Wednesday, October 19, 2016

California PAGA Amendments Passed July 1, 2016

With the stated purpose of reducing “unnecessary litigation” and lowering the cost for employers doing business in California, on June 27, 2016 Governor Brown signed SB 836, an amendment to California’s Private Attorneys General Act (“PAGA”) as well as a host of other laws.  The PAGA grants employees the authority to sue for Labor Code violations on behalf of themselves and other employees as a representative of the California Labor and Workforce Development Agency (“LWDA”) as a private attorney general through their counsel.  Due to massive non-compliance with the Labor Code and in an effort to avoid binding arbitration, numerous lawsuits have been filed against California employers over the last few years seeking penalties, interest and attorneys’ fees and costs as well.  
These amendments apply to PAGA cases filed on or after July 1, 2016.  They are limited to cases alleging violations of the California Labor Code provisions listed in Labor Code section 2699.5.
The amendments fall into four large categories:  (1) the cost and procedure for filing a PAGA action; (2) the timing of PAGA actions; (3) what information and documents must be provided to the LWDA; and (4) the procedure that an employer must follow to cure PAGA violations.  Each amendment goes into effect on July 1, 2016, and does not affect PAGA notices filed before that date.  The new amendments  give the LWDA more oversight over PAGA claims as follows:
  • The LWDA now has 60 days to review PAGA notices.  (Previously 30 days.)
  • Employee notices to the LWDA must be submitted online along with a $75 fee.
  • Employers’ cure notices to the LWDA must be submitted online.
  • A PAGA plaintiff cannot commence a civil action until 65 days after sending notice of claimed violations to the LWDA.  (Previously it was 33 days.)
  • The LWDA has 65 days to notify the plaintiff and employer of its intent to investigate.  (Previously it was 33 days.)
  • For cases filed on or after July 1, 2016, the LWDA may extend its deadline to issue citations to up to 180 days, and the LWDA must be served with a copy of any PAGA complaint filed in court.
  • The LWDA must be provided with a proposed PAGA settlement at the same time as the settlement is submitted to a court for the court’s required approval.
  • The LWDA must be provided with any court order that approves or denies a settlement of PAGA claims.
It remains to be seen how the amendments will impact California employees and employers in PAGA litigation.  Will the LWDA actively object to settlements or allocations to the state it feels are too small? Will a  test or metric develop to ensure that so long a X% of a hybrid class action – PAGA settlement goes to the LWDA there will be no objection? Will someone be publishing an opinion letter soon please?
Some of the amendments, such as the increased cure period, provide obvious benefits to employers, while others, such as the $75 filing fee for LWDA notices, likely will not have any effect.  For other amendments, such as the ones that give the LWDA an active role in the settlement of PAGA claims, the impact will not be clear for some time.
The new amendments do not contain additional funding for the LWDA to increase its involvement in PAGA actions.  As a result the responsibility for enforcing PAGA claims will continue to rest with employment attorneys like Quintilone & Associates  
If you have any questions about the PAGA Amendments or have issues with unpaid wages, commissions, company charges to your wages, business expenses, off the clock work, or any issues with your pay at your current employer, please feel free to contact:
Richard E. Quintilone II, Esq.
Quintilone & Associates
22974 El Toro Road, Suite 100
Lake Forest CA 92630
Phone 949.458.9675
Fax 949.458.9679

Friday, July 17, 2015

California Reasonable Accommodation Bill Gets Signed Into Law (AB 987)

Governor Brown has just signed AB 987, Employment discrimination: unlawful employment practices (2015-2016), authored by Assemblymember Levine, which amends the Fair Employment and Housing Act ("FEHA") under the religious accommodation and disability accommodation provisions (California Government Code § 12940(l) and (m), respectively) to clarify that an employer cannot retaliate or otherwise discriminate against a person for requesting a reasonable accommodation.

