California Labor Paid Sick Leave Laws Clarified, Still Complicated

Sacramento, CA While recent changes in California labor law relating to sick pay and paid time off for illness were designed as a help and support for California workers, implementing and maintaining those changes has served as a bit of a headache for employers.

In sum, The Healthy Workplaces, Healthy Families Act of 2014 (AB 1522) was signed into law by Governor Jerry Brown last year for a planned two-stage implementation at the beginning of 2015. Various changes to record keeping and the posting of notices were brought in at the first of the year, followed by the implementation of changes to accruals and reporting on July 1.

The aforementioned changes to the California labor code were part of the original adoption of AB 1522. However, employers found the rollout somewhat overwhelming, requiring an update to AB 1522 in an effort to straighten out some of the confusion.

That update came in the form of AB 304, a bill that Governor Brown swiftly signed into law on July 14 and is effective immediately. The amendments provide some clarification with regard to compliance over payments, provisions for time off and so on. The clarifications are important not only for the employer - in order to properly comply - but also the employee, for whom a basic understanding of the new provisions is important in order to identify whether or not an employer is properly conforming to the new guidelines.

One of the clarifications with regard to California and labor law stemming from the quick passage of AB 304 has to do with record keeping: while an employer can know the reason(s) and purposes for which an employee uses paid sick time, there is no requirement in record-keeping protocols for maintaining documentation to that end.

Were an employer to maintain documentation with regard to the purposes for paid sick leave, or were an employee to find himself getting stiffed on sick pay and sick leave, he needs to be able to identify incidents of noncompliance in order to initiate and pursue a California labor lawsuit, as required.

AB 304 clarifies protocols for calculating paid sick leave, and the employer now has two options for doing so: 1) a calculation formula akin to the regular rate of pay for overtime calculation for the workweek in which paid sick time is used, and 2) the original calculation protocol dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.

The July 14th amendment also provides for alternate accrual methods beyond the formula of one hour for each 30 hours worked, provided the accrual is on a regular basis and the employee will have 24 hours of paid sick leave available by the 120th calendar day of employment.

There is also clarification, for the purposes of California labor employment law, with regard to the right an employer has in limiting an employee’s use of paid sick days to 24 hours or 3 days either: (1) in each year of employment (by anniversary year, for example); or (2) in each calendar year; or (3) in any specified 12-month period.

Among other provisions in AB 304 is clarification over the requirement that an employee, to be eligible for paid sick leave, must be in a position to have worked for the same employer for 30 days, as opposed to simply working for any employer in the state of California.

There is a somewhat complicated grandfather clause for those employees who were provided paid sick leave or paid time off prior to the implementation of AB 1522 at the first of the year, and for whom a different method for accruing sick time may have been used. This clause allows for a more gradual accrual, provided the employee accrues eight hours of paid sick leave in the first three months of employment and was eligible to earn 24 hours of sick leave or paid time off within nine months of employment.

At the end of the day, California state labor laws are intended to level the playing field and provide fairness for the employee. A mutual understanding of California employee labor law is an important prerequisite for the employer to properly implement new laws, and for the employee to understand when those statutes are being accidentally or purposefully circumvented…

Respecting Caitlin Jenner and Her Community Under the Law

Sacramento, CA Our introduction this past week to Caitlin Jenner, as sensational as it may have been played out in the media, reminds us that with the modern realities of tolerance and equality, transgendering is anything but sensational and is increasingly accepted carte blanche as an aspect of the new normal. As a result, lawmakers have been grappling with updates of definitions and approaches to traditional bastions such as public and workplace washrooms.

For some time now, California labor law has protected transgendered individuals from discrimination and harassment. However, a decision by the Superior Court of California, County of Sacramento last spring held that denying transgender employees the right to use gender-identity appropriate facilities remains a violation of the state’s anti-discrimination laws, and other statutes entrenched in the California Labor Code.

That decision, released in March of 2014, held that transgendered employees in the state of California have the right to use gender-identity appropriate change room and washroom facilities in the state of California. Various other states have enacted similar updates to their laws.

