Monthly Archives

June 2016

DFEH Settles Sexual Harassment Case against Sandhu Brothers Growers in Stanislaus County

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The California Department of Fair Employment and Housing (DFEH) has
obtained a $75,000 settlement in a sexual harassment case filed on behalf of a female
farmworker who worked for Sandhu Brothers, a sweet potato farming operation in Stanislaus
County.

The case stemmed from a complaint by a female farmworker that she was harassed by a
supervisor while working for Sandhu Brothers. The complaint alleged that the supervisor
exposed his genitals to members of the crew, masturbated in front of the workers while driving a
tractor, and made unwanted sexual advances to several female crew members. The complainant
also alleged that she was groped by the supervisor and was fired after complaining to the
company. A separate sexual harassment complaint by another worker involving the same
company and the same supervisor was filed and resolved with the federal Equal Employment
Opportunity Commission in 2013. After the allegations were investigated and substantiated by
the DFEH, a complaint was filed in Stanislaus Superior Court in Modesto, California. The case
was settled January 19, 2016. It would have gone to trial on February 2, 2016.

As part of the settlement, the company has agreed to undergo sexual harassment training and
implement sexual harassment prevention policies.

“Sexual harassment is a serious problem, especially in agriculture where many workers are often
afraid to speak out and are unaware of their rights,” said DFEH Director Kevin Kish. “We hope
that this settlement will send a message to victims that the law will not tolerate this kind of
behavior in the workplace and encourage employers to adopt effective training and prevention
programs.”

The lawsuit was filed against defendants Sandhu Brothers Growers dba Yam Gro, Gurinder
Sandhu, and Bhupinder Sandhu. The case is titled DFEH v. Sandhu Brothers Poultry and
Farming et al, Stanislaus County Superior Court Case Number 2006626.

California Clamps Down on Smoking in the Workplace

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While California has generally banned smoking in the workplace for some years, there are new rules extending that ban are effective June 9, 2016.

The governor recently signed a package of bills that expanded already-existing smoke-free workplace protections. The new legislation includes:

Raises the legal smoking age from 18 to 21, except for active military personnel;

Treats the use of e-cigarettes and other nicotine-delivery devices, such as vaporizers, as “smoking” — thus extending existing smoking bans to cover these products;

Expands smoke-free workplace protections by getting rid of most of the existing exemptions that permitted smoking in certain work environments, such as bars, hotel lobbies and warehouse facilities;

Expands the workplace smoking ban to include owner-operated businesses and to eliminate any small business exception for employers with five or fewer employees; and

Eliminates the ability to have employer-designated smoking break rooms.

As a side note, smoking laws can also vary from county-to-county or city-to-city.

HR Ideas will be assisting our clients in revising sections of their handbook dealing with smoking in the workplace in their 2017 Handbook Updates, so look for it. In the meantime, if you wish to implement the new law into your policy, we are ready to assist you.

Should you have any questions, please contact your HR Ideas representative at 925-556-4404.

San Diego Earned Sick Leave and Minimum Wage Ordinance Approved by Popular Vote

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Employers in the City of San Diego will need to review their current paid sick leave and minimum wage policies to ensure they comply with a voter-approved ordinance extending paid sick leave and raising the minimum wage for workers in the City.

Proposition I, the “Referendum of Ordinance Relating to Earned Sick Leave and Minimum Wage to be Provided to Employees Working in the City of San Diego” (Ordinance No. O-20390) was passed on June 7, 2016. The Ordinance is expected to take effect immediately following certification of the election results.

Who is Covered

Persons entitled to benefits under the Ordinance if they perform at least two hours of work within the geographic boundaries of the City in one or more calendar weeks of the year and qualify as an employee entitled to minimum wage under California law.

Limited exceptions apply to individuals authorized to be employed for less than minimum wage if employed under a special license for handicapped individuals, persons employed under a publicly subsidized summer or short-term youth employment program, or certain student-employees or counselors of organized camps as provided under the California Labor Code.

Minimum Wage

The minimum wage in the City will be increased to $10.50 an hour. The minimum wage in the City will be raised to $11.50 an hour effective January 1, 2017. Starting January 1, 2019, the minimum wage will increase by an amount corresponding to the prior year’s increase, if any, in the cost of living, as defined by the Consumer Price Index.

If the California (currently, $10 per hour) or federal (currently, $7.25 per hour) minimum wage exceeds the minimum wage set by the Ordinance, the minimum wage will be increased to the higher of the California or federal minimum wage.

Earned Sick Leave Requirements

How much earned sick leave can employees accrue?

Employers must provide covered employees with one hour of earned sick leave for every 30 hours worked by the employee within the geographic boundaries of the City. Employers may not limit the amount of earned sick leave that employees accrue.

Employers who provide an amount of paid leave, including paid time off, vacation, or paid personal days, sufficient to meet the requirements of the Ordinance, and allow use of such paid time off under the same conditions and purposes as the Ordinance, are not required to provide additional leave.
When do employees accrue, and when can they use, earned sick leave?

Employees begin to accrue earned sick leave upon hire, and existing employees will begin accruing earned sick leave immediately. Employees may begin using earned sick leave on their 90th day of employment.

Can employers limit the amount of earned sick leave used?

Employers may limit use of earned sick leave to 40 hours in a consecutive 12-month period (to be determined by the employer). However, employers may not limit the amount of earned sick leave accrued. All unused, accrued earned sick leave must be carried over to the next year.
For what reasons can an employee use earned sick leave?

