Can Private Employers Regulate Employees’ Off-Duty Conduct in California?

More than ever, an employee’s activism and social media posts can prove quite challenging for employers. Their reasons often ranging from an employer not wanting to be lumped with a particular viewpoint or because the employee’s stance goes against the employer’s public image or ethics. In today’s society, employers are increasingly concerned about their employee’s actions. Mainly due to our current “cancel culture,” where it is a common practice to withdraw support for a company that has done something that may be considered objectionable.

Even if the employer did not authorize the employee’s actions, companies can still feel the negative repercussions. And unfortunately, there is no explicit solution to this dilemma. So, what is an employer to do in these situations? In this blog post, we will discuss some of the issues employers face when dealing with off-duty conduct and what rights employers and employees have in California?

Can Employers Lawfully Monitor Off-Duty Conduct?

In California, like many other states, there are specific laws that protect an employee’s right to engage in off-duty conduct that is lawful. These laws also provide monetary relief to those employees whose employment is adversely affected in violation of these regulations. However, even though it seems these laws are meant to protect an employee’s actions, it is crucial to understand that these laws do not protect all types of employee’s off-duty conduct.

If an employee’s off-duty conduction is harmful or potentially hurts an employer’s business interests or involves some crime, it can result in a valid basis for terminating the employment. Even so, this is often decided on a case by case basis, and specific facts need to be considered before making a final decision, including legal interests and business decisions.

Take, for example, a recent viral video that showed a Franklin Templeton employee, Amy Cooper, reporting to local law enforcement that an “African American man” was frightening her. Yet, all the video showed was Christian Cooper, a bird watcher asking Amy Cooper to put her dog on a leash per the rules of Central Park. This video resulted in an uproar on many social media platforms, accusing Amy Cooper of lying to the police because of racial discrimination. And even though Amy Cooper’s action had nothing to do with her job duties or work performance, Franklin Templeton quickly terminated her employment, citing their company’s “zero tolerance for racism.”

Can Employers Lawfully Discipline Decisions Based on Off-Duty Conduct?

One popular misconception that many individuals have is they feel that because the First Amendment protects their free speech, it is illegal for an employer or company to fire an employee based on something they said. Unfortunately, this is not how this Amendment works. As the First Amendment, typically, does not apply to private employers.

However, some laws that do apply to California’s private employers, include the following:

  • California Labor Code section 96(k): This law protects employees who are terminated for “lawful conduct” that occurs during hours away from the employer’s premises and not working. Generally, this law applies to lawful off-duty political pursuits.
  • Labor Code Section 1101 bars an employer from adopting, making, or enforcing any regulation that prevents an employee from taking part in politics or becoming candidates for public office. In addition, it prevents the employer from controlling the political activities of their workers.
  • Labor Code Section 1102 bans an employer from influencing or attempting to coerce their employees through the threat of discharge to refrain from following any particular course of political action or activity.

Taken together, these provisions prevent an employer from directing the political activities of its employees. However, these regulations do not stop employers from limiting political and other non-work-related activities in their workplace. Additionally, employers can also prevent employees from posting content that makes viewers believe that the employee is speaking on behalf of the company. In these situations, an employer can take action against the employee, even if their conduct happens off-duty.

Employee’s Social Media Conduct

According to Article 1, Section 1 of the California Constitution, each citizen has an “inalienable right” to obtain and pursue “privacy.” When combined with Section 980 of the Labor Code, these laws are meant to protect an employee’s privacy on their personal social media platforms. While also prohibiting employers from asking employees for their log-in information and passwords. Yet, even though these laws provide some sort of privacy protection for employees and their use of social media, it does not mean that an employee’s public social media posts are protected. If an employee begins posting content beyond their private followers, they waive their right to privacy. As a result, they can be disciplined for their posts, especially when these posts are not deemed to be related to their workplace issues, which are often protected by the National Labor Relations Act (NLRB). 

What Employers Need to Ask Themselves Before Making Any Decisions About Off-Duty Conduct

If an employer has an issue with their employee’s off-duty conduct, they need to consider California’s applicable laws, the effects on the business, and the litigation exposure they may have to face. Looking into their past conduct and reviewing whether they have consistently applied these company protocols can also help them determine the likelihood of the employee succeeding in their legal actions.

During these “polarizing times” that we are experiencing, it should come as no surprise that disciplining off-duty conduct has become incredibly challenging and complex. Not only does the business have to heavily weigh the legal problems that can result in pursuing these actions against their employee, but they also have to take into account the potential loss of sales and customers if this issue becomes common knowledge. In some cases, companies can even suffer when they decide not to take any action against the employee for their conduct.

For these reasons, if you are considering your employee’s off-duty conduct, you need to contact an experienced employment law office today. These lawyers can provide you with the information you need to be able to carefully explore your options while helping you understand all the issues and problems you may have to face. Do not wait any longer; call our office at 916-446-2000.