This bill abrogates a ridiculous part of the Second District Court of Appeal decision, Rope v. Auto-Chlor System of Washington, Inc., (2013) 220 Cal. App. 4th 635, which held that a request for reasonable accommodation is not protected activity under the FEHA.  With the exception of its holding on this issue, Rope, remains good law.  You may recall, Mr. Rope sued his employer after he was terminated from trying to donate his kidney to his sister - something near and dear to my heart - [don't worry Katie - mine is pickled now] alleging a violation of the Michelle Maykin Memorial Donation Protection Act (“DPA”), retaliation, wrongful termination in violation of public policy, and violations of the FEHA.

In a nasty set of facts, Mr. Rope, who had planned to donate a kidney to his sister, was terminated two days before the DPA became effective. The Superior Court, Los Angeles County, No. BC467045, Holly E. Kendig, J., sustained employer's demurrer (basically dismissal) to initial complaint with leave to amend in part, and, following amendment of complaint, sustained employer's demurrer without leave to amend. Mr. Rope appealed and the Court of appeal did not really throw him a line in a wishy washy decision, the Court of Appeal, Johnson, J., held that:

1 DPA does not apply retroactively;
2 complaints to employer did not trigger protection of whistleblower statute applicable to complaints to a governmental agency;
3 court would decline to extend whistleblower protection under theory of anticipatory retaliation;
4 employee's requests for paid leave did not constitute protected activity sufficient to support a claim for retaliation under the FEHA;
5 employee exhausted his administrative remedies prior to adding FEHA claim for discrimination on the basis of actual or perceived disability;
6 employee stated a prima facie “expense” associational discrimination claim under the FEHA; and
7 employee stated a prima facie claim for wrongful discharge in violation of public policy. 

The Court of appeal basically affirmed in part and reversed in part with directions. The law to this point had clearly protected disability and reasonable accommodation requests. (See Pregnancy Disability Leave Law (Government Code § 12945) and the California Family Rights Act (Government Code § 12945.2 and 19702.3).  The California legislature did not like this act of judicial activism and specifically targeted Rope’s holding in the legislative history, which states at relevant part:

“(c) The law of this state contains similar protections for a person making a request for reasonable accommodation under the Pregnancy Disability Leave Law (Section 12945 of the Government Code) and the California Family Rights Act (Sections 12945.2 and 19702.3 of the Government Code). It is the intent of the Legislature for the protections afforded a person making a request for accommodation on the basis of religion or disability to be consistent with the provisions of the Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code).

(d) Notwithstanding any interpretation of this issue in Rope v. Auto-Chlor Sys. of Washington, Inc., (2013) 220 Cal. App. 4th 635, the Legislature intends (1) to make clear that a request for reasonable accommodation on the basis of religion or disability is a protected activity, and (2) by enacting paragraph (2) of subdivision (m) and paragraph (4) of subdivision (l) of Section 12940, to provide protection against retaliation when an individual makes a request for reasonable accommodation under these sections, regardless of whether the request was granted. With the exception of its holding on this issue, Rope v. Auto-Chlor Sys. of Washington, Inc., (2013) 220 Cal. App. 4th 635 remains good law.”

This bill should apply to all existing claims and lawsuits and any trial court considering the issue should re-read the Rope decision.  As the California Supreme Court has explained, “A statute that merely clarifies, rather than changes, existing law" may be "applied to transactions predating its enactment”  See W. Sec. Bank v. Superior Court, (1997) 15 Cal.4th 232, at 250.

The full text of the statute can be found here.  If anyone has questions about their existing employment law claims or requests for reasonable accommodation or retaliation, please contact Richard E. Quintilone II Esq. of Quintilone & Associates for more information. 

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Wednesday, March 25, 2015

Court Holds Electronic Signature Not Enough to Compel Arbitration

In Ruiz vMoss BrosAuto Group Inc.,(2014) 232 Cal. App.4th 836, an auto parts company cannot enforce its agreement to arbitrate employment disputes individually in a class action case since  it failed to prove the authenticity of an employee's electronic signature on the agreement.

