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  • Analysis: California's new mandatory paid sick leave bill

    By Gerardo Hernandez and Anthony Raimondo

    INTRODUCTION

    The State of California recently enacted a bill that requires most employers to provide a minimum amount of paid sick leave to employees. Previously employers were not obligated to provide paid sick leave days to employees. However, the new law imposes a number of requirements and penalties for employees who fail to provide paid sick leave. The new law, known as the “Healthy Families Act” (HFA), will become effective July 1, 2015, so it is important that employers become familiar with the law in order to avoid liability.

    WHO IS COVERED BY THE BILL

    The new HFA covers all employees who work in California for 30 or more days within a year from the commencement of employment. However, the HFA does not apply to the following:
    •    An employee covered by a valid collective bargaining agreement that satisfies certain requirements involving wages, hours and working conditions;
    •    A provider of in-home supportive services under Section 14132.95, 14132.952, or 14132.956 Welfare and Institutions Code; or
    •    An individual employed by an air carrier as a flight deck or cabin crew member that is subject to the provisions of  the Railway Labor Act (45 U.S.C. 181 et seq.)
    It is important to accurately assess whether an employee is covered by the HFA. It is recommended that employers seek legal advice in order to determine if any of the exemptions apply.

    HOW IT WORKS

    An employee shall accrue paid sick days at the rate of one hour per every 30 hours worked, beginning at the commencement of employment or the effective date of the HFA, whichever is later. An employee who is exempt from overtime requirements under a wage order of the Industrial Welfare Commission is deemed to work 40 hours per workweek for the purposes of this section, unless the employee’s normal workweek is less than 40 hours, in which case the employee shall accrue paid sick days based upon that normal workweek.
    An employee is entitled to use accrued paid sick days beginning on the 90th day of employment, after which day the employee may use paid sick days as they are accrued. Accrued paid sick days shall carry over to the following year of employment. However, an employer may limit an employee’s use of paid sick days to three days in each year of employment.
    Paid Time Off Policy
    An employer is not required to provide additional paid sick days if the employer has a paid leave policy or paid time off policy, makes available an amount of leave that may be used for the same purposes and under the same conditions as specified in the HFA, and the policy does either of the following:
    •    Satisfies the accrual, carry over, and use requirements of the HFA; or
    •    Provides no less than three days of paid sick leave, or equivalent paid leave or paid time off, for employee use for each year of employment or calendar year.
    At all times, employers must provide employees with written notice that sets forth the amount of paid sick leave available, or paid time off leave an employer provides in lieu of sick leave, on either the employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages.
    Accrual or Pay Out
    An employer is not required to provide compensation to an employee for accrued, unused paid sick days upon termination, resignation, or other separation from employment. However, if an employee separates from an employer and is rehired by the employer within one year from the date of separation, previously accrued and unused paid sick days must be reinstated. The employee may use those previously accrued and unused paid sick days upon rehiring.

    POSTING REQUIREMENTS AND ENFORCEMENT

    Posting

    As part of the requirements imposed by the new HFA, employers must make certain postings in their place of business to provide employees with notice of the new sick leave laws. Employers must display a poster in a conspicuous place containing all of the following:
    •    An employee is entitled to accrue, request, and use paid sick days;
    •    The amount of sick days provided for by the HFA;
    •    The terms of use of paid sick days;
    •    That retaliation or discrimination against an employee who requests paid sick days or uses paid sick days, or both, is prohibited and that an employee has the right under this article to file a complaint with the Labor Commissioner.
    In addition to posting requirements, employers are also obligated to keep for at least three years records documenting the hours worked and paid sick days accrued and used by an employee. Such records must be made available to the Labor Commissioner upon request.

    Enforcement

    The Labor Commissioner will have the authority to investigate and enforce any violations that are committed in violation of the new HFA. An employer who willfully violates the posting requirements is subject to a civil penalty of not more than one hundred dollars ($100) per each offense. If any other violation of paid sick leave has occurred, the Labor Commissioner may order reinstatement, backpay, the payment of sick days unlawfully withheld, and the payment of an administrative penalty of up to eight thousand ($8,000.00) dollars, depending on the amount sick days withheld and the harm caused to the employee.

