Plaintiffs Given Broad Access to Discovery in PAGA Suits by California Supreme Court

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by Grace Lim-Ayres, Esq.

On July 13, 2017, the California Supreme Court in Williams v. Superior Court (Marshalls of CA, LLC) issued an opinion addressing the scope of discovery in representative actions brought under PAGA (Private Attorneys General Act of 2004, codified in Cal. Lab. Code § 2698 et seq.).  The Labor Code Private Attorneys General Act (PAGA) authorizes aggrieved employees to file lawsuits to recover civil penalties on behalf of themselves, other employees, and the State of California for Labor Code violations.

The Williams Court unanimously reversed the trial court’s discovery order denying plaintiff access to statewide contact information for fellow employees of other Marshalls stores.  It held that plaintiffs in PAGA actions have access to a broad scope of discovery similar to discoverable information in a class action.  The plaintiff is entitled to statewide contact information at the onset of the case to determine which cause of action to plead, and whether a broader representative action is warranted.

In what could be considered another blow to employers in an already employee-friendly state, given the relatively low threshold for pleading, employees may now bring more PAGA claims that are in fact “fishing expeditions”, which will in turn require employers to spend more time defending against them.  In addition, it is clear that statewide contact information is relevant and discoverable in a PAGA claim at the outset of the case. Continue reading

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Sexual Harassment in the Workplace: Very Real and Very Costly for Employers

150212-sexualharassment-stockWhile sexual harassment has been in everyone’s vocabulary since Dolly Parton’s Nine to Five graced screens in 1980, it has become a topic of increased importance and media coverage as more and more sexual harassment claims are brought against celebrities such as Bill Cosby, President-Elect Donald Trump, and former President Bill Clinton.  While you or your employees may not identify with these over-the-top personalities in positions of power, sexual harassment claims are very real and very expensive.

For example, a recent claim against the popular P.F. Chang’s China Bistro chain cost the company $1 million in response to two employees’ claims that they were repeatedly sexually harassed and were subjected to a hostile work environment. According to the arbitrator’s written order, both women said they were subjected to offensive comments and conduct from the male kitchen staff at the restaurants, including jokes about sex, remarks about female workers’ bodies, and kissing and whistling noises aimed at female employees as they walked by. In addition, one of the women said she saw a group of male kitchen employees watching a pornographic video on a smartphone, and she frequently heard the cooks singing sexually explicit songs in the rear of the restaurant in University City.  The reality is that these activities occur more often than you might think.

To continue reading about the risks of sexual harassment in the workplace and how to protect yourself as an employer, continue reading our article in the December issue of the California Employer’s Report. Continue reading

DOL Rule Increasing Minimum Salary Requirements for Exempt Employees Now on Hold Per Court Order

gavelLast month, we discussed how the Department of Labor (DOL) was scheduled to implement a new rule that would increase the minimum salary requirements for exempt employees.  The new rule published by the DOL would have doubled the minimum salary requirements for employees from $455/week to $913/week. This rule was supposed to take effect on December 1, 2016; however, employers can breathe easy for a bit longer.

On November 22, 2016 a federal judge from the United States District Court in Texas temporarily blocked implementation of the rule, in response to a request by 21 states and business groups.  This delay is temporary, while litigation continues and the court makes a determination as to whether the DOL has the authority to implement such a rule. Continue reading

New DOL Rule Increases Minimum Salary Requirements for Exempt Employees Starting 12/01/16

12/01/16: This Rule is currently on hold, per court order. Please read the latest article for news updates on this topic.

On May 23, 2016, the Department of Labor announced a new, final rule that will take effect on December 1, 2016. To the relief of employers, the new rule does not make any changes to the criteria for classifying employees as exempt. Employers can continue to classify employees as exempt or non-exempt under the same duties tests and criteria they used in the past. However, the principal change comes in the form of several heightened minimum salary requirements.

The DOL estimates that in the first year as many as 4.2 million workers would either need to: (1) be reclassified as non-exempt and paid overtime whenever they work more than 40 hours in a workweek; or (2) receive an increase in their salary to meet the new requirement.

exempt-well-maybeUnder the new rule, the minimum annual salary for exempt employees will more than double, from $23,660 ($455 per week) to $47,476 ($921 a week). The minimum annual salary for highly compensated employees will also increase from $100,000 to $134,004. Furthermore, these minimums will continue to automatically increase every three years.

