Bar Association of San Francisco Yosemite Conference New Laws and Cases for 2014

1. Bar Association of San Francisco Yosemite ConferenceNew Laws and Cases for 2014 Mark I. Schickman, Esq Cathleen S. Yonahara schickman@freelandlaw.com Freeland Cooper & Foreman LLP San Francisco, CA 187153

2. Whistleblower 187153

3. New Law on Whistleblower Protection Effective 1/1/14, SB 496 expands Labor Code § 1102.5 to: • Include internal complaints. • Include reports alleging a violation of a local rule or regulation. • Protect all employees, including employees with duties related to company compliance, from whistleblower retaliation. 187153

4. New Law on Whistleblower Protection • Prohibit employers from adopting policies that prevent employees from disclosing a violation of law to a supervisor or other employee who has authority to investigate, discover or correct the noncompliance. • Prohibit retaliation against employee b/c employer “believes the employee disclosed or may disclose information” to a government or law enforcement agency. 187153

5. New Law Prohibits Retaliation Against Employees Asserting Rights Under Labor Code • Effective 1/1/14, AB 263 prohibits retaliation or adverse action against employee who assert employee’s rights under the Labor Code, including a written or oral complaint that employee is owed wages • Adds a civil penalty of $10,000 per employee per violation of Labor Code § 98.6. 187153

6. Attorneys’ Fees 187153

7. New Law on Attorneys’ Fees for Wage and Hour Lawsuits • SB 462, effective 1/1/14, provides that employers who win lawsuits for failure to pay wages or benefits may recover attorneys’ fees only if a trial court finds that the employee filed lawsuit in bad faith. 187153

8. Attorney’s Fees – Prevailing Party Wage Claims • SB 462 states that employers who win wage-claim lawsuits may recover attorneys’ fees and costs from the employee only if a trial court finds that the employee filed the lawsuit in bad faith. 187153

9. Privacy 187153

10. Background Checks • SB 530 amends Labor Code section 432.7 to prohibit an employer from asking any applicant to disclose information concerning a conviction that has been judicially expunged, sealed or dismissed. The law also prohibits employers from considering any such information as a condition of employment. Certain exceptions apply, such as when the employer is required by law to obtain that information. 187153

11. Background Checks • AB 218 prohibits a state or local agency from asking an applicant to disclose information regarding a criminal conviction until after the agency determines the applicant meets minimum employment qualifications. There are specified exceptions, such as where a criminal history background check is otherwise required by law for the position. This legislation will not go into the effect until July 1, 2014. 187153

12. Invasion of Privacy—Workplace Search • A workplace search may be unconstitutional. • Lower employee’s expectation of privacy by: • Having written policy giving employee advance notice that searches may be conducted, and all areas in workplace are subject to search. • Obtaining written authorization from an employee before conducting a search. • Objectives of any search should be job related. • Keep degree of intrusion reasonably necessary.

13. Social Media Passwords • Effective 1/1/13, AB 1844 prohibits employers from requiring an employee or an applicant to disclose a username or password for the purpose of accessing personal social media. • Prohibits employers from requiring that the employee or applicant access personal social media in the presence of the employer.

14. Social Media Passwords • Exceptions: These prohibitions do not apply: • when the request is to a current employee as part of an investigation of allegations of employee misconduct or violation of law, but the request must be based upon a reasonable belief that the request seeks relevant information. • to electronic devices issued by the employer.

15. Personnel Files • Effective 1/1/13, Labor Code 1198.5 requires employers: • (1) to make personnel records available for inspection by any current or former employee or his representative, and • (2) to provide a copy of the records. • Timeframe: Within 30 calendar days from receipt of a written request, or if the parties agree in writing, within no more than 35 calendar days.

16. Personnel Files • Exceptions: The bill does not apply to employees covered by a valid CBA if the agreement provides, among other things, for a procedure for inspection and copying of personnel records. • Retention Period: Employer must retain personnel files at least 3 years after termination of employment.

17. Personnel Files • Penalty if employer fails to permit inspection, or to provide a copy, of personnel records within the required timeframe after receiving request: • Penalty of $750; costs; attorneys’ fees; and injunctive relief.

