Category: Labor & Employment

Labor & Employment

California Court of Appeal Upholds Clearly Defined Waiting Period Before Vacation Begins to Accrue

By Steven Schneider and Hilary Feybush

Building on earlier vacation policy decisions, a California Court of Appeal recently held in Minnick v. Automotive Creations, Inc.  that employers may impose a clearly expressed waiting period before an employee can begin to accrue vacation time.  This means that  employers do not have to provide vacation pay vesting on day one of employment.  While an employer cannot contract around the rule against forfeiture of wages, an employer does not do so by unambiguously providing that employees do not begin to earn vacation pay until a certain period of employment has occurred.  However, once vacation pay under an employer’s policy starts to be vested and earned, it cannot be taken away.

In the Minnick case, the employer’s policy clearly expressed that no vacation time was earned during an employee’s first year of employment.  The plaintiff was a former employee who had only been employed for six months.  He accordingly was not paid any unused vacation in his final paycheck because he had not worked a full year.  His lawyer argued that the employer’s policy violated California law because it required employees who worked less than one year to forfeit vested vacation pay. Continue reading “California Court of Appeal Upholds Clearly Defined Waiting Period Before Vacation Begins to Accrue”

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Labor & Employment, MSK Blog

NYC Updates “Ban the Box” Law

NYC Updates “Ban the Box” Law to Detail Per Se Violations and Procedures Employers Must Follow to Conduct Employment-Related Criminal Background Checks

By Greg Hessinger

On August 5, 2017, important updates to New York City’s Fair Chance Act went into effect.  The Fair Chance Act (FCA), which regulates criminal background checks on employees and license holders, is the City’s version of a growing trend of so-called municipal “Ban the Box” laws designed to prohibit employers and agencies from denying jobs and licenses to would-be employees because of a criminal conviction(s), especially when the conviction is not directly related to the persons’ ability to perform the job.

The Fair Chance Act itself took effect on October 27, 2015 (see MSK’s prior alert here).  Since then, the New York Commission on Human Rights (Commission), the agency charged with enforcing the FCA, has published revisions that further clarify the law, provide guidelines for per se violations, and detail the analysis and process for legally withdrawing conditional offers of employment based on the results of a criminal background check.  It is those revisions that took effect on August 5, 2017.  (Click here for a copy of the rule).  Continue reading “NYC Updates “Ban the Box” Law”

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Labor & Employment, MSK Blog

DFEH Issues New Workplace Harassment Guidance

By Anthony Amendola

Since April 1, 2016, California employers subject to the Fair Employment and Housing Act (“FEHA”) have been required to comply with a number of amendments to the FEHA regulations that were adopted by the California Fair Employment and Housing Council (“FEHC”).  FEHA imposes an affirmative duty on employers to “take all reasonable steps to prevent discrimination and harassment from occurring.”  To effectuate that duty, the amended FEHA regulations expressly require employers to develop a written harassment, discrimination and retaliation prevention policy. More detailed information regarding the 2016 FEHC may be found here.

To aid employers in complying with their obligations under the FEHA and the 2016 FEHC amendments, the California Department of Fair Employment and Housing (“DFEH”) recently released a “Workplace Harassment Guide for California Employers,” which provides recommended practices for preventing and addressing workplace harassment.  The publication is intended to help employers develop effective anti-harassment programs, investigate reports of harassment, and understand what remedial measures they might pursue.  In short, the Guide discusses the following:

  • What is included in an effective anti-harassment program;
  • The basic steps required to conduct a fair investigation;
  • Confidentiality of investigations;
  • Timing of investigations;
  • Recommended practices for conducting workplace investigations, including impartiality, investigator qualifications and training, type of questioning, making credibility determinations, burden of proof, legal conclusions, and documentation;
  • Special issues, such as what to do if the target of harassment asks an employer not to do anything, investigating anonymous complaints, and retaliation; and
  • Implementing effective remedial measures.