 

 

 Can My Employer Enforce a Non-Compete Agreement if I Work in California but the Business is Headquartered in Another State?

Most companies go out of their way to protect their data. Data typically includes trade secrets which is often found in internal communications, customer lists, and other information which they do not wish to have “leaked” to other businesses. However, in some cases, a business attempts to discourage their employees from taking information they learn while an employee and starting a competing business.

Employers often demand an employee sign a non-compete or non-solicitation agreement to ensure they do not have to be concerned about the employee later becoming their competitor or working for a competitor. However, under California laws passed in 1985, these agreements are not enforceable because they contain restrictive covenants — that is they restrict the employees ability once they are no longer working for the firm to secure similar employment with another firm, or start their own business which is of a similar nature.

Out of State Business Doing Business in California

California, like most other states, allows businesses which are incorporated or set up in other states to do business within its borders assuming they follow the regulations published by the Secretary of State. In some cases where this occurs, a business owner will draw up a non-compete agreement and specify the agreement was made in another state. This is known as a choice of law provision, which may mean the restrictions, or covenants are enforceable.

However, this does not always mean your employer has the right to enforce a non-compete agreement, even if it contains a choice of law provision. For example, an employee who works in California, for a company who has headquarters in Arizona may be asked to sign a non-compete agreement which states the “choice of law” is Arizona. This is when California courts will review the rules as they pertain to conflict of law.

How Conflict of Law Applies to California Employees

If you are working in California, in a company which maintains an office in California, you may be unaware the company is actually headquartered in Arizona. To complicate matters further, oftentimes a non-compete clause is inserted into other employment documents and is only pointed out should your employer feel they are threatened by your competing with them after you have left the company.

An employer may opt to have you “sign” your documents in Arizona — in this case, then chances are the document could be enforceable under Arizona laws. However, it is also worth noting in most cases, a choice of law provision which violates public policy of the other state could be determined to not apply in such cases.

Since 2018, when these changes went into effect, the goal was to protect employees from being bound to agreements which violated their right to pursue employment with competitors or to start a competing business after leaving one employer. Keep in mind, these documents are often signed as part of the paperwork you sign when you are initially hired. In rare circumstances, an employee may be told they cannot be hired unless they sign a non-compete agreement. This is unlawful in California because they are not enforceable within the state.

The code which makes these unenforceable is  found in California Business and Professions Code Section 1660specifically states “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.

Not Limited to Key Figures or Managers

Many employees believe they have nothing to be concerned about with such clauses in their employment contracts because they are “lower level” employees. However, according to the U.S. Department of the Treasury Office of Economic Policy, across the United States, 20 percent of those who are bound by non-compete agreements, including 14 percent of those earning less than $40,000 per year. Therefore, it is not safe to assume you have no need for concern.

Because employers were routinely attempting to skirt the statutes regarding non-compete agreements, the California Labor Code (Section 925) was modified to specify that any agreement which was entered into between an employer and employee after January 1, 2017 would not be allowed to include non-compete agreements a provision as a condition of employment.

This portion of the Labor Code also went a step further and specified that the employee who lives in and primarily worked in California could not, without the guidance of an attorney, agree to have any future disputes heard in a court outside of California law or agree to such provisions under any state’s laws except California.

There are exceptions to when something may be enforced, even if it is part of an overall unenforceable agreement. For example, if an employee were to leave a company and begin soliciting clients to their business from their prior employer, or if the employee were to begin sharing internal trade secrets with a competitor. In the event your former employer filed a lawsuit, the general provisions may be upheld in court.

When Employers Retaliate Against Former Employees

When your employer attempts to stop you from accepting a job because they claim it is in violation of a non-compete or a non-disclosure agreement, one of two things will occur. You may receive a cease and desist order, or you may be notified a lawsuit has been filed against you by a former employer. In either case, you should immediately contact an attorney to learn about your rights and protect yourself from missing an opportunity to further your career.

If you are starting a new position and being asked to sign a non-compete agreement, you should seek legal help immediately before you sign the agreement. It is important for you to know whether the agreement is enforceable before you sign any documents. Whether you need help negotiating a contract, reviewing an employment contract, or you are in receipt of notification of a pending civil lawsuit, or a cease and desist order, contact Perkins Asbill, A Professional Law Corporation at 916-446-2000. We have more than three decades of labor and employment law experience representing clients in central and northern California.

What You Need to Know About COBRA and Job Loss Amid the COVID-19 Pandemic 

The arrival of COVID-19 has dramatically changed the lives of many in the United States and around the world. Job loss has been one of the unfortunate consequences of the pandemic. More than 30, 000 people in the United States have lost jobs due to business closures and cutbacks. In the United States, job loss also translates to a loss of health insurance for many.

Even without the global pandemic, U.S. workers have some protection of health insurance under COBRA, but current times make it more important that you understand your rights to employer-sponsored health insurance. For many, job loss because of COVID-19 is the first time they have had to deal with involuntarily leaving a role. We’ve developed this guide so you can learn more about COBRA and the ways in which it applies to you if you’ve lost your job during the coronavirus pandemic.

