2016 EMPLOYMENT LAW UPDATE Daniel J. Muller Slater Hersey & Lierberman LLP 160 W. Santa Clara Street, Suite 1575 San Jose CA

NEW LEGISLATION - SICK LEAVE  “Fixes” Implemented in 2015 To The Paid Sick Leave Law:  Allow an employer to require an employee to work for the same employer for 30 or more days within a year of the commencement of employment to be eligible to use PSL  Allow for alternative accrual methods for all leave banks  “Grandfather” existing leave banks (as of January 1, 2015)

NEW LEGISLATION - SICK LEAVE  “Fixes” To The Paid Sick Leave Law:  Allow employers with unlimited leave banks to state “unlimited” on wage statements  Allow employers to calculate rate of pay using any of three different methods  Other clarifications and exclusions

NEW LEGISLATION - EQUAL PAY ACT  First Enacted in 1949  Now considered the strongest equal pay law in the nation.  Modified to do the following:  Lower the burden of proof for employee claims  Increase the burden of proof for employer defenses

NEW LEGISLATION - EQUAL PAY ACT  The prior law required employees to prove their cases by showing that male workers were paid higher wages for the “same” job with the “same” skill, effort, and responsibility.  The new law changes the standards so that a plaintiff need only show that she performs “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.

NEW LEGISLATION - EQUAL PAY ACT  Employers bear the burden of “affirmatively demonstrating” that a difference in pay between female and male workers is based entirely on one or more valid factors such as:  A seniority system  A merit system  A system that measures earning by quantity or quality of product  A bona fide factor other than sex.

NEW LEGISLATION - EQUAL PAY ACT  Prohibits “pay secrecy” by allowing employees to:  Disclose, discuss, and inquire about their own and other employees’ wages  Aid other employees in exercising their rights under the Act  Creates a private right of action for retaliation or discharge in violation of the Act

NEW LEGISLATION - PRIVATE ATTORNEYS GENERAL ACT (PAGA)  PAGA has been amended to allow employers a limited opportunity to cure wage statement violations.  Can cure the following types of violations:  Pay period dates  Name and address of the legal entity

NEW LEGISLATION - RETALIATION PROTECTIONS  Sections 98.6, , , and 6310 of the California Labor Code have been amended to expand protection from retaliation to an employee who is a family member of a person engaged in protected conduct or who makes a complaint protected by the Labor Code.  The law also expands joint employer liability by expanding the definition of employer to include “client employers”

NEW LEGISLATION - RETALIATION PROTECTIONS  AB 987 prohibits employers from discriminating or retaliating against employees who sought religious or disability accommodations. The rules apply even for accommodation requests that were properly denied.  This change clarifies the law following the decision of Rope v. Auto-Clor System of Washington, Inc. (2013) 220 Cal. App. 4 th 635.

NEW LEGISLATION - KIN CARE EXPANSION  Kin care has been expanded to allow employees to use leave to:  Find a school or licensed child care provider  Address child care provider or school emergencies  The law also expands the categories of employees who are eligible to take time off to care for a child. The term “Parent” is now defined as follows:  a parent, guardian, stepparent, foster parent, or grandparent of, or a person who stands in loco parentis to, a child.

NEW LEGISLATION - LABOR COMMISSIONER ENFORCEMENT  The Labor Commissioner is now authorized to enforce a judgment by:  Filing a lien on real estate  Levying on personal property of an employer  Imposing a stop order on an employer’s business

NEW LEGISLATION - WAGE THEFT  SB 588 allows employees to bring wage claims against any owner of an employer or any individual acting on behalf of an employer who violates any provision regulating minimum wages or hours and days of work  Expands successor employer liability  Bonding requirement to continue doing business in California

NEW LEGISLATION - OTHER NEW LAWS  Piece rate legislation (AB 1513)  Meal period waivers for health care workers (SB 327)  Improper use of E-Verify (AB 622)  Pedicab businesses allowed to serve alcohol! (SB 530)

COURT DECISIONS –DISCRIMINATION EEOC v. Abercrombie & Fitch (2015) 135 S. Ct  Employer may not consider an employee’s religious practice when making an employment decision  This is true even if the employer does not have actual knowledge of the need for an accommodation Richey v. AutoNation, Inc. (2015) 60 Cal. 4 th 909  Employee took medical leave but then worked on his own business. Employer terminated employee for violating policy against outside work while on medical leave.  Court found for the employer because the decision to terminate was not based on the fact that the employee took the protected leave but, instead, was because he violated the policy against outside work while on medical leave

COURT DECISIONS – DISABILITY Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal. App. 4 th 78  Plaintiff, Higgins-Williams, complained to her employer, Sutter, that she suffered stress from interactions with her supervisor and Sutter's HR department.  Sutter told Higgins-Williams that it would terminate her, unless she provided information as to (1) when she could return to work and (2) whether additional leave as an accommodation would effectuate her return to work. She did not supply the information, and Sutter terminated her. She sued.  Sutter prevailed. The Court of appeal said: "An employee's inability to work under a particular supervisor because of anxiety and stress related to the supervisor's standard oversight of the employee's job performance does not constitute a disability under FEHA."

COURT DECISIONS – DISABILITY Nealy v. City of Santa Monica (2015)  An employer is not required to remove an essential function from a position in order to provide a reasonable accommodation  An employer does not need to provide indefinite leave for an employee until a comparable position becomes available

COURT DECISIONS – PREGNANCY Young v. United Parcel Service (2015) 135 S. Ct  To establish a claim for failure to accommodate, an employee must prove:  She asked to be accommodated in the workplace when she could not fulfill her normal job duties  That the employer refused to accommodate her  That the employer did actually provide an accommodation for others similarly situated

COURT DECISIONS – INDEPENDENT CONTRACTORS Garcia v. Seacon Logix, Inc. (2015) 190 Cal. Rpt. 3d 400  Company that controlled the work performed by contractors was actually an employer. Factors demonstrating control:  Right to discharge at will  Controlled the timing and place of work  Controlled the “tools” used by workers  Uber and Lyft decisions expected in 2016

DISABILITY LAW – THE INTERACTIVE PROCESS  Successful implementation of the “interactive process” is critical to avoiding and / or resolving disability discrimination claims.  The employee is entitled to the process even if the employer “knows” or suspects that no reasonable accommodation is available.  Documentation is key. Be sure to show that the employer is trying to find a solution.  Ask this question if there is an actual or possible disability claim: “Is there anything we can do so that you can perform the essential functions of your job?”  Remember that an unpaid leave of absence can be a reasonable accommodation in some circumstances.

MANAGING LEAVES OF ABSENCE  Documentation is critical. Be able to show that notices were given and appropriate leaves were offered.  Know your own policies. If an employer is not careful, it can create leave obligations when they otherwise would not exist.  Train your supervisors. Leave laws are complicated. Supervisors who “freelance” regarding leaves of absence can create problems for employers.