Now, the Feds have finally entered the pool with an update to federal codes that mirror California and labor law, as well as similar laws in other jurisdictions related to transgendered individuals.

To that end, the Occupational Safety and Health Administration (OSHA) on June 1 published A Guide to Restroom Access for Transgender Workers.

“The core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels, in a released statement. “OSHA’s goal is to assure that employers provide a safe and healthful working environment for all employees.”

The guide itself is detailed, but in sum, the rule is stated simply thus: if a female has transgendered, either emotionally or physically (or both) to male and therefore identifies as male, then that individual has the right and freedom to use the men’s washroom.

The same holds true for Bruce Jenner, who now identifies as Caitlin. It wasn’t that long ago that Jenner was being interviewed on national television about his story and his ongoing transition to female, the gender to which Jenner now identifies. This week, the release of the Caitlin Jenner photo shoot for the cover of Vanity Fair is a stark representation of what Jenner was revealing just a few weeks ago.

Therefore, applying the Bruce Jenner/Caitlin Jenner example to the rule of law, Bruce Jenner identifies as female now (as Caitlin Jenner) and thus, has the right to use the women’s washroom.

The OSHA guide, and the corresponding law, is founded upon the core belief that all employees in the workplace should be permitted, without retaliation, use of the facility that best matches his or her gender identification. At the end of the day, however, the OSHA guide notes that the employee should determine “the most appropriate and safest option for him - or herself.”

OSHA also identifies best polices that provide additional options that transgendered employees may choose, but are at the same time not a requirement. Such options, as available, could include: “Single-occupancy gender-neutral (unisex) facilities, and: Use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.

“Under these best practices, employees are not asked to provide any medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities,” states the guideline. “In addition, no employee should be required to use a segregated facility apart from other employees because of their gender identity or transgender status. Under OSHA standards, employees generally may not be limited to using facilities that are an unreasonable distance or travel time from the employee’s worksite.”

The guidelines also speak to the existence of local and state laws and statutes, such as California labor employment law, about which all employees should be conversant.

To summarize, transgendering has long passed the signpost of sensationalism. Rather, gender identification in any form has progressed from tolerance to widespread acceptance; and yet another indication of this is the release, this summer, of Becoming Us, an unscripted “docuseries” on ABC Family, documenting the life of 17-year-old Ben Lehwald of Evanston, Illinois. In the series, which is produced by Ryan Seacrest Productions, Ben’s father Charlie transitions to Carly. The narrative is told from Ben’s perspective as he watches his dad go through his divorce from Ben’s mom Suzy, before undergoing gender reassignment surgery.

In the grand scheme of things, washroom assignment (or reassignment) should be the least of a transgendered individual’s worries. Nonetheless, it is an issue that many states have been grappling with for some time - including California and labor law observed by the state. Now, the Department of Labor through the OSHA guideline will ensure that the rights of everyone are quite properly observed and respected behind the washroom stall.

Caitlin Jenner will use the women’s washroom. It’s only appropriate. And it’s also the law.

Personal Attendants Subject to Overtime Pay Violations

Anaheim, CA Maybe it is because they often work alone, in isolation from others in their industry. Maybe it is because they are generally not unionized and sometimes in the country illegally. There are many reasons why people who work as personal attendants might be subject to unpaid overtime, but as of the passing of a new California law, personal attendants must now receive overtime pay.

Not all personal attendants are aware yet of this change in law, and some may still be paid a flat per-day rate, rather than an hourly rate. If so, their employer is violating California labor law, which requires personal attendants be paid hourly. California’s Domestic Worker Bill of Rights (California AB 241) mandates that personal attendants must be paid at least $9 per hour for the first 9 hours of work, and time-and-a-half (equaling a minimum of $13.50) for anything above 9 hours in a day.

Many personal attendants are paid on a flat 24-hour rate of around $100 a day. Some are paid as low as $80 and some make $120. But based on 24 hours of work, that equals only $3.33 an hour up to $5.00 an hour, not even close to the regular minimum wage. In fact, based on the Domestic Worker Bill of Rights, the minimum a personal attendant working 24 hours should be paid is $283.50 a day.

