Special Alert: A Few Things to Address Before We Leave 2016
New I-9 Form Unveiled, and Must Be Used Starting January 22, 2017
The United States Citizenship and Immigration Services (UCSIS) recently published a revised version of the Form I-9 to be used for employment eligibility verification. The new version makes several minor changes (e.g., requesting “other last names used” rather than simply “other names used”), and is intended to be easier to complete electronically. Although the new Form I-9 is already published and capable of usage, employers may continue using the earlier version (dated 03/08/2013) until January 22, 2017, but after January 22, 2017, employers may only use the new Form I-9 (dated 11/14/2016). The new Form I-9, along with instructions for using and other guidance for employers, is available at: https://www.uscis.gov/i-9
Los Angeles Bans the Box
On December 9, 2016, Los Angles Mayor Eric Garcetti signed into law the Fair Chance Initiative, an ordinance that restricts certain employers from asking job applicants about criminal convictions until after a conditional offer of employment has been made. This Ordinance is presently scheduled to take effect on January 1, 2017.
The Ordinance applies to any employer that is located or doing business in the City of Los Angeles and employs 10 or more employees. An employee is defined as any person who performs at least two hours of work on average within the City and who qualifies as an employee entitled to minimum wage under California’s minimum wage law.
Specifically, the Ordinance prohibits employers from including on any application for employment any questions that seeks disclosure of a candidate’s criminal history. It also prohibits, among other things, inquiring about or requiring disclosure of a candidate’s criminal history unless and until a “Conditional Offer of Employment” has been made. “Conditional Offer of Employment” is defined as an employer’s offer of employment to an applicant conditioned only on assessment of the applicant’s criminal history, if any, and the duties and responsibilities of the position.
There are also exceptions to these prohibitions, including: (1) when an employer is obligated by law to obtain information regarding a candidate’s conviction history; (2) when the candidate will be required to possess a firearm in the course of employment; (3) when a candidate who has been convicted of a crime is prohibited by law from holding the position sought; and (4) when the employer is prohibited by law from hiring an individual convicted of a crime.
The Ordinance also makes it unlawful for any employer to retaliate against an individual who has complained about non-compliance with the Ordinance, or who has opposed any practice made unlawful by the Ordinance.
San Jose’s Opportunity to Work Ordinance Will Require Employers to Offer Part-Time Employees Additional Hours Before Hiring New Staff
The San Jose “Opportunity to Work Ordinance” (the Ordinance), a ballot measure that passed during the recent election, will require San Jose employers with more than 35 employees to: (1) offer hours of work to existing qualified part-time employees before hiring new staff, (2) keep records of their compliance with the Ordinance, and (3) refrain from retaliation against employees who exercise their rights under the Ordinance.
The Ordinance was enacted to promote full-time jobs and prevent San Jose employers from choosing to employ workers on a part-time basis in order to avoid providing health insurance and other benefits. To this end, the ordinance requires employers to offer additional hours of work to existing qualified employees with the skills and experience to perform the work before hiring additional employees or subcontractors. Whether an employee is “qualified” to be offered the additional hours is determined by the employer’s “good faith and reasonable judgment” and hours must be distributed using a “transparent and nondiscriminatory process.” The Ordinance, however, does not require employers to offer employees work hours if the acceptance of such offer would require payment of overtime.
Although the Ordinance does not contain specific guidance on the method to distribute or communicate offers of additional hours to employees, its requirement that employers document and retain records of the offers made to existing employees suggests such offers should be made in writing. Employers are also required to retain all employee work schedules and other records to demonstrate compliance. The Ordinance, however, does allow employers to seek a hardship exemption for up to twelve months by showing the employer has taken reasonable steps to comply with the Ordinance, and that full and immediate compliance would be impracticable, impossible or futile.
The Ordinance will become effective March 13, 2017. Prior to its enforcement, San Jose’s Office of Equality Assurance will publish a Notice of Employee Rights that all San Jose employers will be required to post, templates for offers of additional work to part-time employees, FAQs, and pamphlets. In the meantime, a copy of the Opportunity to Work Ordinance can be found here , and the City of San Jose’s information memorandum on the Ordinance can be found here.
San Francisco Approves Final Rules Regarding Paid Parental Leave, Effective January 1, 2017
On November 18, 2016, San Francisco’s Office of Labor Standards Enforcement (OLSE) draft proposed rules interpreting the city’s Paid Parental Leave Ordinance. The OLSE then solicited public comments, through December 12, 2016, and held a rulemaking hearing on December 2, 2016.
