Mid-Year Employment Law Update

Mon, 06/29/20
By: Dawn Ross

1. Minimum Wage Increases

Just a reminder that on July 1, 2020, minimum wage increases take effect in 13 California cities.  Employers must comply with the highest applicable minimum wage rate in the location where employees are working.  It is critical for employers to stay compliant with minimum wage laws as they change because violations can result in significant liability.

The following cities and counties have a minimum wage increase scheduled for July 1, 2020: Alameda, Berkeley, Emeryville, Fremont, Los Angeles, Malibu, Milpitas, Novato, Pasadena, San Francisco, San Leandro, Santa Monica, and Santa Rosa.

Santa Rosa’s minimum wage will be $15.00 for employers with 26 or more employees and $14.00 for employers with 25 or fewer employees. Novato’s minimum wage will be $15.00 for employers with 100+ employees, $14.00 for employers with 26 or more employees, and $13.00 for employers with 25 or fewer employees.

To Do:

Employers with employees working in any of the cities listed above should check the specific minimum wage for that city to make sure your payroll policies are compliant.  Employers are also reminded to post the current minimum wage rate in a common area where employees can easily view it.

2. New Restrictions on Pre-Employment Recruiting and Advertising

Effective July 1, 2020, updated regulations go into effect under the California Fair Employment Housing Act (FEHA) regarding disclosure (accidentally or otherwise) of a potential employee’s religious creed or age during the application and recruitment process. The following topics are covered by the new regulations: 

  • Pre-employment inquiries on availability for scheduling.  New regulations prohibit employers from using pre-employment inquiries regarding an applicant’s availability for work on certain days and times to ascertain the applicant’s religious creed, disability, or medical condition. Such inquiries must include a statement that the applicant need not disclose any scheduling restrictions based on legally protected grounds.
  • Using technology to limit applicants based on availability.  Employers are prohibited from using online application technology that limits or screens out applicants based on their schedule unless the employer can demonstrate a business necessity and the online application technology includes a mechanism for the applicant to request an accommodation.
  • Using descriptors that may suggest age preference.  During the advertisement and recruitment process, employers are prohibited from using language that would directly state a preference or cause a reasonable person to interpret the language as deterring or limiting employment of people age 40 and older.

Some examples the Fair Employment Housing Council provides of impermissible qualifications:

  • a maximum experience limitation;
  • designating a preferred age range or using terms such as young, recent college graduate, boy, girl, or other terms that imply a preference for employees under the age of 40.

New regulations also clarify that age discrimination does not have to be intentional and that it may be established if a neutral practice has an adverse impact on applicants or employees age 40 and older.  The employer may use the affirmative defense of business necessity, but an aggrieved worker will now be able to show that “an alternative practice could accomplish the business purpose equally well with a lesser discriminatory impact.”

To Do:

Employers should revisit their job ads and recruitment procedures whether in-house or through an outside agency to ensure they comply with these new regulations, including pre-printed applications if they include questions about weekly availability.

3. COVID-19 Changes to Injury and Illness Prevention Program (“IIPP”)

All California employers are required to have an Injury and Illness Prevention Program(“IIPP”).  Your IIPP must be in writing, be accessible to employees, and contain certain specified provisions.  Cal/OSHA has now issued guidance requiring employers to include COVID-19 prevention measures in their IIPPs.  The guidance can be found here.

To Do:

All employers should take steps to amend their IIPP immediately because IIPP violations are the cause of a high percentage of Cal/OSHA citations every year.  The guidance is also helpful for crafting stand-alone notices to employees to ensure employees are following the most recent CDC guidelines to stay safe in the workplace.

4. Extended Paid Family Leave

Paid Family Leave (“PFL”) wage replacement benefits are available to certain qualified employees to obtain pay when they are out of work.  The benefit is paid from the state.  Effective July 1, 2020, workers paying into the State Disability Insurance program can claim up to eight weeks in Paid Family Leave, an increase of two weeks.  Leave may be taken for the care of a family member which includes the employee’s parent, child, spouse, registered domestic partner, grandparent, grandchild, or sibling.  PFL benefits are also available for bonding with a new child within one year of birth or placement (i.e., adoption).

To Do:

Update your policies and notices to employees so as to provide employees with the most up to date and accurate information about their right to claim this benefit.

5.  FFCRA (Families First Coronavirus Response Act) Leave

The benefits under this new law went into effect April 1st and will be available to employees through the end of the year. As a reminder, the law provides paid time off to employees who cannot work due to their own Coronavirus illness, caring for a family member with Coronavirus, or who are unable to work because a child’s school or daycare is closed due to the Coronavirus.  More information can be found in our earlier email blast. In addition, the Department of Labor has issued extensive guidance on the legal requirements, found here. The DOL’s guidance is extremely helpful to interpret all of the different questions on how this leave should be applied.

To Do:

Provide your employees with notice of the FFCRA benefits available and have a Leave Request Form ready.  If you have questions or need forms, check out the DOL page or ask us for guidance.

6. Updated Posters – Pregnancy Rights, Transgender Rights

The Department of Fair Employment and Housing recently issued new transgender rights and pregnant employee rights posters which must be posted in a prominent and accessible location in the workplace. You can find the posters here

To Do:

Make sure your posters are up to date. They are available for free at the link above, so you can easily print and post them if necessary. Also, update your employee handbook if you feel it is not up to date on employee rights.

We sincerely hope that you are in good health and have peace of mind during these unusual times.  If you have any legal questions or concerns, please call Dawn Ross or Samantha Pungprakearti at Carle, Mackie, Power & Ross LLP at (707) 526-4200.

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