During its July 1, 2015 California webinar, Sutton Hague Law Corporation provided a mid-year review of changes and recent trends in the law that will affect California employers. Of particular concern to employers were the new California Mandatory Paid Sick Leave law and recent changes to the California Family Rights Act, both of which went into effect July 1, 2015 and were discussed during the webinar.

Department of Labor’s Proposed Changes to Overtime Regulations

On June 30, 2015, the Department of Labor announced a proposal to expand overtime pay to approximately 5 million people. This proposal will include:

– Increasing standard salary level to 40th percentile of weekly earnings for full-time salaried workers at $921 per week, or $47,892 annually.
– Increasing total annual compensation requirement needed to exempt highly compensated employees (HCEs) to the 90th percentile at $122,148 annually.
– Automatic updates and increases in salary commensurate with inflation to remain at the 40th and 90th percentile or increases commensurate with the Consumer Price Index.

At this time the proposed changes are not the law, but it is anticipated that changes to existing federal overtime regulations will occur sometime in 2016.

– Jared Hague

New California Family Rights Act (CFRA)

The new CFRA regulations became effective on July 1, 2015. While the primary purpose of these new regulations is to align California family and medical leave law with the federal counterpart, the Family and Medical Leave Act (FMLA), there remain distinctions between the two. Similarities between the two now include, among other things:

– The definition of “covered employers” to include joint employer relationships.
– The requirement to give notice of reinstatement rights after return from leave.
– The requirement to provide responses to leave requests within 5 days.

Key distinctions between the FMLA and CFRA remain. The CFRA’s distinctions include:

– Second Opinions: Employer must have a good faith, objective reason to demand a second opinion and a request for second opinion is not permitted for an employee’s qualifying relative.
– Recertification: Only permitted if prior certification expires and employee requests additional leave.
– Contacting Healthcare Providers: Employer is only permitted to authenticate, not to clarify, a certification with the healthcare provider.
– Pregnancy Leave: Not covered by CFRA (Pregnancy Disability Leave can be used, followed by CFRA baby-bonding leave).
– Paid Sick Leave may be used during CFRA leave. However, Employers should be cautious of requiring employees to use mandatory Paid Sick Leave while on CFRA leave.

Gender Neutral Bathrooms

With the increasing attention of the public and government on gender identity and transgenderism issues, it should be no surprise that the Occupational Health and Safety Administration (“OSHA”) issued best practices for managing employee access to bathrooms. According to OSHA’s best practices, employers should provide employees with either single-occupancy unisex bathrooms, or multi-occupancy bathrooms with unisex stalls. This protects the employer from inadvertently discriminating against the employee, and ensures that the employee has access to a bathroom with which he or she feels comfortable. At this time OSHA’s best practices are not the law but instead constitute guidelines that employers can follow to avoid potential liability. However, it should be noted that California law prohibits discrimination of an individual based gender, gender identity, or gender expression which includes transgenderism.

– Brett Sutton

New Paid Sick Leave Law

Effective July 1, 2015, California’s new Paid Sick Leave law requires that California employers provide employees with paid sick leave, and may result in substantial changes to the procedures many employers use for providing sick leave. These changes require, among other things:

– Accrual of paid sick leave using either an hourly or lump sum basis.
– The manner in which employers must handle requests for paid sick leave and its use.
– A requirement that employers keep records of paid sick leave for each employee for a minimum of three years (although we recommended maintaining for four years).
– A presumption that unlawful retaliation has occurred when an employer takes adverse employment action against employee within 30 days of the employee exercising their rights under new Paid Sick Leave law.

This new law is complex and this post merely highlights a small portion of it. Recordings and materials from the special 2-hour SHLC webinar on May 15, 2015 which featured a representative from the Labor Commissioner’s office on the new California Paid Sick Leave Law may be ordered at https://suttonhague.com/events/.

– Joseph Macias

Religious Accommodation/Discrimination

On June 1, 2015, the Supreme Court of the United States issued an opinion on religious accommodation and discrimination in the workplace. This decision, Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., clarified what an employment applicant needs to prove in order to prevail in a disparate-treatment claim under federal law. The case clarified that the applicant need only show that that his/her need for a workplace religious accommodation was a motivating factor in the employer’s decision, not that the employer had actual knowledge of his/her need for a religious accommodation. Therefore, even a seemingly neutral policy such as prohibiting headwear may result in a finding of unlawful discrimination, even where the employee does not affirmatively request an accommodation on the basis of religious observance. In light of this decision, employers are encouraged to review their handbooks and religious accommodation policies with qualified legal counsel.

– Jared Hague

New Cal OSHA Heat Illness Regulations 8 C.C.R. § 3395

Cal OSHA issued regulations on May 1, 2015 that changed certain requirements for heat illness prevention for outdoor employees. The trigger temperature when shade must be present was reduced from 85 degrees Fahrenheit to 80 degrees Fahrenheit. The amount of shade provided by the employer must be enough to accommodate all employees on rest, recovery, or meal breaks at the time such breaks are taken. For agriculture workers, employers must ensure a 10 minute recovery period is taken every two hours when the temperature is at least 95 degrees. These 10 minute breaks can be combined with rest and meal breaks for agriculture workers. Employers are still required to provide water to employees, permit recovery periods, maintain a heat illness prevention plan, including emergency procedures and high-heat procedures (if applicable), and train employees and supervisors in heat illness prevention and the employer’s procedures.

This topic will be covered at greater length in the September 2, 2015, Sutton Hague Webinar featuring Cal OSHA Area Manager Gene Glendenning.

– Brett Sutton

Expansion of Employer Liability with Sexual Harassment

In Hirst v. City of Oceanside, the court determined that employers may be liable for harassment of non-employees who are “providing services pursuant to a contract.” This clarified and expanded previous understandings of employer liability to third parties for harassment they experience at the hands of employees.

– Joseph Macias

Other Topics Covered

– Other new CFRA and FMLA similarities.
– Other CRFA employer obligations such as Notice of Reinstatement Rights and displaying CFRA posters.
– Calculation of paid sick leave using Accrual Method under New Paid Sick Leave Law.

CD’s and MP3 recordings of the webinars are available for purchase for $30! For more information you can email Yvette@suttonhague.com.