close

Вход

Забыли?

вход по аккаунту

?

Sexual Harassment: What it is. How to prevent it. - HR That Works

код для вставки
Changes to California
Employment Laws 2014
1
Webinar Presented by
Don Phin, President
HR That Works
D ON P HIN , E SQ .
2
3
п‚Ґ
California attorney since 1983.
п‚Ґ
Developer of the HR That Works program.
п‚Ґ
Author of six books on personnel management.
п‚Ґ
Editor of EPLiC published by IRMI.
п‚Ґ
Professional speaker.
п‚Ґ
Lives and works in Coronado, CA
AB 10 (M INIMUM WAGE )
п‚Ґ July 1, 2014 = $9
п‚Ґ January 1, 2016 = $10
п‚Ґ San Francisco, San Jose and
other cities may have “livable
wages”
1
4
AB 11 (T EMPORARY L EAVES
OF
A BSENCE )
п‚Ґ Volunteer Firefighters, Reserve
Peace Officers or Emergency
Rescue Personnel
п‚Ґ 50 or more employees
п‚Ґ 14 days of training per calendar
year
п‚Ґ Update handbook policy
AB 241 (D OMESTIC
W ORKER B ILL OF R IGHTS )
5
п‚Ґ
Private childcare providers, caregivers of
people with disabilities, sick, convalescing, or
elderly persons, house cleaners,
housekeepers, maids, and other household
occupations.
п‚Ґ
Does not include employees at residential
care facilities, casual babysitters, or any
person who is employed pursuant to a
voucher issued through a regional center.
п‚Ґ
Overtime after 9 hrs. day or 45 hrs. week
AB 263 (WAGE AND H OUR
R ETALIATION AND P ROTECTION
FOR I MMIGRANTS )
6
п‚Ґ
Wage claim retaliation for oral or
written complaint
п‚Ґ
Unfair immigration-related
practices
п‚Ґ
90 day retaliation presumption
п‚Ґ
$10,000 and misdemeanor
2
7
AB 442 (L IQUIDATED P ENALTIES
M INIMUM WAGE V IOLATIONS )
FOR
п‚Ґ Liquidated penalties on a
1:1 basis
п‚Ґ Does not apply to overtime
violations
8
9
AB 556 –(M ILITARY AND
V ETERAN S TATUS P ROTECTION )
п‚Ґ
race, religious creed, color, national origin,
ancestry, physical disability, mental
disability, medical condition, genetic
information, marital status, sex, gender,
gender identity, gender expression, age, or
sexual orientation
п‚Ґ
And now… military and veteran status
п‚Ґ
Update hand book policy
SB168 (P REDECESSOR L IABILITY
FOR FARM C ONTRACTORS )
п‚Ґ
Compared experience of car wash operations.
п‚Ґ
Discussed the experience of one family for which
CRLA is trying to collect lost wages but the FLC has
reorganized no less than six times - each time with
a different name and different family member or
associate holding the license.
п‚Ґ
Why would anyone risk rehiring these employees?
п‚Ґ
Trap for the unwary purchaser.
3
10
SB 288 (T IME O FF FOR C OURT )
Time off for victims of:
A. Vehicular manslaughter while intoxicated.
B. Felony child abuse likely to produce great bodily harm or a death.
C. Assault resulting in the death of a child under eight years of age.
D. Felony domestic violence.
E. Felony physical abuse of an elder or dependent adult.
F. Felony stalking.
G. Solicitation for murder.
H. A serious felony, such as kidnapping, rape, or assault.
I. Hit and run causing death or injury.
J. Felony driving under the influence causing injury.
Update handbook policy
11
12
SB 292 (S EX H ARASSMENT N OT
D EFINED BY S EXUAL D ESIRE )
п‚Ґ
In Kelley v Conco Companies (2011) 196 Cal.App.4th
191 the court analyzed the plaintiff's claim according
to the established evidentiary routes for a hostile work
environment sexual harassment claim and found that,
because there was no evidence that the heterosexual
male supervisor and coworkers sexually desired the
male plaintiff, the plaintiff failed to prove the first
evidentiary route, sexual intent.
п‚Ґ
No opposition filed.
п‚Ґ
Update handbook policy.