As our clients may recall, San Francisco Paid Parental Leave (SF PPL) is available for leave taken to bond with a new child, and essentially requires covered employers to pay the difference between an employee’s wages and the benefits received under California Paid Family Leave fund. It is essentially meant to “top off” paid family leave benefits that employees are already receiving from the State of California to make the employee whole, subject to a cap. It applies to employers with total employees in any location as follows:
— 50+ Employees: January 1, 2017
— 35+ Employees: July 1, 2017
— 20+ Employees: January 1, 2018
Further, in order to receive this benefit, employees must meet the following eligibility requirements: (1) work for a covered employer; (2) have worked for the employer for at least 180 days prior to the start of leave; (3) work at least eight hours per week within the City of San Francisco; (4) work at least 40% of their total hours within the City of San Francisco; and (5) be eligible to receive paid family leave from California for bonding, as well.
Some highlights from the Proposed Final Rules, include how to count employees to determine if the employer is covered by the Ordinance, how to calculate entitlement when an employee becomes eligible for paid parental leave during a parental leave, paid leave calculations for tipped employees, the ability to use paid leave intermittently and how to calculate this, and the relationship between California Paid Family Leave and San Francisco’s Ordinance.
New forms and notices are also mentioned within the Final Rule and can be found here.
New OSHA Rule Disfavors Blanket Post-Injury Drug Testing Policies
The U.S. Department of Labor’s Occupational Safety & Health Administration (“OSHA”) promulgated a new rule this year to amend recordkeeping regulations to “ensure the completeness and accuracy of injury and illness data collected by employers and reported to OSHA.” The rule stems from OSHA’s concern that some employers are attempting to reduce the number of recordable injuries and illnesses reported to them. Although the provisions became effective on August 10, 2016, OSHA agreed to delay enforcement until December 1, 2016. Note that the rule also requires certain employers to start electronically submitting injury and illness data, and that provision takes effect January 1, 2017.
The final rule (1) requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation; (2) clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage a reasonable employee from reporting; and (3) prohibits employers from retaliating against employees for reporting work-related injuries or illnesses, consistent with the existing prohibition in section 11(c) of the OSH Act. The rule took effect August 10, 2016 and allows OSHA to issue citations to employers who violate the rule, even if no employee has filed a complaint.
The rule itself does not break much new ground, instead, for the most part, making explicit what was implicit in previous versions of the rule. However, the Department of Labor’s (DOL) comments to the rule (Comments) and a memorandum from the DOL’s Deputy Assistant Secretary interpreting the rule for the DOL’s regional administrators (Memorandum) shed a practical light on employer conduct OSHA finds concerning and provide guidance to employers on how to modify their policies.
In particular, employers must remain vigilant about treating employees consistently when it comes to drug testing and discipline. This is particularly important after the recent passage of Proposition 64 in California, which legalized recreational marijuana use for adults age 21 and up. As the Memorandum alludes to, current drug testing methods do not enable employers to determine with any certainty whether an employee is impaired by marijuana at the time of the injury or illness. If an employee tests positive for marijuana after a reported workplace injury and the employer wishes to terminate or otherwise discipline the employee for violating its drug-free workplace policy, the employer should proceed with caution if its past practices have been inconsistent. If the employer has looked the other way for employees who have failed pre-employment, random, or reasonable suspicion drug testing, the employer risks the appearance that it is taking an adverse employment action against the injured employee not for violating its drug-free policy, but for making a report. OSHA penalties could result.
EEOC Issues New Guidelines on National Origin Discrimination
On November 21, 2016, the Equal Employment Opportunity Commission (EEOC) issued its updated Enforcement Guidance on National Origin Discrimination to replace its previous 2002 version.
The Enforcement Guideline defines national origin discrimination as discrimination “because an individual (or his or her ancestors) is from a certain place or shares the physical, cultural, or language characteristics of a national origin (ethnic) group.” The broadened definition encompasses discrimination due to an individual’s original country (including the United States), former country, or a geographic regions, as well as discrimination based on the belief that someone belongs to a certain national origin group, association with someone of a particular group and citizenship status if it has the purpose or effect of discriminating based on national origin. Within the Enforcement Guideline, the EEOC analyzed how lower courts have interpreted and applied the law to specific facts. On issues where the lower courts have not consistently applied the law or the EEOC’s interpretation of the law differs in some respect, the Enforcement Guidance presents the EEOC’s considered position of the laws it enforces.
