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  • Gov. Brown at signing

    On Tuesday, October 6, Governor Brown signed SB 358 (Jackson), the California Fair Pay Act. The Act, aimed at addressing the gender pay gap, will be the nation’s toughest. It seeks to ensure that women are paid equally for performing substantially similar work, and protects employees from retaliation for disclosing/discussing wages or seeking to enforce their rights. Credit goes to Senator Hannah-Beth Jackson (D-Santa Barbara) for authoring the bill, which had wide bipartisan support, and to co-sponsors
    Equal Rights Advocates, California Employment Lawyers Association, and Legal Aid Society-Employment Law Center.

    The Fair Pay Act Strengthens Existing Law

    California’s Equal Pay Act, Labor Code section 1197.5, was first enacted in 1949 and revised in 1985. It is similar to the federal Equal Pay Act of 1963. The Fair Pay Act bolsters the California Equal Pay Act in the following ways:

    1.   It provides for equal pay for “substantially similar work,” not just equal work in the same establishment.

    This means that a woman need not hold the exact job as her male comparators to seek equal pay. Instead, the works needs to be “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.”

    2. It eliminates loopholes and limits employers defenses when a wage differential is challenged.

    Previously, the following four defenses were permitted:

  • Smiling Concessions Worker

    Noe v. Superior Court, 237 Cal. App. 4th 316 (2015)

    Noe v. Superior Court, a California Court of Appeal case decided in June, holds that co-employers who are aware that employees are being misclassified as independent contractors, and fail to remedy it, can be held liable themselves. This case confirms that employers cannot get away with treating employees as independent contractors simply by hiring another company to officially employ and pay them.

    Anschutz Entertainment Group (AEG), which owns several entertainment venues in Southern California, contracted with Levy Premium Foodservice (Levy) to provide food and beverage services at AEG’s venues. Levy, in turn, entered into a labor agreement with a group of affiliated companies (Canvas) to provide vendors to sell food and beverages at events. Canvas then hired the vendors and treated and paid them as independent contractors. Levy was aware of this, as its Human Resources representative had acknowledged in an email that Canvas only paid the vendors on a commission basis and questioned whether this practice violated wage and hour requirements. Levy also directly hired some of the vendors and classified them as employees.

    In 2013, several of Canvas’s former vendors filed a wage and hour class action lawsuit against Canvas, Levy, and AEG for failure to pay minimum wages and willful misclassification as independent contractors in violation of Labor Code section 226.8. Plaintiffs contended that each of the defendants was liable as a “joint employer.”

    AEG and Levy filed motions for summary judgment. They argued, . . .

  • Final Check

    Whether you are terminated, laid off, or resign voluntarily from your job, your employer must provide you with your final wages in a timely manner. If your employer does not pay your final wages in full and on time, you can seek penalties in addition to the actual wages owed. You may also be able to recover attorney’s fees, costs, and interest if you prevail on an action for unpaid wages. California’s Labor Code lays out an employer’s obligations with respect to the payment of final wages as well as the penalties for failing to comply.

    Payment Upon Termination

    When an employer terminates or lays off an employee, it must “immediately” pay the employee all earned and unpaid wages. (Labor Code § 201.) The employee must be paid “at the place of discharge.” (Labor Code § 208.)

    Payment Upon Resignation

    If an employee quits without notice, the employer must provide final wages within 72 hours of the resignation. However, if the employee gives notice 72 hours or more in advance of the actual resignation, then the employee must be paid . . .

  • California farm worker

    California’s undocumented workers make up nearly 9.4% of our workforce. They are the backbone of many California industries, including agriculture, construction, and hospitality. They are also among our most exploited workers, as some take advantage of their financial vulnerabilities, cultural and geographic isolation, and fear of deportation. As the powerful and poignant PBS documentary Rape in the Fields explored, immigrant women face shockingly high levels of sexual harassment, sexual assault, and rape at work. Undocumented workers are also subjected to rampant violations of wage and hour laws, including not being paid the minimum wage, not being paid overtime, and not being given proper meal and rest breaks. The median earnings of undocumented workers are about $20,000 per year, as compared to $50,000 per year for U.S.-born workers.

    However, California laws and court cases make clear that undocumented workers deserve protections. Our workplace protection and wage and hour laws apply to everyone, regardless of their status. In addition, our laws have sought to address the reason that many undocuments employees are afraid to come forward: a fear that their employer will get them deported. Employers are expressly prohibited from reporting or threatening to report undocumented workers or their relatives to authorities in retaliation for their asserting their rights under these laws. Employers who retaliate in such a way can lose their business licenses; lawyers making such reports can be disbarred.

    Two new developments are worth discussing.

  • worker on phone

    Many employees regularly use their personal cell phones for work-related calls. Most probably don’t realize that when they do, part of their cell phone costs may become reimbursable—even if they have plans with unlimited minutes.

    California’s Labor Code Section 2802(a) states that:

    An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.

    An employer who fails to reimburse an employee for work expenses can be sued in court for reimbursement and may be required to pay the employee’s attorneys’ fees.

    Recently, a California court of appeal applied Section 2802 to work-related cell phone use.
    . . .

  • Dollar on a scale

    In California, we are fortunate to have a state minimum wage that is higher than the federal minimum wage of $7.25 an hour. California’s minimum wage applies to nearly all workers in the State, with limited exceptions. On July 1, 2014, California’s minimum wage will increase to $9.00 an hour. It will increase again to $10 an hour on January 1, 2016.

    I have written before about how important it is to . . .

  • American workers keep falling behind

    As corporate profits soar, American workers’ pay keep falling behind. But the movement to increase the minimum wage for American workers has been gaining momentum. In the past year, six states, including California, have raised their minimum wage. Here in California, the minimum wage will go from the current rate of $8 an hour to $9 an hour on July 2, 2014 and to $10 an hour on January 1, 2016. Now, the movement is getting national attention.

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