James F. Mahoney, Attorney
Commentaries
 
     

March 2014

You Gotta Love California: More Reasons for Truckers to Relocate to Arizona

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1. Increase to Minimum Wage Effective July 1, 2014

California's hourly minimum wage for non-exempt employees will rise to $9.00 per hour. Pay attention to this because it impacts exempt employees. California wage exemptions require that exempt employees earn a monthly salary equivalent to no less than two times the state minimum wage. Your exempt employees must earn the monthly equivalent of $3,120.00 to qualify.

2. Military and Veteran Status Are Protected Classes

California's Fair Employment and Housing Act adds "military or veteran status" to the classes protected from employment discrimination. No problem with identifying members of the military or veterans to allow a hiring preference, but watch how you inquire so as not to exclude non-veterans.

3. Speaking of Watching Your Language: A Revision to the Definition of "Sexual Harassment"

California SB 292 revises the Fair Employment and Housing Act to allow employees to assert claims of sexual harassment without showing sexual desire as a motivation in the harassment. So, be advised that your offensive conduct or statements should be confined strictly to politics or reality TV problems.

4. What You Can Ask About Criminal History

Don’t bother asking applicants about arrests that were dropped (unless your applicant is presently on trial – not sure how you get around that unless you are recruiting in lockup), and pretty much don’t ask about any marijuana convictions at all. You can still ask about convictions and expunged records if you are required to obtain this info by some law or regulation that would preclude the applicant from the position applied for, such as driving for a motor carrier.

5. Protect Employee Stalking Victims

In addition to your protections to victims of domestic violence or sexual assault, which prevents adverse employment action against a victim of domestic violence or sexual assault when they take time off from work to attend to related issues (like Court), this law now applies to stalking targets. Employers must engage the employee in a process to determine the extent of the reasonable accommodations. Um, I wonder if you can ask the stalkee for proof of status; I do not believe, however, an appearance by the employee on Judge Judy will count as such proof.

6. Don’t Flirt With Double Damages for Minimum Wage Violations

The Labor Commission can award damages for unpaid wages owed plus interest for minimum wage law violations. You’ll need a reason that you were acting in good faith with reasonable grounds for believing you were in compliance. Good luck. By the same token, you can only win your attorney fees and court costs if you prevail by proving the wage earner acted in bad faith. Good luck with that, too.

7. Paid Family Leave Benefits Extended

Temporary disability insurance programs provide up to 6 weeks of wage replacement benefits to workers who take time off work to care for a seriously ill child, spouse, parent or domestic partner, or to bond with a minor child within one year of the birth or placement of the child in connection with foster care or adoption. As of July 1, 2014, the law expands to include time off to care for a seriously ill grandparent, grandchild, sibling, or parent-in-law. An attempt to include deceased pets did not make the final cut.

8. Don’t Discriminate Regarding Immigration Status

Unfair immigration practice in labor law contexts includes requesting additional immigration documentation, or using E-Verify when not authorized, or threatening or filing a police report, or threatening to contact “authorities.” If you do this within 90 days of the employee exercising a protected right, it’s a rebuttable presumption you meant to retaliate.

9. Whistleblower Protections

Neither you nor your manager-types can make a rule or company policy (check that employee handbook, please) that prevents or delays an employee from disclosing his/her reasonable belief that a violation of state or federal law, rule or regulation has occurred. Yes, that includes motor carriers and drivers.

Please note that whistleblower claims under the recent amendment to the Surface Transportation Assistance Act have become more common with the new HOS, truck safety, on-the-job injuries and driver control issues. The “win” rate is not great, but a loss without a proper defense runs six figures. You absolutely need legal representation. If you have government contracts, be particularly aware because qui tam lawsuits under the federal False Claims Act are quite popular. If you’re a public company, there’s a recent U.S. Supreme Court case extending whistleblower protections to the employees of your contractors. That’s going to be leaned upon to expand exposures beyond the SEC, and, of course, you have no insurance coverage for this.