What Is COBRA?

COBRA is an acronym for the Consolidated Omnibus Budget Reconciliation Act, which provides workers and their families the choice to continue employer-sponsored health benefits after job loss, a reduction in hours, job transition, death, divorce, and other qualifying life events. You can think of COBRA as ‘gap insurance,’ because it fills the gap in your health insurance coverage that you or your family would experience after losing employee benefits.

You should know that if your employer paid for your benefits, COBRA does not require employees pay for your continued coverage. Instead, separated employees must pay for their temporary coverage, which can be the entire premium. The law requires that businesses with more than 20 employees who sponsor a group health plan give employees and their families continuation coverage in situations where coverage would end.

Health Plans that Fall Under COBRA

Under federal law, all private-sector employers with more than 20 employees must provide continuation coverage. COBRA does not apply to the federal government, but state and local governments must comply. Other groups exempt from complying with COBRA include churches and some religious organizations.

Qualifying Events to Receive Continuation Coverage Under COBRA

Beyond your employer’s requirement to comply with COBRA, you must also have been enrolled in your employer’s group health insurance plan and experience a qualifying event, which is an event that causes someone to lose their health insurance coverage. The type of event determines who receives benefits and for how long.

Covered employees are eligible for coverage in all situations of job loss except if they were terminated for gross misconduct. Cobra does not cover employees who lose coverage because of a reduction in hours. The same caveats apply for coverage to spouses and dependent children, but other situations also exempt family members from continued coverage under COBRA. They include:

  • The covered employee becomes eligible for Medicare.
  • A spouse is not covered in the case of divorce or legal separation.
  • The covered employee dies.
  • Once children are no longer dependent, they lose coverage. The Affordable Care ACT requires plans to make coverage available until a child reaches age 26.

Employer Responsibilities Under COBRA

The employer’s group health plan must give the covered employee and any other beneficiaries notice when a qualifying event occurs. The notice should describe their rights to continuing their health coverage and how to make that choice. The plan must provide notice within 14 days. Once you receive notice of your right to COBRA coverage, the law requires you have 60 days to make a decision on whether to continue your coverage.

Even though the law requires notification, many large companies have failed to comply. Employees have accused Citigroup, Lowe’s, and Starbucks of failing to comply, just to name a few. In the most recent lawsuit against Starbucks, a former employee claimed that Starbucks sent out confusing notices with regard to COBRA that did not explain how to enroll in continuation coverage. Instead, the notice instructed the former employee to call Starbucks human resources to visit a website. Starbucks COBRA notices also left out other important information about the conditions in which the employee could lose covers, the plan administrator, and where to make payments.

New Department of Labor Guidelines for Job Loss During COVID-19 Pandemic

In April 2020, the Department of Labor, in conjunction with a few other federal agencies, issued a joint statementspecifically addressing multiple programs and benefits. COBRA was included in this statement. The previous information is law, but until further notice, the following applies:

  • If your employer temporarily closes due to COVID-19, you should remain covered under your current healthcare plan. Yet, if you aren’t being paid, your premiums are not getting deducted from your check. If your employer is not paying your premiums, you might have to make payments on your own to make sure your coverage doesn’t lapse.
  • If you elect COBRA coverage, you cannot be forced to make payments on your premium more than 45 days from your election.
  • You have 30 days to pay your premium before the insurance carrier can consider it late.
  • The federal government considers the COVID-19 outbreak period lasting until June 29, 2020. Any time requirements under COBRA can disregard the Outbreak Period. For example, if you lost your job due to COVID-19 and want to elect coverage, your employer had 14 days from June 29 to send you a notice. Similarly, if you received notice in the middle of the outbreak, your 60-day election window did not begin until June 29

Consult with a Workplace Attorney About Your Health Benefits During the Pandemic

It’s a difficult time for many Americans right now, especially for those who have lost their jobs and health insurance benefits. Even after separating from a job, you have rights. If your employer has failed to provide you notice of your rights under COBRA or failed to provide you with enough time to make your choice, you may be eligible to take legal action. Contact the experienced attorneys at Perkins Asbill, A Professional Law Corporation online or at 916-446-2000 to discuss your circumstances and determine your next steps.

 

Know Your Rights During COVID-19 in the Workplace in California

The arrival of the COVID-19 pandemic has changed the workplace for those in California, across the nation, and across the world. Under the guise of disaster, some employers have taken actions that violate federal, state, and local laws. Others have unknowingly violated employee rights as a result of uncertainty during the pandemic. During this difficult time of transition, it’s crucial that you know your rights and have the information you need to protect your job and your income. Below we’ve provided a broad overview of additional rights you have as a result of the coronavirus pandemic.

