Employment contracts frequently designate the place where employment disputes will be arbitrated or litigated and the law that will apply. The place is not always California, and the law is not always California law, even when employees are working and residing in California. This is about to change with the enactment of Senate Bill 1241, which creates new protections for employees who primarily work and reside in California (hereafter “California employees”).
The SB 1241 protections will apply to new contracts entered into, and existing contracts that are modified or extended, on January 1, 2017 or later. Employers will not be able to require California employees to arbitrate or litigate an employment dispute arising in California outside of California. Additionally, employers will not be able to deprive employees of the protection of California law for disputes arising in California; for example, by including a provision in the employment contract requiring that another state’s law apply instead of California law. Provisions in contracts that violate these protections will not be automatically void. Rather, they will be voidable at the employee’s option. If voided, the employee can still have his or her employment dispute decided in California, applying California law, and may recover attorney’s fees for doing so.
Companies operating in multiple states, and in particular, companies that are headquartered outside of California, are the most likely to be affected by the new protections. The law contains a very limited exception, though. The new statutory protections will not apply when the employee is individually represented by an attorney for the negotiation of the employment contract. When employees are not represented by an attorney, employers should think twice before attempting to impose out-of-state law on California employees or requiring a California employee to adjudicate employment claims arising inside California outside of this State. California employees will have a strong incentive to void the provisions because adjudicating in California will be convenient for them, California law is generally very protective of them, and they may be able to recover attorney fees if they seek to void the provisions.
California employers – public and private – must promptly pay all earned and unpaid wages (i.e., “final wages”) to employees who are discharged or quit. When employers fire an employee, they must pay the final wages at the time the employee is fired. When an employee quits, final wages are due immediately when the employee provides 72 hours prior notice, or within 72 hours after a quit without notice. But what about employees who retire? A recent Supreme Court decision determined that those employees “quit,” and are entitled to final wages on the same timeline as other quitting employees.
In McLean v. State (Cal. 2016) 1 Cal.5th 615, McLean retired from her employment with the State of California and did not receive her final wages on the day of her retirement or 72 hours later. She sued on behalf of herself and a class of former State of California employees who retired and did not receive final wages within 72 hours of their retirement. The trial court determined that Mclean retired, but did not “quit,” and dismissed the claim. The court of appeals reversed, determining that prompt payment of final wages applied because McLean “quit to retire.” The Supreme Court agreed with the court of appeal, and affirmed its determination on the issue because a retiring employee stops, ceases, or leaves employment just like other employees who “quit.”
As is now clear, final wages are available to employees who are voluntarily or involuntarily separated from employment, whether they leave because of a discharge, quit or retirement. Just as the obligation to promptly pay final wages applies to employees who retire, so does the penalty for failure to promptly pay final wages. The penalty is that the employee’s wages will continue until the final wages are paid, up to a maximum of 30 calendar days. So, coordinate with payroll and make sure departing employees are paid on time.
Most employers know (or should know) that discrimination against transgender employees is prohibited in California. However, many employers are confused about the legal rights transgender employees have and how to protect those rights. Of particular focus in recent months is restroom access for transgender and gender non-conforming employees. Employers are facing this issue with increasing frequency. To guide employers through navigating employee restroom access, several state and federal agencies have issued guidance designed to answer many of the questions they currently face.
U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) Guidance
OSHA’s guidance indicates that employers should allow employees to use restrooms that correspond with their gender identity. All employees, including transgender employees, should determine the appropriate restroom facility for themselves, and should not be required to use segregated facilities (e.g., single-occupancy or unisex facilities).
U.S. Equal Employment Opportunity Commission (“EEOC”) Fact Sheet
The fact sheet provides that transgender employees are entitled to Title VII protections, and that denying employees equal access to a common restroom corresponding to the employee’s gender identity constitutes sex discrimination under the Civil Rights Act of 1964. Accordingly, the EEOC cautions employers to make sure they provide transgender workers access to a bathroom that corresponds to their gender identity.
California Department of Fair Employment and Housing (“DFEH”) Guidelines
The DFEH Guidelines instruct employers to provide transgender workers the right to use a restroom or locker room that corresponds to their gender identity and without regard for the workers’ assigned sex at birth. Because there is not a particular medical or legal event required for an employee to be transgender, employers may not require transgender employees to show any “proof” to be appropriately accommodated. The DFEH recommends that employers also consider providing single-occupancy restrooms that may be used by employees. However, employers choosing to do so must make clear that use of such restrooms is voluntary.
