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[VIDEO] BB&K Webinar: Annual Labor & Employment Update 2016

08 Dec 2016 00:00:00 -0800

BB&K Labor and Employment attorneys discussed new legislation and case law impacting California employers - private and public.

What was discussed:

New legislation
Wage and hour update
Harassment, discrimination and retaliation
Disability discrimination and medical leaves
Benefits update including discussion of the Affordable Care Act and the Flores case
Marijuana in the workplace
Public agency cases and updates

This activity has been approved for minimum continuing legal education by the State Bar of California in the amount of two (2) hours of General Participatory credit. Best Best & Krieger LLP certifies that this activity conforms to the standards of approved educational activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education. Best Best & Krieger LLP is a State Bar of California Approved Provider, #1035.

When:
Thursday, Dec. 8
9:30 - 11:30 a.m. PT

Click here for questions.

Materials
Annual Labor & Employment Law Update
New Legislation and Case Summaries

To view a recording of the webinar, click here.

Best in Law: Employers, Be Aware of Just-signed Laws

28 Nov 2016 00:00:00 -0800

By D. Brian Reider

As we wind up this year and look back on the election, legislation passed in California and recent court decisions, there are multiple issues for employers to watch for in the next year, and beyond. Two recently signed bills are worth note.

First, if a business establishment has “single user” restrooms available to the public, Assembly Bill 1732, recently signed into law by Gov. Jerry Brown, requires that, by March 1, the restroom be identified as “all gender” and be universally accessible. New signage must be installed to make it clear that the restroom is not intended solely for males or females. A “single user” restroom has no more than one water closet and one urinal and a locking mechanism controlled by the user.

Second, Brown signed Senate Bill 1234, which mandates that, eventually, all California businesses that employ at least five employees offer a retirement savings plan or make automatic payroll deposits into a state-sponsored program for the benefit of those employees.

The California Secure Choice Retirement Program will require that, at some point, (probably not until 2018), workers whose companies do not offer a retirement plan will have 3 percent of their wages deducted. The wages will be deposited into an account overseen by a soon-to-be-created state board. Workers can opt out of the deduction.

Another topic of concern for employers coming out of the election is the passage of Proposition 64, known as the Control, Regulate and Tax Adult Use of Marijuana Act. Effective immediately, adults 21 and over may legally use and grow marijuana for personal use, and, beginning in January 2018, it will be legal to sell the drug.

The Act contained a number of protections for employers, who will be allowed to develop or maintain drug-free workplace policies, regardless of whether the marijuana use is medicinal or recreational. Employers are also allowed to continue pre-employment screening and limited testing of current employees for marijuana. The policies a company will need to protect itself are complex, and a knowledgeable attorney should be consulted to ensure compliance with both California and federal laws.

Finally, one recent California court decision is worth mentioning. It relates to what must appear on an employee’s wage statement – a mundane sounding issue that can have serious implications if an employer is sued for failure to comply with state law.

In Soto v. Motel 6, Operating L.P., an employee class action claim was filed in which it was alleged that the employer failed to include the monetary amount of accrued vacation pay in the employees’ wage statements. This was claimed to be a violation of California Labor Code section 226, which has detailed requirements for what must be on a wage statement.

The Court of Appeal upheld a trial court decision that dismissed the lawsuit, holding that, under section 226, accrued vacation was not required to be listed on the paystub. The reason, fundamentally, was that the purpose of the wage statement is to tell the employee what they are actually being paid at that time so they can object to any omissions or inconsistencies. The case serves as a good reminder that every employer should have an expert review employee paystubs to ensure that all required information is included.

This article first appeared in the Press-Enterprise on Nov. 27, 2016. Republished with permission.

