Travel & Tourism News
California Labor Paid Sick Leave Laws Clarified, Still Complicated
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…
Los Angeles Hotels Crying Foul Over Raise in Minimum Wage
Normally, it’s the employees litigating against an employer for nonpayment of wages. In this case, however, hotel workers in Los Angeles are quite happy about the prospect of wages increasing. It was in late September of last year that Los Angeles City Council passed the hotel wage ordinance, giving initial approval to the idea of a minimum wage for the city’s hotel workers exceeding $15 per hour in order to foster a higher living wage for workers in the city’s hotel industry. It’s not that the vote was close - in spite of the hotel industry’s objections over fears of increased costs and a slowdown of hotel development in the city because of the proposed wage increase, the ordinance passed 12-3. The City followed up last month by granting initial approval to a $15-per-hour minimum wage by way of a gradual implementation between now and 2020 for most businesses - not just hotels.
Again, this is just the City of Los Angeles talking, as opposed to the entire state through California labor code. Be that as it may, the hotel industry has cried foul, launching a California labor lawsuit to fight the new wage ordinance. Filed in December, the lawsuit suffered a setback for the litigants last month when US District Judge Andre Birotte Jr. issued an opinion on May 13 that challenged the strength of the defendant’s case for preemption of the City ordinance by the NLRA.
The judge, in his order, questioned if the lawsuit was even motivated by an alleged conflict between municipal law and the NLRA. “A review of plaintiffs’ arguments and evidence...make clear that plaintiffs’ biggest concern with the wage ordinance is that it is bad economic policy,” he wrote. “However, it is not the role of the court to interject into matters of legislative economic policy under the guise of NLRA preemption.”
The plaintiffs, identified as The American Hotel & Lodging Association (AHLA) and the Asian American Hotel Owners Association will appeal the order. Katherine Lugar, the CEO of AHLA, said in a statement issued June 11 that the organization was pursuing the appeal “to protect our member hotels from suffering irreparable harm” as a result of the ordinance.
“We continue to believe the evidence will show that the act improperly disrupts the balance of economic power between labor and management,” Lugar continued. “This imbalance creates unprecedented bargaining leverage for labor, violating the National Labor Relations Act.”
Los Angeles City Council gave final approval to the ordinance on June 10. The plaintiffs announced their appeal a day later. The clock is ticking, as the California labor employment law applicable to only hotels in the City of Los Angeles goes into effect on July 1.
Respecting Caitlin Jenner and Her Community Under the Law
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.
California Labor Law Also Applies to Seniors
Greg and his wife Cathy retired a few years ago and like many seniors found part-time employment to supplement their Social Security checks. They were employed as seasonal caretakers for two separate companies with similar policies. The first year they were hired by California Land Management in Palo Alto, a company that manages federal parks.
“They give you so many hours per week to work and give you a campsite to live at so you can take care of the campground,” Greg explains. “We were only hired to take care of the campground - check the campers in, collect their money and clean up after they leave.”
Everything was fine for about a week. The couple (in their mid-60s) were promised they only had to work 30 hours a week at the most, but soon they were putting in more than 40 hours a week. “The manager gave us a time card but he refused to take them if we didn’t fill them out they way they want it,” says Greg. “He wouldn’t accept our time cards if we clocked in more than 40 hours.”
This year they worked for another company. “Before we signed on, we made sure they understood we only wanted to work 30 hours per week,” says Greg. “Again, it was OK for the first week but they got us to do more work. We cleaned bathrooms along with the usual job, and there was a lot more paperwork involved collecting fees. They wanted us to repair stuff; we had to paint the building that was not agreed on ahead of time. At this place we didn’t even get time cards.
“When I complained, the manager (he runs five campgrounds) got mad at me, took me aside and said we were ‘hiding in our trailer and not working smart.’ In other words he insinuated that we are lazy and stupid. So we packed up and left. But we couldn’t fill out a time card and we were never paid California overtime, which we kept track of.”
Greg figures he and Cathy are owed one week of work - 30 hours each - and overtime pay. And Greg says they aren’t the only seniors being taken advantage of.
“We know one couple in their late 70s who are working 50 hours per day,” he adds. “And we were told that we couldn’t talk to other ‘camp hosts.’ I figure they don’t want us to file a joint complaint.
“I mostly want to get this story told to help other seniors and stop this practice. It is pretty outrageous, especially because it comes down to the federal government who contracts these companies.”
Greg and Cathy wrote a letter to the main company that runs the campgrounds, the district manager and the forest service, below.
To Whom It May Concern:
This letter is to inform you that we are unable to continue our employment contract at Big Cove Campground CA with Thousand Trails Management Services due to the [manager’s] verbal harassment, being ordered not to communicate with other employees, a requirement to work overtime and on days off without compensation, and falsification of timecards that we were not allowed to see or sign. Being of Hispanic decent, I believe this is prejudice on the part of the manager.