An official of Moss Bros. Auto Group failed to present sufficient evidence in her statement that the employee actually signed the agreement, the 4th District Court of Appeal said.
The appellate panel affirms a state court decision denying Moss Bros.' motion to compel arbitration of a wage-and-hour class action.
Automotive service technician Ernesto Ruiz filed the class action in the San Bernardino County Superior Court in July 2012, alleging Moss Bros. violates state labor laws by failing to pay overtime and by denying employees rest and meal breaks.  The claim included an action under the Private Attorney General Act as well ("PAGA").   
The company moved to compel individual arbitration based on an agreement it says Ruiz signed in 2011.  In support of its motion, Moss Bros. produced a declaration from its business manager, Mary K. Main, that said Ruiz electronically signed the agreement.
According to Main, each employee received the agreement and had to log in to the company's computer system with their ID and password to view and acknowledge the agreement.
Ruiz countered that he did not recall signing the agreement and said Main made “conclusory” statements and could not prove that he had signed it. Ruiz maintained that he would not have signed it if it had been presented to him.  Judge Pacheco of the trial court denied the company's motion, finding that it failed to show that an agreement existed with Ruiz. Moss Bros. appealed.
In affirming the decision, the appeals court concluded that Main's explanation of how employees acknowledged the agreement was insufficient given Ruiz's contention that he did not remember receiving and signing it.
The employees were required to sign the acknowledgement form of the 2011 agreement but they were free to examine it at their leisure while logged in to the system, the panel observed.
Main did not explain whether or how Moss Bros. verified that only Ruiz, using his “unique login ID and password,” could have placed his signature on the form, the panel said.

Another wrinkle to this case was there was no statement of decision, nor much of a record for the Court of Appeal. Litigants should consider using private Court Reporters such as Veritext or KWCourtreporting to make sure the record is clear for the court of Appeal. 