PIHRA 2016 Legal Year in Review

10 Nov 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Joseph Ortiz will present “2016 Legal Year in Review,” for the Professionals In Human Resources Association. This presentation focuses on the laws that the savvy HR practitioner should know about, and the significant changes that occurred in Human Resources in 2016. The presentation will include a roll call of the most recent employment-related laws passed by the California Legislature, as well as a "best of" summary of the five biggest legal changes that occurred in 2016. Included will be a discussion of the status of the new white collar exemption salary requirements, new gender protection issues, and much, much more.

When
Thursday, Nov. 10
11:30 a.m. - 1:30 p.m.

Where
Best Best Krieger
3390 University Ave.
5th Floor
Riverside, CA 92501

For more information or to register, click here.

Play hard. Play fair. Play together.

01 Nov 2016 00:00:00 -0800

Join Best Best & Krieger LLP at the 2016 CALPELRA 41st Annual Training Conference in Monterey, Calif.

BB&K Speakers:

Isabel Safie and Katrina Veldkamp
"ACA Implementation: What Comes Next?"
Although it seems that the ACA is finally in full effect, the IRS continues to publish new guidance, and aspects of the ACA are in flux or have not yet been implemented. For example, the Cadillac tax – although it has been delayed until plan years beginning on or after Jan. 1, 2020, it is moving forward – in this session you’ll learn about its application and how it will impact your health benefit programs. This session will also focus on recent IRS guidance regarding ACA implementation, including new limitations on health reimbursement arrangement coverage and the effect of cash-in-lieu/opt-out programs on affordability calculations. In this session, you’ll also learn what the presenters have learned from the first year of employer reporting and what employers should change in 2017.
Wednesday, Nov. 2
1:30 - 3 p.m.

Alison Alpert and Joseph Sanchez
"You Can't Say That! Free Speech Issues In Public Employment"
Public employees’ right to free speech is more limited than that of the general public. Whether or not a public employer may take disciplinary action against an employee for speech-related conduct, however, is based on a developing body of case law that provides certain balancing tests and guidelines to determine if the speech is protected under the First Amendment. In this session, you’ll learn how you can legally address employee speech that impairs your agency's mission. The session will also highlight issues involving free speech in cyberspace, union speech, and special rules involving high-level policymakers.
Wednesday, Nov. 2
3:30 - 5 p.m.

Arlene Prater
"Severance and Last Chance Agreements: How to Negotiate and Draft Agreements That Comply With the Law and Protect Your Agency"
Drafting an agreement that best protects your agency, is acceptable to employees’ representatives, and complies with current legal standards can be a challenge. This session starts with an introduction to the benefits of using these agreements and then covers specific provisions and standards, such as complying with recent EEOC and NLRB enforcement actions, restrictions on employment and employee behavior, Public Records Act and Brown Act requirements, waiving due process rights, and use for creative resolutions of discipline and layoff disputes.
Thursday, Nov. 3
10:30 a.m. - Noon

Alison Alpert
"When an Employee Says, 'I’ve Got My Medical Marijuana Card,' What Can an Employer Do?"
Medical marijuana is in the news. As many states, including California, pass laws for the legal use of medical marijuana, employers are left questioning their drug use policies. Explore this important issue in light of federal and state law and existing employer policies. You’ll learn whether an employer can discipline an employee for off-hours and off-site use or influence, when it is pursuant to a valid prescription, or for off-hours and off-site recreational use, whether employers can still lawfully implement zero-tolerance drug use policies, and whether medical marijuana use must be accommodated. You’ll also learn how employers might accommodate medical marijuana use, if they choose. Learn what should be included in your policies to ensure that any discipline will be upheld on appeal, and leave this session feeling relaxed, knowing you’ve learned how to comply with the law.
Thursday, Nov. 3
3:30 - 5 p.m.

When
Tuesday, Nov. 1 - Friday, Nov. 4

Where
Portola Hotel & Spa at Monterey Bay
Two Portola Plaza
Monterey, CA 93940

and

Monterey Marriott
350 Calle Principal
Monterey, CA 93940

For more information or to register, click here.

