The year 2019 is shaping up to be a good year for workers in California. Several laws have gone into effect that benefit workers’ rights. Perhaps spurred on by the frustrations voiced during the MeToo movement, many of these laws strengthen existing laws dealing with sexual harassment and discrimination. Additionally, there is a raise in the minimum wage as well as overtime pay for agricultural workers.
This article will briefly discuss some of the new changes to California employment law. If you have questions about any of these changes, or you feel you’ve been the target of discrimination, harassment or some other employment violation, contact our office to schedule a consultation.
The Changes, a Brief List
One – Minimum wage increase – This year, the minimum wage in California has been bumped for companies with 25 or more workers from $11 per hour to $12 per hour. Companies with fewer workers will now be required to pay their employees $10.50 per hour.
Two – Criminal History and Employment Applications – A new senate bill clarifies existing law dealing with job applicants who have criminal histories. Under current law, employers are prohibited from basing hiring decisions on a job applicant’s conviction record if that conviction has been sealed, or dismissed. There are exceptions to this law, such as if the applicant would be required to carry a firearm as part of the job.
In some cases, the employer is legally required to inquire about certain criminal histories. The new law limits these inquiries to “particular convictions” as opposed to convictions in general. A particular conviction is defined under the new law as “a conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation, or state law that contains requirements, exclusions or both, expressly based on that specific criminal conduct or category of criminal offenses.
The purpose of this law is to prevent companies from being overzealous when required to look into an applicant’s past criminal history.
Three – Settlement Agreements and Sexual Harassment Disclosure– Lawsuit settlement agreements can no longer include provisions that prevent sexual harassment victims from disclosing factual information regarding their experiences. This means that if an employee settles a lawsuit with a company after experiencing harassment, he or she will be free to testify about this experience.
While the harassed person will be free to discuss the factual circumstances of the harassment, the actual settlement amount can still be kept secret by a non-disclosure clause. However, the law allows for settlement provisions that shield the identity of the sexually-harassed victim.
Four – Defamation Protection– It used to be that employees who had experienced sexual harassment and reported it could be exposed to a defamation suit. Thanks to Assembly Bill 2770, allegations of sexual harassment based on credible evidence and without malice are protected from such liability.
Five – Mandatory Sexual Harassment Training– While mandatory sexual harassment training has been in effect for years, it’s only applied to companies with 50 or more employees. The updated law has been broadened to include businesses with as few as five employees. Every two years, employees will be required to go through training. This includes one hour for non-supervisory staff, and two hours for supervisors.
Six – Agricultural Workers to Get Overtime – Prior to the passage of this law, agricultural workers were exempt from California’s overtime rules. Assembly bill 1066 will change this in phases over a period of four years. Among the immediate provisions of the law, workers who toil for more than nine and a half hours in one day (or more than 55 hours a week) must be paid time and a half for their overtime work.
By the year 2022, the law will require that agricultural workers putting in more than 12 hours in a day be paid at least double their normal hourly rate. Additionally, persons working more than eight hours a day (more than 40 hours a week) must be paid time and a half.
Seven – Females on Boards of Directors – California law now requires that publicly-held companies with executive offices in California have at least one female director on the board.
Eight – Breastfeeding at Work – Employers are now required to make reasonable requirements to provide rooms for breastfeeding that aren’t bathrooms.
Have Questions? – Ask an Employment Attorney
The changes to the laws discussed on this page only scratch the surface. Each law contains nuance, and most workers dealing with a bad employer require the help of a good lawyer to seek justice.
If you believe your rights as an employee have been violated, it’s recommended you talk to a lawyer sooner than later. California’s statutes of limitation mean that a person filing a claim against an employer is always fighting the clock.
Having a good lawyer on your side might mean the difference between a check or a fair settlement for your pain and suffering. Whether you’ve dealt with wage theft, discrimination, harassment or some other employment related violation, a good lawyer will be indispensable in helping you get your life back on track. Call the office of Branigan Robertson with your questions and find out how we can help.
One of the most difficult decisions an employee may ever face occurs when an unethical, unsafe or unlawful condition exists at the company, and the employee has to decide whether or not to notify a supervisor, or other company authority. Making complaints at work, or blowing the whistle, if you will, can have serious consequences. The above video discusses this in great detail (with a bit of humor).
The employee will fears their boss will retaliate. They might get fired, passed over for a promotion, written-up, demoted, or receive a pay reduction. Our office has seen numerous cases where an employee reports a violation, and then, for the first time ever, suddenly gets hit with a bad performance evaluation.
In many cases, when an employer retaliates against a worker because the worker complained about an unsafe or unlawful condition, the company has broken the law. We have an entire sections of our website dedicated to retaliation and whistleblowing.
However, but there are simple steps that the employee can take, that if done correctly, could avert retaliation, bad feelings, and legal action altogether. In other words, when it comes to complaining at work, some approaches are better than others.
The above video discusses seven tips to avoid being retaliated against when lodging complaints. This page was written to briefly discuss some of those steps.
