Press-Enterprise - January 24th, 2016

Partner Cynthia Germano shares the year’s most notable employment-related laws in the Press-Enterprise.

A number of California labor and employment laws went into effect on New Year’s Day that employers are tasked with knowing and following. There are a few, however, that are notable.

New Labor Code section 226.2 provides that employers must pay piece-rate employees separately for rest periods and “non-productive” time. For rest periods, piece-rate employees must be compensated at “a regular hourly rate that is no less than the higher of” minimum wage or the employees’ “average hourly rate.” For “non-productive” time, i.e., time under the employer’s control not related to the activity being compensated and exclusive of rest periods, employees must be compensated at an hourly rate that is no less than minimum wage. This payment will be in addition to the employee’s piece-rate compensation. Employers must also provide additional information on every piece-rate employee’s pay stub, including but not limited to, the total hours of compensable rest and recovery periods and rate of compensation. The new law provides employers with an “affirmative defense” to claims arising from failure to pay for rest and recovery periods and non-productive time for the time period prior to Dec. 31, 2015, if the employer complies with certain requirements by Dec. 15, 2016.

Labor Code section 1197.5, the California Fair Pay Act, was amended to lower the burden of proof for employees to claim a violation of the law, while increasing the burden of proof for employers’ defenses. The amended law prohibits an employer from paying its employees at wage rates less than those paid to employees of the opposite sex for “substantially similar work” when viewed as a combination of skill, effort and responsibility. It also requires employers to demonstrate that any wage differential is based on a factor other than sex. Employers cannot prevent employees from disclosing or discussing their wages, the wages of others, or their rights under the law. Employers who violate the law may have to reinstate employees and reimburse them for lost wages and benefits.

All employers are by now aware of the Healthy Workplaces, Healthy Families Act of 2014, or Paid Sick Leave law. In an effort to clarify some of the provisions of the law, urgency legislation was passed and became effective July 13. Among other things, the legislation clarified that an employee must work for the same employer for 30 or more days within a year of the commencement of employment to be eligible to use paid sick leave, that alternative accrual methods for all leave banks are allowed, that employers must “grandfather” in leave banks existing as of Jan. 1, 2015, and that employers are allowed to calculate the rate of pay for employees using any of three methods. Effective Jan. 1, 2016, amendments to California Kin Care Law (California Labor Code section 230.8) provide that, if employers grant sick leave benefits above and beyond those required, they must permit employees to use all sick leave benefits for the purposes specified in the Paid Sick Leave law.

New Labor Code section 2814 precludes employers from using E-Verify, the federal electronic employment verification system, to check the employment authorization status of existing employees or job applicants before an offer of employment has been extended. The California Fair Employment and Housing Act was also amended to make it clear that it is illegal for

employers to retaliate against a person for requesting accommodation of a disability or religious belief, regardless of whether the request was granted.

Finally, employers should recall that, in 2013, legislation was enacted that provided that, as of Jan.1, 2016, the minimum wage in California would be raised to $10 per hour.

* This article first appeared in The Press-Enterprise on Jan. 24, 2016 Republished with permission.