California Special Districts Association

10 Oct 2016 00:00:00 -0800

Join Best Best & Krieger LLP at the 2016 California Special Districts Association Annual Conference in San Diego, Calif.

BB&K Speakers:

Kelly Salt
"Come Hell or High Water: Funding Conservation, Flood Control, and Stormwater"
This presentation will address potential solutions to structuring tiered water rates in light of recent court decisions; and options for funding discounts for low income water, sewer, and solid waste service customers, and stormwater and flood control services.
Tuesday, Oct. 11
2 – 3:15 p.m.

Isabel Safie and Katrina Veldkamp
"Navigating the CalPERS Audit"
This presentation will discuss the most common compliance issues that lead to an audit finding and how an agency can address those issues to minimize the impact of an audit. In addition, we’ll discuss the risk factors that make an agency more likely than not to be selected for a CalPERS audit. Finally, we’ll walk you through the audit process and discuss the purpose and target of each phase of an audit.
Wednesday, Oct. 12
2:15 – 3:30 p.m.

Michelle Ouellette and Jennifer Lynch
"CEQA: What Special Districts Need to Know in 2016 and Beyond"
Special district actions must comply with fast-changing CEQA law. This panel addresses recent legislation and litigation, and will touch upon GHGs, AB 52, special events, water issues, and much more.
Thursday, Oct. 13
8:30 - 10 a.m.

When
Monday, Oct. 10 - Wednesday, Oct. 13

Where
San Diego Hotel and Marina
1380 Harbor Island Dr.
San Diego, CA 92101

For more information or to register, click here.

Employee Rights!

17 Sep 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Joseph Ortiz will present a seminar on employee rights.

When:
Saturday, Sept. 17
9 a.m.

Where:
Riverside County Bar Association
4129 Main St., 3rd Floor
Riverside, CA 92501

For more information, click here.

Two BB&K Attorneys on 2016 Southern California Super Lawyers Rising Stars List

07 Jun 2016 00:00:00 -0800

For Immediate Release: June 7, 2016
Media Contact: Denise Nix • 213.787.2552 • denise.nix@bbklaw.com

RIVERSIDE, Calif. -- Best Best & Krieger LLP is pleased to announce that Partner Isabel Safie and Associate Jake Vollebregt were selected to the 2016 Southern California Super Lawyers Rising Stars list. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. To be selected as a Rising Star, the attorney must be under age 40 or in practice for less than 10 years, and must have demonstrated significant achievements in their practice area.

Safie was recognized in the area of Employee Benefits. This is her second year appearing on the list.

Vollebregt was recognized in the Land Use/Zoning category. This is his first time appearing on the list.

The annual selections are made via a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. For more information about Super Lawyers, visit SuperLawyers.com.

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Best Best & Krieger LLP is a national law firm that focuses on environmental, business, education, municipal and telecommunications law for public agency and private clients. With 200 attorneys, the law firm has nine offices nationwide, including Los Angeles, Sacramento, San Diego and Washington, D.C. For more information, visit www.bbklaw.com or follow @BBKlaw on Twitter.

Best in Law: Tax Ruling Confirms Protocol on Job-Related Judgments

04 Oct 2015 00:00:00 -0800

By Katrina Veldkamp

The California Court of Appeal recently confirmed that employment-related settlements or judgments are wages from which employers must withhold payroll taxes.

In Cifuentes v. Costco Wholesale Corp., Cifuentes challenged former employer Costco’s withholding of payroll taxes from a wrongful termination judgment.

The court ruled in favor of Costco, holding that tax law requires employers to withhold payroll taxes or face liability to the IRS and other tax authorities.

Cifuentes was awarded more than $300,000 in both back pay and front pay for wrongful termination. Costco withheld approximately $116,000 in payroll taxes from the judgment, including Federal Income Contribution Act (FICA) contributions, federal and state income taxes, and state disability insurance.