SB 390 (P ENALTY F OR N OT
PAYING TAXES )
Non-payment to health and welfare funds,
pension funds, or various benefit plans is a
crime is punishable as a felony if the amount
unpaid exceeds $500, and as a misdemeanor
if the amount is less than $500. SB 390
extends the definition of a crime to include an
employer’s failure to remit withholdings from
an employee’s wages that were made
pursuant to state, local, or federal law (i.e.
payroll taxes).
4
13
14
SB 400 (S TALKING P ROTECTION )
п‚Ґ
Expands protection for victims of
domestic violence and sexual assault.
п‚Ґ
Obligations are greater if over 25
employees.
п‚Ґ
Accommodation and notification
requirements.
п‚Ґ
Update handbook policy.
SB 435 (H EAT E XHAUSTION B ILL )
п‚Ґ
Allows an employee “recovery period” and treats it like a
rest period for compliance purposes. See
http://www.dir.ca.gov/dosh/heatillnessinfo.html
SB 462 (ATTORNEY ’ S F EES IN
WAGE C LAIMS )
15
п‚Ґ
Pressure of attorneys fees award is
now a one way street.
п‚Ґ
Where the employer is the prevailing
party, the court can award attorney’s
fees and costs only if it finds that the
employee brought the court action in
bad faith.
5
SB 496 (E XPANDED
W HISTLEBLOWER P ROTECTIONS )
16
17
п‚Ґ
Makes changes to rules related to
public employees.
п‚Ґ
Expands Labor Code section 1102.5
whistleblower protections to
violation of a local rule or regulation,
such as local ordinances, city codes,
and other local rules and regulations.
SB 530 (C RIMINAL B ACKGROUND
C HECKS )
п‚Ґ
Cannot consider criminal actions that have been expunged,
judicially dismissed or ordered sealed.
п‚Ґ
Unless:
A. The employer is required by law to obtain information regarding a conviction of an applicant.
B. The applicant will be required to possess or use a firearm in the course of his/her employment.
C. An individual who has been convicted of a crime is prohibited by law from holding the position
sought by the applicant, regardless of whether that conviction has been expunged, judicially ordered
sealed, statutorily eradicated, or judicially dismissed following probation.
D. The employer is prohibited by law from hiring an applicant who has been convicted of a crime.
Note: make sure you use a background checking company that knows the law!
SB 666 (WAGE P ROTECTION
FOR I MMIGRANTS )
18
п‚Ґ
Loss of business license…including attorneys advising
companies.
п‚Ґ
“Unscrupulous attorneys representing these law-breaking
employers have also used these immigration related threats to
keep people from testifying or showing up to depositions in
support of workers trying to enforce their rights.”
п‚Ґ
“Proponents argue that our current statutory scheme does little
to deter a law-breaking business from using the immigration
status of the worker, co-worker, or family member to create an
atmosphere of fear that prevents workers from demanding
their rights in the workplace.”
п‚Ґ
Amazingly, you can still require a proper I-9 to be filled out!
6
SB 770 (E XPANSION OF PAID
FAMILY L EAVE P ROGRAM )
19
20
п‚Ґ
Expands PFL to include time off
to care for a seriously ill sibling,
grandparent, grandchild, or
parent-in-law.
п‚Ґ
Takes effect July 1, 2014
Q UESTIONS ??
п‚Ґ don@hrthatworks.com
п‚Ґ (800) 234-3304
x1
7
California Laws Effective in 2014
The below bills are effective January 1, 2014; unless otherwise noted. If you want to learn the politics of
the bill check out the Assembly or Senate analysis. You’ll see who was for it and who was against
it…which will tell you a lot about the bill!
AB 10 (Minimum Wage) – Increases California’s current minimum wage (of $8 per hour) in two $1
increments: to $9 per hour on July 1, 2014, and from $9 per hour to $10 per hour on January 1, 2016. This
is the first minimum wage increase in California in five years. Increasing the minimum wage will also
increase the minimum salary amount employees must earn to qualify as “exempt” employees under
California state law executive, administrative, or professional exemptions. Under AB 10, the minimum
monthly salary for exempt employees will increase to $3,120 on July 1, 2014, and $3,466.67 on January
1, 2016.