    HOW TO COMPLY

    Complying with the new requirements of the paid sick leave HFA can be daunting. For some employers, it will be particularly difficult to keep track of all of the sick day hours accrued by each employee.   Employers do have the option of simply granting three days of sick leave at the start of the year or the start of the employment in order to avoid tracking accrual.
    Employers with paid time off (PTO) policies may not need to make any changes.  The paid time off policy may replace the employer’s obligations as long as it offers at least three (3) sick leave days per year for employees who work more than thirty (30) in a given year. In addition, the policy must mirror the carry over and use requirements of the HFA, which paid time off policies should already contain, as PTO has historically been treated as wages just like vacation time.

    The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with Anthony Raimondo at Raimondo & Associates in Fresno, at (559) 432-3000.

    Posted: Oct. 20, 2014



  • Mized news from Sacramento on ag labor bills

    By Anthony P. Raimondo

    It is mixed news from the agricultural industry as Governor Jerry Brown took action on important legislation for California agriculture.  Governor Brown vetoed SB 25, a bill that would have amended the Agricultural Labor Relations Act to make it easier for unions to force contracts on farmers.

    Under current law, employers with 25 or more employees who are negotiating their first contracts with a union can be forced into “mandatory mediation.”  This is not mediation at all, but a procedure known as “interest arbitration.”  In this process, the employer and the union present their proposals to the arbitrator, and argue and present evidence as to why their position should be the final contract.  The arbitrator decides what the contract will be, and the ALRB forces the contract on the farmer and the workers with an order that is enforceable in court.  Under current law, the contract is not implemented while the farmer appeals.  The proposed bill would have made it nearly impossible for a farmer to avoid implementation of a contract during an appeal, virtually rendering the appeal meaningless.  Also, for older certifications, the bill removed the obligation to show that the employer committed an unfair labor practice before taking them to the mandatory mediation process.  Thankfully, Governor Brown restrained himself from signing this unfair and oppressive legislation.

    In a crushing blow to California’s business community, Governor Brown signed legislation that will hold employers liable liable when subcontractors violate wage, workplace safety or workers’ compensation rules.  AB 1897 makes employers legally responsible and liable for the actions of labor contractors and staffing agencies with respect to workers supplied by that labor contractor.  The bill makes employers responsible for the payment of wages and the failure to obtain valid workers’ compensation coverage, and prohibits an employer from shifting responsibility for workplace safety to the labor contractor. The bill states that it does not prohibit client employers and labor contractors from mutually contracting for otherwise lawful remedies for breach of contract by the other party, but prohibits the employer from shifting all responsibility and liability to the contractor.

    The legislation was a labor movement priority of organized labor, and was labeled a “job killer” by the California Chamber of Commerce.

     “Worker protection laws in California are already in place for labor violations and should be enforced,” John Kabateck, executive director of the California chapter of the National Federation of Independent Business, said at a news conference at the Capitol last week. “The only thing this bill is going to do is hurt our state’s economy and jobs.”

    While the bill is by every measure a disaster for business, it does not fundamentally alter the risks of using labor contractors.  Even under prior law, it was very rare for employers to be able to shift all legal responsibility and liability to contractors because the law recognizes joint employment – when an employer has more than one employer at a time.
    There are many good reasons to use a reputable labor contractor, but the desire to avoid responsibility for labor compliance is not one of them.  A good labor contractor can be a reliable source of labor, and can provide safety, human resource, payroll, and recordkeeping compliance.  So while the bill is certainly nothing to celebrate, it does not deprive employers of the advantages offered by reputable labor contractors.

    The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with Anthony Raimondo at Raimondo & Associates in Fresno, at (559) 432-3000.



