On June 27, 2016, the Fair Employment and Housing Council considered a proposal to amend the Department of Fair Employment and Housing (DFEH) regulations with respect to the use of criminal history records in employment decisions. The proposed regulations would outline current law while also imposing additional restrictions that would further limit an employer’s use of such information.

Under current law, California employers are prohibited from utilizing certain criminal records and information in hiring, promotion, training, discipline, termination, and other employment decisions. In particular, when making an employment decision, employers may not consider: (1) an arrest or detention that did not result in conviction; (2) an individual’s referral to or participation in a pre-trial or post-trial diversion program; (3) a conviction that has been judicially dismissed or ordered sealed, expunged, or statutorily eradicated; or (4) a non-felony conviction for possession of marijuana that is more than two years old.

Continue Reading Council Discusses Proposal that Would Further Restrict an Employer’s Ability to Review Criminal History

The annual filing (and fee payment) for applicable self-insured health plans and specified health insurance policies used to fund the Patient-Centered Outcomes Research Institute (the PCORI fee) is due by August 1, 2016. Internal Revenue Service (IRS) Form 720, Quarterly Federal Excise Tax Return, on which the PCORI fee is required to be reported (in Part II, IRS No. 133), typically is due by July 31 of each year; however, because that date falls on a Sunday this year, the Form 720 deadline falls on August 1 this year.

The filing rules have not changed, although the applicable rate has increased to $2.17 per covered life.

For an insured plan, the filing obligation falls on the insurer. However, for an “applicable self-insured health plan,” the filing obligation lies with the plan sponsor. Applicable self-insured health plans include self-insured major medical coverage and health reimbursement arrangements (HRAs) for both employees and retirees, but do not include “excepted benefits” (e.g., most health flexible spending arrangements (health FSAs), standalone dental or vision plans, certain employee assistance programs (EAPs) that do not provide significant benefits in the nature medical care, etc.). The IRS provides a helpful chart to help identify the plans to which the PCORI fee applies.

Continue Reading Reminder — Annual Deadline to Report and Pay PCORI Fee is Rapidly Approaching

California recently amended state law with regards to smoking in the workplace. The bill, which was signed by the governor on May 4, 2016, is intended to “prohibit the smoking of tobacco products in all (100 percent of) enclosed places of employment in this state . . . eliminating the need of local governments to enact workplace smoking restrictions.” The former law had not applied to employers with five or fewer employees and had allowed employers to permit employees to smoke in the company break room. It had also exempted several types of workplaces and enclosed spaces from coverage, including hotel lobbies, banquet rooms, bars, taverns, and warehouses.

Continue Reading California Passes Tighter, Statewide Restrictions on Smoking in the Workplace

California employers must now juggle two additional sick leave laws.  Although California already has a statewide mandate requiring that all employers within the state provide their employees with paid sick leave (see March 17, 2016 blog post), several cities, including Emeryville, Oakland, and San Francisco, have passed their own ordinances imposing additional obligations on employers with employees within their city limits.  Los Angeles and San Diego have now joined that list, with new paid sick leave laws going into effect as of July 1, 2016, and July 11, 2016, respectively.

Continue Reading New Los Angeles and San Diego Sick Leave Ordinances Now in Effect

In addition to passing their own paid sick leave laws, Los Angeles and San Diego have also chosen to raise minimum wages over the course of several years.

The Los Angeles ordinance provides the following schedule of minimum wage increases:

For employers with 26 or more employees:

  • July 1, 2016: $10.50/hr
  • July 1, 2017: $12.00/hr
  • July 1, 2018: $13.25/hr
  • July 1, 2019: $14.25/hr
  • July 1, 2020: $15.00/hr

Continue Reading Los Angeles and San Diego Raise Minimum Wage

Bass, Berry & Sims attorney Bob Horton provided insight to Law360 on the Supreme Court’s ruling in Green v. Brennan allowing the constructive discharge claim period to begin when an employee resigns, not when the employer commits the last allegedly discriminatory act. As Bob points out in the article,

Continue Reading Attorneys React To High Court’s Constructive Discharge Ruling

The U.S. Department of Labor (DOL) has announced a new “salary level” to the so-called white collar overtime exemptions under the Fair Labor Standards Act. In short, the new rules take effect December 1, 2016, and will more than double the salary level for those employees classified as exempt from overtime pay from the current level of $23,660 to the new level of $47,476, or $913 per week. The highly compensated executive salary level has been raised to $134,000. The new rule is expected to impact millions of employees and is expected to be especially hard on small businesses, nonprofits, many retailers, and employers in some regions of the country.

The DOL also announced that the salary level will be adjusted automatically every three years, based on the 40th percentile of the weekly earnings of full-time salaried workers in the lowest-wage Census region. Historically, the DOL has taken the position that future adjustments in salary level required new rule-making.

Continue Reading DOL Announces New Salary Level in Overtime Regulations

In an article published on May 18, 2016 by Law360, Bass, Berry & Sims attorney Tim Garrett provided insight on the Department of Labor’s (DOL) final rule raising the minimum salary level for those employees qualifying for overtime pay. As Tim states for the article:

Continue Reading Attorneys React To DOL’s Final Overtime Exemption Rule

On May 11, 2016, President Obama signed the Defend Trade Secrets Act (DTSA), creating a federal civil remedy for trade secrets theft, in addition to preexisting criminal penalties. This Act amends the Economic Espionage Act of 1996, which was later amended in 2012. Under these older statutes, even though both criminal and civil causes of action were available, only the U.S. Attorney General’s Office could bring those actions. The new law allows the injured party to bring a civil cause of action.

Preemption of State Law for Whistleblower Protection

Until now, trade secrets theft has largely been handled at the state level through lawsuits filed under the Uniform Trade Secrets Act that many states had passed. The DTSA does not preempt state laws in this area but rather is intended to supplement existing state law.[1] However, employers should be aware that the DTSA does create a whistleblower immunity that does preempt any conflicting state laws. This provision protects a whistleblower from any criminal or civil liability “for the disclosure of a trade secret that (A)(i) is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.”  This provision also allows for disclosure of trade secrets in an anti-retaliation lawsuit against an employer so long as the employee makes the disclosure only to the employee’s attorney and so long as any court filing keeps the trade secrets under seal .[2]

Continue Reading Defend Trade Secrets Act of 2016 Signed Into Law

The California Court of Appeals recently held that California employers may not combine required 10 minute rest periods into one larger rest period absent justifiable circumstances, further clarifying the California Supreme Court’s decision in Brinker Restaurant Corp. v. Superior Court, which had held that employers were not always required to provide a rest period before a meal break (suggesting that they may in fact be combined).

The California Legislature originally authorized the Industrial Welfare Commission (IWC) to issue wage orders governing wages, hours, and working conditions for workers in various industries and occupations.  Although the IWC has since been defunded, the wage orders still generally hold the force of law in California.  Under those wage orders, employers must provide all employees with a 10 minute paid rest period for every four hours, or major fraction thereof, worked.  If an employer fails to provide a required rest period, the employer must pay a wage penalty equivalent to one hour of pay at the employee’s regular rate of pay for each workday that the rest period was not provided.

Continue Reading California Employers Generally May Not Combine Required Rest Periods

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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