Note that some California cities and counties have already increased their minimum wages above the
current $8/hour. In San Francisco the minimum wage is $10.55/hour, and in San Jose it is $10/hour.
AB 11 (Reserve Peace Officer or Emergency Rescue Personnel Temporary Leaves of Absence) –
Existing law requires an employer employing 50 or more employees to permit an employee who is a
volunteer firefighter to take temporary leaves of absence, not to exceed an aggregate of 14 days per
calendar year, for the purpose of engaging in fire or law enforcement training.
This bill would revise these provisions to require those employers to permit an employee who performs
emergency duty as a volunteer firefighter, reserve peace officer, or as emergency rescue personnel, as
defined, to take the leave of absence described above for the purpose of engaging in fire, law
enforcement, or emergency rescue training.
Handbook update:
LEAVE FOR EMERGENCY DUTY PERSONNEL [CA 50 OR MORE EMPLOYEES]
Employees are provided unpaid time off to perform emergency duty as volunteer firefighters or reserve
peace officers, or to perform emergency rescue work. No time limits are specified for this leave.
Employees are also eligible for to up to 14 unpaid days off per calendar year for the purpose of engaging
in fire, law enforcement, or emergency rescue training. Please contact [Human Resources] to request this
leave.
AB 241 (Domestic Worker Bill of Rights) – Existing law regulates the wages, hours, and working
conditions of any man, woman, and minor employed in any occupation, trade, or industry, whether
compensation is measured by time, piece, or otherwise, except as specified. This bill would enact the
Domestic Worker Bill of Rights to, until January 1, 2017, regulate the hours of work of certain domestic
work employees and provide an overtime compensation rate for those employees. The bill would define
various terms for the purposes of the act, including defining domestic work to mean services related to the
care of persons in private households or maintenance of private households or their premises, which
В© 2013 www.hrthatworks.com
-1-
would include childcare providers, caregivers of people with disabilities, sick, convalescing, or elderly
persons, house cleaners, housekeepers, maids, and other household occupations.
1) Specify that "domestic work" does not include care of persons in facilities providing board or
lodging in addition to medical, nursing, convalescent, aged or child care, including, but not
limited to, residential care facilities for the elderly.
2) Exempt from the definition of "domestic work employee" any person who is employed pursuant
to a voucher issued through a regional center.
3) Clarify that the exemption for casual babysitters applies to a person whose employment is
irregular or intermittent and is not performed by an individual whose vocation is babysitting.
4) Delete all of the substantive provisions of the bill related to wages, hours and working conditions
and instead provide only that a domestic work employee who is a personal attendant shall not be
employed more than nine hours in any workday or more than 45 hours in any workweek unless
the employee received one and one-half times the employee's regular rate of pay for all hours
worked in excess of those amounts.
The bill would, until January 1, 2017, require the Governor to convene a committee to study and report to
the Governor on the effects of this act. By expanding the definition of a crime, this bill would impose a
state-mandated local program.
AB 263 (Wage and Hour Retaliation and Protection for Immigrants) – This bill prohibits an
employer from retaliating or taking adverse action against any employee or applicant for employment
because the employee or applicant has engaged in protected conduct. The bill also expands the protected
conduct to include a written or oral complaint by an employee that he or she is owed unpaid wages. The
bill would provide that an employee who was retaliated against or otherwise was subjected to an adverse
action is entitled to reinstatement and reimbursement for lost wages. The bill would subject a person who
violates these provisions to a civil penalty of up to $10,000 per violation. The bill would also provide that
it is not necessary to exhaust administrative remedies or procedures in the enforcement of specified
provisions. The willful refusal by an employer to reinstate or reimburse an employee who suffered a
retaliatory action under these provisions would be a misdemeanor.
1) Provides that it shall be unlawful for an employer or any other person or entity to engage in, or to direct
another person or entity to engage in, unfair immigration-related practices against any person for the
purpose of, or with the intent of, retaliating against any person for exercising any right protected under the
Labor Code or by any local ordinance applicable to employees, including the following:
a) Filing a complaint or informing any person of an employer's or other party's alleged violation of
this code or local ordinance, so long as the complaint or disclosure is made in good faith.
b) Seeking information regarding whether an employer or other party is in compliance with this
code or local ordinance.
c) Informing a person of his or her potential rights and remedies under this code or local ordinance,
and assisting him or her in asserting those rights.