Personal attendants also rarely get paid sick days or paid vacation days and have few protections when it comes to job security or severance.

Unfortunately, personal attendants are often isolated from their colleagues and have no idea what their rights are. If they are in the country illegally, they may be afraid of fighting for their rights. But if they are employed as a personal attendant, they must receive a minimum wage and an overtime wage based on the number of hours they work.

The Domestic Worker Bill of Rights came into effect in January 2014 and will expire on January 1, 2017, unless another statute is enacted. As of January 1, 2015, however, federal laws will protect home care workers by requiring that they receive the federal minimum wage of $7.25 an hour and overtime pay when they work more than 40 hours in a week.

Failure of employers to follow California’s Domestic Worker Bill of Rights can result in a lawsuit being filed.

Domestic Bill of Rights Meant to Curb California Overtime Pay Abuse

San Francisco, CA It would be prudent to presume an increase and influx in overtime pay lawsuits given the passage of the so-called domestic workers’ bill of rights in California and three other states (federal changes in kind are expected in 2015). Not necessarily because of the law, but primarily due to the possibility and expectation that employers of domestic workers will either ignore the guidelines or simply remain unaware of them.

There’s good reason to think this way. According to Ai-jen Poo, the director of the National Domestic Workers Alliance, most of the labor laws that protect American workers date back to the 1930s. That’s a long time, said Poo, during a recent interview on National Public Radio (NPR, 9/17/14). Even so, said Poo,

Domestic workers have always been around. But their numbers are likely to increase as the baby boomers age and - more affluent than their parents - will choose to remain as long as possible in their homes, rather than give up their independence and move to a nursing home, senior’s residence or assisted care facility. Many of today’s seniors would rather have a domestic worker either visiting their home daily or actually living with them to provide service.

“One of the things that has really been striking to us is the aging of America with people living longer than ever because of advances in healthcare and technologies,” Poo told NPR. “And so the need for care supports and services for our growing aging population is exponentially increasing.”

Similarly, working professionals who can well-afford a live-in nanny or other individual to help with everything from cooking, cleaning, housework and home maintenance, view the domestic worker paradigm with a laissez-fare attitude that’s far removed from the normal employment environment governed by time clocks and employment records.

Little wonder there are so many complaints of in-home overtime violations - especially now that a popular method of compensating an in-home domestic worker, the day rate, has been rendered illegal by AB 241, legislation that came into effect in California at the beginning of the year, with similar bills adopted by three other states.

Domestic workers have been in a no-man’s land for some time

Until now, overtime pay laws did not apply to domestic workers. Now, they do. And yet, there is an expectation that domestic workers who provide services ranging from child care, to elder care, even custodial duties, will continue to be wronged even with the new legislation on the books - partly due to the environment. When a domestic worker performs duties in your home, many engagers don’t view the home as a traditional work environment and thus approach the employer-employee relationship much more casually.

These same engagers wouldn’t think twice about putting in for overtime at their own place of business - or negotiating time off in lieu of other compensation in kind - but expect a domestic worker to stay longer as needed, without any provision for overtime pay at the conclusion of an extended day or workweek.

Engagers of domestic workers also tend to forget that the domestic worker often has a family, with dependents, of his or her own. Tom Ammiano (D-San Francisco), who initially sponsored AB 241, said in a statement that “there’s no recourse if [a domestic worker is] being abused, there’s no place to go,” he said. “If you’re being asked to stay and cheat your own family out of your presence, you’re afraid of losing your job if you don’t.”

Fear of job loss no longer applies, as AB 241 protects that. Still, such treatment provides ample fodder for home care overtime lawsuits.

Domestic workers who have or are currently working within a non-conforming environment can take heart in the fact that AB 241 not only guarantees the rights of domestic workers when it comes to California overtime law and other statutes, but also the right and freedom for a worker who suspects abuse through lack of overtime pay, missed meal breaks or rest periods, to speak up and lodge a complaint without fear of job loss or reprisal.

There is now protection for the domestic worker who suspects that AB 241 is being circumvented by their employer. What’s more, attorneys are willing to take meritorious cases.