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Tuesday, January 06, 2015

New Employment Laws for 2015 - Mandatory Paid Sick Leave - Labor Code Changes

It is that time of year again for California employers revisit their policies and handbooks to assess compliance with the slew of new California employment laws that take effect on January 1, 2015, or shortly thereafter. 
This year there is something for everyone in California:  (1) an expansion of harassment training requirement, (2) a law that requires paid sick time for almost every business within California and (3) even new Labor Code requirements. As these laws have both created and/or expanded employee rights, employers should consider whether their current handbooks and policies properly address the new requirements.
All the new laws discussed below are effective on January 1, 2015, unless otherwise indicated.
Mandatory Paid Sick Leave - Healthy Workplaces, Healthy Families Act of 2014
AB 1522, the “Healthy Workplaces, Healthy Families Act of 2014” (“Act”), is a landmark piece of legislation starting January 1, 2015, that requires employers to provide paid sick leave to any employee who works in California for at least 30 days within the first year of employment. The law requires the accrual of paid sick time at a rate of one hour of sick time for every 30 hours worked. Employers are allowed to limit an employee’s use of paid sick leave to 24 hours, or three (3) days during each year of employment. Employers must allow sick leave to carry over into the following year of employment unless they provide employees with sick time each year in a lump-sum at the beginning of the year.
If sick days are not accrued in a lump-sum, employers must allow employees to accrue up to 48 hours, or six (6) days. While we believe that the Legislature’s intention was to allow employers to impose both a three-day limitation on annual use and a six-day cap on accrual where sick days are accrued over time, the statutory language is not perfectly clear. Therefore, the easiest way to comply with the new law (and ensure a three-day limit on the use of sick days is permissible) will be to front load 24 hours (or three days) of sick time at the beginning of each calendar year.
Accrued, unused sick leave need not be paid out upon termination of employment. Employers may also establish a 90-day waiting period after hire before accrued paid sick leave may be used and may require sick leave to be used in minimum increments of two hours or less. Employers that wish to impose such limitations should set forth the restrictions in the employee handbook or a separate written sick leave policy.
Employers with vacation/paid time off (“PTO”) policies that provide employees with at least the same rights set forth in the Act are not required to offer employees additional paid sick time benefits so long as at least 24 hours (or three days) of the vacation/PTO time may be used for any qualifying purpose under the Act. The qualifying purposes for leave include:
1.    Leave for the purpose of diagnosis, care, or treatment of an existing health condition;
2.    Preventative care for an employee or employee’s family member; or
3.    Leave sought by a victim of domestic violence, sexual assault, or stalking to engage in certain protected activities.
A PTO policy or vacation policy that provides at least three (3) days of vacation per year may be sufficient as to any employees covered by the policy if it permits time off to be taken in two-hour increments (or less) for any purpose. Employers that presently provide sick leave will need to assess whether their current policy comprehensively covers the permitted uses under the new law. For example, many sick leave policies limit half of the allotment to child or kin care. However, the Act requires that any sick leave provided under the Act be available for use for family members and covers members of the family, such as grandparents, siblings, and basically anyone who might be related.
Everyone needs to pay attention as there is no minimum number of employees that an employer must employ to trigger application of the law and no requirement that the employee live in California or spend a majority of his or her work time in California. Indeed, an employee may work for six weeks in California at varying points throughout the year and work in Maryland the rest of the time, but he or she will still be covered under the Act. Likewise, part-time and even temporary or seasonal employees may accrue time under the Act. But, of course, if such employees do not remain employed for at least 90 days following the outset of employment, they may never become eligible to actually take sick time. There are very few employees excepted from the law, but such exceptions include in-home health care workers, flight deck and cabin crew members covered by the Railway Labor Act, and some workers covered by a collective bargaining agreement.
The Act contains detailed record-keeping and notice requirements, including a new poster requirement, notice of rights to new employees, and a requirement that available sick leave be documented in employee wage statements. Specifically, the law requires employers to state in a wage statement (pay stub) the number of hours of sick time an employee has left in the applicable year. The law also contains penalties for noncompliance as well as significant protections against retaliation.
Client Liability for Labor Contracts
AB 1897 imposes liability for wage and hour violations [like overtime and off the clock work] of staffing agencies or subcontractors on employers that contract for labor. Under the new law, if a labor contractor fails to pay its workers properly or fails to provide workers’ compensation coverage for those employees, the “client employer” can be held legally responsible and liable. A worker or the worker’s representative must notify the client employer of specified violations at least 30 days prior to filing a civil action against a client employer to provide an opportunity to cure the violation.
The legislation also expands to client-employers' liability resulting from the staffing agency or subcontractor entering into a contract for labor or services with a construction, farm labor, garment, janitorial, security guard, or warehouse contractor, if the staffing agency or subcontractor knows or should know that the contract or agreement does not include sufficient funds for it to comply with laws or regulations governing the labor or services to be provided.
AB 1897 also prohibits an employer from retaliating against a worker for notifying it of a wage violation or for filing a claim or civil action.
Rest and Recovery Periods – Labor Code § 226.7
Last year, Labor Code § 226.7 was amended to provide rest and recovery periods for employees to recover from heat illness. SB 1360, which was made effective upon passing in June 2014, confirms that rest and recovery periods are paid breaks and count as hours worked. SB 1360 does not create new law but merely clarifies the existing requirements.
Waiting-Time Penalties – Labor Code § 203
AB 1723 authorizes the Labor Commissioner, in issuing citations for failure to pay the minimum wage, to award any applicable penalties for an employer’s willful failure to timely pay wages to a resigned or discharged employee, also called “waiting time” penalties, and can accrue for up to thirty (30) days after a termination or resignation. 
Another new law, AB 2743, provides a waiting-time penalty if unionized theatrical and concert venue employees violate any agreed-upon timeframe for payment of final wages contained in a collective bargaining agreement.
Labor Code Complaints - Labor Code § 98.6