Families First Coronavirus Response Act (FFCRA)

The Families First Coronavirus Response Act (FFCRA) is a key piece of federal legislation that protects your rights to take emergency sick leave if you work for an organization with less than 500 employees. FFCRA allows you to take 80 hours of PAID sick leave in the following circumstances:

  • You must quarantine or you are caring for someone who must quarantine as a result of COVID-19 exposure.
  • A healthcare provider has advised you or someone you care for to self-quarantine.
  • You are seeking medical treatment or diagnosis because you have experienced coronavirus symptoms.
  • The school, daycare, or childcare provider you use is unavailable as a result of COVID-19, so you must care for your child(ren).

The Family & Medical Leave Act (FMLA) continues to provide employees with 12 weeks of UNPAID leave every 12 months if they or an immediate family member needs care for a serious health condition.

Working from Home During COVID-19

The coronavirus and associated closures and stay-at-home orders have forced some businesses to have their employees work from home when possible. Rights associated with working from home during the pandemic include:

  • If you are not sick and not caring for a child because of coronavirus-related childcare issues, you are not protected if you stay home from work. There is no right to work remotely during the pandemic.
  • Your employer has the right to set the terms of your employment. They can force you to work from home even if it is not your choice. Your employer might also prohibit business travel during this time.
  • If you are forced to work from home as a result of coronavirus, your employer must pay you for your work, whether you are salary or hourly.
  • California requires employers to reimburse employees for the cost of internet access, computers, work cell phones, and other expenses required to set up a home office.

Terminations and Layoffs During COVID-19

Coronavirus has forced businesses to terminate and layoff employees on a large scale. Rights associated with layoffs and terminations during COVID-19 include:

  • FMLA and FFCRA protect you from your employer firing you if you contract COVID-19, but time limits do expire.
  • The Americans with Disability Act (ADA) also provides some protection. If the coronavirus causes an underlying condition to flare up, the condition might qualify as a disability. Employers cannot fire you for a disability.
  • The federal Worker Adjustment Retraining and Notification (WARN) Act requires employers to give a 60-day notice in the event of a mass layoff or business closing. California has similar state legislation; however, the governor suspended the 60-day notice requirement to allow businesses to take swift action to stop or curtail the spread of coronavirus.
  • If your employer sends you home or directs you not to come to work as a result of government orders or is concerned about your safety, California law does not require them to pay you. Yet, you still might qualify for paid sick leave under FFCRA

If you contracted COVID-19, and your employer terminated you, call an attorney as soon as possible. A confidential case evaluation will reveal whether your employer violated your rights. It’s also crucial to consult with an attorney before you sign a severance agreement, if applicable.

Sacramento Worker Protection, Health, and Safety Act

On June 30, 2020 Sacramento implemented the Worker Protection, Health, and Safety Act to protect employees in the workplace during COVID-19. Sacramento’s employers must adhere to the following safety protocols. You have the right to refuse to work if they violated the act:

  • Employers must ensure that any high-touch areas in the workplace are disinfected and cleaned daily per the Centers for Disease Control and Prevention (CDC) guidelines.
  • Employers must maintain cleaning protocols throughout the entire workplace.
  • Employers must create safety protocols that describe actions to take if the workplace has been exposed to a probable or confirmed case of COVID-19.
  • Employers must provide all employees access to handwashing with soap, hand sanitizer, and disinfectant wipes.
  • Employers must ensure all common areas, including break rooms, locker rooms, dining areas, bathrooms, conference rooms, and training rooms are cleaned daily and in between each shift.
  • Employers must provide face coverings for employees to wear while working and enforce usages. You can take your mask off when you can maintain social distancing guidelines and when you have a break to eat and drink.
  • Employers must establish and implement best practices ensuring proper physical distancing.
  • Employers must inform employees of all the associated protocols and practices in writing, in English, and in any other language spoken by 10 percent or more of employees.

Contact an Experienced Employment Attorney if Your Employer Has Violated Your Rights During COVID-19

The employment attorneys at Perkins Asbill, A Professional Law Corporation have the experience and the resources to advocate for employees whose employers have violated their rights during the COVID-19 pandemic. If your employer has acted unlawfully towards you during COVID-19, you need a competent and knowledgeable attorney to fight for your rights.

At Perkins Asbill, A Professional Law Corporation, we pride ourselves on professional excellence, case preparation, and seeking justice for our clients. Contact us today online at 916-446-2000 for a confidential and free case evaluation to examine the viability of your claim and find the best path forward to seek justice after your rights were violated in a California workplace during COVID-19.  

What Is the Difference Between Retaliation and Unfair Treatment in a California Workplace?

All retaliation is unfair treatment in the workplace, but not all unfair treatment is retaliation. The primary difference between retaliation and unfair treatment in the California workplace is the presence of unlawful conduct. Unfair treatment, although often morally reprehensible, is not always illegal. On the other hand, retaliation against an employee always has legal consequences for an employer.