1. Don’t Threaten
If you are reporting an unsafe condition, keep in mind that the goal is to get the violation fixed. Don’t threaten legal action or launching a slew of legal buzzwords at the company. You run the risk of escalating the situation. Furthermore, if the case goes to court at a later date, the company can potentially paint the employee as a troublemaker more intent on levelling threats than solving an actual problem.
2. Focus on Illegal Activities, Be Specific, Be Helpful
When notifying your manger about a potential violation, focus on the things that you believe are unlawful. In many cases, our office has counseled clients who have sent a long rambling emails to the company that complains about a wide range of problems, perhaps some of which are unlawful.
This usually doesn’t help the employee when it comes to getting the problem solved. Remember, if you’re complaining about a potentially unlawful problem at work, your goal should be to get the problem fixed. Keep your complaint short, explain why you believe it’s unlawful, and try to recommend practical solutions if possible,
3. If Possible, Follow Procedures Outlined in the Employee Handbook
In many cases, a company will provide the guidelines for reporting a violation in the employee handbook. If possible, follow the company’s procedure. When faced with a retaliation claim in a court of law, companies will often claim that they knew nothing of the violation. It’s a favorite tactic of defense lawyers in these situations to say “the company never received the complaint.”
Be sure to follow the proper procedure and get the complaint to the right person. If you don’t have an employee handbook to follow, use your best judgment when getting the complaint to the right person.
4. Put it in Writing, But Check Your Wording
It’s important that you not only complain to the right person, but complain in writing. Often times, company witnesses will take the stand and won’t remember being told of a violation. Without proof of the claim, it’s impossible to prove whether the witness is being forgetful or just lying. However, it becomes more difficult for the company to pretend it never received a complaint when there is an email proving otherwise.
So, put it in writing, but keep a cool head. Make sure the tone and language of your complaint isn’t aggressive or threatening. If for instance you are reporting a violation of overtime pay, rather than saying “The company isn’t complying with the wage laws! I’m not getting all of my overtime!” You might say, “I don’t think my overtime pay is being calculated correctly. We should look into what the labor code says. If I’m right, the company needs to fix this.”
If you Have Questions, Contact an Attorney
If you’ve experienced retaliation, or have questions about a potentially unlawful work situation, reach out to an employment attorney like our firm. In some cases, taking a company to court is the only way to get a violation fixed. Workers who experience retaliation are in many cases entitled to monetary compensation. Be sure to check out our video on preventing workplace retaliation. If you have further questions, contact our office to find out how we can help.
Everything Business Owners, Managers & HR Wanted to Know About Employment Law in One Easy to Understand Video (Sort of)
Whether you’re in management, human resources, own a small company, or oversee a workforce of thousands, you should have some basic understanding of the employment laws that protect your workers. You already know that lawsuits are scary. With a bit of foresight and understanding, legal problems can be avoided.
Employment attorney Branigan Robertson has assembled a short video discussing some key issues that will be of interest to anyone who manages workers. Having practiced employment law for the past six years, Branigan typically represents workers. But working with aggrieved employees has given Branigan valuable insights that defense-side employment lawyers don’t typically develop. In this video, Branigan takes what he’s learned from employees and shares his wisdom with those on the management side of the equation. And he does so with minimum legal jargon.
One of the key concepts employers can take from this video, before even delving into the legal concepts, is that most employees don’t sue because the law was broken, but rather because they feel that they were treated like garbage. Understanding the importance of treating employees with a basic level of respect and decency will help companies avoid costly lawsuits even in cases where the law may have inadvertently been broken.
Employment Law Basics for HR, Management & Ownership
Specific legal issues discussed in this broad overview include 12 key areas of employment law. These are:
- employee contracts,
- torts in the workplace,
- wages & hours,
- leaves of absence,
- workplace safety,
- unfair competition,
- collective bargaining, and
Issues discussed include such topics as sales agreements—one of the most frequent triggers of employee lawsuits. Companies often run into trouble when they tinker with commission agreements affecting their sales team in the middle of a sales cycle or in the middle of a negotiation.
Or perhaps you have questions about wrongful termination. After all, California (and many other states) are “at-will.” When exactly does an employer cross the line when firing an employee? If you’re interested in learning more about the specific types of wrongful termination, you’ll want to watch this video.
Maybe you’re interested in questions of what constitutes reasonable accommodations for disabled employees. This area of employment law is particularly nuanced since it deals with more than just hiring and firing issues.
Other topics discussed in the video include:
- Whether or not a company can discriminate against employees of a certain age (the answer might surprise you)
- The difference between discrimination and harassment
- The Family Medical Leave Act
- Worker’s Compensation
- Other Issues
If you’ve ever had questions about these or other topics, you’ll want to watch Branigan’s video. It’s an excellent opportunity for anyone in the management field. After all, you won’t find many videos produced by plaintiff-side employment attorneys tailored toward companies. You certainly won’t find this type of video presented in such an informal and easy-to-understand format. Have a watch, enjoy, and if you have any questions contact our office for further information.
We recently finished filming a defamation video. You should go to our main defamation page and watch it there. But if you’re in a hurry, here it is!
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What is a “drive by lawsuit.” This phrase refers to lawsuits filed by attorneys on behalf of disabled persons, in which the attorney or disabled person, sues a business for non-compliance under the Americans with Disabilities Act (ADA). Often, those who file these lawsuits don’t frequent the establishment that they are suing.