The Workplace Harassment Guide for California Employers is available here. Continue reading “DFEH Issues New Workplace Harassment Guidance”

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Labor & Employment

And On The Seventh Day…

By Anthony Amendola

In Mendoza v. Nordstrom, Inc., the California Supreme Court answered some unsettled questions regarding the state’s day of rest statutes.  In short, these provisions of the California Labor Code provide that employees are entitled to at least one day’s rest out of seven.  Specifically, section 551 of the Labor Code states that “[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.”  Section 552 states that “[n]o employer of labor shall cause his employees to work more than six days in seven.”  Section 556 provides an exception to sections 551 and 552, stating that they “shall not apply to any employer or employee when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.”

At the behest of the federal Ninth Circuit Court of Appeals, the Supreme Court considered three questions, each of which is discussed below.

(1) “Is the day of rest required by sections 551 and 552 calculated by the workweek, or does it apply on a rolling basis to any seven-consecutive-day period?”

Considering the text and history of sections 551 and 552, the Industrial Welfare Commission’s (“IWC”) wage orders, and the statutory scheme of the day of rest provisions, the Supreme Court concluded that employees are entitled to one day of rest each work week (as defined by the employer) rather than one day in seven on a rolling basis.  Thus, the Court acknowledged that an employee could be required to work up to twelve consecutive days without violating sections 551 and 552.  For example, if an employer defines a workweek as Sunday through Saturday, then an employee could be given a day of rest on the Sunday of Week 1, could be required to work 12 consecutive days, and then could be given off the Saturday of Week 2.

(2) “Does the section 556 exemption for workers employed six hours or less per day apply so long as an employee works six hours or less on at least one day of the applicable week, or does it apply only when an employee works no more than six hours on each and every day of the week?”

With respect to this question, the Court held that the exemption set forth in Section 556 applies only to those employees who never exceed six hours of work on any day of the workweek.  If on any one day an employee works more than six hours, a day of rest must be provided during that workweek. Continue reading “And On The Seventh Day…”

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Labor & Employment

Where’s The Rest Of My Pay?

Commission-Only Employees Must Be Paid Separately for Rest Periods April 18, 2017 By Brian M. Ragen In Vaquero v. Stoneledge Furniture LLC, a California Court of Appeal recently held that inside sales employees who are paid on a 100% commission basis must be separately compensated for their rest periods. Though inside sales persons are exempt from overtime (provided they earn at least 1.5-times minimum wage … Continue reading Where’s The Rest Of My Pay?

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Labor & Employment

Data Breaches: An Employer’s Duty to Protect Employees’ Personal Information

By Aaron Wais

An appellate court in Pennsylvania recently dismissed an employee class action against their employer over a data breach, holding that the employer did not have a duty to protect its employees’ personal information (e.g., names, birth dates, social security numbers, bank information, etc.).  While this was a significant victory for employers, non-Pennsylvania employers should temper their enthusiasm because courts in other states, including California, have made clear that employers do have a legal duty to protect their employees’ personal information. These courts have also made clear that the liability for a data breach differs when an employer has legally compliant, written policies for safeguarding private information and responding to data breaches in a timely manner.

Continue reading “Data Breaches: An Employer’s Duty to Protect Employees’ Personal Information”

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Labor & Employment

The Regs They Are a-Changin’: Are You Ready?

October 10, 2016

By Anthony Amendola

FLSA: Employees Must Earn More To Qualify For Overtime Exemption

The U.S. Department of Labor’s long-expected amended regulations to the Fair Labor Standard Act (“FLSA”) will become effective on December 1, 2016. Under these new regulations, employees across the nation must earn at least $913 per week (or $47,476 annually) in order to qualify for any of the “white collar” (executive, administrative or professional) overtime exemptions. This minimum salary will be adjusted annually to an amount equal to the 40th percentile of weekly earnings for full-time salaried workers.  Although lawsuits have been filed seeking to block the regulations, at this time, employers should be prepared for implementation on December 1.

