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Creating the Sustainable Workplace:
Reducing Your Risk of Liability in 2014
2013 brought some important changes and clarifications for managing your workplace. We have collected below the changes we think are most important for your workplace. We also encourage you to ask yourselves "What kind of employer do we want to be in 2014?"
In this Newsletter, you will find:

Would you like to attend our 2014 New Year Breakfast Briefing? Please join us on January 22, 2014 to discuss recent developments in employment law, and what they mean to your workplace. Click here for more details.

Twelve Changes To Make Today Based on New Laws, and Laws on the Horizon
Each year we say to ourselves "well, not a big year for new laws." We prove ourselves wrong, however, when we draft the Year-End Newsletter! Some important changes are outlined below.

1. Minimum Wage is Going Up in California! Beginning July 1, 2014 minimum wage will increase from $8.00 to $9.00 per hour. Beginning January 1, 2016, minimum wage will increase to $10.00 per hour. It also is important be mindful of municipal rules. For example, effective January 1, 2014 minimum wage in the City of San Jose will increase to $10.15 per hour, and to $10.55 per hour in the City of San Francisco. What this also means to you: (1) to maintain their exempt status your exempt employees still must earn the statutory minimum of two times minimum wage presuming a forty hour workweek (for example, $37,400 as of July 1) after this change is effective; (2) your minimum wage postings must be updated; (3) You should confirm that employee pay stubs reflect this change; and (4) employees need to receive notice under the Wage Theft Notice requirements of these new wages (either through the DLSE or equivalent notice or through accurate pay stubs).

2. Overtime is Now Required for Certain Household Workers. Nannies, housekeepers and individuals who provide care for elderly and/or disabled within a private household now are entitled to overtime compensation for hours worked in excess of nine (9) in a day or forty-five (45) hours per week. This excludes casual babysitters and individuals who work in residential care facilities.

3. The Laws Preventing Retaliation Against Complaining Employees are Expanded. California law prohibits employers from retaliating against employees for filing or threatening to file a complaint with the Labor Commissioner or for exercising any other rights under the Labor Code. Effective January 1, 2014:

a. Immigrant Employees Have New Rights Against Retaliation. An employer may not respond to an employee's bona fide complaint by reporting or threatening to report an employee's, former employee's, or prospective employee's (or family member of the same) suspected citizenship or immigration status to a federal, state, or local agency

b. "Protected Conduct" is Expanded to include a written or oral complaint by an employee that he or she is owed unpaid wages.

c. Civil Penalties Now Apply to a Violation, up to $10,000 per violation.

d. Exhaustion of Administrative Remedies is not required in order for employees, former employees or prospective employees to bring a claim for violation of the Labor Code under this section.

e. Worth Noting for Attorneys: An attorney is subject to suspension, disbarment or other discipline for reporting suspected immigration status or threatening to report suspected immigration status of a witness or party to a civil or administrative action or his or her family member because the witness or party exercises or has exercised a right related to his or her employment.

4. Additional Rest Periods Now Are Required for Employers with Outdoor Spaces. Under Cal/OSHA requirements, employers with outdoor spaces for employment are subject to a "heat illness standard" that allows for cool-down periods ("recovery period") in the shade of no less than five minutes at a time on an "as needed" basis. An employer who fails to provide a recovery period is subject to the statutory penalty that is applied to the failure to provide meal or rest periods; one hour of straight time in addition to regular wages.

5. Victims of Stalking Are Entitled to Time Off and Accommodation May Be Required. Stalking victims now are entitled to time off to appear at legal proceedings and, for employers with 25 or more employees, for time off to seek medical/psychological treatment, including safety planning. Employers may not discriminate or retaliate against an employee because of his/her status as a victim of domestic violence, sexual assault or stalking. Finally, victims of domestic violence, sexual assault or stalking are entitled to "reasonable accommodations," including, for example, the implementation of safety measures.

... Click here to read about the other changes in the law

What We Learned From the Courts and Agencies
California courts this year provided more lessons to employment lawyers than to employers. Still, there are some important lessons learned. We have captured those lessons for you here.

1. Social Media Policies: Lessons Learned from the NLRA. Each of you should have a Social Media Policy. But take heed! The National Labor Relations Act protects employee's rights to communicate about working conditions and terms of employment, and employers cannot implement rules that tend to chill employees' ability to speak about terms of their employment or working conditions. The National Labor Relations Board has some strong (and surprising) opinions on what employers may not include in their policies:

- The NLRB found unlawful a clause that prohibited the release of confidential guest, team member or Company information based on the NLRB concern that the clause could reasonably be construed as prohibiting employees from discussing/disclosing information regarding conditions of employment. A policy against breaching the Company's Confidentiality Agreement on social media should be enforceable.

- The NLRB found unlawful a social media clause that required employees to treat everyone with respect and that stated that "offensive, demeaning, abusive, or inappropriate remarks are as out of place online as they are offline, even if they are unintentional." The NLRB explanation was that the instruction related to "offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline" was too broad and could restrain conversation about working conditions.

- The NLRB held that the following prohibition: "don't comment on any legal matters, including pending litigation or disputes" was unlawful because it specifically restricted employees from discussing the otherwise protected subject of potential claims against the Company.

- The NLRB found a clause that prohibited the use of copyrighted material on social media to be unlawful because it included the requirement that employees "get permission before reusing others' content or images." The NLRB theory was that the provision would interfere with an employee's protected right to take and post photos of (for example) employees on a picket line or employees working in unsafe condition. Really, we can't make these up.