  • CDFA begins second round of applications for water efficiency program

    The CDFA will begin accepting applications on Sept. 29 for a second round of funding for the State Water Efficiency and Enhancement Program (SWEEP), authorized by emergency drought legislation (Senate Bill 103).
    SWEEP is an opportunity for growers to receive financial assistance to install water distribution systems that save water and reduce greenhouse gases. Up to $150,000 will be provided directly to agricultural operations for water and energy conservation projects that benefit all Californians.  The funding can support a broad range of irrigation-related projects such as pump improvements, equipment to facilitate water saving measures and other quantifiable water distribution and greenhouse gas reduction management practices.
    Prospective applicants must access the “Application Guidelines” at www.cdfa.ca.go/go/SWEEP for detailed information on eligibility and program requirements. To streamline and expedite the application process, CDFA is partnering with the State Water Resources Control Board, which hosts an online application using the Financial Assistance Application Submittal Tool (FAAST). All applicants must register for a FAAST account at https://faast.waterboards.ca.gov.
    Growers will be able to access the FAAST application system on Sept. 29 at 8 a.m. Applications must be submitted electronically using FAAST by Friday Nov. 10 at 5 p.m.
    CDFA will hold three application workshops and one webinar to provide information on program requirements and the FAAST application process (see below). There is no cost to attend the workshops or webinar. Individuals planning to attend should email grants@cdfa.ca.gov with their contact information, number of seats required and workshop location.
    The workshops will be held in Fresno Oct. 6 from 1-3 p.m. at the Fresno County Ag Commissioner Office, 1730 S. Maple Avenue, West Wing Conference Room #1, Fresno; San Luis Obispo Oct. 8 from 1-3 p.m. at the San Luis Obispo County Ag Commissioner Office Auditorium, 2156 Sierra Way, San Luis Obispo and on Oct. 13 from 10 a.m. to noon at the CDFA auditorium
    1220 N Street, Sacramento.
    A webinar will be held on Oct. 16, from 10 a.m. to noon.

    Sept. 26, 2014 WUD Friday Update



  • WUD continues opposition to water board fee hike following hearing

    The State Water Resources Control Board on Tuesday, Sept. 23, after hearing testimony from Western United Dairymen and many concerned dairy producers, decided not to include North Coast dairies in the Confined Animal Facilities (CAF) fee program and to not put a cap of $2,500 on the discount given to dairies that have qualified under the California Dairy Quality Assurance Program (CDQAP.)
    However, the board voted to move forward with a 31% CAF fee hike for existing permits, drawing vehement objections from WUD and dairy producers.   In a letter sent to Felicia Marcus, chair of the SWRCB, following the hearing, Western United Dairymen CEO Michael Marsh said WUD “continues to oppose drastic increases in fees and specifically charges to dairy farmers for costs not related to dairy regulatory programs. We look forward to a productive stakeholder process where we can provide our members relief on this issue.”
    Marsh noted that WUD has participated in the stakeholder process discussing the fee issue since the adoption of fees in 2013. “It is vitally important that this stakeholder process be able to address the actual amount of fees paid by the regulated parties and how fees can be reduced,” said Marsh.

    Sept. 26, 2014 WUD Friday Update



  • Air board offers ag exempt truck deadline of Jan. 31, 2015

    Owners of agricultural trucks that qualify for an identifying AG sticker will have until Jan. 31, 2015, to register with the California Air Resources Board. Mileage limits have been streamlined and increased slightly. CARB is reopening the registration period for those farmers who have not reported and claimed their ag exemption.  Farmers who already have the exemption do not need to take any further action.
    The agricultural vehicle provisions include:
    * Delay compliance for vehicles that operate less than specified mileage thresholds and for a limited number of specialized trucks.
    * Apply to diesel trucks and buses with a manufacturer gross vehicle weight rating greater than 14,000 pounds, thus excluding pickups.
    * Include agricultural vehicles such as trucks and buses owned by log harvest operations or farming businesses and certain trucks that are not farmer owned but are dedicated to supporting agricultural operations.
    * Do not apply to truck tractors that enter ports or intermodal rail yards or transport marine cargo. These vehicles must comply with the Drayage Truck regulation.
    Additional fact sheets and information are available by contacting your local WUD field representative or online at www.arb.ca.gov/dieseltruck,   by calling (866) 6DIESEL (866-634-3735) or email 8666diesel@arb.ca.gov.