Employees may use earned sick leave for their own medical care and for the medical care of certain covered family members. Employees also may use earned sick leave for themselves and covered family members for reasons associated with domestic violence, sexual assault, or stalking, including medical care, counseling, relocation, or legal services. In addition, employees may use leave time for a public health emergency.
Can employers set restrictions on the use of earned sick leave?

When the use of earned sick leave is foreseeable, employers may require reasonable advance notice not to exceed seven days prior to the date that the earned sick leave is to be used. When the need for used of earned sick leave is not foreseeable, employers may require employees to provide notice of the need to use earned sick time as soon as practicable.

If an employee is absent for more than three consecutive work days, the employer may require reasonable documentation that earned sick leave was taken for a permissible reason. Employers must accept reasonable documentation (which does not specify the nature of the injury, illness or medical condition) signed by a licensed health care provider regarding the amount of earned sick leave required.

Do employers have to pay out unused, accrued earned sick leave upon termination?

Employers are not required to pay out earned sick leave upon termination of employment if the earned sick leave is separate and distinct from a paid time off or vacation plan.

Notice and Posting Requirements

Employers must post a notice published each year by the City. The notice must be posted in a conspicuous place at any workplace or job site where any covered employee works. All employers also must provide each employee at the time of hire, written notice of the employer’s name, address, and telephone number, and the legal requirements under the Ordinance.

Both posting and notice materials must be offered in English and the employees’ primary language if that language is one for which the San Diego County

Registrar of Voters provides translated ballot materials and it is spoken by at least 5 percent of the employees at a particular job site.

Retaliation Prohibited

Employers are prohibited from engaging in any retaliatory behavior against any employee attempting to exercise his or her rights under the Ordinance.
Penalties for Noncompliance

An employer who violates the notice and posting requirements is subject to a civil penalty of $100 for each employee who was not given appropriate notice under the Ordinance, up to a maximum civil penalty of $2,000. An employer who violates any other requirement of the Ordinance is subject to a civil penalty of up to $1,000 per violation for each violation.

Any employee claiming harm from a violation of the Ordinance also may obtain equitable and legal remedies, including, but not limited to, the amount of back wages withheld, two times the back wages withheld as liquidated damages, damages for the denial of use of accrued earned sick leave, reinstatement of employment and injunctive relief, and reasonable attorneys’ fees and costs.

City of Los Angeles Approves Paid Sick Leave Ordinance

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The Los Angeles City Council has passed a paid sick leave ordinance, which is slated to go into effect July 1, 2016 in conjunction with the previously passed minimum wage ordinance. The sick leave ordinance will require employers in the City of Los Angeles to provide paid sick leave benefits that exceed the benefits already mandated by California state law.

Under the previously passed Los Angeles Minimum Wage Ordinance minimum wage rate hikes are set to increase at different intervals depending on the numbers of covered employees. Covered employees are those who perform at least two hours of work within the geographic boundaries of the City of Los Angeles within a particular week. For employers with 26 of more employees, the minimum wage rate will increase to $10.50 per hour beginning July 1, 2016. For employers with 25 or fewer employees, the minimum wage rate will not increase to $10.50 until July 1, 2017. Thereafter, the ordinance sets forth the following schedules for minimum wage increases:

For employers with 26 or more employees:

July 1, 2017: $12.00 per hour
July 1, 2018: $13.25 per hour
July 1, 2019: $14.25 per hour
July 1, 2020: $15.00 per hour
For employers with 25 or fewer employees:

July 1, 2018: $12.00 per hour
July 1, 2019: $13.25 per hour
July 1, 2020: $14.25 per hour
July 1, 2021: $15.00 per hour
Starting July 1, 2022, the minimum wage rate will increase every July 1st as determined by the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) in the Los Angeles metropolitan area. These adjusted minimum wage rates will be released on the preceding February 1st.

In addition to raising the local minimum wage, the paid sick leave ordinance imposes more burdensome paid sick leave requirements on Los Angeles employers. The new paid sick time statute, as an amendment to the minimum wage ordinance, covers all employees who perform at least two hours of work within the geographic boundaries of the City of Los Angeles within a particular week. However, covered employees must be employed by the same employer for at least 30 days in order to be entitled to such benefits.

The new paid sick leave ordinance requires that employees be allowed to use 48 hours of paid sick leave per year and covered employees can begin using paid sick leave on July 1, 2016 or on the 90th day of employment.

There are two methods in which employers may account for the accrual of the requisite 48 hours. First, an employee can be provided with the full 48 hours of paid sick leave at the beginning of year, which could be on a calendar year, the employee’s anniversary, or other 12-month period. Alternatively as a second method, an employee could accrue one hour of paid sick leave for every 30 hours worked. However, these accruals are not without limit and an employer may establish a cap of maximum accrual hours at 72. Furthermore, no additional time off is required if the employer has a paid time off policy which permits up to 48 hours of leave annually for the purposes caring for him or herself as the employee, an employee’s family member or anyone of “close association similar to that of a family member.” Upon termination, employers are not required to pay the employee for paid sick leave hours that have been accrued, but unused. However, if a terminated employee is re-hired within one year, that employee is entitled to receive the accrued, but unused paid sick leave time.

While the requirements for utilizing such leave are to be for same purposes as that under the existing California Paid Sick Leave laws, the City of Los Angeles ordinance has expanded the definition of a family member to include, “any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.” Additionally, this ordinance does not specify that employers may require two-hour increments for utilizing paid sick leave. While employers may require reasonable documentation from an employee utilizing paid sick leave, employers should remain cognizant and compliant with state laws when requiring such documentation.