18. Jury Instructions 187153

19. California Supreme Court Limits Liability on Mixed Motive Cases • What if employer fires employee for both discriminatory reasons and legitimate performance reasons? 187153

20. California Supreme Court Limits Liability on Mixed Motive Cases • If employee establishes discrimination was “substantial factor” in employment decision, employer can still avoid liability for monetary damages, back pay and reinstatement if employer proves: • Legitimate reasons for termination; • Legitimate reasons would’ve led to termination even if the discriminatory motives hadn’t played a role; and • Employer was actually motivated by legitimate reasons when it made the decision. But, employee may still be entitled to injunction and attorneys fees and costs. Harris v. City of Santa Monica (2013) 56 Cal.4th 203. 187153

21. California Supreme Court Limits Liability on Mixed Motive Cases • “In light of today's decision, a jury in a mixed-motive case alleging unlawful termination should be instructed that it must find the employer's action was substantially motivated by discrimination before the burden shifts to the employer to make a same-decision showing, and that a same-decision showing precludes an award of reinstatement, back pay, or damages.” Harris v. City of Santa Monica (2013) 56 Cal.4th 203. 187153

22. PAGA 187153

23. California Labor CodePrivate Attorneys General Act (PAGA) • Prevailing employee entitled to attorneys’ fees and costs. • Creates civil penalty for all Labor Code violations (except those for which a civil penalty is specifically provided): • $100 for each employee per pay period for initial violation, and $200 for each subsequent violation. • Employees entitled to 25% of any civil penalty recovered; remaining 75% given to the Agency. • Employers prohibited from retaliating against employee for bringing action under PAGA.

24. Class Actions: PAGA v. Unfair Competition Law • CA Unfair Competition Law (Bus & Prof. Code section 17200) allows employees to sue for wage and hour violations occurring within 4 years from date of filing suit. • Prevailing employees entitled to “disgorgement of profits.” • Prevailing employees not entitled to attorney’s fees. • In order to represent other employees, suit must be brought as class action. • In contrast, an employee bringing a PAGA case does not need to bring a class action.

25. Disability Discrimination/ PDL 187153

26. New FEHC Disability Rags • Applicants and employees must prove he is “otherwise qualified” • Defines assistive animals to include “support” animals that provide emotional or other support to person with disability, including traumatic brain injuries or mental disabilities such as major depression 187153

27. New FEHCDisability Rags/Interactive Process • Employer’s obligation to engage in interactive process triggered when: • (1) request for accommodation is made by applicant or employee with a known physical or mental disability or medication condition; • (2) an employer is made aware of need for an accommodation by a third party or by observation; or • (3) disabled employee exhausted leave under workers’ comp, FMLA/CFRA for employee’s own SHC and HCP indicates further leave is required. 187153

28. New FEHCDisability Rags/Medical Certification • An employer receiving requests for accommodation where existence of disability or need for accommodation is not obvious may ask for “reasonable medical documentation confirming the existence of the disability and need for reasonable accommodation.” 187153

29. New FEHCDisability Rags/Medical Certification • Employer may ask the employee to provide information from the HCP (1) stating that employee has a physical or mental condition that limits a major life activity or medical condition and (2) a description of why the employee needs a reasonable accommodation. • The disclosure of the nature of disability is not required! 187153

30. PDL/Health Care Coverage • Effective 1/1/12, employers must maintain and pay for coverage under its group health plans for the duration of the PDL, up to 4 months, at the level and under the conditions that coverage would’ve provided if the employee had continued in employment continuously for duration of the leave. • For state agencies, the CBA governs the employee’s receipt of health care coverage during PDL. 187153

31. PDL/Health Care Coverage • Employers may recover from the employee the health care premiums the employer paid if the employee fails to return from leave after the expiration of the leave, provided the failure to return is not due to: • the employee taking CFRA leave, • a continuing disability, or • other circumstances beyond the employee’s control. 187153

32. New PDLRegs/Health Care Coverage • New regs provides that the time employer maintains group health coverage during PDL can’t be used to meet its obligations to pay for 12 weeks of group health coverage under FMLA/CFRA. • New regs require employers to provide group health coverage for up to 7 months for a woman who takes both PDL and CFRA! Note– conflicts w/ CFRA regs. 187153

33. New PDLRegs/ Calculating 4 Months PDL • It’s not 16 weeks! It’s 17 1/3 weeks. • For employees working 40 hrs/wk => 693 hours of PDL. • Employees working part time schedule => prorata or proportional leave amount • Employee working varied schedule => monthly average hours worked for 4 months prior to beginning of PDL 187153

34. New PDLRegs/ Reinstatement • New regs remove employer’s ability to deny reinstatement when preserving the job or duties for employee would substantially undermine employer’s ability to operate the business safety and efficiently. • If employee’s original position is eliminated, she must be given comparable position for which she’s qualified that’s available on her scheduled reinstatement date or within 60 days. • During 60 day period, employer has new affirmative duty to notify employee of available positions. 187153

35. New PDLRegs/New Notices • Posting: Employers must post applicable PDLnotice (“Notice A” for employers < 50 employees; and “Notice B” for employers with 50+ employees). • Distribution: Provide a copy of the notice asap after the employee tells employer of pregnancy or sooner if the employee inquires about reasonable accommodation, transfer, or pregnancy disability leaves. • New model certification form provided. 187153