A 2012 study by the National Domestic Workers Alliance and Center for Urban Economic Development at the University of Illinois at Chicago found that 67 percent of live-in workers are paid below the minimum wage.

This is what AB 241, and similar statutes in three other states, is meant to curb. There are also federal improvements coming next year. Domestic workers, who suspect in-home care overtime violations and other abuses now curbed by the new law, are encouraged to speak up and seek justice.

Domestic Workers Eligible for Overtime Pay

Sacramento, CA Although it was a long time coming, overtime pay laws in California now extend to people who are employed as personal attendants. Unfortunately, because these California overtime laws are so recent, some employers may not realize they now owe personal attendants overtime pay, or they may realize it but willfully break the law. In any case, as of January 1, 2014, personal attendants are eligible for paid overtime.

Under California’s Domestic Worker Bill of Rights (AB 241), people employed as personal attendants are eligible for overtime pay, which they were not before. The Act defines personal attendants as people employed to work in a private household, “to supervise, feed, or dress a child, or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision.” People who spend more than 20 percent of their time in other duties are not considered personal attendants. Personal attendants can be either live in or live out and include nannies, babysitters and certain caregivers.

People who work in facilities are not included. Also not included are family members of the employer or casual babysitters.

The Domestic Worker Bill of Rights requires personal attendants who work more than nine hours in a workday or 45 hours in a workweek to be paid one-and-one half times their regular rate of pay for any time above nine hours per day or 45 hours per week. Personal attendants are also entitled to minimum wage pay.

This means that someone who works as a personal attendant for an elderly person and spends 10 hours a day working should be given overtime pay for one hour that day.

Prior to the Domestic Worker Bill of Rights, employers would rely on the personal attendant exemption to avoid paying their domestic workers - which included caregivers, housecleaners, housekeepers and childcare providers - with overtime pay. Now, if personal attendants are not given their overtime, they can file a lawsuit to recover unpaid wages, reasonable attorneys fees and interest and penalties.

The distinction between personal attendant and domestic worker is important because there are different overtime rules governing the two groups. California Domestic Workers Coalition notes that while overtime for personal attendants kicks in at nine hours in a day or 45 in a week, overtime for live-out domestic workers who are not personal attendants kicks in at eight hours in a day or the first eight hours on the seventh consecutive day. Double overtime starts for live-out domestic workers at 12 hours in a day or more than eight hours on the seventh consecutive week.

Live-in domestic workers have different overtime rules as well, including time-and-a-half for more than nine hours in a day and for the first nine hours on the sixth and seventh consecutive days, and double time for more than nine hours on the sixth or seventh consecutive days.

Despite having a right to overtime, personal attendants do not have a right to meal or rest breaks.

Although the Domestic Worker Bill of Rights is law, it is only a temporary law and ends in 2017 if the legislature does not extend it.

Failure to pay domestic workers and/or personal attendants for their overtime hours can result in a lawsuit being filed against the employer.

ERISA Not Just About Protecting Investments

San Diego, CA While many people think the Employee Retirement Income Security Act (ERISA) has to do with investments and
employee stock plans, the truth is that ERISA covers much more than retirement plans. Included in ERISA benefits are insurance provided through an employer, meaning that any claims about employer-provided insurance are covered by ERISA.

Covered by the Employee Retirement Income Security Act of 1974 (ERISA) are retirement, health, life insurance, and disability insurance plans. Covering only private employers, ERISA does not require employers to provide health insurance or other benefits plans; it simply sets out rules for when employers choose to offer such benefits. If employers choose not to offer benefits as covered by ERISA, they are not governed by ERISA rules. Furthermore, ERISA does not cover insurance policies that are purchased privately. It only covers those provided by an employer.

Under ERISA, those in charge of health plans and other benefits must provide information about the plan's funding and features, must abide by their fiduciary responsibilities and must provide an appeals process for people who have a grievance with their plans. Finally, ERISA gives participants the right to sue plan fiduciaries in cases where there is a breach of fiduciary duty.

