Employment Laws
Update - 2014
What California Employers Should Know
Presented by:
Larry Kazanjian
Introduction
Palmer Kazanjian Wohl Hodson LLP
Introduction (cont.)
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January – February 2014
*
 Superior Court, Sacramento County and U.S. District
Court, Eastern Dist. of CA:
• Discrimination/Harassment/Retaliation – 51
• Leaves of Absence - 16
• Failure to Provide Meal and/or Rest Periods - 14
 All of California:
• Discrimination/Harassment/Retaliation – 1,193
• Wrongful Termination – 754
• Failure to Pay Overtime – 414
*Data via Courthouse News Service.
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Overview
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Contractual Relationships
Equal Employment Opportunity
Independent Contractor Issues
Compensation and Benefits
Leaves of Absence
Question/Answer
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Contractual Relationships
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Summary:
 Written Policies and
Procedures
 At-Will Employment
 Arbitration
Agreements
 2014 Update
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Written Policies
and Procedures
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Federal or state law requirements
Employee requests
Management or supervisor review
Evidence in case of litigation
Establish terms of the employment
relationship
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Ex) Via written employment handbook
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At-Will Employment
Either party may
terminate relationship
 Without notice and/or
cause
 “Fully integrated”
contract
 Cannot terminate for
“unlawful” reason
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Arbitration Agreements
Separate agreement
signed by parties
 Necessary provisions
include:
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Impartial arbitrator
Remedies
Benefits include:
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Avoid litigation costs
Expedite dispute process
Palmer Kazanjian Wohl Hodson LLP
2014 Update

Compton v. American Management
Services LLC (2013)
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Arbitration agreement held unenforceable
because it was unconscionably one-sided
Serpa v. California Surety Investigations,
Inc. (2013)
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Arbitration agreement contained in an
employee handbook was not invalid simply
because the employer could change the
handbook in its discretion
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Equal Employment
Opportunity
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Summary:
 Harassment
 Discrimination
 Retaliation
 Workplace Violations
 2014 Update
Palmer Kazanjian Wohl Hodson LLP
Harassment
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“Harassment” defined
Unwelcome conduct
Complaint procedure
Investigation/Response
Remedies
Electronic media
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Ex) email, Internet
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Discrimination
Protected classifications
include race, sex, religion
 Disparate Treatment vs.
Disparate Impact
 Keys to avoidance include:
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Consistency
Legitimate, business-related
reasons for decisions
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Retaliation
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Form of unlawful discrimination
Multiple potential “retaliators”
Cannot change terms of employment
Cannot terminate employee
Protect against via written policy
Example(s):
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Employee “blows the whistle on” safety
violations or reported sexual harassment
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Workplace Violence
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Zero tolerance policy
 Threats, jokes, minor events
Appropriate response
procedure
 Legal tools, e.g. injunction
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Palmer Kazanjian Wohl Hodson LLP
2014 Update
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AB 263 – Immigration – Related Penalties
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SB 292 – FEHA - Sexual Harassment
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Sexually harassing conduct need not be motivated by sexual desire to
qualify as harassment; Clarifies that the FEHA does not require proof of
sexual desire toward the plaintiff in a harassment suit.
SB 400 – Protections for Stalking
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Subjects employers who engage in unfair immigration-related practices
to heavy fines and allows for private enforcement actions; Defines unfair
immigration practices.
An employer cannot discharge/discriminate/retaliate against an
employee because employee is a victim of domestic violence, sexual
assault, or stalking; Employer must also reasonably accommodate the
victim.
SB 666 – Retaliation
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An employer may lose its business or professional license for retaliating
against an employee/former employee/applicant on the basis of their
citizenship and/or immigration status.
Palmer Kazanjian Wohl Hodson LLP
2014 Update (cont.)

Vicente Salas v. Sierra Chemical Co. (2014).
 The CA Supreme Court will rule on a dispute over whether
an employer can successfully fight a discrimination suit by
alleging a worker provided false information about his
immigration status, giving the court an opportunity to clarify
the scope of companies' affirmative defenses when workers
lie to them, lawyers say.
 The court heard oral argument on April 2, 2014.
 A state appellate court previously upheld the dismissal of the
employee’s disability discrimination case under FEHA,
because of Sierra Chemical’s after-acquired evidence
defense – in which it claimed that it found out during
litigation that Salas had used someone else’s Social Security
number to obtain employment and that it would never have
hired Salas had it known about the misrepresentation.
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Independent
Contractors
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Summary:
 Independent Contractor
or Employee?
 Wage and Hour Issues
 2014 Update
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Employment Status
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Independent Contractor or
Employee?
 Employee presumption
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Cal. Lab. Code § 3357
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Cal. Code Regs. tit. 22, §
4304-1
The Employment Development
Department (“EDD”)
administers California’s
employment tax laws
Differing definitions utilized
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Do not use single factor to
classify
S. G. Borello & Sons, Inc.
(1989)
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Wage and Hour Issues
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“Employee” determination
Minimum wage
Overtime wages
Meal and rest periods
Reimbursement
Other issues:
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Tax
Workers’ Compensation
Unemployment Insurance
Palmer Kazanjian Wohl Hodson LLP
2014 Update

SB 168 – Farm Labor Contractors
 Existing law requires farm labor contractors to be
licensed with the California Labor Commissioner
and comply with applicable law.
 New law makes a successor farm labor contractor
liable for any wages or penalties owed to a
former employee by the predecessor employer,
whether or not the predecessor was a licensee.
 The criteria for determining whether the farm
labor contractor is a successor is enumerated in
Labor Code § 1698.9.
Palmer Kazanjian Wohl Hodson LLP
2014 Update (cont.)