With a clear understanding of the difference between unfair treatment and retaliation, you can protect your rights in the workplace and have a better idea of when you have recourse against your employer for unlawful conduct. Below, we delve deeper into the idea of unfair treatment in the California workplace, specifically outlining when unfair treatment crosses the line into unlawful contact. Then, we take a closer look at the different scenarios that might prompt an employer to retaliate against employees in the California workplace.

What Is Unfair Treatment in the Workplace?

At some point in your employment history, you’ve likely experienced unfair treatment at your workplace. Maybe you didn’t get the promotion you deserved because of office politics or your boss played favorites. Nepotism—privileging family members—is another common occurrence in some workplaces. Unfair treatment can also include supervisors and managers who verbally abuse employees by yelling or screaming or falsely accusing employees of violating company policies.

Although the above examples result in frustration and sometimes anger for employees, unfair treatment is not illegal. California is an ‘at-will‘ employment state. At-will employment is a legal description of the relationship between an employer and an employee. In at-will employment states, employers can terminate an employee at any time without reason and an employee can leave a job for no reason; neither party has legal consequences. Additionally, employers can also demote, transfer, and discipline an employee without legal consequences.

Yet, even in employment-at-will states, like California, employers cannot take adverse action against an employee for illegal reasons. In these cases, unfair treatment becomes unlawful conduct.

When Does Unfair Treatment in a California Workplace Become Unlawful Conduct?

Title VII of the Civil Rights Act of 1964 protects all workers in the United States from discrimination based on race, color, sex, religion, or national origin. The United States Supreme Court extended the law to protect gay, lesbian, and transgender workers in June 2020. Further, the Americans with Disabilities Act (ADA) prohibits employers throughout the nation from discrimination based on disability. California employers that discriminate against employees and treat them unfairly based on the above protections are engaged in unlawful conduct.

Additionally, California employees have the right to file a complaint when their employers are breaking the law when they treat them unfairly. Federal law also protects employees who need to take time off for family or medical reasons under the Family and Medical Leave Act (FMLA). The Whistleblower Protection Act (WPA) protects federal workers in California who report illegal activities in the workplace. In some cases, employers choose to retaliate against workers whose absence falls under FMLA. Similarly, federal employers sometimes retaliate against whistleblowers.

What Is Retaliation?

On a broad level, retaliation refers to the notion of taking revenge against someone for actions that have harmed you or actions of which you don’t approve. In legal terms, retaliation specifically refers to the unlawful and unfair treatment of employees as a response to a protected action. According to the Equal Employment Opportunity Commission (EEOC), employers are engaging in unlawful conduct when they retaliate against employees for:

  • Filing an EEO complaint or lawsuit against an employer
  • Talking with management about discrimination or harassment
  • Cooperating with an investigation about harassment or discrimination
  • Refusing to follow orders that result in discrimination
  • Refusing sexual advances
  • Intervening to protect other employees from harassment
  • Requesting accommodations for religious reasons or for a disability

Whistleblowers also have protection from retaliation and employers cannot discriminate or take unlawful action against an employee who needed time away from work under FMLA.

Filing a Claim Against Your Employer for Unlawful Discrimination or Retaliation

You do not need a lawyer to file a claim against your employer; however, it’s often in your best interest. A lawyer can file a claim on your behalf, protecting your identity. This is especially important for sexual harassment claims and whistleblower claims. Employers, especially specifically targeted members of an organization, can take drastic measures when they feel desperate. An experienced attorney knows the ins and outs of the EEOC claims process and can ensure your meet required deadlines and fulfill criteria.

As a California resident, you can file a claim with the Equal Employment Opportunity Commission (EEOC) or California’s Department of Fair Employment and Housing (DFEH), the state equivalent of the EEOC. DFEH will automatically share information with the EEOC, so you need not report to both agencies. If you are a federal whistleblower or have suffered retaliation as a whistleblower, you must file with the EEOC because the State of California does not have jurisdiction over your claim. Regardless of the situation, you cannot file a lawsuit against your employer before your file a claim with the EEOC. You can begin an  EEOC claim online and make an appointment or you can file a claim with a state or local agency like DFEH.

Contact an Experienced Employment Attorney If You’ve Been a Victim of Unlawful Conduct in a California Workplace

The skilled legal team at Perkins Asbill have the knowledge and resources to advocate for employees who have been victims of unlawful conduct in a California workplace. If your employer has illegally discriminated against you, sexually harassed you, or retaliated against you for taking action against them, you need a competent and diligent lawyer in your corner.

At Perkins Asbill, A Professional Law Corporation, we take pride in client service and holding employers accountable for their illegal practices. Contact us today online or at 916-446-2000 for a confidential case evaluation to determine your eligibility for compensation and learn the best way forward for your individual circumstances.

2020 Key Employment Law Changes in California

Each year, California legislators move hundreds of bills into motion. This attempt to enact change in our laws usually results in a slew of new legislation at the beginning of every year. 2019 saw a myriad of shifts in the realm of employment law– and the ripple effect from these past few years continues to impact us now. As 2020 begins, California workers will be well-served by brushing up on some of the newest laws impacting their rights.