AB 1732 is on the horizon. This bill will require that all businesses and public buildings label their single-occupancy restrooms “all gender.” The California Assembly approved the bill on May 9, 2016 and it is now before the Senate. If passed, which seems likely, the bill will take effect on March 1, 2017.
The law in this area is continuously developing. California employers should be aware of the legal protections afforded to transgender and gender non-conforming employees, and:
Allow employees access to restrooms consistent with their gender identity.
If possible, a gender-neutral, single-occupancy restroom might be considered for voluntary use by employees, including transgender employees and coworkers who may be uncomfortable with a transgender employee’s use of a multiple-occupant restroom.
Use employee-preferred names and pronouns for employees, and enforce this usage among other employees.
Revise nondiscrimination and anti-harassment policies to include gender identity and gender expression, and consider transgender employment policies.
Where necessary, reexamine and revise gender-based dress codes.
Be aware of changes in local, state and federal laws protecting gender identity, gender expression, and transgender employees.
Federal and California laws challenge employers and employees with complex statutes and regulations that govern extended employee time off. All too often, leaves are not appropriately addressed, or addressed at all, depriving employees of rights and benefits they may be entitled to and exposing employers to liability. The intent of this article is to provide an overview of the laws impacting employee leaves, and a proactive, step-by-step approach to identifying and addressing leave situations.
Identify Potential Leave Situations
The first step is to identify if an employee may be out of work for an extended period of time. The employer should immediately commit to proactively addressing the situation. In most instances, the employer has an affirmative duty to discuss with the employee that they may be entitled to a statutory leave or determine if they are suffering from a disability. Waiting to see “how things work out” is a poor strategy.
Determine if a Leave is Appropriate
After recognizing that an employee desires or needs extended time off work, the next step is to determine which, if any, leaves may apply to the employee’s situation. Employers do not need more than a working knowledge of leave laws. Being proactive includes the commitment to get help, if necessary. Competent HR consultants and legal counsel can help.
The federal Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) provide up to 12 weeks of leave for employees to address their serious health conditions and to address specific family issues such as to care for a child, parent, spouse registered domestic partner, child of a registered domestic partner and the birth or adoption of a child, or the placement of a foster child. The FMLA and the CFRA apply only if (1) the employer has 50 or more employees and (2) the employee has been employed with that employer for at least 12 consecutive months and has worked at least 1,250 hours during the last 12 months.
California’s Pregnancy Disability Leave (PDL) applies to all employers, regardless of the number of employees. PDL is available for up to 4 months during a time an employee is unable to work or is unable to perform her essential job functions due to health issues related to pregnancy and childbirth. PDL may run currently with the FMLA, but does not run currently with the CFRA. Thus an employee who qualifies for CFRA is entitled to 12 weeks of CFRA leave in addition to any PDL.
Other statutory leaves include time off voluntary entry into a drug and rehabilitation program, attendance at adult literacy programs, and leave for participation in certain school activities (each requiring a minimum of 25 employees), as well as serving as an emergency fire fighter, reserve peace office or emergency rescue person.
Disability laws may need to be considered in leave situations that involve the employee’s physical and mental health. The Americans with Disabilities Act (ADA), which applies to employers with 15 or more employees, and the California Fair Employment and Housing Act (FEHA), which applies to employers with 5 employees or more, require an employer to provide “reasonable accommodations” to employees with physical and mental disabilities unless doing so would cause “undue hardship.” “Reasonable accommodations” may also include providing leave.
Both employers and employees have duties to communicate with each other regarding leave. The sooner the communication process begins the better. Employers should advise employees of their legal rights. Employees should communicate with Employers regarding their needs and expectations regarding leave. Although employers are not entitled to specific medical information regarding the cause of a disability, they are entitled to a physician’s note to establish the nature and extent of the disability and that leave is a necessary and appropriate accommodation for a disability.
The Leave Plan
A common error that employers and employees make is they fail to define the terms of the leave in a plan. The plan may be very simple, merely providing when the employee is to return to work. If circumstances change, channels of communication should be reopened, the leave redefined and a new return to work date established. At all times there should be a written document (ideally signed by both the employer and employee, but at least a letter from the employer to the employee) establishing the return to work date.