Baumann v. Chase Investment Services Corp.
(March 13, 2014)
 9th Circuit Court of Appeals held that the federal
district does not have original jurisdiction under
the federal Class Action Fairness Act (CAFA) over
wage and hour suits brought under California’s
Private Attorneys General Act (PAGA).
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Compensation
and Benefits
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Summary:
 Overtime & Minimum
Wage Obligations
 Meal and Rest Periods
 Other Compensation
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Overtime & Minimum Wage
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Overtime Exemptions:
Executive
 Administrative
 Professional
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Use of Alternative & Flexible Schedules
 Limits on Hours of Work
 Regular Rate of Pay
 Related Record-Keeping Requirements
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Meal and Rest Periods
Brinker Restaurant Corp. (2012)
 Employee can contest up to four (4)
years after a missed meal period
 Employers’ compliance objective:
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Create best evidence possible that meals
were provided, regularly taken and accurately
recorded
Palmer Kazanjian Wohl Hodson LLP
Other Compensation
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Expenses
Vacation
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No statutory definition; only DLSE Opinion Letters
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Only includes a right to take time off that accrues
periodically with the passage of time.
Sick Leave
Bonuses
Commissions

Employers who pay commissions are required to
enter into written commission contracts with
employees
Palmer Kazanjian Wohl Hodson LLP
2014 Update

AB 10 – Minimum Wage
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On and after July 1, 2014,
minimum wage is $9.00 per
hour.
On January 1, 2016,
minimum wage will increase
again, to $10.00 per hour.
Palmer Kazanjian Wohl Hodson LLP
2014 Update (cont.)
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SB 390 – Employee Wage Witholdings
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Existing state law made it a crime for an employer to fail to make agreedupon payments to health and welfare funds, pension funds, or various
benefit plans.
As of 2014, it is a crime for a California employer to fail to remit
withholdings from an employee’s wages that were made pursuant to state,
local, or federal law.
SB 435 –Recovery Periods
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California employers are prohibited from requiring an employee to work
during any meal or rest period and must provide one hour of pay as a
penalty for failure to comply.
This law expands the prohibition to cover meal, rest, or recovery periods
mandated by applicable statutes, regulations, standards, or orders of
applicable government agencies.
A “recovery period” is defined as a cool down period afforded to an
employee to prevent heat illness.
OSHA mandates a recovery period of not less than five minutes for
employees who work outside when the temperature exceed 85 degrees.
Palmer Kazanjian Wohl Hodson LLP
2014 Update (cont.)

Kilby v. CVS Pharmacy, Inc. (2013); and Henderson
v. JPMorgan Chase Bank NA (2013).
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In March 2014, the 9th Circuit Court of Appeals asked
the California Supreme Court to clarify how the state
law requiring employers to provide workers with
“suitable seating” should be applied.
California’s IWC wage orders require most employers to
provide their employees with suitable seating “when the
nature of the work reasonably permits the use of
seats.”
This has been the law for decades, but the suitable
seating requirement was little noticed until after the
enactment of the California Labor Code Private
Attorneys General Act of 2004 (the “PAGA”).
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Leaves of Absence
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Summary:
 Family Medical Leave Act (“FMLA”)
 Disability Leave &
Reasonable Accommodation
 Pregnancy Leaves and Other Leaves
 2014 Update
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The FMLA
FMLA/CFRA
ADA/FEHA
Workers Compensation
PDL and other state laws
Separate analysis for
each
 Consistent application
 Paid sick leave for family
medical conditions
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Palmer Kazanjian Wohl Hodson LLP
Disability and Accommodation
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Employee Qualifications
“Disability” defined
 “Reasonable Accommodation”
 “Undue Hardship”
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Certification Requirements
 Reinstatement Obligations
 Collective Bargaining Obligations
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Pregnancy and
Other Types of Leaves
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Pregnancy Leave
Industrial Injury Leave
Vacation Leave
Sick Leave
Military Leave
Other Leaves
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Civic duty, election, religious leave, holiday
leave, bereavement leave
Palmer Kazanjian Wohl Hodson LLP
2014 Update

SB 770 – Expansion of Paid Family Leave
 Under existing law, the California Family
Rights Act (“CFRA”) provides up to six (6)
weeks of wage replacement benefits to
workers who take time off to care for a
seriously ill child, spouse, parent or domestic
partner, or to bond with a minor child.
 The scope of this program will now be
expanded to include time off to care for a
seriously ill grandparent, grandchild, sibling,
or parent-in-law.
Palmer Kazanjian Wohl Hodson LLP
2014 Update (cont.)
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California, AB 1522 – Paid Sick Days
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Under proposed legislation, workers would accrue one
(1) hour of paid sick leave for every 30 hours worked,
and employers could cap the leave at 24 hours, or
three (3) work days each year.
Unused sick leave would be carried over into the
following year, a provision representing a significant
change to existing law.
The Patient Protection and Affordable Care Act

Businesses with 50+ full-time employees will be
subject to fines if they do not provide healthcare
coverage for workers after this January 1, 2015.
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Questions?
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Thank You
Employment Laws
Update - 2014
What Employers Should Know