new laws for 2014glaala.memberize.com/clubportal/clubdocs/194/new...ecj © 2014 ervin cohen &...

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© 2014 ERVIN COHEN & JESSUP LLP

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New Laws for 2014:

Presented By:Kelly O. Scott, Esq. | Direct: 310.281.6348 | [email protected]

LAWS

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Understand the lay of the land…

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CA ≠ DC

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No cause for alarm…

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AB 11 Amends Labor Code § 230.4• Employers with 50 or more employees must already allow up to 14 days per year for volunteer firefighters

• Now reserve peace officers and emergency rescue personnel are included

• Retaliation is prohibited• DLSE authorized to pursue complaints

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SB 770 Amends Labor Code §§ 2708, 3300‐3302

• Expands existing law on Paid Family Leave benefits

• Includes care of siblings, grandparents, grandchildren and parents‐in‐law

• Effective July 1, 2014

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Department of Labor Extends FMLAto Same‐Sex Marriage

• Guidance confirms that same‐sex married couples are entitled to same benefits under FMLA as traditional married couples

• Follows Supreme Court’s decision in United States v. Windsor

• 17 states presently recognize same‐sex marriages

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AB 556 Amends Fair Employment and Housing Act

• Adds military and veteran status as protected categories

• Exemption provided for purpose of awarding veteran’s preferences as permitted by law

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SB 292 Amends FEHA

• Response to Kelley v. Conco Companies (2011)– Implied plaintiff in same‐sex harassment case must prove sexual desire

– At odds with established precedent– Clarifies statute

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Harris v. City of Santa Monica

• Motivating factor jury instruction given at trial• CA Supreme Court held mixed‐motive instruction was proper

• Plaintiff must prove discrimination was a “substantial factor”, not simply a motivating factor

• Mixed‐motive defense bars back pay damages

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AB 362 Amends Revenue and Taxation Code § 17141

• Excludes from gross income any amount received by employee to compensate for the federal tax incurred as a result of federal failure to recognize same‐sex spouse or domestic partner

• Expires January 1, 2019

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New OSHA Training Requirements• OSHA is phasing in new safety requirements through June, 2016

• Aligns with United Nation’s standards on classification and labeling of chemicals

• Initial phase is on new label elements and Safety Data Sheets format

• Workers must be trained by December 1, 2013

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Sonic‐Calabasas A, Inc. v. Moreno

• Rights to “Berman hearing” with the Labor Commissioner can be waived

• State law that interferes with federal arbitration law is not valid

• Berman hearing impedes arbitration under FAA

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Maybe things are not so great…

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AB 10 Amends Labor Code § 1182.12

• Raise minimum wage in stages– July 1, 2014 ‐ $9.00 – January 1, 2016 ‐ $10.00– 25% increase over $8.00– CA could have highest minimum wage

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Heyen v. Safeway, Inc.

• Supervisor classification class action case• Multi‐tasking defense not permitted• No hybrid activities under Wage Orders• The danger of understaffing

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SB 288 Adds Labor Code § 230.5• Existing law protects victims of domestic violence or sexual assault• Adds protections for various other offenses for victims and those

testifying at request of victim– Vehicular manslaughter– Child abuse– Felony domestic violence– Felony abuse of elder– Felony stalking– Solicitation for murder– Serious felonies– Hit and run– Felony driving

• Can request police report, court order or healthcare verification• “Victim” includes spouse, parent, child, sibling or guardian

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Department of Labor Amends FLSA• Third party employers must pay overtime and federal minimum wage to all domestic workers

• Companionship service workers employed by individual, family or household exempt

• Live‐in domestic workers employed by individual, family or household exempt from overtime

• Effective January 1, 2015

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AB 241 Adds Labor Code § 1450 et. seq.Domestic Workers Bill of Rights

• Applies to work in private households• Requires overtime after 9 hours a day or 45 hours in a workweek

• Excludes relatives, casual and under 18 babysitters and facility care

• Requires Governor to study impact

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Elite Pays Biggest Ever Intern Settlement

• $450,000 or roughly $700 per intern• Lawsuit sought $50 million under NY law and FLSA

• Interns are not workers!• Several factors must be met for DLSE approval

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AB 60, AB 1024 and AB 1159 Impact Immigrants

• AB 60 Vehicle Code to require DMV to issue drivers privilege license to unlawful immigrants– Proof of identity and residency required

• AB 1024 amends Business and Professions Code to allow Supreme Court to grant admission to practice law to unlawful immigrants

• AB 1159 amends Business and Professions Code to bar fees for immigration reform act services before enactment of an immigration reform act

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AB 35 Amends Business and Professions Code, Unemployment Insurance Code and Vehicle Code

• Immigration consultants, attorneys, notaries public and organizations accredited by US Board of Immigration Appeals are only individuals authorized to charge fees for Deferred Childhood Arrivals programs

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SB 435 Amends Labor Code § 226.7