    Sept. 19, 2014 WUD Friday Update



  • California mandates sick days for workers

    Gov. Jerry Brown signed legislation Wednesday that will require most California employers next year to provide up to three sick days for millions of workers, a policy long-sought by labor unions and opposed by business groups. "This is the least we can do," Brown told reporters after signing the bill at a ceremony in downtown Los Angeles, alluding to a growing income gap that has left many Americans struggling to make ends meet. Supporters said as many as 6.5 million workers — including temporary and part-time employees — will benefit from the law that takes effect next July. (more) Sept. 12, 2014 Sacramento Bee



  • Increased attention on I-9 discrimination

    By Anthony P. Raimondo

    Agricultural employers continue to struggle with compliance under a hopelessly broken immigration system that criminalizes employers for hiring the workers who are available and willing to work, and criminalizes immigrant employees who just want to work and try to make a better life for their families.  As Congress continues to fail to act on immigration, the pressure on both employers and employees in agriculture continues to grow. Now, a new pressure has been added.

    The U.S. Department of Justice is increasingly scrutinizing employer I-9 practices for discrimination against immigrant workers.  Conduct such as failing to provide the I-9 instructions with the form, specifying which documents are needed (i.e., “bring your drivers’ license and Social Security Card”), or requesting more documents than required (i.e. a Permanent Resident Alien Card and a Social Security Card) can lead to allegations of discrimination.  

    When completing an I-9, employees are entitled to choose to present any one document from List A, or any List B document and any List C document.  An employer may not refuse to accept documents that reasonably appear genuine on their face and then request other documents from the employee.  It is very common for employers to take a Permanent Resident Alien card (List A) and also take a Social Security Card (List C).  If a List A document is provided, no further documents are necessary.

    It appears that the federal government may be taking a greater interest in document abuse and immigration discrimination cases. In April 2014, a Dallas area concrete company agreed to pay $115,000 in civil penalties, undergo training on the anti-discrimination provisions of immigration law, revise its internal policies, and be subject to government oversight for one year to resolve a federal government investigation.  The investigation started because of a referral from the U.S. Citizenship and Immigration Services (USCIS), likely because of information uncovered in an I-9 audit.  The government concluded that the company subjected non-citizen new hires to unlawful demands for specific documentation, while U.S. citizens were permitted to present their choice of documentation.  The employer also selectively utilized E-Verify to confirm the employment eligibility of individuals they knew or believed to be non-U.S. citizens or foreign born.  
    “Employers cannot create discriminatory hurdles for work-authorized non-U.S. citizens or naturalized citizens in the employment eligibility verification process, which includes the E-Verify program,” said Acting Assistant Attorney General Jocelyn Samuels for the Civil Rights Division.  “The Department of Justice is committed to protecting U.S. citizens and all work-authorized immigrants from document abuse.”

    In June, the Department of Justice negotiated a settlement with a Colorado janitorial company that resolved claims of immigration related discrimination.  Specifically, the company required more documentation from non-citizens than was required of citizens.  The settlement included payment of more than $50,000 in civil penalties and $25,000 back pay to compensate individuals who may have lost wages due to the discriminatory practices.  The government also demanded the right to monitor the business’s employment eligibility verification process for one year.

    Of greatest concern, the DOJ found in a separate investigation that a nursing home engaged in document abuse because required lawful permanent resident aliens to present a new green card after the old one expired, even though such reverification is unlawful.

    Permanent residents have permanent work authorization in the United States that does not expire when the cards expire, much like a citizen’s work authorization does not lapse when a passport expires. While a permanent resident alien card must be valid at the time of hire, the form does not needed to be updated when the card expires.  The nursing home also required permanent residents to produce proof of citizenship if they became naturalized citizens, even though this practice is prohibited by law. The case was settled for $14,500 in civil penalties, training on the anti-discrimination provision of the INA, establishment of a back pay fund, and two years of government oversight.

    Employers must be sure to understand how the I-9 works, what documents are required (and what are not), and should make sure that employees processing new hires are properly trained.  A great resource is the USCIS “I-9 Handbook for Employers” (Form M-274), available at www.uscis.gov   Employers must be careful not to specify what documents are needed, and must be careful not to reverify documents that do not require reverification.

    The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with Anthony Raimondo at Raimondo & Associates in Fresno, at (559)432-3000.