In a new addition to the rule, employers will now be permitted to satisfy up to 10 percent of the annual salary level through non-discretionary bonus and incentive payments, including commissions. Payments to health insurance policies, however, may not be used to satisfy the salary requirement. Continue reading

When and How Must an Employee Be Compensated for Travel Time?

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There are various factors that influence whether an employee must be compensated for his or her travel time to a new work site, or for off-site employment activity. One of the main factors to consider is whether the employee is actually engaging in travel as part of the employer’s principal activity or, whether the employee is engaging in travel for the convenience of the employer.

At the federal level, the Fair Labor Standards Act (FLSA) is the primary law governing travel pay. The standard asks whether the employee’s time is spent primarily for the benefit of the employer. It also includes time spent, even if not doing work, but under the control of the employer, such as on-site, on-call time.

Pursuant to California’s Labor Code, the standard comes down to whether the employee is

subject to the control of the employer; the concept of “control” is narrower than federal standard. While the federal and state laws overlap, California’s Labor Code is of course generally more liberal and more protective of employees.

California Law

The definition of hours worked is found in the Industrial Welfare Commission Orders, and refers to the time during which the employee is subject to the control travel-timeof an employer, and includes all the time the employee is “suffered or permitted to work,” whether or not required to do so. State law does not distinguish between hours worked during the “normal” working hours, or hours worked outside “normal” working hours, nor does it distinguish between hours worked in connection with an overnight out-of-town assignment. Continue reading

“It’s Beginning to Look a Lot Like… Lawsuits This Holiday Season”

Although holiday parties may be an excellent opportunity for employees to socialize outside of the confines of the office, and to reward employees for their service, they can also give rise to employer liability in the absence of appropriate precautions. Before planning your next holiday soiree, review the potential pitfalls and solutions below so that your event can be full of cheer, rather than unpleasant lawsuits.

  1. Serving Alcohol at Company Functions

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While having alcohol available may make typical water cooler conversations less awkward, it can lead to liability for employers in the form of vicarious liability, sexual harassment, social host liability, and other potential issues.

Even though refraining from serving alcohol altogether is the safest option, in the event that your company plans to serve alcohol at you next function, keep the following tips in mind: Continue reading

The Grady Firm Selected as California Employers Association Partner Firm

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The Grady Firm is pleased to announce that it has been selected to serve the the  California Employers Association, which serves 9,000 businesses throughout the state of California, as a  “Partner Law Firm” and on-demand outside legal counsel.  As a Partner Firm, The Grady Firm will offer legal counseling, training, litigation defense, and discounts to CEA members on its legal services.

As a one-stop shop for business owners, the Grady Firm is one of two member firms supporting CEA’s Southern California members, and the only firm specializing in the following areas: employment advising; employment/wage and hour litigation;  sexual harassment training; immigration, an business law.  All services are offered in English and Spanish.  As a Partner Firm, The Grady Firm will offer discounts to CEA members on its legal services. Continue reading

Santa Monica, CA Minimum Wage Increase to Take Effect on July 1, 2016

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On April 28, 2016, the Santa Monica City Council adopted a mandatory minimum wage increase to $10.50 per hour, which will take effect on July 1, 2016.

Santa Monica’s new ordinance mirrors the minimum wage laws adopted by Los Angeles earlier this year. Continue reading

California Employers: Prepare for New Overtime Rules Effective December 1, 2016

numbers-time-watch-white.pexelsOn May 18, 2016, President Obama  and Secretary  Perez announced the Department of Labor’s final rule updating overtime regulations, to the disappointment of many employers.  The new rule, which will automatically provide overtime pay protections to over four million  workers within its first year of implementation, goes into effect on December 1, 2016.

The Department published a Notice of Proposed Rulemaking (NPRM) in the Federal Register on July 6, 2015 (80 FR 38515) and invited interested parties to submit written comments on the proposed rule at www.regulations.gov by September 4, 2015. The Department received over 270,000 comments in response to the NPRM from a variety of interested stakeholders. The feedback the Department received helped shape the Final Rule. Continue reading

Valentine’s Day Special- $150 Off Employment Law Packages

New Year’s has come and gone, and we are now six weeks into 2016!  Haven’t had time to update your Employee Handbook, policies and procedures, or personnel files? The Grady Firm is here to help!

In order to show love to our deserving customers, we are offering a discount of $150.00 off our employment law advising packages through February 29, 2016.  To find out more about our services, book a time to speak with our employment law attorneys, or call 323-450-9010 by the end of the month, and mention this promotion.

Has Your Company Been Keeping Track of Accrued Paid Sick Leave Time Since January 1?