• Provides penalty for missed mandated “recovery periods” as authorized by IWC, OSHA or Division of Occupational Safety and Health

• Must pay 1 hour of pay at regular rate for each workday

• Note: Originally pertained to piece‐rate workers

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Various Bills Codify and Augment ACA

• SB 639 codifies provisions relating to out‐of‐pocket limits on cost‐sharing and coverage requirements

• AB 422 adds information available through Covered California and allows distribution through school lunch programs

• AB 1180 removes several provisions of existing law that were inconsistent with the ACA

• AB 1428 allows fingerprinting for criminal history checks for those that will have access to financial or medical information of the enrollees or potential enrollees

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SB 400 Amends FEHA

• Adds victims of stalking, sexual assault, and domestic violence as protected category– Prohibits adverse actions by employer– Requires reasonable accommodations for victims, including safety measures

– Employer required to consider danger– Creates private right of action– Attorneys’ fees, costs and damages

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Brace yourself!

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SB 462 Amends Labor Code § 218.5

• Applies to non‐payment of wages claims, fringe benefits, or health and welfare or pension fund contributions

• Awards attorneys’ fees and costs to prevailing party that is not employee only if court finds employee action brought in bad faith

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Richey v. AutoNation Inc.

• Employee terminated while on leave for managing family restaurant

• Arbitrator allowed “honest belief” defense• Court of Appeal held clear legal error• CA Supreme Court has granted review

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AB 442 Amends Labor Code §§ 1194.2 and 1197.1

• Expands penalties and restitution provisions• Creates liquidated damages provision

– Applies to failure to pay minimum wages– Amount is amount unpaid, plus interest– Reasonable good faith defense applies

• In addition to civil penalties per pay period, regardless of intent ($100, $250)

• In addition to wages owed• Applies to individuals as well as employers

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McCoy v. Pacific Maritime Association

• Crude and offensive remarks not so severe and pervasive

• Trial court failed to examine “me too” evidence of retaliation

• Highlights trend of retaliation even where no real underlying legal misconduct

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AB 263 Adds To and Amends Labor Code

• Prohibits “unfair immigration document practices”• Includes retaliatory use of E‐Verify, threats and document requests

• Tied to exercise, in good faith, of rights protected by code

• 90 day rebuttable presumption• Increases civil penalties up to $10,000 per employee per violation

• Court may suspend all licenses 14 days, 30 days, 90 days

• Good faith defenses available

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SB 666 Amends Business and Professions Code and Labor Code

• Business license may be suspended or revoked for retaliatory immigration practices, wage complaints and testimony on violations

• Suspension or disbarment of counsel also possible• Good faith efforts to resolve violations and impact on employees may be considered

• Fines up to $10,000 per employee per violation• Also exhaustion of administrative remedies not required for any civil action brought under Labor Code

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SB 496 Amends Labor Code §1102.5• Extends whistleblower protections• Prohibits retaliation against employee because employer believes employee has disclosed or may disclose violation– of a local rule or regulation– to a government or law enforcement agency or person over the employee with authority to investigate

• Also prohibits retaliation for employee refusing to participate in activity that would result in violation

• Employee must have reasonable cause to believe violation

• Civil penalty of $10,000 per violation

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Rope v. Auto‐Chlor System of Washington

• Paid leave sought under Michelle MaykinDonation Protection Act

• Termination before DPA became effective• No DPA claim, but could claim “associational discrimination” under FEHA

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SB 530 Amends Labor Code § 432.7 and adds 4822.22 to the Penal Code

• Prohibits employer from asking or using information on convictions judicially dismissed or sealed

• Exceptions where required by law to obtain information or where applicant required to possess firearm

• Violations are actual damages or $200, treble damages or $500 for intentional violations, plus attorney’s fees

• Intentional violations are a misdemeanor

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AB 524 Amends Penal Code § 519

• Amends existing law on extortion• Provides that threat to report immigration status of individual, relative or family member may induce fear sufficient for extortion

• Jail (1 to 3 years) or fines up to $10,000 or both

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SB 390 Amends Labor Code § 227

• Expands existing law on failure to pay pension or benefits plans

• Allows Labor Commissioner to pursue criminal prosecution for payroll tax failure

• If $500 or less, misdemeanor; more than $500 is a felony

• Jail of not more than one year• Fines of not more than $1,000, or both

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Resource List

1. California Legislative Information ‐http://leginfo.legislature.ca.gov/

2. Department of Labor Information ‐http://www.dol.gov/

3. United States Senate – Bills & Resolutions: http://www.senate.gov/pagelayout/legislative/d_three_sections_with_teasers/bills.htm

4. OSHA Fact Sheet on new training requirements ‐https://www.osha.gov/Publications/OSHA3642.pdf

new laws for 2014glaala.memberize.com/clubportal/clubdocs/194/new...ecj © 2014 ervin cohen &...

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