We are very sorry to be leaving. We loved the campground and the campers. We strived to take superior care of the grounds. Campers and forest service employees often complimented us on our care of the campground. We will continue to look for employment as Camp Hosts and we hope at a future date we can work for Thousand Trails again.
Sincerely,
Greg and Cathy Villalobos
Disney Faces Proposed Class-Action California Labor Lawsuit
The California labor lawsuit has been brought by Reykeel Zorio, a former nonexempt employee of Disney. According to court documents, the California resident was hired by Walt Disney Worldwide Services Inc. in 2011 and commenced his employment at Disneyland Resort. His employment status was transferred from Walt Disney Worldwide Services Inc. to Walt Disney Parks and Resorts US Inc., according to the complaint.
The plaintiff claims that Walt Disney Worldwide Services Inc., which undertakes the finance data processing system - and Walt Disney Parks and Resorts US Inc., the entity that manages Disney parks - did not properly pay him the accrued vacation time he claims was his due when he left Disney’s employ. Zorio claims this oversight is a violation of California labor code.
He doesn’t stop there. Zorio also claims that Disney, or at least those entities of Disney named in the putative class action, failed to immediately provide to employees who had been fired or terminated wages that were their due, as well as vacation time and other forms of compensation as stipulated under California labor employment law.
California and labor law holds, according to the complaint, that employees who resign are paid the aforementioned compensation within 72 hours of submitting their resignation. The California labor lawsuit claims that this was not done.
“Moreover, the final wages that defendants eventually paid to each plaintiff did not include all of the wages, vacation time and other compensation that were in fact due and owing to plaintiff,” the complaint said.
No fewer than six iconic Disney properties, all based in California, are named in the lawsuit: Disneyland Hotel, Disney Grand Californian Hotel & Spa, Disney’s Paradise Pier Hotel, Downtown Disney District, Disneyland Park and Disney’s California Adventure Park. To that end, the proposed class-action lawsuit would include any and all former nonexempt employees of the two Disney companies named as defendants, who might have worked at any of the six named properties over the preceding four years. Class members are expected to exceed over 500 in number, and would be entitled to wages for each day they were not paid at their regular rate for up to 30 days from the time they were due, according to California state labor laws.
The three causes of action include damages for unpaid vacation pay, restitution of wages and disgorgement of profits due to fraudulent, unfair and illegal business practices, according to the complaint.
The California labor lawsuit was filed June 19. There was no comment from Mickey, Pluto or Goofy, who were not named as defendants. The case is Zorio v. Walt Disney Worldwide Services Inc. et al., Case No. BC549292, in the Superior Court of the State of California, County of Los Angeles.
Not Withholding Taxes from Employee Violates California Labor Law
“I gave my social insurance number and all other necessary documents to the accounting department when I was hired at this resort hotel,” says Fabiola, who was paid hourly. “There is no doubt that I was a paid employee and not an independent contractor.”
After receiving a few paychecks, Fabiola asked why taxes weren’t being deducted. “My manager said it was better for me, that I would make more money this way,” she says. “I didn’t want to make any trouble - I didn’t want to lose my job - so I didn’t ask again.”
Fabiola continued working for about six months, until she was asked to work the graveyard shift. “Again the manager told me that I would make more money so I asked him again about tax deductions,” she says. “He got mad at me and got even madder when I declined to work graveyard.”
Just days after that confrontation, just before Fabiola was getting into her uniform, her manager said that she wasn’t on the schedule. She asked him why she wasn’t working, what was going on? “He told me that business had slowed down and they had to cut back my hours but to please be patient,” she says.
“I called a few days later but this time the manager said I was fired,” says Fabiola. “What had I done wrong? In the six months I worked here I never had a complaint. I called the lady in accounting - she signs the paychecks. I explained to her that I had been fired and asked her why she never took taxes off my checks. She said that I had to speak to the manager.
“I called the manager and said that I had to notify the Labor Department because I have been fired without a reason and I asked him again about my taxes. He replied, ‘It was because you were rude to a customer.’ I knew he was lying.”
Soon after she was wrongfully terminated, Fabiola received a letter from the hotel’s accountant. It said that she was an independent contractor and therefore responsible for all her taxes. And because she has been designated as a contractor rather than an employee, Fabiola has been denied unemployment insurance.
Employers often misclassify their employees as independent contractors to avoid paying payroll taxes, and other labor laws such as the minimum wage or overtime, comply with other wage and hour law requirements such as providing meal periods and rest breaks, or reimburse their workers for business expenses incurred in performing their jobs.
As well, independent contractors are not covered under workers compensation insurance, and are not liable for payments under unemployment insurance, disability insurance or social security.
