016, it will increase to $10.00 an hour.
      • San Francisco: People who live and work in San Francisco are entitled to a higher minimum wage of $10.24 an hour.
      • Federal: Minimum wage under federal law is just $7.25 per hour. Because California’s minimum wage is higher, California employers must comply with it.

SOME DIFFERENCES BETWEEN INDEPENDENT CONTRACTORS AND EMPLOYEES

Unlike employees who may be tied to job obligations for one company, independent contractors may work for multiple companies over a span of time. They may be hired for specialized work, work that is not normally performed by the employer, or work that isn’t classified as long term. Independent contractors are sometimes thought of as freelancers or consultants.

Contrary to employees, independent contractors are paid as if they are operating their own business. Independent contractors are responsible for paying both the employer and employee’s share of taxes. They are often not provided with employer benefits. They are not guaranteed minimum wages or overtime wages, or protected by workers’ compensation. Further, independent contractors are not afforded the numerous other protections provided to employees under California law, such as meal breaks and rest breaks.

ADVANTAGES AND DISAVANTAGES WHEN WORKING AS AN INDEPENDENT CONTRACTOR

Being an independent contractor has several advantages, including:

      • You call the shots.
      • You can control the amount you’re paid in most situations.
      • No federal or state tax is withheld from your pay.
      • You can take increased business deductions.

But there is a fair share of disadvantages as well:

      • You must pay self-employment taxes.
      • You may be personally liable for business debts.
      • You have no employer-provided benefits.
      • You have no employer-provided workers’ compensation.
      • You have few labor law protections.

HOW DO OTHER JOBS STACK UP?

Independent contractors are not the only job positions that do not have to be paid at least minimum wage. Other positions include:

White-collar workers: Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondary schools), outside sales employees, and certain skilled computer professional employees are exempt from minimum wage.

Farm workers: If you are related to the farm owner, work on a small farm based on total acreage, paid piece rate, or work with livestock, you may not qualify for minimum wage. Be sure to consult with a wage attorney if you have questions or concerns.

Seasonal amusement park and recreational workers: If you work for an employer or a place that operates seasonally, like a water park or a summer camp, you may be exempt from minimum wage.

Casual babysitters: People who do not babysit for an agreed-upon and documented set of hours during designated time period are not entitled to minimum wage.

Workers who receive tips: Although the Fair Labor Standards Act let employers pay tipped employees a lower minimum wage, California law does not. In California, tipped employees are entitled to the full wage for all hours worked.

Student workers: Full-time students who work in retail, agriculture, or colleges might not be entitled to the minimum wage if their employer has a special certificate from the federal Department of Labor.

STAY INFORMED

Although there are many laws in place to protect both wage earners and career employees alike, it never hurts to be informed. This is only a brief discussion on independent contractors and minimum wage laws and issues. Should you have questions, please don’t hesitate to contact me.

Blog 14 - pic 1California employers can require employees to work overtime. They can even demote, discipline or terminate employees who refuse to work overtime.  Despite being allowed to force employees to work overtime, employers nonetheless must: (1) properly pay employees at the appropriate overtime pay rates; and (2) comply with the state’s mandatory days-of-rest law.                                                                          

EMPLOYEES THAT WORK OVERTIME MUST BE PAID AT THE PROPER OVERTIME RATE

California law requires employers to pay their employees overtime if they work more than eight hours in a workday or 40 hours in a workweek. Eight hours of labor is considered a full day’s work.  So employment beyond eight hours in a workday or more than six days in a workweek is permissible so long as employees are paid as follows:

      • One and one-half times the employee’s regular pay rate for all hours worked over eight hours and up to and including 12 hours in any workday;
      • Double the employee’s regular pay rate for all hours worked over 12 hours in any workday;
      • One and one-half times the employee’s regular pay rate for the first eight hours worked on the seventh consecutive workday in a workweek; and
      • Double the employee’s regular pay rate for all hours worked over eight hours on the seventh consecutive workday in a workweek.