36. New PDLRegs/ Conditions That Qualify for PDL • Severe morning sickness • Gestational diabetes • Pregnancy induced hypertension • Preclampsia • Mastitis • Post-partum depression • Prenatal or postnatal care • Bedrest • Childbirth • Loss of end or pregnancy • Recovery from childbirth or loss or end of pregnancy 187153

37. New PDLRegs/Reasonable Accommodation • You must provide accommodation to pregnancy employee if the accommodation is “reasonable” and HCP certifies it’s “medically advisable” • What’s reasonable? • Look at totality of circumstances– employee’s medical needs, duration of accommodation, employer’s past and current practices • No undue hardship defense • No second opinions 187153

38. Can You Terminate Employee Who Has Exhausted PDL? • Employer gave employee 19 weeks of leave, then fired her b/c she was unable to return to work. Employee sued. • Employer claimed that 4 months was max leave a pregnant employee could take under PDL or FEHA. • Wrong! Employee had valid claim under FEHA for discrimination and failure to provide reasonable accommodations. Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331. 187153

39. Interplay AmongFMLA, CFRA and PDL • FMLA and PDL may run concurrently • CFRA and PDL don’t run concurrently. • At end of employee’s pregnancy disability, or end of 4 months PDL, whichever is first, a CFRA-eligible employee may take up to 12 workweeks for reason of birth of child. • Maximum possible combined statutory leave for both PDL and CFRA leave due to birth of child is 4 months and 12 workweeks. 187153

40. Other Leaves of Absence 187153

41. New Law Prohibiting Discrimination for Taking Crime Victims Leave • Effective 1/1/14, SB 288 prohibits employers from discriminating or retaliating against an employee who is a victim of a specified serious crimes for taking time off from work, upon the victim’s request, to appear in any proceeding in which a right of the victim is at issue. 187153

42. New Law Leave for Stalking Victims • SB 400, effective 1/1/14, employers must provide leave for stalking victims (in addition to domestic violence and sexual assault victims). • Employers may not discriminate or retaliate based on employee’s status as victim of domestic violence, sexual assault or stalking. • Employers must provide reasonable accommodation to victims of domestic violence, sexual assault or stalking, including transfer, reassignment or other safety measures. 187153

43. Paid Family Leave • Employees may receive wage replacement benefits for up to 6 weeks in any 12 month period to care for seriously ill child, spouse, parent, domestic partner, or to bond with minor child within 1 year of birth or placement of child in connection with foster care or adoption. • Covered Employers: Employers with 1+ employees covered by SDI program or voluntary plan in lieu of SDI. • Leave is not job protected • Like SDI, PFL fully funded by employees’ contributions (up to 55% of base wage, capped at weekly maximum). 187153

44. New Law on Paid Family Leave • Effective 7/1/14, SB 770 expands PFL benefits for employee to include time off taken to care for a seriously ill: • Grandparent • Grandchild • Siblingor • Parent-in law 187153

45. Companionship/ Personal Attendant Exemption 187153

46. Personal Attendant Exemption Under California Law • “Personal attendants” are exempt from statutory overtime and meal and rest break provisions, but are not exempt from minimum wage requirements. • Personal attendants are defined as babysitters and any person employed by a private householder or any third party employer recognized in the health care industry to work in a private household, to supervise, feed or dress a child or a person who by reason of advanced age, physical disability or mental deficiency needs supervision. In order to have the status of personal attendant, the employee may not spend more than 20% of the employee’s weekly time engaged in other work. 187153

47. New Law on Overtime Payfor Personal Attendants • AB 241 (aka “Domestic Worker Bill of Rights”) provides for overtime for a domestic worker, including a live-in domestic worker, who is a personal attendant. • This provision doesn’t apply to casual babysitters. • Overtime must be paid at the rate of one and one-half times the employee’s regular rate of pay: • for all hours worked > 9 hours in a workday and • for all hours worked > 45 hours in a workweek. • This law takes effect on 1/1/14 with a 3-year sunset provision. 187153

48. Companionship Exemption Under Federal Law • Under current federal law, domestic workers employed to provide “companionship services” for an elderly person or a person with an illness, injury or disability are exempted from FLSA’s minimum wage and overtime provisions. • Live-in domestic workers are exempted from overtime, but not minimum wage requirements, under the FLSA. 187153

49. New DOL Rule on Companionship Exemption DOL issued a 9/17/13 Final Rule, effective 1/1/15: • Extending FLSA’s minimum wage and overtime provisions to domestic workers employed to provide companionship services for an elderly person or a person with an illness, injury or disability. • Narrowly defining “companionship services” so that many direct care work workers will be covered by the FLSA. • Provides that third party employers of domestic workers (such as home care staffing agencies) may not claim the exemption for companionship services or the exemption for live-in domestic workers. 187153

50. Wage and Hour 187153