Before a lawsuit can be filed, however, under ERISA the claimant must exhaust administrative remedies before filing a lawsuit. This means that if the insurance company has an internal appeals process, the claimant must file an appeal before filing a lawsuit, if the insurance policy in question is provided by the employer (private insurance, because it is not covered by ERISA, does not have such a requirement and a lawsuit can be filed once the first denial is received.)

Many insurance companies have rules for filing appeals, including a set time in which to file. Certain medical records and an appeal letter may also be required. If that appeal is then denied, a lawsuit can be filed to enforce the claimant's rights. A plan beneficiary or participant can file the lawsuit, depending on the circumstances, and the lawsuit is typically filed against the plan fiduciary or administrator.

It is important to note that under ERISA a claimant will not be awarded punitive damages; all that can be claimed are costs associated with the insurance policy.

Was Worker's Death Due to Ignorance of California Labor Laws?

San Francisco, CA The very premise of California labor law dictates a number of assumptions: that workers will be paid fairly, that they will be properly trained, and that they ultimately have a safe environment in which to work. The latter tenet appears to have been lacking in 2008 when a young mother met a horrible death at a California printing plant.

Margarita Mojica was 26 at the time of her death two years ago when she became entrapped in a box creasing and cutting machine. She was 17 weeks pregnant at the time with her second child.

California labor code, as with many federal statutes, dictates not only the requirement that an employer provide a safe work environment, but also that a worker has a right to protest if he or she feels at any time in danger while on the job.

It is not clear if the victim was even aware of the potential for disaster while simply doing her job.

According to the October 19th issue of the San Francisco Chronicle, the Oakland wife and mother of a young daughter was preparing a box creasing and cutting machine to start a job at the facility to replace a cutting die. According to prosecutors she was leaning into the machine when it suddenly activated and closed like a giant clamshell around her.

It is alleged that the owners of Digital Pre-Press International (DPI) of San Francisco were employing a previously owned cutting and creasing machine originally purchased in 2003. It has been reported that workers at some juncture asked to have a safety bar removed from the machine to allow for the handling of thicker cardboard. Investigators say the safety bar was not reinstalled.

While it is unclear if the accident would have been prevented had the safety bar been in place, there are a number of allegations that suggest workers at the facility were not properly schooled in safety protocols according to the tenets of California and labor law.

Regulators cited DPI on two previous occasions, in 1998 and again in 2001, for failing to maintain a worker safety program. The owner of DPI, Sanjay Sakhuja, is reported to have communicated to regulators that he had a training program in place by 2002; and an insurance inspection in 2007 found no problems with the machines at the facility.

However, following the tragic death of Mojica, state regulators under California labor employment law issued no fewer than 14 citations against DPI for not training workers properly. While the plant was reported to have a written safety program, workers told regulators they were never instructed on machine safety.

Sakhuja, along with pressroom manager Alick Yeung, have each been charged with manslaughter and willful violation of California state labor laws. A wrongful death civil suit has since been settled, according to The Chronicle. The value of the settlement was reported to be $6 million.

California Labor Law Teeth Worth $13.5 Million

Los Angeles, CA How effective are California labor laws? When you can ding an employer for $13 million dollars-plus, it suggests ample teeth in California state labor law. But there needs to be, especially when one hears the story of how workers were sorely exploited in direct contravention to California labor employment law.

At issue is the conduct of two janitorial cleaning enterprises that were accused of evading payroll taxes, together with a failure to pay minimum wage and overtime to about 300 janitorial workers in California.

An investigation by the office of the California State Labor Commissioner revealed that workers were routinely required to work in excess of eight hours in a day, seven days per week at a flat rate of $50 per day.

Excell Cleaning and Building Services Inc. of Delaware and M.O. Restaurant Cleaning of California Inc. were assessed judgments totaling in excess of $13.5 million in a case fostered by state Labor Commissioner Angela Bradstreet and California Attorney General Edmund Brown.

"We are pleased that the court has awarded the workers their rightful wages owed, along with penalties and liquidated damages," said Labor Commissioner Angela Bradstreet. "Our coordinated effort with the Attorney General to take action against these companies sends a zero tolerance message to all California businesses that they need to play by the rules."

