Lawsuit Prevention for Employers

NEW LAWS FOR 2017

As is typical, California has enacted several new employment laws, most of which take effect on January 1, 2017.  This article summarizes several provisions likely to present legal exposure for unwary employers.

Some of the new, or amended, statutes will require modification of existing workplace policies in order to maintain employer legal compliance. Others will warrant policy revisions as a means of providing employers with the maximum legal protection available.

Minimum Wage

Effective January 1, 2017, employers with 26 or more employees must pay a minimum of $10.50 per hour to employees.

Agricultural Employees

Beginning in 2019, employers will be required to pay agricultural employees overtime compensation on a graduated basis through 2022.  Employers with 25 or fewer employees will be granted an additional three years to comply, and will not be required to begin paying overtime compensation until 2022.

Effective January 1, 2017, California employers lose their exemption from the legal duty to provide one day’s rest for every seven worked. As of January 1, employers may not require employees to work more than six days out of seven.

Workplace Smoking

Effective June 9, 2016, Labor Code section 6404.5 was extended to prohibit smoking in all enclosed workplaces, with some narrow exceptions. The expanded statute now applies to all employers, regardless of size, and includes workplaces where the business-owner is the only employee. The term “enclosed space,” is defined to broadly include:

1. Covered parking lots;

2. Lobbies, lounges, waiting areas, elevators, stairwells and restrooms that are a structural part of the building.

Wage Discrimination Based on Race

Effective January 1, 2016, the Fair Pay Act made it unlawful to pay wages less than those paid to employees of the opposite sex in the same establishment for work requiring equal skill, effort and responsibility and performed under similar working conditions.

AB 1063 amends Labor Code Sections 1197.5 and 1199.5 and expands the requirements of the Fair Pay Act to prohibit wage disparity based on race or ethnicity, in addition to gender.

Protection of Domestic Violence Victims

Effective July 1, 2017, employers with 25 or more employees must provide specific information in writing to new employees upon hire, as well as to other employees upon request, of the right to take leave under Labor Code Section 230.1 (applicable to victims of domestic violence, sexual assault or stalking).

Itemized Wage Statements

The existing requirement that employers provide employees with an accurate itemized statement in writing containing the information specified in Labor Code section 226 does not require employers to include the total number of work hours performed by exempt employees.

However, employers are cautioned to verify the exempt status of employees before relying on this rule. Employers commonly misclassify employees as exempt, and unwittingly incur substantial legal exposure in the process when such employees work overtime without being paid premium overtime compensation.

Immigration-Related Unfair Practices

While verifying the authenticity of immigration-related documentation, employers are prohibited from 1) requesting additional documents or documents that differ from those required by federal law, 2) refusing to honor documents or work authorizations or 3) reinvestigating or reverifying an employee’s authorization to work. Violators are subject to a $10,000 per-violation penalty.

Criminal History Background Checks

This bill amends Labor Code section 432.7, and that statute’s regulation of what questions job applicants can lawfully be asked. It prohibits employers from inquiring about, or considering, information related to an applicant’s juvenile arrest records.

Temp Services

The Labor Code requires that all temporary service employees be paid weekly, regardless of when an assignment ends. This requirement is now extended to cover security guards employed by private patrol operators who are temporary services employers.

Hair Salons/Janitorial Employers: New Rules

Effective July 1, 2017, hair salons, nail salons, estheticians and related enterprises must post a notice informing employees of their workplace rights generally, and wage and hour laws in particular.

Effective January 1, 2017, covered janitorial employers must keep accurate records of daily hours worked, start and stop times, wages paid each payroll period, ages of minor employees and other specified information.

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Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over three decades. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives.

While no one can guarantee a future free of lawsuits, Putnam has compiled a remarkable record of success: Not one employer-client has been sued in 36 years with his system of precautions in place.

For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well. 

You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. www.jaygputnam.com/articles-by-jay-g-putnam/