These lawsuits are filed because the building doesn’t have a wheelchair ramp, or maybe its disabled parking space isn’t to exact specifications. Whatever the reason, this type of lawsuit can result in expensive fines, and require costly building retrofitting.
But while these types of lawsuits have gained plenty of attention, news organizations are now waking up to a new type of disability lawsuit that’s occurring with increasing frequency. These lawsuits involve ADA accessibility issues relating to a company’s website. And if businesses don’t pay attention to these new lawsuits, they could find themselves caught up in expensive litigation, and hit with expensive fines.
Making things more difficult for business owners, the Federal Government has yet to release a long-anticipated list of guidelines for how business owners can make their websites ADA compliant, leaving companies scrambling to figure out the best way forward.
This article was written to briefly discuss the topic of ADA compliance as it relates to websites, as well as some of the guidelines that are available to help businesses become compliant. As always, if you have concerns that your company’s websites aren’t compliant, or you are facing legal action, seek the advice of a good lawyer.
ADA Challenges in the Era of the Website
According to a February 2018 article published by the website ClassAction.org, there are as many as three ADA lawsuits being filed daily relating to accessibility issues on company websites. In some of these cases, multiple businesses are being sued by the same plaintiffs.
In March, CBS Money Watch published an article explaining that corporate giants Nike, Burger King, Hershey, Lord & Taylor and Pandora were all being sued due to online accessibility issues. The article noted that back in 2010, the US Department of Justice, under the guidance of then President Barack Obama, announced it would soon release website accessibility guidelines so that companies could comply with ADA rules.
However, by 2016, near the completion of Obama’s second term, the updates still hadn’t arrived. Since President Donald Trump has taken over, there is no indication that these guidelines will be forth coming any time soon. And as attorney Minh Vu explained to CBS, figuring out how to become compliant can be a challenge for many companies.
“You cannot wave a magic wand to make your website accessible,” Vu said. “There aren’t a lot of people who know how to do it correctly.”
What the ADA says About Websites
The Americans with Disability Act states the Following:
“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (leases to) or operates a place of public accommodation.”
It’s important to note that Federal Courts in the First, Second and Seventh Circuits have found that the ADA applies to Websites.
Los Angeles Superior Court Judge Fines Business Over Noncompliant Website
In May of 2018, a Los Angeles Superior Court judge ruled in favor of a plaintiff who sued a restaurant called the Whisper Lounge because of ADA accessibility issues on its website. In that case, the plaintiff alleged she was unable to read a menu on the restaurant’s website due to her vision impairment, adding that a link to a PDF version of the menu led to an error message. She further alleged that a graphic image of the menu was unreadable, and the website contained graphics that were not labeled with descriptive tags.
The court ordered the restaurant to pay the defendant statutory damages totaling $4,000, and comply with requirements of WCAG 2.0 AA, which is a series of guidelines developed by a working group of the Web Accessibility Initiative.
Web Accessibility Initiative
The Web Accessibility Initiative is an effort of the World Wide Web Consortium (W3C), which seeks to improve the accessibility of the internet for persons with disabilities. It is comprised of various stakeholders, including special interest and disability groups, as well as accessibility research organizations. Initiative workgroups and task forces research and develop guidelines in order to improve internet accessibility. They also develop support materials to help folks understand Web accessibility.
The fruits of these workgroup’s efforts include the guidelines for making websites more accessible to disabled people, the implementation of which could potentially limit a company’s exposure to ADA lawsuits.
While the defendant in the case mentioned in the previous section argued that the WCAG guidelines aren’t legally binding, the court noted that the complaint did not seek to hold the defendant liable for violating their provisions. Rather, the plaintiff referenced the guidelines and sought to compel defendant to “take the steps necessary to make whisperloungela.com readily accessible and usable by visually-impaired individuals.”
For more information on the Web Accessibility Initiative as well as WCAG guidelines, visit the group’s website.
What this Means for Companies Who Operate Websites
If you operate a website as part of your business, now might be a good time to consider your site’s accessibility issues. Guidelines included in WCAG 2.0 include a range of suggestions for making content more easily accessible to disabled persons. For instance, audio-only content can be enhanced by presenting the audio information along with a text document edited to match the dialogue.
Other guidelines discuss:
- The speed with which content is presented.
- How a user might adjust the speed with which content is presented
- Whether rapidly flashing content can cause seizures
- How the headings or labels on each page describe the intended topic or purpose
These are just a tiny sampling of the types of issues businesses might have to consider in order to limit their liability.
If You’re Unsure About Website Compliance Issues, Consult an Attorney
If you’re a business owner who’s unsure of how to make your website ADA compliant, this can be a confusing time. The federal government has been slow to develop guidelines for businesses to follow, leaving the information gap to be filled by other groups. Meanwhile, the onslaught of lawsuits continues.
If you have questions, a good attorney can help you understand the existing law, and develop best practices so that you can comply with the law. If you face legal challenges that threaten your business, a good lawyer will be vital to helping you navigate the legal system’s many challenges.