If your employer is withholding payroll taxes, you can contact the California labor board to seek enforcement of the law, whereas independent contractors must go to court to settle their disputes or enforce other rights under their contracts. Both employees and independent contractors, however, can seek legal help.
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Disney Worker Launches California Labor Lawsuit Alleging Religious Discrimination
The wearing of a hijab is an important aspect of the Muslim faith. Disney, which operates the iconic theme park in the state (as well as Disney World in Florida), is known for its attention to detail. That detail encompasses the dress and deportment of all its employees in an effort to complete the look and feel that becomes the Disney experience.
One can well imagine the conflict that could--and did--ensue for Boudlal.
According to the Huffington Post (8/13/12), Boudlal managed to land a part-time job two weeks after moving to California in 2008. While she did not wear her hijab, or headscarf initially, Boudlal realized while studying to become a US citizen that the US constitution provided freedoms for expressions of religious faith.
That freedom will now be entrenched in California labor code as of next month, but it was not in 2010 when??"having worked at the Storyteller hotel restaurant for over two years??"she finally approached her employers to seek their permission to wear her hijab in the workplace.
Following a two-month wait, Boudlal was finally given permission to wear a headscarf, but only one designed and approved by Disney. Eventually fitted with a scarf that encompassed the look and feel of Disneyland, Boudlal was not provided with a date as to when she could begin wearing the customized scarf. She was also told, according to the report, that she would not be allowed to wear her own hijab over the interim.
With the onset of Ramadan, and in the absence of further word from Disney, Boudlal went ahead and wore her hijab to her job. That's when the trouble started. At the time there was nothing in California labor law to protect her.
In her California labor lawsuit, Boudlal said that in August 2010, when she began wearing her hijab for work, she alleges to have been told by Disney to either remove the hijab, or work "backstage" where she would not be seen by patrons. On seven separate occasions Boudlal was allegedly sent home without pay for wearing her hijab to work.
Disney's eventual solution was to offer Boudlal a substitute headdress that Boudlal found unacceptable. In an interview with KTLA Los Angeles, Boudlal is reported to have said: "The hat makes a joke of me and my religion, and draws even more attention to me. It's unacceptable. They don't want me to look Muslim." Boudlal was soon suspended from her job at Disney.
Boudlal is reported to have filed a complaint with the US Equal Employment Opportunity Commission in 2010 and finally received a notice of her right to sue in August of this year. After getting the go-ahead from the feds, Boudlal filed her California labor lawsuit later that month.
The new California labor law allows more protections against such discrimination allegedly suffered by Boudlal. AB 1964 clarifies that religious dress and grooming practices are covered by existing and updated protections against religious discrimination.
According to the new California labor employment law that comes into effect next month, employers are required to reasonably accommodate employees observing the traditions of their respective religions, including dress.
That said, the new California employee labor law specifically notes that segregating an employee is not interpreted as a reasonable accommodation.
ERISA Not Just About Protecting Investments
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.
Hotel in Violation of California Labor Law
The Eureka Times Standard reported on December 4 that the Valley West hotel facility has seen 11 unpaid wage claims filed against it and owner Penta Hospitality (now doing business as Silver Creek Hospitality) since 2007. So far, eight of those claims have gone to court and a total of $19,000 in back wages has been awarded to former employees of the facility.
However, aside from one partial payment, the lion's share of that $19,000 bill has yet to be paid, according to the Eureka Times Standard.
The California labor code holds that employees are owed a fair day's wage for a fair day's work. When an unpaid wage claim is filed, a deputy labor commissioner is assigned to the case and attempts to arrive at a resolution between the parties. When a resolution isn't possible, the claim proceeds to a hearing before an administrative law judge.
Beyond back wages allegedly owed to former workers, Valley West Days Inn is said to owe the city some $150,000 accrued from unpaid bed taxes and water bills. The city indicated that garbage collection at the hotel had also been stopped due to lack of payment.
In its defense, the hotel owner noted an ongoing slump in the hotel and accommodations industry that is the worst since the Great Depression. In sum, the hotel simply doesn't have the money to pay their bills. Silver Creek Hospitality principal Mukesh Mowji added that the three principals of the chain have declined drawing a salary for quite some time.
In an interview with the Times Standard, former employees of the hotel indicated that the Valley West Days Inn failed to pay their employees on time, which flies against California labor employment law. One former employee noted that following a two-week stint at the hotel, he went looking for his paycheck and was told by management that as a subcontractor, he would not be paid regularly. The employee suggested he never agreed to his status as a subcontractor.
Hotel management allegedly told other employees that their first paycheck was withheld as policy. When the second paycheck came due, it was late. The former employee who spoke to the newspaper indicated that he had been told a complaint to the labor board would constitute a legal action, and thus he would not receive what he was owed??"another violation of California employee labor law.
Was Worker's Death Due to Ignorance of California Labor Laws?
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.
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