If you believe that your employer may be acting in violation of your rights, the most important step is to contact a seasoned employment law attorney. Only a legal professional can assist you in bringing a case and achieving compensation.

2020 Key Employment Law Changes in California

Freelancer and Contractor Laws: Tighter Restrictions (Maybe)

AB 5 approved September 18, 2019

If you or anybody you know does freelance or contract work, you’ve likely heard plenty about AB 5 already. Often referred to as “the freelancer law,” this bill presents a serious piece of work to freelancers. The details are a little muddy– and are currently being hashed out in court– but here’s what we know for a fact so far:

  • AB 5 established the “ABC test”
    • This “test” is a set of parameters to help determine whether somebody should be labeled as an independent contractor rather than an employee
    • The test essentially winds up categorizing far more workers as employees than it does as independent contractors
    • Employers tend to dislike this because they are mandated to offer employees certain rights and protections
  • Workers labeled employees gain access to improved benefits and more stable workplaces; many companies, however, are not interested in having actual employees
  • The bill was aimed at gig workers, but is currently set to disproportionately impact contract and independent workers

AB 5 is one of the most fluid shifts currently happening within California’s employment law sphere. If you are an independent worker who works within the state, the best course of action likely involves speaking with an attorney and keeping an eye on developments in legislation. Nobody can predict how AB 5 will play out in the end.

California Paid Family Benefits: Extended from Six to Eight Weeks

SB-83 approved June 27, 2019

Under SB-83, the state’s current Paid Family Leave (you may see it referred to as “PFL” in some documentation) is set to extend. Current benefits allow for six weeks of paid family benefits. This new amendment extends that timeframe to eight weeks.

Important factors to keep in mind:

  • Only applies to claims that start on or after July 1, 2020
  • Paid Family Leave is not a leave entitlement
    • Some employees are eligible to take leave through paid sick leave or FMLA/CFRA laws; some are otherwise granted leave by their employers
    • Only these employees are eligible to apply for wage replacement benefits through PFL

Expanded Lactation Accommodations

SB 142 approved October 10, 2019

California appears to be working to make the state’s workplaces more family- and parent-friendly as a whole. Much like the improved paid family benefits mentioned above, the expanded lactation accommodations offered by SB 142 offer parents another way to put their families first.

SB 142 presents a number of requirements for employers:

  • Employees must have access to lactation rooms or locations WHICH MUST…
    • …be close to employees; work areas AND
    • …be free from intrusion and shielded from view AND
    • …have certain features (i.e. electricity)
  • Employers must also provide other accommodations nearby
    • Sink with running water
    • Refrigerator
  • Employers must create and implement lactation accommodation policies that detail…
    • …employees’ rights to request lactation accommodation AND
    • …how employees can make such requests AND
    • …employees’ rights to file complaints with the Labor Commissioner in the event of a violation

Employees Now Eligible to Seek Penalty for Late Wages

AB 673 approved October 10, 2019

AB 673 amends the California Labor Code. Before AB 673’s approval, the process of seeking penalties for late wages from an employer was not possible. This amendment means that:

  • Penalties for late payment of wages may be recovered by the Labor Commissioner (as a civil penalty payable to the affected employee) OR
    • …by the employee as a statutory penalty

An initial violation warrants a penalty of $100. After this point, subsequent violations incur a penalty of:

  • $200 per failure to pay each employee PLUS
    • …25% of the amount unlawfully withheld

Minimum Wage Raise of One Dollar

SB 3 approved April 4, 2019

If you’ve worked minimum wage positions in California for some time, you’re probably already aware of the state’s increasing lower bar for pay. SB 3 raises the minimum wage throughout the state once again. Employees at companies with 25 or fewer workers will see $12 an hour; those who are employed by larger companies will make $13.

Serious Occupational Injuries Must Now be Reported Immediately

AB 1804 approved August 30, 2019

Those who work in notably dangerous industries (like the manufacturing, construction, or industrial sectors) may be most likely to be impacted by this change, but anybody can get hurt on the job.

AB 1804 mandates that employers report serious occupational injury or illness immediately through an online OSHA portal. This portal is not currently available; until its release, employers must make these reports through telephone or email. This injury or illness report does not replace any reports already legally required. It is a separate and additional report.

Perkins Asbill: A Professional Law Corporation

At Perkins Asbill, we offer Sacramento residents employment law and business litigation services. Our team of capable and experienced attorneys works diligently to ensure that each client understands the unique characteristics of their case. We tirelessly pursue our clients’ rights in an effort to protect and maintain justice.

If you have questions about upcoming changes in California employment law or if you believe you may require legal assistance with a prior or current occurrence contact our offices today at 916-446-2000. The Perkins Asbill legal team helps to enforce employee rights, help organizations navigate complex litigation issues, and more.

