2015 Brings an Assortment of New Employment Laws
California employers have to comply with a variety of new laws in 2015. For employers in San Francisco and Oakland, there are even more complexities, because both cities have adopted their own minimum wages and sick leave regulations. Staying compliant requires both good policies and excellent record-keeping practices.
STATE-WIDE SICK LEAVE
Beginning July 1, 2015, all California employers will need to provide paid sick leave. The new law covers most employees who work 30 or more days within a year, including temporary, part-time, and seasonal employees. San Francisco employers are already familiar with paid sick time. Oakland has recently adopted sick leave requirements that mimic those in San Francisco.
The California requirement differs slightly from the Oakland and San Francisco provisions. Employers will have to meet the requirements from both State and local regulations that provide the greatest benefit to the employees. Some of the key provisions are:
Paid sick time accrues at a rate of no less than 1 hour for every
30 hours worked. For an employee who works 40 hours a week, this equals roughly 1.3 hours per week, or 5.3 hours per month. For employees outside of Oakland or San Francisco, employers have the option of providing 3 days of sick time at the beginning of the year.
Under the California law, an employer can limit an employee’s use of paid sick days to 3 days (24 work hours) per year. Note, this is not true for San Francisco or Oakland.
Employees must be permitted to carry over unused, accrued sick days from year to year. The employer may cap sick leave accrual at 48 hours, or 6 days. However, outside of Oakland and San Francisco, if employees are given the total amount of sick leave that may be used per year—24 hours or 3 days—at the beginning of each year, no accrual or carry-over is required.
An employee is entitled to use accrued sick days beginning on the 90th day of employment.
Employers may not discriminate or retaliate against employees who request paid sick days.
Employers must post required notices and keep certain records reflecting accrual and use of sick time. Both the poster and a template with the new hire information are available from the California Labor Commissioner’s website:
Frequently Asked Questions: www.dir.ca.gov/dlse/Paid_Sick_Leave.htm
Sick leave may be used for the diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee's family member. The definition of "family member" is broad and includes, for instance, parents-in-law, grandparents, grandchildren, and siblings, among other persons. Sick leave may also be used for victims of domestic violence, sexual assault, or stalking.
Sick leave need not be paid out at the conclusion of employment. However, if an employee separates from an employer and is rehired within one year, previously unused paid sick days must be reinstated.
Oakland also adopted new sick leave provisions. Of course, these don’t match either the State-wide requirements or the San Francisco requirements. In the next few months, employers should review their sick leave policies and make sure they are compliant with the laws and regulations of all jurisdictions where they have employees.
The state-wide minimum wage is $9.00 per hour and will increase to $10.00 per hour as of January 1, 2016. San Francisco has long had its own minimum wage, which will increase over time to $15.00 per hour, with annual adjustments after then. In 2015, San Francisco employers face not one, but two, minimum wage hikes. On January 1, the City’s minimum wage increased to $11.05. The second increase, to $12.25, goes into effect on May 1, 2015. Oakland, which did not have its own minimum wage, jumps to $12.25 per hour on March 2, 2015, with cost of living adjustments to be made every January 1 thereafter.
If you are compensating a resident manager with free rent, you should be aware that the California Labor Commissioner’s office has determined that the cap toward minimum wage obligations applies to both State and local minimum wages. This interpretation does not seem consistent with the legislation, which has increased the cap each time the State-wide minimum wage has increased – so that the building owner can receive approximately the same number of hours of work by providing a free apartment. San Francisco and Oakland building owners will be able to obtain fewer hours of work for that free apartment, even though it is much more valuable than an apartment in a rural area.
Employers with more than 50 employees are required to provide all supervisors with 2 hours of sexual harassment prevention training every 2 years. Starting in 2015, the training must also include prevention of “abusive conduct.” “Abusive conduct” is defined as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” It “may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.” However, “a single act shall not constitute abusive conduct, unless especially severe and egregious.”
NOTE: California law does not prohibit “abusive conduct.” It is the law in a handful of other states. The training requirement may indicate that a prohibition is coming. Even if the law does not expressly prohibit “abusive conduct,” it is a good practice for employers to prohibit it. Abusive conduct leads to morale problems, resignation of valued employees, and, all too often, to lawsuits.
INTERNS ARE PEOPLE, TOO
The California Fair Employment and Housing Act protects employees and job applicants against discrimination and harassment in the workplace based upon their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. As of January 1, 2015, unpaid interns will also be entitled to protection against workplace discrimination and harassment.
DON’T CHECK THAT DRIVER’S LICENSE!
As of January 1, 2015, the California Department of Motor Vehicles will be able to issue a driver’s license even though the applicant cannot prove that he or she is in the United States lawfully. To prevent discrimination in the hiring process, employers may no longer ask to review the applicant’s license, unless the position requires driving. In addition, declining to consider an applicant because he or she holds a license showing that the driver did not prove that she or he was lawfully in the United States would constitute discrimination in violation of the California Fair Housing and Employment Act.
NOTE: This restriction does not change the employer’s obligation to have each new employee complete a Department of Homeland Security Form I_9 and obtain appropriate documents showing proof of ability to work in the United States. The Form I_9 should never be completed before the individual is hired, but must be completed within 3 days after the individual begins work.
HIRING THROUGH AN AGENCY? STILL LIABLE!
If you obtain workers through a third party labor contractor, you may be jointly liable with that contractor for various obligations of the employer, including the obligations to pay wages and provide Workers’ Compensation insurance coverage. If the labor contractor fails to fulfill the employer’s obligations, before filing suit against you, the worker or worker’s representative must give you notice of the violations. If the violation is a failure to pay wages, you can cure that. However, if the violation is a failure to provide Workers’ Compensation coverage, having joint liability, you may be responsible for all medical bills, lost wages, and pain and suffering suffered by the worker.
You cannot contract away the joint liability, but you can include a provision allowing you to recover from the labor contractor for any violations. This will do you little good if the labor contractor has closed or is insolvent. When you use contract labor, be sure to use a reputable company. Verify that they have adequate insurance coverage and, if possible, pay them only after they have paid the workers or make payments through a trust fund, to assure that monies you pay to the labor contractor are being paid to the workers and taxes being withheld are appropriately transmitted to the Internal Revenue Service and Franchise Tax Board.
OSHA REPORTING MOVES INTO THE ELECTRONIC AGE
When an employee dies on the job, or suffers a serious injury or illness, the employer must immediately report the matter to the Department of Industrial Relations, Division of Occupational Safety and Health. Employers are required to make the initial report by telephone or electronic mail. The old law required that the report be given via telephone or telegraph. A full report is due within 5 days of the injury. An employer who fails to file the immediate report may be assessed a civil penalty of not less than $5,000.