EMPLOYEES MUST BE GIVEN AT LEAST FOUR DAYS OF REST EVERY MONTH

California Labor Code Sections 551 and 552 state that every employee is entitled to one day’s rest out of seven days worked. But courts have interpret these sections to mean that “on average” employees must be given four days off per month. So long as employers give their employees this time off, there is no restriction on the number of overtime hours they can make their employees work.

In short, if your employer wants you to work overtime, you generally have to do it. But keep in mind, this is only a brief discussion on overtime laws and issues. If you think you are being forced to work overtime in violation of the law, consult an attorney. Should you have questions, please don’t hesitate to contact me.

Blog 13 - pic 1Employers often will review   or eavesdrop on employee communications, especially if they suspect their employees are engaging in wrongdoing. Employees generally have minimal privacy rights in communications that take place at work or on work-issued computers and cellphones.

Below are five ways employers can legally (and illegally) spy on their employees.

TYPICAL METHODS FOR SPYING ON EMPLOYEES

1. Unauthorized Recordings

Under California law, illegal wiretapping involves the unauthorized recording of someone else in a private situation. The act is a felony and punishable by a $2,500 penalty and up to a year in jail, plus civil damages in the amount of $5,000 or three times the amount of actual damages (CA Penal Code 632 and 637.2).

Illegal wiretapping can easily happen in the workplace. For example, employers can carry a digital recorder into meetings to keep an accurate record of what someone said at the meeting (or, quite possibly, to record what is said when the employer steps out of the room). Employers can later write everything down and chalk it up to a good memory. If the recorder is not seen or found, no one will know that illegal wiretapping occurred.

2. Text Messages on Company Smartphones

Blog 13 - pic 2Employees often think of text messages as a private, trail-less means of digital messaging. Not so. Folks using company smart phones should never assume that their text messages are private. Most digital messages of any format go through a company server and can be intercepted by the employer at any time and without notice.

The issue of whether it is legal for an employer to intercept digital messages isn’t clear-cut.

      • California Penal Code section 632.6, for instance, states that it is a crime to eavesdrop on a cellphone conversation. Because that statute was written for voice communications, it is unclear if the statute extends to text or voice messages intercepted from a cellphone.
      • Some courts have held that the text messages are private while others have held that they are not private.
      • In an effort to clarify the issue, the federal Supreme Court held that California employers can look at text messages if they clearly disclose in their written policies that text messages are not private and subject to inspection.

To be safe, employees should always assume their digital messages are not private and will be reviewed by their employer.

3. Bathroom Chatter

Most people assume bathrooms are private places. Since bathrooms are relatively small spaces, it is easy for anyone to overhear conversations. It isn’t a crime to overhear a conversation and act upon information learned from that conversation. So it’s generally fair game for employers to use information discussed in public or company bathrooms.

4. Storing Personal Belonging in Company Furniture

Most employers provide a place for employees to lock their personal belongings.  Don’t assume this space is private — it’s company property! Although employees may be given a desk or locker key, employers almost always have a master key. No surprise, employers may inspect its furniture and contents inside its furniture when employees aren’t around.

Whether the employees’ personal belongings inside company furniture are private is not definitive. Some courts have held that employees cannot reasonably expect that the contents kept inside company furniture are private when their employer has a written policy that company furniture is fair game for searching. But if an employer searches an employee’s locked desk and has no written policy indicating that company desks are subject to searches, the employee could potentially sue the employer for invasion of privacy because the employee arguably had a reasonable expectation of privacy.

5. Spying Outside the Office

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A person in public is fair game for videotaping and  recording on camera. That liberty, however, ends when the person goes inside a private place, such as his or her own home. Employers sometimes cross that line when they believe employees are defrauding the company. This typically happens in workers compensation cases when employers believe their employee are faking an injury.

KEY POINT TO REMEMBER

Always assume that all communications via work place email, computer, or phone, or any conversations at work or in public, including in public bathrooms, are not private and that your employer may read or listen to your communications at anytime.

 

Blog Media pic 1 re Blog 12In today’s modern business world, interns are becoming the contemporary equivalent of yesterday’s entry-level employees. The primary difference between the two is that, unlike entry-level employees, interns are often not paid for their work. Employers will categorize workers as “interns” to avoid paying wages. This goes against many federal and state wage and hour laws. When employers fail to pay interns, they effectively curtail employment opportunities, promote class division, and sustain the unemployment rate.