 

Employment Law 101 for Startups

Whether your startup is growing slowly or rapidly, as you begin to add team members, you are entering a whole new world of laws and regulations you must abide by as an employer. In this article, we will present a brief primer of legal considerations you should be aware of and both state and federal laws you must comply with to avoid legal liability as you grow your team.

Independent Contractors vs. Employees

With the gig economy rapidly growing in the U.S. and global markets, many startups are utilizing the services of independent contractors — virtual assistants, marketing specialists, social media managers, graphic designers, web designers, software developers, and more — to help scale their businesses before they are ready to hire part-time or full-time W-2 employees on payroll.

However, understanding the distinction between an independent contractor and employee is essential because, even if a team member is not on payroll, certain factors could cause a court to determine the team member was acting as an employee, rather than an independent contractor, and impose the legal requirements of an employer on your business.

Some of the factors a court will consider when determining whether an individual’s status is employee or independent contractor, include:

  • Telling the team member what tools and equipment to use
  • Telling the team member when and where to work
  • Telling the team member where to purchase supplies and services

This is a very fact-based assessment. The more you direct and control the details of the team member’s behavior, the more likely an employer-employee relationship will be determined to exist. This is very important because when an employer-employee relationship is found, your business is required to comply with many different regulations geared toward protecting employee rights in the workplace.

Americans with Disabilities Act (ADA)

The ADA is a federal law that prohibits employers from discriminating against prospective or current employees on the basis of their physical or mental disability. It also requires employers to provide disabled workers with reasonable accommodations to allow them to perform their job duties, so long as a reasonable accommodation can be provided without causing undue burden to the employer.

Similar requirements are imposed under California state law through the Fair Employment and Housing Act (FEHA).

Equal Employment Opportunity Commission (EEOC)

Under federal regulations enforced by the U.S. Equal Employment Opportunity Commission (EEOC), employers are prohibited from discriminating against employees or prospective employees on the basis of:

  • Race
  • Color
  • National origin
  • Religion
  • Age
  • Sex
  • Sexual orientation
  • Physical or mental disability
  • Pregnancy
  • Genetic information
  • Retaliation

Family Medical Leave Act (FMLA)

The Family and Medical Leave Act of 1993 (FMLA) is a federal law that requires non-exempt employers to provide job protection and unpaid leave to employees who must be absent from work due to a qualified medical or family reason including surgery, caring for an ill family member, or the birth or adoption of a child. FMLA provides job protection for up to 12 work weeks, during which the employee may not be terminated without a legitimate and non-discriminatory reason. The California Family Rights Act provides similar legal protections.

Pregnancy

The Pregnancy Discrimination Act prohibits employers from discriminating against prospective or current employees due to pregnancy or a pregnancy-related condition. Employers may not make decisions about hiring, firing, pay, promotion, job assignment, benefits, or any condition of employment based on a woman’s current, past, potential, or intended pregnancy or medical condition related to pregnancy or childbirth.

If your startup is growing and you need to begin hiring team members, it is extremely beneficial to seek the advice and counsel of an experienced employment attorney who can help to ensure that you have the proper policies and procedures in place to comply with applicable federal and California employment laws.

To schedule a consultation with one of our knowledgeable employment attorneys in Sacramento, contact Perkins Asbill at (916) 520-1417 today.

Understanding California Employment Law Changes For 2019

Employers and employees are bound together in a relationship defined by contract, convention and the law. California employment laws are constantly being reviewed and amended to balance the competing interests of workers and their employers. Here are a few of the changes that employees and employers should be aware of going forward:

Sexual Harassment, Senate Bill 1300

This bill makes it clear that employers may be held responsible for acts of harassment committed by nonemployees if the employer or certain other parties knew or should have known about the conduct and didn’t take immediate and appropriate corrective action. The bill, under certain exceptions, would prohibit an employer from requiring an employee(s) to release their claims under FEHA or stop them from disclosing unlawful acts, including but not limited to sexual harassment, in their workplace, in exchange for continued employment, or in exchange for a bonus or raise.

Another important aspect of SB 1300 is that it limits the situations in which an employer could collect attorney’s fees and costs from a worker who made unsuccessful claims of sexual harassment. Such an award would only be available in cases where the claims were frivolous, unreasonable or groundless when they were brought, or when a plaintiff continued to litigate after the claims lost their merit.

Lactation Accommodation, Assembly Bill 1976

Under this law, employers are required to make reasonable efforts to provide employees with a room or other location expressly for lactation purposes. The room cannot be a bathroom. Employers must be able to show that such an accommodation would be an undue hardship to be allowed to use a bathroom as the designated location, though they would still have to provide a space other than a toilet stall for employees to express milk.

Salary History Inquiries, Assembly Bill 2282

This bill added definitions for the terms, pay scale, applicant and reasonable request to existing law. The new law requires employers to provide someone who has completed an interview with a salary or hourly wage range for the position. Employers continue to be barred from relying on or seeking salary history information from an applicant. The new law does allow employers to ask applicants about their expected salary.