Under existing law, in order to be properly classified as exempt from overtime under any of the white collar exemptions, an employee must meet both a duties test (i.e., his or her primary job duties must meet certain minimum requirements) and a salary basis test (i.e., he or she must be paid a fixed salary each week that is not subject to deduction based on the quantity or quality of work). For many years, the minimum weekly salary to meet the FLSA salary basis requirement was only $455 per week. Continue reading “The Regs They Are a-Changin’: Are You Ready?”

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Labor & Employment

Employers Should Take Note of the Department of Labor’s Final “Persuader Rule”

By Steven M. Schneider
June 28, 2016

The Department of Labor (“DOL”) recently issued its final rule concerning the controversial “persuader rule” that greatly expands employers’ obligations under the Labor-Management Reporting and Disclosure Act of 1959 (the “LMRDA”). The persuader rule, scheduled to take effect July 1, 2016, not only impacts employers with union-represented employees, but it also may impact employers who presently do not have union-represented employees or union-organizing activities.

Under the LMRDA, any person who pursuant to any “agreement or arrangement” with an employer undertakes to persuade employees to exercise or not exercise their right to organize and bargain collectively, is obligated to report specific information about such agreement or arrangement to the DOL. Historically, the DOL has treated most legal work to be exempt from these reporting requirements, provided that the attorneys avoided direct communication with their clients’ rank and file employees and the client was free to accept or reject the attorney’s advice.  However, the DOL’s revised persuader rule extends the reporting requirements to “indirect persuader activities” engaged in by attorneys. Continue reading “Employers Should Take Note of the Department of Labor’s Final “Persuader Rule””

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Labor & Employment

The EEOC Is Keeping Busy: EEOC Issues Additional Guidance About the ADA & Final Rules on Wellness Programs

By Emma Luevano

EEOC Guidance on Employer-Provided Leave and the Americans with Disabilities Act

Concerned about the number of complaints filed against employers for failing to provide reasonable accommodations under the Americans with Disabilities Act (“ADA”), the Equal Employment Opportunity Commission (“EEOC”) recently issued a reminder to employers about their obligations. While clarifying that the additional guidance does not create any new obligations, the EEOC reminded employers about the following:

* It is not sufficient to grant employees the maximum amount of leave under the Family and Medical Leave Act (“FMLA”) and/or state equivalent (such as California’s Family Rights Act (“CFRA”)) to meet obligations under the ADA.  Instead, under the ADA, employers must also consider granting additional leave as a form of reasonable accommodation (beyond that required by the FMLA or CFRA), unless doing so will create an undue hardship for the employer.  As the EEOC indicated, “the Commission takes the position that compliance with the FMLA does not necessarily meet an employer’s obligation under the ADA, and the fact that any additional leave exceeds what is permitted under the FMLA, by itself, is not sufficient to show an undue hardship.”  As you already may know, the “undue hardship” standard is not easy for employers to meet. Continue reading “The EEOC Is Keeping Busy: EEOC Issues Additional Guidance About the ADA & Final Rules on Wellness Programs”

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Labor & Employment

New Santa Monica Ordinance Provides for Paid Sick Leave and Increased Minimum Wages

By Anthony J. Amendola

Santa Monica will become the first city in Southern California and the fourth in the state to enact a municipal paid sick leave law. The city’s Paid Sick Leave and Minimum Wage ordinance will take effect in two phases. The first phase will commence on January 1, 2017, when most Santa Monica employees will be entitled to accrue and use up to 40 hours of paid sick leave. That amount climbs to 72 hours the following year, which is three times the amount of paid sick leave that an employee must be permitted to use annually under California’s paid sick leave law. The ordinance also provides a schedule of minimum wage rates for private sector and hotel workers from July 1, 2016 through the year 2022 and regulates service charges imposed by Santa Monica businesses.

Continue reading “New Santa Monica Ordinance Provides for Paid Sick Leave and Increased Minimum Wages”

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