Addressing leave requires a sequence of proactive steps by employers and employees that should affirmatively identify circumstances that could lead to an employment leave. Once identified, the nature of the potential leave should be investigated and the benefits, if any – including the right to return to work and the payment of benefits – determined. The employee handbook should always be reviewed as it may enhance the legally required benefits. The employer should assume the duty to advise an employee of his/her rights to leave under the circumstances. Further, the employer and the employee should communicate to determine the leave period, the return to work date and everything should be memorialized in a writing. The leave may change based upon changing circumstances, but there should always be a written return to work date. When in doubt, seek assistance. No matter what, be proactive. Take Action! – Don’t LEAVE it for later!
A new and exciting COA membership benefit will be available to all COA member doctors of optometry starting July 1, 2016. We are pleased to add a FREE legal resource service as an added value to the many benefits you already receive as a COA member. The benefit entitles COA member optometrists up to one-half hour (30 minutes) of telephone and research work per month with an attorney at no cost.
The COA Legal Services Resource Program will offer services that will assist members in areas of the law related the practice of optometry. Services offered are:
Business tax issues
Business owner succession planning
Cal/OSHA/Prop 65 issues
Practice ownership and organizational structure
Regulatory and administrative law
California State Board of Optometry rules and enforcement issues
How will the program work?
Contact one of the designated attorneys from Wilke, Fleury, Hoffelt, Gould & Birney, LLP (see below), provide them with your COA member number, and receive a free consultation for up to one-half hour per month. This benefit will not accumulate from month-to-month.
All services are confidential. Any agreement for contracted services, beyond the COA free benefit, is between the individual optometrist and the attorney.
Meet the attorneys
For issues pertaining to employment and practice succession, contact:
Stephen Marmaduke. Mr. Marmaduke has practiced law in California for over 35 years. One of his primary focuses is the representation of health care providers in the area of professional employment.
For all other legal matters, contact:
William A. (Bill) Gould, Jr. Mr. Gould has been with the Wilke Fleury since 1964 and has served as COA’s general counsel for more than 50 years. His practice emphasizes health care law (including the laws affecting doctors of optometry), litigation and administrative law. During his time representing COA, he has handled all COA litigation, including the Eyeglasses I and Eyeglasses II lawsuits, and lawsuits against the Medical Board of California and others.
Daniel Baxter: A partner with Wilke Fleury since 2007, Mr. Baxter’s practice focus includes business litigation and as general counsel to clients ranging from non-profit organizations to small businesses.
Beginning July 1, access your COA legal resource services member benefit by:
Call Wilke Fleury at 916-441-2430
Provide your COA member number.
Ask for the attorney who best meets your issue from the above list.
About the Law Firm of Wilke, Fleury, Hoffelt, Gould & Birney, LLP
For more than 90 years, Wilke Fleury has served businesses, governmental entities and individuals by providing comprehensive legal services with the highest standards of integrity and efficiency. The firm as gained a national reputation in the health care arena, and has served as legal counsel to COA for more than 50 years.
Employers do not have to pay overtime to executive, administrative and professional employees who qualify for exemption as exempt employees. Generally, exempt employees must meet both a duties test and a salary test under applicable law. The federal Fair Labor Standards Act (“FLSA”) currently has a lower salary test than California law, so California employers commonly follow the California salary test to determine if their employees will meet the salary test for exempt employees because compliance with the higher California salary requirement will comply with the salary requirement under the FLSA. However, the new federal overtime rule increases the minimum salary for exempt employees, and will soon be higher than the California minimum salary for exempt employees.
The new federal overtime rule does not change the federal duties test for exemption from overtime. It only affects the salary test. Beginning on December 1, 2016, the minimum annual salary for exempt employees under the FLSA will be $47,476, and will be adjusted automatically every three years beginning on January 1, 2020. Contrast this with the California minimum annual salary for exempt employees, which is currently $41,600. Even with California’s new State minimum wage law, California’s minimum annual salary for exempt employees is not anticipated to exceed the FLSA minimum annual salary until the State minimum wage increases to $12 per hour, which is not scheduled to occur until January 1, 2019 for employers with 26 or more employees (or January 1, 2020 for employers with 25 or fewer employees).
Employers will need to review the salaries of their exempt employees and determine whether they will meet the higher FLSA salary test for employees subject to it. For those that do not, employers will need to determine whether to increase their salaries in order to maintain their exempt status. Employers can continue to pay employees on a salary basis after December 1, even if that salary is less than $47,476, but employees with salaries below $47,476 will be nonexempt employees, and therefore, entitled to overtime. Alternatively, employers can pay formerly exempt, newly nonexempt employees on an hourly basis. Most California employers will need to pay hourly employees according to California’s minimum wage ($10 per hour, increasing to $10.50 per hour for employers with 26 or more employees on January 1, 2017), not the federal minimum wage ($7.25 per hour).