2) Defines "unfair immigration-related practice" to mean any of the following practices, when undertaken
for a retaliatory purpose:
a) Requesting more or different documents than are required under Section 1324a(b) of Title 8 of
the United States Code, or a refusal to honor documents tendered pursuant to that section that on
their face reasonably appear to be genuine.
-2-
b) Using the federal E-Verify system to check the employment authorization status of a person at a
time or in a manner not required under Section 1324a(b) of Title 8 of the United States Code, or
not authorized under any memorandum of understanding governing the use of the federal EVerify system.
c) Threatening to file or the filing of a false police report.
d) Threatening to contact immigration authorities.
3) Specifies that engaging in an unfair immigration-related practice against a person within 90 days of the
person's exercise of rights protected under this code or local ordinance applicable to employees shall raise
a rebuttable presumption of having done so in retaliation for the exercise of those rights.
4) Provides that an employee or other person who is the subject of an unfair immigration-related practice
prohibited by this bill or a representative of that employee or person, may bring a civil action for
equitable relief and any damages or penalties, in accordance with this bill.
…
7) Permits an employee or other person who is the subject of an unfair immigration-document practice
prohibited by this section, and who prevails in an action authorized by this section to recover reasonable
attorney's fees and costs, including any expert witness costs.
…
9) Provides that an employer may not discharge an employee or in any manner discriminate, retaliate, or
take any adverse action against an employee because the employee updates or attempts to update his or
her personal information, unless the changes are directly related to the skill set, qualifications, or
knowledge required for the job.
…
AB 442 (Liquidated Penalties for Minimum Wage Violations) – This bill authorizes the Labor
Commissioner to collect liquidated damages from an employer who pays an employee less than minimum
wage, in an amount equal to the wages unlawfully unpaid and interest thereon. Nothing in this
subdivision shall be construed to authorize the recovery of liquidated damages for failure to pay overtime
compensation.
AB 556 (Military and Veteran Status Protection) –The California Fair Employment and Housing Act,
protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment
without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, genetic information, marital status, sex, gender,
gender identity, gender expression, age, or sexual orientation.
This bill would add “military and veteran status,” as defined, to the list of categories protected from
employment discrimination under the act. The bill would also provide an exemption for an inquiry by an
employer regarding military or veteran status for the purpose of awarding a veteran’s preference as
permitted by law.
Handbook update:
-3-
EQUAL OPPORTUNITY STATEMENT
Our Company is committed to the principles of Equal Employment. We are committed to complying with
all Federal, State, and local laws providing Equal Employment Opportunities, and all other employment
laws and regulations. It is our intent to maintain a work environment which is free of harassment or
discrimination because of sex, race, religion, color, national origin, physical or mental disability, genetic
information, marital status, age, sexual orientation, gender identity, military service, veteran status, or any
other status protected by Federal, State or local laws. The Company is dedicated to the fulfillment of this
policy in regard to all aspects of the employment relationship, including but not limited to recruiting,
hiring, placement, transfer, training, promotion, rates of pay and other compensation, and all other terms
conditions and privileges of employment.
SB168 (Predecessor Liability for Farm Contractors) – This bill would make a farm labor contractor
successor to any predecessor farm labor contractor that owed wages or penalties to a former employee of
the predecessor, whether the predecessor was a licensee or not, liable for those wages and penalties, if the
successor farm labor contractor meets one or more specified criteria. By imposing a new requirement on
farm labor contractor successors, the violation of which would be a crime, the bill would impose a statemandated local program.
This bill holds a successor to any FLC business liable for owed wages or penalties to former employees if
any of the following criteria is met:
1. Uses substantially the same facilities or workforce to offer substantially the same services as the
predecessor FLC.
2. Shares in the ownership, management or control of the workforce or interrelations of business
operation with the predecessor FLC.
3. Employs in a managerial capacity anyone who directly or indirectly controlled the wages or
working conditions of the employees owed wages or penalties by the predecessor FLC.
4. Is an immediate family member of any owner, partner, officer, licensee or director of the
predecessor FLC or of any person who had a financial interest in the predecessor FLC.