2. Same Sex Marriage and its Implications for the Workplace. The U.S. Supreme Court in United States v. Windsor Section 3 of the federal Defense of Marriage Act ("DOMA") (which defines marriage as a legal union between a man and a woman) to be unconstitutional as a deprivation of equal liberty under the Fifth Amendment of the US Constitution. The Court further held that "[t]he federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity." Practical Effect: Employees who enter sex marriages in a state that recognizes same sex marriage are entitled to the same benefits as other legally recognized marriages (like time off under FMLA to care for a spouse or a spouse's child). Note that the DOL regulations currently look to where an employee resides, not where he or she works. For example, an employee who works in Illinois but lives in Iowa is eligible for benefits under FMLA if she is in a same-sex marriage. An employee who works in the same Illinois workplace would not receive FMLA benefits if she lives in Illinois.

3. Employers Who Pay "Piece Rate" or Commission Need to Audit Their Practices for Paying Non-Productive Time. Employees who are paid "piece rate" (in other words, paid for the number of pieces they produce or gather) must be paid at least minimum wage for the time that they wait between their piece rate tasks. The California Suprement Court in Gonzalez v. Downtown LA Motors confirmed that employees may not be paid less than the applicable minimum wage, whether the remuneration is measured by time, piece, commission or otherwise. This means that minimum wage must be paid for each hour, regardless how the non-exempt worker is paid. No longer may an employer rely on the average total compensation over the total hours worked in the pay period to argue that the minimum wage requirement was met. Practically, this means that minimum wage must be paid for an employee's non-productive time (for example, time spent waiting for piece-rate work to be available must be compensated at least at minimum wage).

4. Accurate Job Descriptions Can Help Employers Win in Disability Cases. As you know, a threshold question for demonstrating eligibility for accommodation for a certified disability is whether the employee/applicant is able to perform "the essential functions" of this position. This year, albeit outside California, several courts relied, at least in part, on the fact that the employer included the job function in the job description. For example, in one case the job description included that driving was an essential function of a case manager's job. The blind applicant was found "not qualified" for the position. In another case, a court found that full-time availability was essential for a customer service agent, based in part on the fact that the written job description stated that the position was full time.

5. Inaccurate Job Descriptions Can Hurt You. In contrast to the above cases, in several cases outside of California courts ruled that employers did not meet their burden of demonstrating that a job function was essential where the employer did not include the job function in the job description. For example, the court diregarded the employer's argument that overtime was an essential function because (in part) overtime was not listed in the job description.

6. The Ability to Handle Stress/Get Along with Others May Be An Essential Function. In several cases outside California, courts this year affirmed that the ability to handle workplace stress and get along with others will be required to perform many jobs. For example, in one case, the court held that the plaintiff, a supervisor, was not qualified for her job where her return-to-work note indicated that she could not have contact with any of her former subordinates and could only have little contact with any other co-workers or the public. The court relied on the fact that supervisors in this workplace "are required as a part of their job to have extensive contact with their subordinates."

7. Courts Continue to Find that Attendance is Essential For Most Jobs. For example, one court noted that "regular attendance" is generally "an essential job requirement," and an employer "need not accommodate erratic or unreliable attendance." In that case, the court held that the plaintiff, an employee with MS, could not show she was qualified for the position where she had no prescribed treatment and "no anticipated date by which she could have been expected to attend work regularly."

New Years' Resolutions:
Prevent Liability and Increase Productivity
What will you do to make your workplace more sound in 2014? We have a few ideas!
1. Audit Your Handbook. Changes in recent law (as outlined above, and based on changes in the disability laws from early 2013) make it imperative that you review and probably revise your handbook.
2. Audit Your Payroll Practices. Small, correctable mistakes in time keeping practices mean significant potential financial risk to your Company. Take the time to be sure you are getting it right.
3. Educate Your Managers. Remember, what they do and what they don't do can make the difference in whether your Company does or does not have exposure. Do they understand what they should and should not say to subordinate employees? Do they understand the ways in which their "we didn't mean it that way" conduct can create a hostile work environment? Are they complying with wage and hour laws? Give them the tools they need to make your workplace sustainable.

How Can We Help?
Our mission is to work with our clients to create productive workplaces that are protected from liability. We would love to partner with you to make your workplace thrive. Here are some ideas for how we might work together in 2014 to make it your best year yet:
1. Review Your Policies. We are happy to review your employee handbook to make sure you have captured the changes to the law described above and that you are creating clear and shared expectations.

2. Review of Your Compensation Practices. We know this is an area of susceptibility for many well-intentioned companies. We are happy to review your practices to ensure they are legally compliant.
3. Management Training to Reduce Risk and Increase Productivity. Make this the year your managers have the tools they need to have difficult conversations about performance.
4. Join us for our New Year Breakfast Briefing on January 22, 2014 to learn more about the recent developments you need to know. We will be hosting our Breakfast Briefing from 7:30 a.m. to 9:30 a.m. at 401 West A Street, Suite 750, San Diego, CA 92101. We would love to see you there! Click here to rsvp, or give us a call at 619-906-2400.
Our best wishes to you for a happy, healthy and sustainable new year! It is our pleasure to work with you. Please let us know if we can help, 619 906 2400 or by e-mail.