AB 2751 amends Labor Code § 98.6 to clarify that the $10,000 penalty for retaliation against an employee who complains of Labor Code violations will be awarded to the employee or employees who “suffered the violation.” This law does not create a new penalty but merely clarifies existing law.
Recovery of Liquidated Damages
Existing law permits an employee to recover liquidated damages from the employer for failure to pay the minimum wage, in the amount of the unpaid wages plus interest. AB 2074 clarifies that the statute of limitations for a lawsuit to pursue liquidated damages for failure to pay the minimum wage will not run until the expiration of the statute of limitations for the wages for which the penalties are sought, which is three years. Some recent court cases had held that liquidated damages claims had to be filed within one year, the statute of limitations for penalties. AB 2074 effectively overrules those holdings by statute.
Foreign Labor Contractors
SB 477 affects employers that use foreign labor contractors to recruit foreign workers for projects in California. The new law changes the definition of “foreign labor contractor” to mean a person who performs “labor contracting activity,” including “recruiting or soliciting for compensation a foreign worker who resides outside of the United States in furtherance of that worker’s employment in California.”
The new law protects foreign workers in a variety of ways. First, the new law prohibits a foreign labor contractor from charging a fee or cost to a foreign worker for foreign labor contracting activities. Second, the new law prohibits charging a foreign worker with any costs or expenses not customarily assessed against similarly situated workers, and limits the amount of housing costs charged to the foreign worker to the market rate for similar housing. Third, the new law prohibits requiring a foreign worker to pay any costs or expenses prior to commencement of work or changing the terms of the contract originally provided to and signed by the foreign worker (unless the foreign worker is given at least 48 hours to review and consider the additional requirements or changes and specifically consents to each additional requirement or change).
In addition, the new law requires foreign labor contractors to meet registration, licensing, and bonding requirements by July 1, 2016, and prohibits employers from using non-registered foreign labor contractors to supply workers in California.
The new law also provides for civil action and penalties for noncompliance and joint liability for employers that use non-registered foreign labor contractors.
Prevailing Wages
Several of bills passed this year impact employers that provide services for public works projects requiring payment of the prevailing wage. Basically if you work on a school, fire house, or other publicly funded project you must pay a higher [known as a “prevailing” wage].  AB 26, which redefines the word “construction” in public works projects to also include work performed during the post-construction phases of construction, including all cleanup work at the jobsite, and AB 2744, which allows enforcement mechanisms that can be used against contractors or subcontractors on public works projects to now be used for violations relating to the employment of apprentices on these projects. New legislation also allows a contractor to bring an action against “hiring parties” to recover any increased costs (including labor costs, penalties, and legal fees) incurred because of the untimely designation of a contract as a public works project.  This will likely increase public construction costs.
Child Labor Law Violations: Increased Remedies - Labor Code § 1311.5
AB 2288, the Child Labor Protection Act of 2014, provides additional penalties for violations of California labor laws regarding employment of minors. The law adds Labor Code § 1311.5 which provides treble [or triple] damages if an individual is discriminated or retaliated against because he or she filed a claim or civil action alleging a violation of employment laws that occurred while he or she was a minor, a penalty of $25,000 to $50,000 for certain violations involving minors 12 years of age or younger, and a tolling of the statute of limitations for violations of employment laws until the minor turns 18.
Time Off for Emergency Duty
AB 2536 makes two significant changes to existing law that prohibits an employer from discharging or in any manner discriminating against an employee who takes time off to perform emergency duty as a volunteer firefighter, reserve peace officer, or emergency rescue personnel. First, the legislation expands the definition of “emergency rescue personnel” to include an officer, employee, or member of a disaster medical response team sponsored or requested by the state. Second, the legislation requires an employee who is a health care provider to notify his or her employer (1) at the time that she or he becomes designated as emergency rescue personnel and (2) when the employee is notified that she or he will be deployed for emergency duty.
Protections for Unpaid Interns and Volunteers - Government Code § 12900
On September 9, 2014, California Governor Brown signed into law AB 1443. This law amended Government Code § 12900, et seq., California’s Fair Employment and Housing Act (“FEHA”) to add unpaid interns (and persons under limited-duration programs that provide unpaid work experience) to the list of persons protected by California’s anti-discrimination and anti-harassment laws. Specifically, AB 1443 prohibits discrimination against any person in the “selection, termination, training, or other terms or treatment of that person in an unpaid internship, or another limited duration program to provide unpaid work experience for that person.” The legislation also extends religious belief protections and religious accommodation requirements to anyone in an apprenticeship training program, an unpaid internship, or any other program to provide unpaid experience in the workplace or industry.
Harassment Training: Prevention of Abusive Conduct
AB 2053 requires employers subject to the mandatory sexual harassment prevention training requirement [at least 50 employees anywhere – including out of state] for supervisors to now include a component in such training on the prevention of abusive conduct. “Abusive conduct” is defined as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” According to the statute, “abusive conduct” may include the repeated infliction of verbal abuse (e.g., derogatory remarks, insults, and epithets); verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating; or the gratuitous sabotage or undermining of a person’s work performance. A single act will not typically constitute abusive conduct unless it is especially severe and egregious.
The law does not create a cause of action for abusive conduct in the workplace, but it does appear to be the first step toward protecting workers against bullying in the workplace that is not linked to any form of illegal discrimination under the FEHA.
National Origin Discrimination: Driver’s Licenses for Undocumented Immigrants
Beginning January 1, 2015, the DMV is scheduled to start issuing driver’s licenses to undocumented immigrants who can submit satisfactory proof of identity and California residency. AB 1660 makes it a violation of FEHA for an employer to discriminate against an individual because he or she holds or presents such a driver’s license and amends FEHA to specify that “national origin” discrimination includes discrimination on the basis of possessing such a driver’s license.