Cifuentes claimed that, due to the tax withholding, Costco had failed to satisfy the judgment in full. The appellate court disagreed.

Whether or not to withhold payroll taxes from back pay and similar settlements has been a pressing issue for employers, especially in California. Until now, the only California appellate decision regarding taxation of employment settlements held that an employer is not required to withhold payroll taxes from an award of lost wages to a former employee. However, since that decision, Lisec v. United Airlines, Inc., the majority of state and federal courts, including the U.S. 9th Circuit Court of Appeals, have agreed that employers should withhold taxes from such settlements.

Furthermore, the IRS has consistently affirmed its position that employment-related judgments and settlements are wages subject to payroll tax withholding. Because of the conflicting state and federal guidance, California employers were faced with a choice between not satisfying a judgment or potentially being liable for the taxes not withheld. The court in Cifuentes resolved this conflict by repudiating Lisec and following the majority view.

The Internal Revenue Code generally defines wages that are subject to income and FICA tax withholding as any payment for services performed by an employee for his or her employer. The Supreme Court has clarified that this definition encompasses the entire employer-employee relationship, not just the work actually done. California tax law is identical to federal law with respect to withholding from wages. As a result, back pay, front pay, and any other payment associated with the employer-employee relationship are considered wages for federal tax purposes, even if the award is not linked to actual service. Whether any such award is granted as part of a judgment, as opposed to a settlement, does not affect its tax treatment (except in the case of back pay for lost wages on account of personal physical injury or physical sickness, which is not considered wages subject to taxation).

On the other hand, damages in hiring discrimination suits that are granted to individuals who were never actually hired are not considered wages because no employment relationship ever existed.

If an employer does not withhold payroll taxes as required by law, it becomes liable for the taxes, including the employee’s far greater share. In addition, an employer that does not properly withhold payroll taxes may be subject to penalties and interest for underreporting and failing to pay taxes.

Even if an employer is able to prove that an employee paid the income and/or FICA taxes, it may still be liable for applicable penalties and interest. Because of this risk of liability for improperly withheld taxes, the court in Cifuentes concluded that “Costco chose correctly” in withholding from the judgment. Costco’s potential exposure for failing to withhold taxes outweighed the slight inconvenience to Cifuentes of seeking a refund for any overpaid tax.

California employers now have clear guidance regarding the taxation of employment-related settlements and judgments. To avoid the risk of potential tax exposure, employers should withhold appropriate payroll taxes on awards for lost wages. Such withholding will not prevent an employer from fully satisfying a judgment.

* This article first appeared in The Press-Enterprise on Oct. 4, 2015. Republished with permission.

Uber Employee Classification Class Action Could Impact All Employers

10 Sep 2015 00:00:00 -0800

A federal judge’s decision last week to certify a class of California Uber drivers in their lawsuit claiming Uber has misclassified them as independent contractors rather than employees has numerous potential impacts on both private and public employers. The decision is a big win for Uber drivers, allowing them to proceed with the class action on their core claims, which provides them much greater leverage in any efforts to settle the case. There is also the possibility that regulatory considerations for the sharing economy will be affected based on this case.

An ultimate finding that drivers are employees rather than independent contractors would have massive effects on Uber’s business model, forcing it to comply with minimum wage, overtime and meal and rest break laws, to pay payroll taxes, to obtain workers’ compensation coverage, and to potentially provide benefits. A decision that drivers are employees would also grant the employees the right to unionize, as well as the right to seek reimbursement for both mileage and tips. The decision follows the June ruling by a California labor commissioner that a single Uber driver was an employee.

