Top 10 Employment Law To Watch Out For In 2018 (And Beyond...) Presented by Shawn M. Larsen Larsen, Willis & Woodard, LLP

Transcription

1 Top 10 Employment Law To Watch Out For In 2018 (And Beyond...) Presented by Shawn M. Larsen Larsen, Willis & Woodard, LLP

2 Our Goal Today...

3 Issue #1 - Hiring

4 Criminal History National movement FORMER Arrest w/o conviction Pre/post trial diversion program NEW (5+ Ees) No?s re conviction history After conditional offer made Notice + individualized assessment Why?

5 Salary History Equal Pay Act Substantially similar work History doesn t justify $ disparity No?s re: salary & benefits history Not part of hiring decision Unsolicited info ONLY for salary decision Public info still OK Why?

6 The #1 Question re: Hiring YES YOU CAN STILL REFUSE TO HIRE/FAIL TO HIRE BASED ON FAILED DRUG TEST

7 Issue #2: Overtime

8 Overtime Pay 1.5x Regular hourly rate for: >8 hours/day (up to 12 hours) >40 hours/week 1 st 8 hours on 7 th consecutive day 2x Regular hourly rate for: > 12 hours/day >8 hours on 7 th consecutive day Cant avoid via comp time

9 Issue #3: Breaks

10 Meal and Rest Breaks Employers must provide meal breaks, authorize & permit rest breaks Two 10-minute rest breaks for every eighthour shift One 30-minute meal period for every eighthour shift How are you tracking breaks?

11 Issue #4: Misclassification

12 Exempt vs. Nonexempt Executive, administrative, and professional exemptions (& others ) How much are they paid? What are they actually doing? CASE-BY-CASE ANALYSIS Don t change w/o talking to attorney!

13 Issue #5: Wage & Hour Misc.

14 Paychecks Is all required info included? Gross wages, total hours, etc. $4,000 per violation adds up quickly

15 Vacations Include in final paycheck No Use it or lose it Reasonable cap OK

16 Paid Sick Leave Are you compliant? 30 hours worked = 1 hours PSL (or...) Reasonable cap OK Talk to legal counsel!

17 Issue #6 Independent Contractor

18 ABC TEST Independent Contractors Engage, suffer, or permit Free from control & direction in doing work Similar to old right to control test Reality-based

19 ABC TEST Independent Contractors Engage, suffer, or permit Work is outside the usual course of employer s business Unclear/hard to satisfy Retail store & the plumber

20 ABC TEST Independent Contractors Engage, suffer, or permit Individual is customarily engaged in independently established profession of same nature as service performed Incorporated? Licensing?

21 Issue #7 - Equal Employment

22 Protected Characteristics Who s protected in California? Who s NOT (yet) protected in California?

23 Harassment Written policy Thorough investigation Effective Action

24 Retaliation Protected activity: Complaints Asserting rights Medical leave or Workers Compensation

25 Issue #8: Arbitration

26 Arbitration: The Basics Procedural Unconscionability Oppression or surprise Substantive Unconscionability One-sided Unreasonably unfair Sliding Scale

27 Arbitration: New Developments Class Action Waivers = OK! PAGA = Still NOT OK! Talk to legal counsel!

28 Issue #9: Social Media At Work

29 Can I fire employees if I don t like what they post on their Facebook pages?

30 Concerted Activity National Labor Relations Act Test: (1) Employee acts with or on the authority of other employees ; (2) individual activity seeks to initiate, induce or prepare for group action, or (3) employee brings truly group complaint to attention of mgmt.

31 How Does the NLRA Apply Here? Case of the Sarcastic Salesperson Do you have a social media policy? How do you use social media at work?

32 Can I require employees give me their social media passwords instead?

33 Shoulder Surfing NO! (Cal. Labor Code 980) Cannot require: Provide passwords Access in Er presence Divulge social media

34 Harassment Redux Watch out for invisible harassment!

35 Issue #10: Keeping Up To Date

36 Recent Developments Parent Leave Act (25-49 Ees) 12 weeks for baby bonding Reinstatement rights Voluntary mediation Immigration Except as required by federal law NO ICE access to non-public areas or workplace or employment records w/o warrant 72 hour notice required

37 A Few New Year s Resolutions Review/update your Handbook Update posters Get familiar with record keeping

38 QUESTIONS?

39 Feel free to contact me with any follow-up questions! Shawn M. Larsen (949)