  • Court affirms obligation to pay employee cell phone costs

    By Anthony P. Raimondo

    A California Court of Appeal has affirmed that that when employees must use their personal cell phones for work-related calls, Labor Code section 2802 requires the employer to reimburse them for the use of the cell phone.  In Cochran v. Schwan’s Home Service, decided August 12, 2014, the court ruled that whether the employees have cell phone plans with unlimited minutes or limited minutes, the reimbursement owed is a reasonable percentage of their cell phone bills as represented by the work related calls.  

    Employers must be cautious when calling employees on their personal cell phones.  If the employer decides not to issue company phones to employees, it should have employees acknowledge a reasonable percentage of the bill as work related calls in writing and should revise the percentage as cell phone usage changes.

    Expense reimbursement cases are on the rise.  Employers should be alert to covering expenses that employees incur in the course and scope of their employment.  In agriculture, it is common for employees to move from field to field during the day.  In construction, employees may move from work site to work site during the day, or may check in at a shop or office and then go to their work site.  Employers must keep in mind that they must reimburse employees for any use of their personal vehicles that occurs after they arrive at the first place where they report to work.  The standard method of reimbursement for use of a personal vehicle is mileage at the IRS rate. Given the increase in these cases, employers should be sure to reimburse employees when they use their personal vehicles during the workday.

    Generally, employers do not have an obligation to reimburse employees for travel to and from work.  But if the employees bring tools or other equipment in their vehicles, they may be entitled to pay for their commute time and reimbursement for the use of their personal vehicle.

    The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with Anthony Raimondo at Raimondo & Associates in Fresno, at (559)432-3000.



  • Dairy Margin Protection Program enrollment ends Nov. 28

    Dairy producers began enrolling in the new Dairy Margin Protection Program (DMPP) Sept. 2. Enrollment ends on Nov. 28, 2014, for 2014 and 2015. Participating farmers must remain in the program through 2018 and pay a minimum $100 administrative fee each year if they choose to participate.

    The voluntary program, established by the 2014 Farm Bill, provides financial assistance to participating farmers when the margin – the difference between the price of milk and feed costs – falls below the coverage level selected by the farmer.

    DMPP gives participating dairy producers the flexibility to select coverage levels best suited for their operation. Producers have the option of selecting a different coverage level during open enrollment each year.

    Dairy operations enrolling in the new program must comply with conservation compliance provisions and cannot participate in the Livestock Gross Margin-Dairy (LGM-Dairy) insurance program. Farmers already participating in the Livestock Gross Margin program may register for the Margin Protection Program, but the new margin program will only begin once their Livestock Gross Margin coverage has ended.

    To sign up, go to your local Farm Service Agency (FSA) office. There are two forms that must be completed:
    • CCC-781 will establish a dairy farm’s production history
    • CCC-782 will document the coverage level, or how much milk you want to insure

    The DMPP final rule was published in the Federal Register on Aug. 29, 2014. The Farm Service Agency (FSA), which administers the program, also will open a 60-day public comment period on the dairy program. The agency wants to hear from dairy operators to determine whether the current regulation accurately addresses management changes, such as adding new family members to the dairy operation or inter-generational transfers. Written comments must be submitted by Oct. 28, 2014, at www.fsa.usda.gov   or www.regulations.gov.

    Aug.29, 2014 WUD Friday Update



  • Fish and Game Commission declines to list tri-colored blackbirds

    The California Fish and Game Commission recently considered an emergency listing of the tricolored blackbird as a threatened or endangered species in response to a statewide survey showing its population has plummeted 44% since 2011. However, at its meeting held in San Diego, the Commission took no action after listening to statements supporting and opposing the listing.
     
    Western United Dairymen’s Director of Environmental Services Paul Sousa told the commissioners that there was no need for an emergency listing as the harvest season is past and the birds were in no immediate danger. Under the California Endangered Species Act, the commission may list a species under an emergency petition when there is an imminent danger. If approved, the birds would be fully protected for six months, after which time the listing may be renewed for another six months.
     
    The commissioners felt there was no need to take action on the emergency petition at the meeting, according to Sousa. It is anticipated that there may be a future request for a listing of the blackbirds as a threatened or endangered species under a normal petition.

    Aug. 15, 2014 WUD Friday Update



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