SB 288 (Time Off for Court) – This bill would prohibit an employer from discharging or in any manner
discriminating or retaliating against an employee who is a victim, as defined, of specified offenses, as
described, for taking time off from work, upon the victim’s request, to appear in court to be heard at any
proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea,
sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue.
The bill would also extend those aforementioned protections, including, but not limited to, reinstatement
and reimbursement, to an employee who is a victim of specified offenses for taking time off from work to
appear at such a court proceeding.
An employer may not discharge or in any manner discriminate or retaliate against an employee who is a
victim for taking time off from work, upon the victim's request, to appear in court to be heard at any
proceeding for the following offenses:
A.
B.
C.
D.
E.
F.
Vehicular manslaughter while intoxicated.
Felony child abuse likely to produce great bodily harm or a death.
Assault resulting in the death of a child under eight years of age.
Felony domestic violence.
Felony physical abuse of an elder or dependent adult.
Felony stalking.
-4-
G.
H.
I.
J.
Solicitation for murder.
A serious felony, such as kidnapping, rape, or assault.
Hit and run causing death or injury.
Felony driving under the influence causing injury.
For the purposes of this bill, a proceeding includes any delinquency proceeding, involving a post-arrest
release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of
the victim is at issue.
2. Defines a victim as any person who suffers direct or threatened physical, psychological, or financial
harm as a result of the commission or attempted commission of a crime or delinquent act. The term
"victim" also includes the person's spouse, parent, child, sibling, or guardian.
Handbook update:
CRIME VICTIMS LEAVE OF ABSENCE [ALL CA EMPLOYERS] New
Employees make take time off to attend judicial proceedings for a crime against the employee or an
“immediate family member” of the employee. The leave is unpaid; however, employees are allowed to
use accrued vacation, personal time off and compensatory time off for this purpose. The following
offenses apply to this policy:
A. Vehicular manslaughter while intoxicated.
B. Felony child abuse likely to produce great bodily harm or a death.
C. Assault resulting in the death of a child under eight years of age.
D. Felony domestic violence.
E. Felony physical abuse of an elder or dependent adult.
F. Felony stalking.
G. Solicitation for murder.
H. A serious felony, such as kidnapping, rape, or assault.
I. Hit and run causing death or injury.
J. Felony driving under the influence causing injury.
For the purposes of this bill, a proceeding includes any delinquency proceeding, involving a post-arrest
release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of
the victim is at issue.
Please contact [Human Resources] to request this leave.
SB 292 (Sex Harassment Not Defined by Sexual Desire) – Existing law, the California Fair
Employment and Housing Act, protects and safeguards the right and opportunity of all persons to seek,
obtain, and hold employment without discrimination, abridgment, or harassment on account of race,
religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual
orientation. Existing law makes these provisions applicable to employers, labor organizations,
employment agencies, and specified training programs and also defines harassment because of sex for
these purposes.
-5-
This bill would specify, for purposes of the definition of harassment because of sex under these
provisions, that sexually harassing conduct need not be motivated by sexual desire.
Handbook update:
Sexual Harassment includes:
Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal
or physical conduct of a sexual nature when (1) submission to such conduct is made either explicitly or
implicitly a term or condition of an individual’s employment (2) submission to or rejection of such
conduct by an individual is used as the basis for employment decisions affecting such individual or (3)
such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance
or creating an intimidating, hostile or offensive work environment.
While it is not possible to identify each and every act that constitutes or may constitute sexual harassment,
the following are some examples of sexual harassment are provided below: (a) unwelcome requests for
sexual favors; (b) lewd or derogatory comments or jokes; (c) comments regarding sexual behavior or the
body of another employee; (d) sexual innuendo and other vocal activity such as catcalls or whistles; (e)
obscene letters, notes, invitations, photographs, cartoons, articles, or other written or pictorial materials of
a sexual natures; (f) continuing to express sexual interest after being informed that interest is unwelcome;
(g) retaliating against an employee for refusing a sexual advance or reporting an incident of possible
sexual harassment to [Company Name] or any government agency; (h) offering or providing favors or
employment benefits such as promotions, favorable evaluations, favorable assigned duties or shifts, etc.,
in exchange for sexual favors; and (i) any unwanted physical touching or assaults, or blocking or
impeding movements. The definition of harassment because of sex under these provisions does not
require the harassing conduct to be motivated by sexual desire.