GUIDANCE FROM THE UNITED STATES DEPARTMENT OF LABOR

Blog 12 Media - pic 2According to the United States Department of Labor, unpaid internships are only legal when they fall under the category of educational training programs.

This category refers to internships where interns do not perform productive work and employers do not benefit financially from the arrangement. In other words, if the interns did not perform their duties, would the employer need to hire additional employees or increase the existing staff’s workload to perform the interns’ duties? If “yes,” the interns are considered employees and should be paid for their work.

Even those who are interning for academic credit do not necessarily have to forfeit wages. When a school provides oversight and credit, an unpaid internship may be legal if it provides an educational environment, rather than a profit generating one. But if an unpaid intern, for example, is primarily assisting customers and performing clerical work, such as filing or data entry, the arrangement may be illegal because the employer is receiving an immediate business advantage.

HOW DO I GET BACK PAY FOR INTERNSHIP WORK?

Fortunately, unpaid interns have several options for collecting back pay:

      • File a complaint with the Wage and Hour Division of the U.S. Department of Labor.
      • File a complaint through their state labor agency.
      • File a lawsuit in federal or state.

FILE A CLAIM THROUGH THE U.S. LABOR DEPARTMENT

Blog 12 Media - pic 3Interns may file a complaint with the Labor Department’s Wage and Hour Division. In most cases, the Labor Department will investigate the internship to determine whether violations occurred. They will examine the employer’s business, payroll and time records. They also will interview relevant employees, which may include managerial staff, general employees, former employees, and of course the intern who filed the complaint. In certain instances, the employer is not told that the investigation is underway, while in other instances they receive advance notice of the impending investigation. Those who are given advanced notice may settle with the intern to avoid dealing with the Labor Department.

If the investigator rules in favor of the intern, the Labor Department typically will tell the employer that the individual must be paid. This communication is often via a certified letter.

It is important to understand that an investigation may take a long time. So those who immediately need money should consider pursuing alternative income sources until the investigation is complete. Fortunately, the Labor Department frequently rules in interns’ favor.

Additionally, complaints are confidential. The Labor Department will not disclose the complaining interns’ identities, the nature of their complaints, or even the existence of the complaints. Of course this does not mean that the employer cannot figure out who complained to the Labor Department, particularly if there is only one unpaid intern at the company. But even if that happens, the law precludes employers from discriminating or retaliating against the interns for reporting wage and hour violations.

FILE A CLAIM THROUGH THE STATE LABOR AGENCY

Blog 12 Media - pic 4Numerous states have their own wage and labor agencies to resolve wage disputes. State wage and hour laws are typically similar to the Federal Fair Labor Standards Act; but certain jurisdictions, like California, offer stronger worker protections. Other states, like Georgia, Alabama, and Florida, do not have their own wage and labor agencies, in which case one must file a complaint through the Labor Department.

COLLECTING OWED BACK PAYFROM FEDERAL AND STATE AGENCIES

After a federal or state investigation is complete, most employers will pay any owed wages to interns to avoid further issues with the Labor Department or state agencies. These agencies, however, usually are not obligated to force payment from an employer. So if the employers refuse to pay the wages and the agencies choose not to intervene, interns must file a lawsuit to obtain their owed wages.

FILE AN INDEPENDENT LAWSUIT

Blog 12 Media - pic 5As previously mentioned, if other avenues of collecting money is futile, interns may sue for back wages under their state’s minimum wage laws or under the Fair Labor Standards Act. Because lawsuits can be time-consuming and expensive, it may not be the best option to pursue first. Plus, courts may take a much weaker stance than the Labor Department or state agencies on whether wages are owed.

If you feel that you are owed monetary compensation from an unpaid internship, you should pursue all available options.

California law restricts your employer from asking you to provide access to private information stored in your Facebook, Twitter, and other personal social media accounts.  The law generally makes it illegal for employers to request or require current employees (job applicants) to:

  • disclose their usernames or passwords in order to access their personal social media account;
  • log into  their personal social media accounts in front of the employers; or
  • divulge any personal social media information.