As you may be aware, on July 1, 2015, a new law affecting millions of Californians went into effect requiring that employers – both public and private – provide paid sick leave to all their employees. Under the new law, employers will have to modify or update existing paid sick leave or time off policies, as well as payroll, record-keeping, wage statement, and employee notice procedures.

In addition, employers are required to provide most employees with an individualized Notice to Employee  (required under Labor Code section 2810.5) that includes paid sick leave information.

Has your company been providing its employees with notice of the amount of paid sick leave its employees are entitled to on each wage statement in 2016?

If you have questions about an employer’s responsibility to provide sick leave and notice of hours earned to its employees, The Grady Firm attorneys can review your company’s policies to ensure they are in compliance. Schedule a time to speak with our employment law department today.

Is Your Business in Compliance with California’s Sexual Harassment Training and Posting Requirements?

by Jennifer Grady, Esq.

sexualharassment-425x277.jpgSexual Harassment claims are on the rise and can cost employers significantly in terms of time, money, and lost productivity. According to the EEOC, over 1,700 complaints of discrimination based on sex (pregnancy or sexual harassment) were filed in California in 2014. When there is a sexual harassment claim, both sides can lose–in addition to the social, economic, and psychological effects suffered by victims of harassment, these complaints cost employers millions of dollars in legal fees and lost opportunities. Continue reading

Changes to CA Minimum Wage Will Impact Employers’ Budgets for 2016- Are You Prepared?

by Jennifer Grady, Esq.

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California’s minimum wage will increase again on Jan. 1, 2016

With just a few weeks until the end of 2015, employers are rapidly approaching the statutory California minimum wage increase set to take place on January 1, 2016.  This increase means that employers must review their monthly and annual expenses to determine how the salary increase will affect their overall budget, and how it may impact the wages of workers that are already earning more than the minimum wage.  Continue reading

$11 Million Awarded in Job Training Funds to Employers by California Employment Training Panel

California-State-Capitol1SACRAMENTO – On September 25, 2015, the State of California’s Employment Training Panel approved more than $11 million to train more than 12,880 workers throughout California.  In total, the panel approved 42 training contracts aimed at supporting job creation and retention while increasing opportunities for workers through the development of job skills and training. The Employment Training Panel (ETP) provides funding to employers to assist in upgrading the skills of their workers through training that leads to good paying, long-term jobs.

The ETP was created in 1982 by the California State Legislature and is funded by California employers through a special payroll tax.  There are millions of dollars in this account accessible to employers each year. The ETP is a funding agency, not a training agency; therefore employers can determine their own training needs and who provides their training.

“These training contracts are significant economic development tools for businesses and their employees,” said Stewart Knox, the Employment Training Panel’s Executive Director. “Workers receive job training for well-paying jobs, and businesses can grow their workforce and revenue.”

City of San Francisco Announces its 2016 Increased Employer Healthcare Spending Rates

San Francisco increases healthcare spending law Photo © Jennifer Grady

San Francisco increases employer healthcare spending law rates. Photo © Jennifer Grady

The City of San Francisco has announced the 2016 rates for its employer health care spending law, under which employers must either contribute a specified amount toward their employees’ health care costs on a regular basis, or pay into a city health care fund for San Francisco residents.  Employers with workers in San Francisco will have to pay more next year to comply with the city’s health care spending law.

Beginning January 1, 2016, the health care expenditure rate for employers with 100 or more employees will be $2.53 per hour, and the rate for medium-sized businesses with 20-99 employees will be $1.68 per hour.
The health care expenditures must be made on behalf of employees employed for more than 90 days and who regularly work at least eight hours per week in San Francisco. Businesses with 19 or fewer employees and nonprofits with 49 or fewer employees are exempt.

Changes to California Paid Sick Leave Requirements on July 13, 2015

sick leaveBy Jennifer A. Grady, Esq. and Gayane Khechoomian, Esq.

The new Paid Sick Leave law that went into effect in California on July 1, 2015 was already amended less than two weeks after it took effect on July 1, 2105. This means that employers may have to revisit, and most likely update their paid leave policies and Employee Handbooks.

An employer must individually notify all employees hired prior to January 1, 2015 of changes to terms and conditions of employment that relate to paid sick leave within 7 days of the actual change. Information concerning any new or previously existing paid sick leave program that includes information required to be given to each employee by Labor Code section 2810.5(a), must be provided to all employees. A revised DLSE notice form may be used for providing individual notice to these existing employees unless the employer chooses an authorized alternative method. Continue reading