Beyond its implications for Uber itself, this decision highlights the potential for other class actions based on independent contractor misclassifications throughout the sharing economy. Many sharing economy businesses rely on workers that they classify as independent contractors, to keep costs low and valuations high. While no company has done this to the same extent as Uber (which is currently valued at $50 billion), the fact remains that the cost of doing business in the sharing economy will greatly increase if these companies are required to treat their workers as employees. A classification of the workers as employees would also extend additional protections and benefits, including protection under antidiscrimination statutes, application of the full scope of state and federal labor laws, and even a requirement to provide paid sick leave under California’s new sick leave law.

For more information about this decision and how it may relate to your agency or business, contact the attorney authors of this Legal Alert listed at right in the Labor and Employment and Municipal Law practice groups, or your BB&K attorney.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Best in Law: Five Survival Tips for Navigating the Sick Leave Law

06 Sep 2015 00:00:00 -0800

The Healthy Workplaces, Healthy Families Act (AB 1522), commonly referred to as the mandatory sick leave law, went into effect in California on July 1. While the premise of the law is simple – California employers must provide paid sick leave benefits to their employees – the implementation is not. The following five tips will help employers navigate the uncertainty of the law.

• Check your current sick leave policy (if you have one) because it may not be sufficient.

One of the most common sick leave traps is the misconception that a pre-existing sick leave policy that provides more leave than the law requires automatically complies with the law. To fully comply with the law, the sick leave policy must, among other things, permit sick leave to be used for the diagnosis, care or treatment of an existing health condition, or preventive care, for the employee or a family member.

A family member includes grandchildren, grandparents and siblings. If your pre-existing sick leave policy does not allow the employee to use sick leave to take his grandchild to get a flu shot, your policy violates the law.

• Make sure that your attendance policies do not impinge on mandated sick leave.

Employers routinely have automatic termination policies for employees who are a “no-call/no-show” for a certain number of days, or attendance policies that automatically impose discipline on employees who do not provide adequate notice when calling in sick.

The new sick leave law requires an employee to provide “reasonable” advance notice to his employer of his need for sick leave, and if that is not possible, then to provide notice to his employer “as soon as practicable.”

The law also prohibits employers from disciplining employees who use sick leave.

Accordingly, before an employer automatically disciplines an employee for an attendance issue, the best practice would be for the employer to contact the employee and determine if the attendance violation was caused by the use of sick leave. An employer who simply terminates for an attendance violation without first confirming that the employee was not using his mandated sick leave risks a retaliation claim.

• Don’t ask for a note or medical certification unless Family and Medical Leave Act (FMLA) leave is at issue.

The new sick leave law does not allow employers to request a doctor’s note from an employee who is utilizing his sick leave, regardless of the purpose of the note (e.g. confirm illness, release back to work). Notably, this limitation does not affect the employer’s ability to seek medical certification under the FMLA. Employers must be cognizant of the distinction and only seek a note or medical certification when dealing with FMLA leave.

• Check if your previous accrual-based policy is compliant.

On July 14, AB 304 was enacted as urgency legislation, providing amendments to and clarifications of AB 1522. One particularly significant change was the exception to the minimum accrual requirement under the sick leave law. If an employer had a sick leave policy prior to Jan. 1, the employer can maintain its accrual method so long as the accrual is on a regular basis so that an employee has no less than one day or eight hours accrued sick leave within three months of employment of each year, and the employee was eligible to earn at least three days or 24 hours of sick leave within nine months of employment.

• When an employee does not get a regular paycheck (piece rate, etc.), use an average to calculate sick leave.

Calculating the value of sick leave per hour is complicated for employees who do not receive standard paychecks. In order to calculate the value of sick leave per hour, the employer should divide the employee’s total wages (not including overtime premium pay) by the total hours worked in the full pay periods of the prior 90 days of employment. This will require some employers to start tracking the hours worked by employees.

As courts begin to interpret the new law, employers will be provided with additional guidance on how to ensure compliance. Until then, when in doubt, it is best for employers to consult legal counsel for assistance in navigating the mandatory sick leave law.

* This article first appeared in The Press-Enterprise on Sept. 6, 2015. Republished with permission.