Sacramento, Calif., June 1, 2016 – Wilke Fleury’s health care law team has assisted its client to obtain a restricted Knox-Keene license, creating one of California’s only full service health plans formed and entirely owned by a single physician.
Imperial Health Plan of California, Inc., was formed by Paveljit S. Bindra, MD, MBA, MSc, FACC to expand health care options for individuals residing in California. It seeks to improve access to quality care. Its services include all aspects of medical coverage ranging from preventive care to acute care and chronic care through a network of primary care physicians, hospitals, urgent care centers, ancillary service practitioners, imaging centers and pharmacies.
“Rarely has a single physician contemplated and achieved a vision of creating a Knox-Keene health plan,” said Michael G. Polis, partner, Wilke Fleury. “Assisting Dr. Bindra with the financial, legal and regulatory aspects of this transaction and the Knox-Keene Application resulted in one of the fastest restricted licenses being issued by the Department of Managed Care. Imperial is eager to collaborate with other health plans to meet the health care needs of all Californians.”
Dr. Paveljit Bindra has extensive health care experience in population health, health maintenance and health care administration. He is Board Certified in Internal Medicine, Cardiology and Cardiac Electrophysiology. He has served as Chief Medical Officer and Chief Information Officer of a three-hospital, 625+ bed acute care health system with an affiliated home health and hospice system. Leading the executive team responsible for a financial turnaround of $28 million, he was recognized as one of the “2012 Up & Comers” by Modern Healthcare magazine.
Before that, he was a partner in a large cardiology practice in Southern California and practiced Cardiology and Cardiac Electrophysiology. Dr. Bindra has also served as the CEO and founder of an investment firm, and earned his MBA from the Wharton School of the University of Pennsylvania, an MD from Harvard Medical School and an AB from Harvard College. He was a Fulbright Scholar at Magdalen College, University of Oxford, and received an MSc in Comparative Social Research.
California employers have to post election notices advising employees of their ability to take time off to vote when employees do not have enough time to vote outside of their working hours. Election notices need to be posted 10 days before any statewide election.
This is the week for California employers to post their election notices since the California presidential primary election is June 7. Most employers should post the election notice by Friday, May 27, 2016. For more information about the election notice, watch our Video Blog:
On April 4, 2016, Governor Jerry Brown signed California Senate Bill 3 (“SB 3”), which will gradually raise the State minimum wage to $15 per hour. The State’s current minimum wage is $10 per hour.
SB 3 provides six annual increases to the current minimum wage for employers with 26 or more employees. Beginning on January 1, 2017, the minimum wage will increase to $10.50. In 2018, the minimum wage will increase to $11 and then increase by $1 each year until 2022, when the minimum wage will be $15. Employers with 25 or fewer employees will have an additional year to implement each of the increases. In other words, the State minimum wage will not begin to increase for these smaller employers until January 1, 2018.
The Governor may pause scheduled increases based on certain economic conditions. However, the Governor may only pause the scheduled increases a maximum of two times. Once the $15 wage has been reached, the Department of Finance will annually increase the minimum wage for the following year based on statistics from the U.S. Bureau of Labor Statistics.
Many employers will need to significantly adjust their compensation and benefits structures in light of the new law. Of course, the increased minimum wage will affect overtime and double-time. It will also affect exempt employee salaries because exempt employees under California law generally must earn a salary that is at least twice the State’s minimum wage for full-time employment. This means that under the current $10 per hour minimum wage, exempt employees must earn an annual salary of $41,600. Under the $15 per hour minimum wage, the minimum annual salary for exempt employees jumps to $62,400.
Finally, employers should bear in mind that cities and counties may have their own minimum wages that are higher than the State minimum wage (e.g., Berkeley, Emeryville, Los Angeles, Mountain View, Oakland, Palo Alto, Richmond, Sacramento, San Jose, San Francisco, Sunnyvale.) As a result, employers should determine whether another minimum wage applies, and pay their employees according to the higher applicable minimum wage.
Privacy & Cookies Policy
Necessary cookies are absolutely essential for the website to function properly. This category only includes cookies that ensures basic functionalities and security features of the website. These cookies do not store any personal information.
Any cookies that may not be particularly necessary for the website to function and is used specifically to collect user personal data via analytics, ads, other embedded contents are termed as non-necessary cookies. It is mandatory to procure user consent prior to running these cookies on your website.