EEOC Issues Guidance on Legal Rights for Applicants and Employees with Mental Health Conditions
On December 12, 2016, the EEOC published a resource that explains the workplace rights for individuals with mental health conditions under the Americans with Disabilities Act. Entitled “Depression, PTSD & Other Mental Health Conditions in the Workplace: Your Legal Rights,” it provides answers to eight frequently asked questions from applicants and employees. For instance, it addresses when employers may inquire about mental health conditions, an employer’s accommodation obligations, what constitutes unlawful “harassment,” and an employee’s legal resources if they believe their rights have been violated.
Keep These Cases in Mind if You Are Administering Meal and Rest Periods
This year was relatively uneventful in the wage and hour arena as far as major case developments. There were, however, two California court of appeal decisions regarding the frequently litigated topic of meal and rest period compliance.
Rest Breaks Cannot Be Combined Absent Unusual Circumstances
Rodriguez v. E.M.E., Inc. (2016) 246 Cal.App.4th 1027
Employees working eight-hour shifts at a metal finishing business challenged their employer’s practice of providing a combined 20-minute rest break that either preceded or followed a 30-minute meal break. The employees argued “a single, combined rest period” violated section 12(A) of the California Wage Order which provides “[e]very employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period.” The employer argued it was impracticable to use the “preferred rest break schedule” since it took significant time to shut down and ramp up productions with respect to each rest period.
Relying on Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, the appellate court found that employers are required to provide 10-minute rest breaks in the middle of the work period before and after the 30-minute meal break. The court concluded a departure from the “preferred schedule” is permissible only when (1) the schedule will not unduly affect employee welfare and (2) is tailored to alleviate a material burden that would be imposed on the employer by implementing the “preferred schedule.” The appellate court did not opine whether the employer had met this burden here, however it did note that the only situation in which rest break combination had historically been permitted was when the company’s business required that the employees take their meal breaks soon after reporting for work (i.e. in the service industry where employees take their meal periods within the first few hours of starting their shift).
This ruling should not be a surprise since most employers follow the “preferred rest break schedule.” However, employers who choose to deviate from this schedule should make sure that they can meet the two requirements outlined above in the event they are challenged.
Giving Employees the Discretion to Take an Off-Duty Meal Period Satisfies an Employer’s Obligations to “Provide” a Meal Period Under California Law
Driscoll v. Granite Rock Co. (2016) 2016 Cal.App. LEXIS 1043
Concrete mix drivers who signed an on-duty meal period agreement challenged the legality of the agreement and argued the employer failed to provide them with an off-duty meal period in compliance with California law. The trial court invalidated the agreement since it required one day’s notice to revoke and thus, was not revocable at “any time.” However, the trial court nonetheless found for the employer since the evidence showed employees were aware of their right to take an off-duty meal period and always received an off-duty meal period whenever they wanted one.
On appeal, the employees argued the trial court applied a lower standard than the one required by Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004. Specifically, they argued Brinker requires the employer to “actually relieve an employee of all duty,” not simply “offer to relieve them of all duty.” The appellate court disagreed holding that the relevant inquiry is “whether an employee was provided the opportunity to take an off-duty meal period in which the employer relinquishes all control.” Reviewing the evidence submitted at trial, the appellate court found the employer’s policy and practice of allowing its employees to choose to take an off-duty meal period at their discretion was consistent with the holding in Brinker.
Looking forward to 2017, we expect there to be at least one significant case on rest periods. California employers are still anxiously awaiting the California Supreme Court’s decision in Augustus v. ABM Security Services, which will address: (1) whether employees must be “relieved of all duties” during rest breaks; and (2) whether security guards who remain on call during rest breaks are performing work.
Keep This Case in Mind if You Have Employees Who Associate With Disabled Persons
As Wilson Turner Kosmo reported in September 2016, on rehearing the California Court of Appeal slightly retreated from its prior decision in Castro-Ramirez v. Dependable Highway Express, Inc., holding that the Fair Employment and Housing Act creates a separate duty to provide reasonable accommodations to employees who merely associate with a disabled person. The court did, however, leave the door ajar for potential cases like this in the future. Since then, the California Supreme Court denied review of this decision, so it remains legally effective.