We wanted to bring to your attention the following recent court decision holding employers liable for civil penalties for violations of California wage orders, as well as other recent changes to laws effecting employer obligations and liabilities.
Please contact any member of our Employment & Labor Practice Team with questions regarding how any of these may impact your business.
In Bright v. 99¢ Only Stores (case no. B220016), the California Court of Appeal held that a cashier could recover civil penalties when her employer failed to provide her suitable seating as required by Wage Order No.7-2001, subdivision 14 (requiring that employers provide employees with seating where the nature of the work reasonably permits the use of seats). Wage Order 7 applies to the Mercantile Industry, i.e., any industry, business, or establishment operated for the purpose of purchasing, selling, or distributing goods or commodities at wholesale or retail; or for the purpose of renting goods or commodities.
The court reasoned that civil penalties were recoverable for violation of the wage order because the California Labor Code Private Attorneys General Act of 2004 (“PAGA”) specifically allows for recovery of civil penalties when no other applicable code provisions provide a civil penalty.
In light of this decision, California employers in the Mercantile Industry should provide suitable seating (e.g., a stool behind a register/counter) to employees where the nature of the work reasonably permits the use of seats. California employers should also be aware that they may now be subject to civil penalties under PAGA for violations of other wage orders as well.
Effective January 2011, California employers with 15 or more employees must provide paid leave to organ and bone marrow donors. In particular, organ donors must be provided a leave of absence of up to 30 workdays and bone marrow donors must be provided a leave of absence of up to five workdays. Employees must provide written verification that they are a donor and there is medical necessity for the donation when requesting leave.
Employers may require that employees use vacation or sick leave for up to five days for bone marrow donors and two weeks for organ donors, unless it violates a collective bargaining agreement to do so. Leave under this statute does not run concurrently with FMLA or CFRA leave.
Under recent revisions, employers are required to provide shade when temperatures reach 85 degrees Fahrenheit and to institute “high-heat” procedures (such as observing employees for signs of illness and reminding employees to drink water) at 95 degrees. The revisions also state that heat illness training should be provided to employees before they begin work reasonably anticipated to result in exposure to the risk of heat illness. These rules apply to employers in the agricultural, construction, landscaping, oil and gas extraction and transportation and delivery industries who have employees working outdoors.
Effective January 2011, pursuant to changes to California Labor Code Section 512, construction workers, commercial drivers, certain security officers and employees of electrical corporations, gas corporations, or publicly owned electrical utilities are now exempt from meal break requirements if they are covered by a valid collective bargaining agreement which expressly includes, among other things, provisions for wages, work hours, meal periods and final and binding arbitration of disputes about meal period provisions. As a result, employers of such workers no longer face the uncertainty posed by the pending California Supreme Court decisions in Brinker Restaurant Corp. v. Superior Court and Brinkley v. Public Storage, Inc.
Effective January 2011, under the new amendment to California Labor Code Section 98.2, employers, before filing an appeal of a wage claim administrative decision, will be required to post a bond or pay a cash deposit to the court in the amount of the judgment received in the administrative hearing. Employers are also required to provide written notification of posting to the Labor Commissioner and the opposing side.
Effective January 2011, the minimum wage will increase to $9.92. Employers must pay this rate to individuals who perform at least two hours of work in a particular week within the geographic boundaries of the City. Additionally, employers must display posters informing employees of the minimum wage rate and their rights under the ordinance.
Also effective in 2011, the healthcare expenditure rate for large employers (100+ employees) will be $2.06/hour and the rate for medium-sized employers (20-99 employees) will be $1.37/hour. Additionally in 2011, managers, supervisors and confidential employees who earn $81,450 ($39.15/hour) or more, are exempt from coverage under the San Francisco Health Care Security Ordinance.
Effective January 10, 2011, the EEOC’s final regulations implementing the employment provisions of Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) go into effect. Key provisions of the final regulations include: (1) clarification that no specific intent to acquire genetic information is required in order to establish a GINA violation; (2) creation of a “safe harbor” exception for employers who put respondents to requests for medical information on notice of GINA (the regulations provide an example of specified language that can be used to give notice); and (3) clarification that while general inquiries about health or well-being by supervisors/managers (such as “How are you?;” “How is your son?;” “Did they catch it early?”) are not prohibited in causal conversations or social media interactions, follow-up probing questions (such as “Do other family members have the same condition?” or “Have you been tested for the condition?”) are prohibited by GINA.
More information on GINA and the final regulations is available on the EEOC website.
Under the Patient Protection and Affordable Care Act (“PPACA”), the FLSA was amended to require employers to provide non-exempt employees with a private location and reasonable time to express breast milk whenever the employee has a need to. Times and frequencies of these unpaid breaks will vary by employee, but employers will be required to provide such breaks to all employees for one full year following the birth of their nursing child. Additionally, employers should be aware that bathrooms, even private ones, do not qualify as permissible locations under the PPACA. For further details, see the U.S. Department of Labor Fact Sheet.
California law also requires reasonable break times and a private space to express breast milk (with toilet stalls similarly excluded); however, unlike the FLSA requirements, California lactation laws do not have a one-year limit for providing break time for lactating employees (see California Laws Related to Breastfeeding and Minimum Requirements of the California Lactation Accommodation Law).
Under the newly released 2011 IRS standard mileage rates, taxpayers can receive a reimbursement of $0.51 for each business mile driven. For more information, see IRS Announces 2011 Standard Mileage Rates.
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