The legislation also makes it a violation of FEHA for an employer to require a person to present a driver’s license, unless possessing a driver’s license is required by law or is required by the employer, and the employer’s requirement is otherwise permitted by law. For example, a retail clerk may not need a driver’s license in the scope of his or her duties. Therefore, while the employer’s application for employment may ask for the applicant’s driver’s license information, it may not condition the job upon the applicant providing this information.
AB 1660 provides that actions taken by an employer that are required to comply with federal I-9 verification requirements under the Immigration and Nationality Act (“INA”) do not violate California law. Thus, AB 1660 does not affect an employer’s rights or obligations under the federal INA if presented with such a driver’s license.
Finally, the new legislation requires employers to treat employee driver’s license information as confidential [which in this author’s opinion- already was] and prohibits disclosure to any unauthorized person or use for any purpose other than to establish identity and authorization to drive.
Unfair Immigration-Related Practices - Labor Code § 1024.6
AB 2751 makes “cleanup” changes to prior law protecting employees from “unfair immigration-related practices.” AB 2751 expands the definition of an “unfair immigration-related practice” to include threatening to file or filing a false report or complaint with any state or federal agency.
The new legislation also revises California Labor Code § 1024.6, which prohibits employers from “discharging or in any manner discriminating, retaliating, or taking any adverse action against an employee because the employee updates or attempts to update personal information,” defined as information relating to “a lawful change of name, Social Security Number, or federal employment authorization document.”
The updated Labor Code section also removes a provision that allowed an employer to take adverse action if the employee’s personal information changes are directly related to the skill set, qualifications, or knowledge required for the job. Given these changes, as well as a recent Executive Order permitting employment authorization to undocumented workers who have no criminal background, it is much more likely that employees who assumed identities or presented false documents will come forward.
This may test an employer’s honesty policy and lead to possible discrimination claims under California law. Employers are cautioned against taking adverse action against an employee who provides a new Social Security number for falsifying a job application or other employment document, even if the employer suspects that the change is due to a previously unlawful employment status.
The new legislation also clarifies existing law regarding potential penalties for retaliating against an employee who reports unfair immigration-related practices under Labor Code section 98.6. Specifically, the cleanup legislation makes clear that, if a civil penalty is awarded under Labor Code section 98.6, the award is payable to the employee.
Non-Discrimination Against Public Assistance Recipients
AB 1792 prohibits employers with more than 100 employees who are beneficiaries of the Medi-Cal program from (i) discharging, discriminating, or retaliating in any manner against an employee who enrolls in welfare or any other a public assistance program; (ii) refusing to hire a beneficiary for reason of being enrolled in a public assistance program; or (iii) disclosing that an employee receives or is applying for public assistance, unless otherwise permitted by state or federal law.  This law, like the federal government’s stance on public assistance in general is attempted to remove the stigma from accepting public assistance.
Harassment Training: Farm Labor Contractors
SB 1087 requires a farm labor contractor to certify to the Labor Commissioner that its employees received required sexual harassment training in order to receive a farm labor contractor’s license. Unlike the training requirements of AB 1825, supervisory employees of farm labor contractors must be trained for at least two hours each calendar year, and non-supervisory employees also must be trained (i) at the time of hire, and (ii) once every two years thereafter.
The law also (i) restricts the State of California from granting a license to a farm labor contractor who has engaged in sexual harassment; (ii) changes the mandatory written examination process; and (iii) increases licensing fees, bonding requirements, and penalties.  It is yet to be seen if this will survive a constitutional challenge as being “engaged in sexual harassment” is fairly vague and ambiguous.
Penalties for Failure to Abate Safety Hazards - Workplace Safety
AB 1634 prohibits the state Occupational Safety and Health Appeals Board from modifying civil penalties for abatement or credit for abatement unless the employer fixed the violation at an initial inspection or a subsequent inspection prior to the issuance of the citation or submitted a signed statement and supporting evidence within 10 working days after the date fixed for abatement showing that the violation has been fixed.
Also, AB 1634 generally prohibits a stay or suspension of an abatement requirement while an appeal or petition for reconsideration is pending in cases of serious, repeat serious, or willful serious violations, unless the employer can demonstrate that a stay or suspension will not adversely affect the health and safety of employees.
Occupational Safety and Health Email Reporting
AB 326 allows employers to email their reports of a work-related serious injury, illness, or death to the Division of Occupational Safety and Health, as opposed to reporting the incident by telephone.
Hospital Workplace Violence Prevention Plans
SB 1299 requires the California Occupational Safety and Health Standards Board to adopt standards by January 1, 2016, that require specified types of hospitals, including general acute care hospitals or acute psychiatric hospitals, to adopt workplace violence prevention plans as part of the hospitals’ injury and illness prevention plans.
Criminal History Information in Public Contracts
AB 1650 requires contractors that bid on state contracts involving onsite construction-related services to certify that they will not ask applicants for on-site construction-related jobs to disclose information concerning criminal history at the time of an initial employment application. The law does not apply if the position requires a criminal background check under state or federal law. Workers obtained through a union hiring hall pursuant to a collective bargaining agreement are also excluded. It is yet to see how liability could be imposed against an employer who complies with this law, and as a subcontractor in a hospital, hires a former rapist who then sexually assaults [rapes] a patient. This law may test the tension of re-employing former criminals with customer safety concerns.
Workers’ Compensation Liens
AB 2732 clears up some issues with the 2012 workers’ compensation reform legislation. First, it authorizes employees to pursue medical-legal expenses through the Workers’ Compensation Appeals Board lien process. Second, it requires employers to reimburse lien filing or activation fees, plus interest. Third, the legislation clarifies that the existing law’s prohibition against lien assignment applies only to liens filed prior to January 1, 2013.
Unemployment Insurance Updates
Three (3) significant new laws impact Unemployment Insurance also known as “CA UI”
1.    AB 1556 revises unemployment eligibility standards for unemployed individuals enrolled in training or education programs and extends a grace period for workers seeking to continue their UI claims.