As such, your employer (or prospective employer) cannot fire, discharge, or retaliate against you for not complying with a request to access your social media accounts.

But there are two exceptions to the law.  First, your employer can require you to share personal social media information so that it can investigate allegations of misconduct or illegal activities.  In this situation, your social media account must be relevant to the investigation and any information obtain from your social media account cannot be used for any purpose other than for that investigation. Second, your employer can require you to provide your username, password, or other necessary information to access employer-issued electronic devices.

Keep in mind that the law does not restrict employers from accessing publically available information on your personal social media accounts. Although your employer may conduct online searches and view your public social media profiles, it is illegal for the employer to make discriminatory employment or hiring decisions based on information learned from these searches.  For instance, if your employer uncovers information about your race, religious creed, color, national origin, ancestry, citizenship, physical disability, mental disability, medical condition, marital status, gender, pregnancy, age, or sexual orientation, your employer cannot lawfully use that information to make any type of employment or hiring decisions.

Plus, as discussed in a previous post, it is illegal for a prospective employer to ask questions during a job interview that may lead to unlawful discrimination, such as: “Do you have children?” On that same note, it is illegal for a prospective employer to search for answers to these questions in publically available information on your social media accounts and then make a hiring decision on that basis.  For example, if a prospective employer views photos of your children on Facebook, it would be illegal for the employer to decide to not hire you because you have children.

This is only a brief discussion of employees’ rights to refuse an employer’s request to access personal social media information under California law.  If you feel your rights have been violated, you need to consult a lawyer. Please don’t hesitate to contact me.

As discussed in a previous post, California law prohibits employers from asking non-job related questions that may lead to discrimination as to race, religious creed, color, national origin, ancestry, citizenship, physical disability, mental disability, medical condition, marital status, gender, pregnancy, age, or sexual orientation. Employers should only ask questions about your ability to perform job-related functions or that have a business necessity.

If inappropriate questions are asked, you don’t have to answer them. The interviewer may not realize that he or she is asking an inappropriate question, or may be trying to tell you about the company’s benefits.  Rather than being defensive, you may want to respond with a generic statement.

EXAMPLE RESPONSES TO INAPPROPRIATE INTERVIEW QUESTIONS:

      •  I’m not sure how that question relates to this job.
      • This question does not affect my ability to perform the job.
      • I am confident that I will be able to handle the requirements of this position.
      • I don’t let my personal life affect my work.
      • I was planning to go over the benefits with someone from human resources.
      • In response to inappropriate questions regarding religion: My faith will not interfere with my ability to do the job.
      • In response to inappropriate questions regarding citizenship: If you mean to ask if I am legally authorized to work for you, the answer is yes.
      • In response to inappropriate question regarding disabilities: There is no task in your job description that I cannot perform; or I am fully capable of performing this job with no health reservations.
      • In response to inappropriate questions about pregnancy or family: I plan to pursue a career whether or not I decide to raise a family; or I am able to perform all the duties that the position entails.
      • In response to inappropriate questions regarding age: My age is not an issue for my performance in this job.
      • In response to inappropriate questions regarding past arrests: There is nothing in my past that affects my ability to perform this job’s duties.
      • In response to inappropriate questions regarding military discharge: There is nothing in my records that would impair my ability to succeed in the job.

This is only a brief discussion on illegal interview and application questions under California law.  If you feel your rights have been violated, you need to consult a lawyer. Please don’t hesitate to contact me.

California law prohibits employers from asking non-job related questions that may lead to discrimination as to race, religious creed, color, national origin, ancestry, citizenship, physical disability, mental disability, medical condition, marital status, gender, pregnancy, age, or sexual orientation.  Basically, employers should only ask questions about your ability to perform job-related functions or questions that have a business necessity.

EXAMPLES OF INAPPROPRIATE QUESTIONS

Name Related Questions

      • What is your maiden name?

Employers should not ask questions to determine your family’s origin.

Residence Related Questions

      • Do you own or rent your property?

Employers can ask for a home address.

Age Related Questions

      • How old are you?
      • What year did you graduate from high school?
      • When are you planning to retire?
      • Any question that tends to identify someone being over 40.