Defamation, Libel and Sexual Harassers, Assembly Bill 2770

This bill protects sexual harassment victims from being sued for defamation by their alleged harassers. It also protects employers from similar suits by harassing employees, thus allowing them to tell other potential employers of the sexual harassment accusations without fear of a defamation lawsuit.

Paid Family Leave Update, Senate Bill 1123

Looking farther ahead, SB 1123 will expand the Paid Family Leave wage replacement program starting in 2021. Employees will have access to the program to handle situations arising from the covered active duty status of their spouses, domestic partners, children or parents.

New Sexual Harassment Prevention Training, Senate Bill 1343

Starting January 1, 2020, all California employers with 5 or more employees must provide supervisory employees with at least 2 hours of sexual harassment training. They would also be required to provide nonsupervisory employees with at least 1 hour of sexual harassment training. The training would be classroom or other effective interactive training and education. Employers would also have to provide sexual harassment training and education to each employee at least once every two years going forward.

Confidential Settlement Agreements, Senate Bill 820

The use of confidentiality clauses in settlement agreements is restricted in this bill, starting January 1, 2019. The bill applies to settlement agreements reached in civil or administrative proceedings based on the following violations:

  • Sexual assault
  • Sexual harassment
  • Workplace harassment or sex discrimination
  • The failure to prevent workplace harassment or sex discrimination
  • Retaliation against a person for reporting harassment or sex discrimination

Courts will no longer be allowed to enter, by stipulation or otherwise, an order that prevents parties from disclosing factual information involved in the settlement. The bill specifically allows for confidentiality orders meant to protect the identity of the victim. It also allows provisions that prevent the parties from disclosing the amount paid in settling the claim. The bill declares these nondisclosure provisions related to factual information of the claim are void as a matter of law and against public policy.

Equality and Corporate Boards of Directors, Senate Bill 826

This bill requires all public companies with the principal executive offices in California to have a minimum of 1 female on its board of directors by the end of 2019. By the end of 2021, companies will be required to have a minimum of 2 female directors if the company has 5 directors, or 3 female directors if the board consists of 6 or more directors. The bill further authorized the Secretary of State to impose fines against companies that do not meet the requirements.

Addressing Sexual Harassment Claims, Senate Bill 224

This bill expands the group of people who can be held liable for sexual harassment to include investors, elected officials, lobbyists, directors and producers. In general, it allows for sexual harassment liability when the victim can show that the defendant held himself or herself out as someone who can help them establish a business, service or professional relationship with the harasser or a 3rd party. It also takes away the old requirement that sexual harassment victims must prove that they were unable to easily terminate the relationship.

Additionally, SB 224 makes the Department of Fair Employment and Housing responsible for enforcing sexual harassment claims. It also makes it illegal for someone to incite or help someone else denial the rights of persons related to sexual harassment actions.

These are just a few of the changes enacted by the California Legislature that will affect employers and employees in 2019 and beyond.

Sources: California Employment Law Report; HR Watchdog; CaliforniaBreastfeeding.org; California Legislative Information

YOUR JOB SHOULD BE WAITING FOR YOU AFTER A DEPLOYMENT

Whether you are in the reserves, are subject to recall by the U.S. Armed Forces or face the potential of the National Guard calling you into service, you may have received orders deploying you for a significant amount of time. You know that you must do your duty, but you wonder whether your civilian job will be waiting for you when you return.

The simple answer is that your employer should hold your position for you. The Uniformed Services Employment and Reemployment Rights Act guarantees it. However, you need to meet certain conditions in order to bind your employer to the provisions of the act.

Your rights to reemployment

In order to impose an obligation on your employer to hold your position while you are gone, you must meet the following criteria:

  • Your cumulative service with your current employer is five years or less.
  • You provide your employer with advance verbal or written notice of your deployment.
  • You either apply for reemployment or return to work in a timely manner upon your return.
  • Your separation from military service occurred under honorable conditions.

In addition, if you return with any disabilities, your employer must provide you with reasonable accommodations. Meeting these requirements means that your employer must provide you with a position in which you receive the same pay and benefits as if you had never left. At the very least, your employer must give you a comparable position if not the position you left.

If you want to retain your medical insurance while you are away, you may. Otherwise, you may have your insurance reinstated upon your return without exclusions or delays. Your employer may not discriminate against you because of your military service. An employer cannot deny you benefits, employment, reemployment or retention of your employment because of your obligations to the U.S. military. Your employer may not deny you the right to a promotion for this reason either.

What happens if your employer fails to adhere to the act?

If you are entitled to a job under USERRA, and your employer fails to provide it to you, it may be in your best interests to obtain a complete evaluation of your case. Once you understand your rights and legal options, you can move forward in a way that brings you the best resolution to the issue as possible.