2.    SB 1083 expands the definition of “practitioner” under the UI code to include physician assistants who have performed physical exams under the supervision of a physician and surgeon and allows physician assistants to certify an employee’s disability for UI purposes, effective January 1, 2017.

3.    SB 1314 extends the deadlines for requesting reconsideration of a ruling determining eligibility for UI benefits and initiating an appeal to the California Unemployment Insurance Appeals Board of an administrative law judge’s decision from 20 days to 30 days, beginning July 1, 2015.
Health Care Enrollment
SB 1034 deletes certain provisions of California law related to waiting period limitations for health care coverage, and clarifies that waiting periods are governed by the 90-day period authorized under the federal Patient Protection and Affordable Care Act. The law prohibits a health care service plan or health insurer offering group coverage from imposing an additional waiting or affiliation period to any waiting period imposed by an employer and permits a health care service plan or health insurer offering group coverage to administer a waiting period imposed by a plan sponsor.
The law also requires employers that offer certain small market grandfathered plans to send notice to eligible employees or dependents who fail to enroll during an open enrollment period that he or she may be excluded from eligibility for coverage until the next open enrollment period.
What You Should Do Now
If you are reading this and you have more than one (1) employee, employers are strongly urged to review and update their handbooks, policies, and procedures in anticipation of the new laws. Some of the policies Quintilone & Associates can assist you with writing include:
1.    Out-of-state employers should assess whether any of their workforce may be subject to the California sick leave requirements and make preparations for providing such benefits;
2.    In-state employers should review current vacation/PTO and sick leave policies and make tweaks, as necessary, to comply with the new law;  
3.    Ensure part-time employees are afforded sick time;
4.    Ensure carry-over provisions are sufficient;
5.    Ensure any sick time provided under the Act (i.e., at least 24 hours or three days) may be used to care for the expanded scope of family members;
6.    Emergency duty policies should be revised to address the new definition of “emergency rescue personnel”;
7.    Employers may want to consider making mention of unpaid interns and volunteers in their EEO policies;
8.    Anti-harassment training should be updated to cover abusive behavior;
9.    New laws should be reviewed with human resources and supervisory personnel to ensure compliance; and,
10. Safety walk-throughs can be conducted [by qualified personnel] to ensure Cal-OSHA compliance.
 For any additional questions or information, please contact Richard Quintilone II Esq. and Quintilone & Associates