Employers can verify that applicants meet legal age requirement.

Citizenship Related Questions

      • Where were you born?
      • Are your parents and spouse U.S. citizens?

Employers can verify your legal right to work in the U.S.

National Origin Related Questions

      • Were you born in this country?
      • What language is spoken in your home?

If uses of non-English languages are relevant to the job, employer can ask about languages the applicant reads, speaks, or writes.

Race . Color . Sexual Orientation Related Questions

      • Do you straighten your hair?
      • Is that your natural hair color?
      • Do you have a boyfriend/girlfriend?
      • Where are you from?
      • You must tan easily?

Basically any questions regarding an applicant’s race, color, complexion, eye color, hair color, or sexual orientation is inappropriate.

Religion Related Questions

      • What is your religious affiliation?
      • What religious holidays do you observe?

Employer can disclose the regular days, hours, or shifts to be worked.

Marital Status . Family . Pregnancy Related Questions

      • Are you married?
      • What is your spouse’s name or address?
      • What does your spouse do for a living?
      • Do you live with anyone?
      • How will your spouse feel about you traveling for this job?
      • Do you have children?
      • Do you plan on having children?
      • Are you pregnant?
      • What is your spouse’s, relative’s, or children’s names or addresses?
      • What kind of childcare arrangements have you made for this job?

Employer can ask for name and address of parent or guardian if applicant is a minor.  Employer also can state company policy regarding work assignment of employees who are related.

Disability . Medical Condition Related Questions

      • Do you have any disabilities?
      • Have you ever had any serious medical conditions?

Questions about physical fitness are allowed if they are directly related to the job.

Criminal Record Related Questions

      • Have you ever been arrested?
      • Have you ever spent the night in jail?

Employer can ask job-related questions about convictions unless the convictions were sealed, expunged or statutorily eradicated.

Military Service Related Questions

      • What type of discharge did you receive from the military?
      • Can I see your discharge papers?
      • Did you serve in a foreign military?

Employers can ask about relevant skills acquired during U.S. military service.

This is only a brief discussion of illegal interview and application questions under California law.  If you feel your rights have been violated, you need to consult a lawyer. Please don’t hesitate to contact me.

California provides lactating mothers the right to pump breast milk at work under the California Lactation Accommodation law. This law requires most employers to give women a reasonable break from work to pump breast milk and to provide a private location that is: shielded from view; not a bathroom stall; and near or at the employee’s work area. Employers also have to provide a place for women to store their pump and an insulated storage container.

EXCEPTION TO THE LACTATION BREAK REQUIREMENT

Employers, however, can escape the obligation to provide lactation breaks if they can show that to do so would seriously disrupt their business operations. It isn’t an easy showing and requires actual proof. 

PAID vs. UNPAID LACTATION BREAK 

Employers must pay for lactation breaks if the breaks are taken concurrently with lawfully entitled rest breaks, which is generally 10 minutes for every four hours worked. If employees need longer or more frequent breaks, their employers aren’t required to pay for the additional break time. 

BREASTFEEDING DISCRIMINATION

The California Fair Employment and Housing Act prohibits employers from discriminating against employees who pump breast milk, breastfeed, or suffer any related medical conditions. Unfortunately, employers often ignore women’s breastfeeding rights and discriminate against those who try to enforce their rights.

For instance, in 2012, a California teacher sued her former school and school district for wrongful termination and discrimination. According to the teacher’s allegations, she asked her manager for a 15-minute break each morning to pump breast milk. Her manager responded by telling her to train her breasts not to produce milk during school hours so she wouldn’t have to pump. The teacher complained about her manager’s response to human resources. Although the human resource director indicated that everything was a misunderstanding, nothing was done to accommodate the teacher’s request. A few months later, the school district asked the teacher to resign from work due to poor job performance. Of course, the school and school district deny everything. But this is just one example of how a failure to accommodate breastfeeding women and discrimination can arise in the workplace.

This is only a brief discussion on women’s right to pump breast milk at work under California law. If your rights have been violated, consult an attorney. Should you have questions, please don’t hesitate to contact me.