It was alleged that workers were also misclassified as independent contactors, allowing the two corporations to avoid paying a quarter of a million dollars in payroll taxes. Given the sorry condition of the California state economy at the moment, that's $250,000 the state would like to have in its coffers.

It has been reported that the two companies at the center of the lawsuit failed to appear, thus the court entered a default in the action. On March 15th of this year the Honorable Marvin M. Lager in Los Angeles Superior Court granted the Plaintiff's application for default and issued the judgment of $13,640,819 for wages owed, penalties for wage violations, penalties for unfair business practice violations and liquidated damages.

"As Labor Commissioner, my top priorities include protecting workers and targeting these kinds of companies that operate in the underground economy," said Bradstreet. "These illegal operations undercut legitimate businesses and are damaging to our state's economy."

The two defendant companies had contracts to supply janitorial services at various restaurants in Los Angeles, San Diego and Orange counties. By working their charges over 7 straight days for such a low stipend without provision for overtime benefits, basic workers' rights were sorely violated. Issues such as health and time spent with family would be problematic in view of the hours involved.

Such a violation of California labor laws suggests a blatant disregard for California state labor law, but also for basic human rights. As shown here, California labor employment law exists to protect worker's rights in the state. Violations are not taken lightly. If you, or a co-worker have evidence of these types of violations, it would be prudent to discuss the matter with a qualified attorney.

Housekeeper Made to Jump Through Hoops in Basketball Star's Home

Santa Ana, CA California labor laws exist to protect innocent workers from the unfair practices of employers. Most infractions allegedly occur in a large, organized work environment but not always. Sometimes they allegedly happen in the home of a famous sports icon, with the alleged victim working in a domestic setting.

Such is the case with Maria Jimenez, the former housekeeper for NBA basketball star Kobe Bryant. Jimenez filed a lawsuit last week in Orange County Superior Court alleging that she was "harassed and humiliated" while on the job. The plaintiff also alleges that she was denied health insurance and was ultimately forced to quit her job due to "intolerable" working conditions.

Working in someone's home may present a more intimate stetting than working in a large corporation, but California labor law applies nonetheless.

In court papers filed earlier this month, Jimenez alleges that she was promised health insurance when she was hired, but realized too late that the promised coverage had not been secured on her behalf after she incurred more than $127,000 in medical bills for a back injury, and surgery to remove an ovarian cyst.

The 48-year-old former housekeeper also alleges in court documents that she is owed more than $20,000 in earnings that have been wrongfully withheld, together with unpaid overtime. She argues there should also be penalties for not being paid properly.

The most sensational aspect of the case, however, remains the alleged abuse suffered by Jimenez while on the job in the Bryant household, in which she worked from September 2007 to March of 2008??"a tenure of just six months.

From the time she began her employment at the Bryant home, Jimenez alleges that she was "badgered, harassed and humiliated" by Vanessa Bryant??"the basketball star's wife??"behavior that continued until Jimenez finally found the situation to be intolerable and quit.

The former housekeeper alleges that she was harassed by Vanessa Bryant in front of Kobe Bryant, the couple's children, and others. According to court documents "Vanessa began a continuing pattern of verbally abusing and demeaning (Jimenez)," and the plaintiff claims she was called lazy, slow, dumb, a liar and was cursed and screamed at.

When Jimenez finally approached Kobe Bryant about quitting the basketball star is said to have talked her out of it and elicited an apology from his wife, court papers said. But then, the plaintiff said, the abuse began again.

According to court papers Vanessa Bryant screamed at Jimenez for putting an expensive blouse, worth $690 in the clothes washer, then directed Jimenez to retrieve the price tag from a jar containing dog feces with her bare hand. When Jimenez finally gave notice, Vanessa Bryant allegedly insisted that Jimenez continue to work until her next payday in order to cover the cost of the blouse, which Jimenez said she did.

The Jimenez lawsuit claims that working conditions in the home were intolerable, and that the situation constituted a violation of California labor laws that protect workers from being forced to toil in unhealthy situations.

The action seeks unspecified general, punitive and special damages, as well as back pay and the overtime Jimenez says she is owed.