Monday, July 21, 2014

AAA Gold Exchange Class Action : About This Case: Cuevas v. AAA Gold Exchange

AAA Gold Exchange Class Action : About This Case: Cuevas v. AAA Gold Exchange: This blog is for informational purposes about a pending California class action lawsuit and how you can participate if you are an intereste...

Wednesday, June 25, 2014

Lawyers Allowed to Review Jurors’ Social Media per ABA Ethics Opinion

The American Bar Association (ABA) has ruled that lawyers are allowed to search a juror’s or potential juror’s public Internet presence, which can include postings by the juror in advance of and during a trial. However, sending “friend” requests, “following” or other such access requests are considered an ethics violation, the ABA said.

“In the world outside of the Internet, a lawyer or another, acting on the lawyer’s behalf, would not be engaging in an improper ex parte contact with a prospective juror by driving down the street where the prospective juror lives to observe the environs in order to glean publicly available information that could inform the lawyer’s jury selection decisions,” the ABA’s formal opinion stated. 

One of the more perplexing issues is that jurors can receive social media notifications that they have been searched, such as on LinkedIn. While the ABA deemed this to be ethically sound, its opinion cited a dissenting recent ruling on the matter. A decision by the New York City Bar Association in 2010 said that any notice sent to a potential juror about a search amounts to an unauthorized communication. 

“The fact that a juror or a potential juror may become aware that the lawyer is reviewing his Internet presence when an ESM network setting notifies the juror of such review does not constitute a communication from the lawyer,” the ABA’s opinion said.

Not all states adopt the ABA's opinions and each State Bar Association publishes their own guidelines.

We try a lot of cases so we will watch California's reaction to this opinion closely.

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Tuesday, June 10, 2014

The firefighter afraid of fighting fires loses his ADA claim

The firefighter afraid of fighting fires loses his ADA claim. Right, you guys? Right?!?