SB 390 (Penalty for Not Paying Taxes) – Existing law makes it a crime for an employer to fail to make
agreed-upon payments to health and welfare funds, pension funds, or various benefit plans. Such crime is
punishable as a felony if the amount unpaid exceeds $500, and as a misdemeanor if the amount is less
than $500. SB 390 extends the definition of a crime to include an employer’s failure to remit
withholdings from an employee’s wages that were made pursuant to state, local, or federal law.
SB 400 (Stalking Protection) – Existing law prohibits an employer from taking adverse employment
action against a victim of domestic violence or sexual assault who takes time off from work to attend to
issues arising as a result of the domestic violence or sexual assault, as long as the employee complies with
certain conditions. It also provides protections to employees who are discharged, or discriminated or
retaliated against. SB 400 extends the protections to victims of stalking. It includes some accommodation
provisions as well.
Specifically, this bill:
1. Extends specified existing protections for victims of domestic violence and sexual assault to also
include victims of stalking.
2. Prohibits an employer from discharging, discriminating or retaliating against an employee
because of the employee's know status as a victim of domestic violence, sexual assault, or
stalking, if the victim provides notice to the employer of the status or if the employer has actual
knowledge of the status.
3. Requires an employer to provide reasonable accommodations for a victim of domestic violence,
sexual assault, or stalking who requests an accommodation while at work.
-6-
4. Specifies that reasonable accommodations may include the implementation of safety measures,
including a transfer, reassignment, modified schedule, changed work telephone, changed work
station, installed lock, assistance in documenting domestic violence, sexual assault or stalking, an
implemented safety procedure or another adjustment in job structure, as specified.
5. Specifies that an employer is not required to provide a reasonable accommodation to an employee
who has not disclosed his/her status as a victim of domestic violence, sexual assault, or stalking.
6. Provides that an employer shall engage in a timely, good faith, and interactive process with the
employee to determine effective reasonable accommodations.
7. Specifies that these requirements do not require an employer to undertake an action that
constitutes an undue hardship on the employer's business operations, as specified, including when
an action would violate an employer's duty to furnish and maintain a place of employment that is
safe and healthful.
8. Requires an employee requesting a reasonable accommodation, upon request of the employer, to
provide a written statement by the employee or an individual acting on the employee's behalf,
certifying that the accommodation is for an authorized purpose.
9. Authorizes an employer to also request certification demonstrating the employee's status as a
victim of domestic violence, sexual assault, or stalking, as specified, and authorizes the employer
to request recertification every six months.
10. Specifies that if circumstances change and an employee needs a new accommodation, the
employee shall request a new accommodation from the employer.
11. Specifies that if an employee no longer needs an accommodation, the employee shall notify the
employer that the accommodation is no longer needed.
12. Provides that an employer shall not retaliate against a victim of domestic violence, sexual assault,
or stalking for requesting a reasonable accommodation, regardless of whether the request was
granted.
13. Provides that an employee who is discharged or in any other manner discriminated or retaliated
against is entitled to reinstatement and reimbursement for lost wages and work benefits caused by
the acts of the employer, as well as appropriate equitable relief.
14. Provides that an employer who willfully refuses to rehire, promote or otherwise restore an
employee or former employee who has been determined to be eligible for rehiring or promotion is
guilty of a misdemeanor.
Handbook update
LEAVE FOR DOMESTIC VIOLENCE CRIME VICTIMS (All CA Employers)
Employees make take time off to obtain relief from domestic violence (such as seeking a restraining order
or taking other measures to protect the health, safety or welfare of the victim or his or her child). The
amount of leave is provided on a case-by-case basis; no time limits are specified. Employees are allowed
to use accrued vacation, personal time off and compensatory time off for this purpose. Please contact
[Human Resources] to request this leave.
See revised Jury Duty and Court Appearance policy
JURY DUTY AND WITNESS LEAVE (All CA Employers)
If you are summonsed for jury duty please make scheduling arrangements with your supervisor as soon as
you receive your summons or subpoena. You will receive up to ____ days per year for paid jury duty
leave. You are also allowed time off to appear in court to comply with a subpoena or other court order as
a witness in any judicial proceeding, including as a victim of a crime. You may use [PTO/vacation] pay
during the unpaid jury any unpaid leave.
-7-
LEAVE FOR VICTIMS OF DOMESTIC VIOLENCE, SEXUAL ASSAULT, OR STALKING OR
OTHER CRIMES [ALL CA EMPLOYERS WITH LESS THAN 25 EMPLOYEES]
An employee who is a victim of a crime may take time off to appear in court to comply with a subpoena
or other court order as a witness in any judicial proceeding. (See Jury Duty Section)
A victim of domestic violence, or a victim of sexual assault or stalking may take time off from work to
obtain or attempt to obtain any relief, including, but not limited to, a temporary restraining order,
restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the victim or his
or her child.
As a condition of taking time off under this policy the employee shall give the company reasonable
advance notice of the employee's intention to take time off, unless the advance notice is not feasible.
When an unscheduled absence occurs, the company will not take any action against the employee if the
employee, within a reasonable time after the absence, provides a certification to the employer.
Certification shall be sufficient in the form of any of the following:
п‚· A police report indicating that the employee was a victim of domestic violence, or sexual assault
or stalking.
п‚· A court order protecting or separating the employee from the perpetrator of an act of domestic
violence, or sexual assault or stalking, or other evidence from the court or prosecuting attorney
that the employee has appeared in court.
п‚· Documentation from a medical professional, domestic violence advocate or advocate for victims
of sexual assault, health care provider, or counselor that the employee was undergoing treatment
for physical or mental injuries or abuse resulting in victimization from an act of domestic
violence, or sexual assault or stalking.
п‚· An employee may use vacation, PTO, or comp time during time off.
To the extent allowed by law, the Company shall maintain the confidentiality of any employee requesting
leave under this policy.
LEAVE FOR VICTIMS OF DOMESTIC VIOLENCE, AND SEXUAL ASSAULT OR STALKING
[CA 25 OR MORE EMPLOYEES]
п‚· An employee who is a victim of a crime may take time off to appear in court to comply with a
subpoena or other court order as a witness in any judicial proceeding. (See Jury Duty and Witness
Leave)
A victim of domestic violence, or a victim of sexual assault or stalking may take time off from work
to obtain or attempt to obtain any relief, including, but not limited to, a temporary restraining order,
restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the victim
or his or her child. The employee may also take time off
п‚· To seek medical attention for injuries caused by domestic violence, or sexual assault or stalking.
п‚· To obtain services from a domestic violence shelter, program, or rape crisis center as a result of
domestic violence, or sexual assault or stalking.
п‚· To obtain psychological counseling related to an experience of domestic violence, or sexual
assault or stalking.
п‚· To participate in safety planning and take other actions to increase safety from future domestic
violence, or sexual assault or stalking, including temporary or permanent relocation.
As a condition of taking time off under this policy the employee shall give the company reasonable
advance notice of the employee's intention to take time off, unless the advance notice is not feasible.
-8-
When an unscheduled absence occurs, the company will not take any action against the employee if the
employee, within a reasonable time after the absence, provides a certification to the employer.
Certification shall be sufficient in the form of any of the following:
п‚· A police report indicating that the employee was a victim of domestic violence, or sexual assault
or stalking.
п‚· A court order protecting or separating the employee from the perpetrator of an act of domestic
violence, or sexual assault or stalking, or other evidence from the court or prosecuting attorney
that the employee has appeared in court.
п‚· Documentation from a medical professional, domestic violence advocate or advocate for victims
of domestic violence, or sexual assault or stalking, health care provider, or counselor that the
employee was undergoing treatment for physical or mental injuries or abuse resulting in
victimization from an act of domestic violence or sexual assault.
п‚· An employee may use vacation, PTO, or comp time during time off.
To the extent allowed by law, the company will maintain the confidentiality of any employee requesting
leave under this policy.
SB 435 (Heat Exhaustion Bill) –
1. Provides that, in addition to meal and rest periods, an employer shall not require any employee to
work during any "recovery period" mandated by any applicable statute, regulation, standard or
order of OSHSB or Cal/OSHA.
2. Defines a "recovery period" as a cool-down period afforded an employee to prevent heat illness.
3. Provides that an existing provision of law that requires an employer to pay an employee one
additional hour of pay at the employee's regular rate of compensation for each work day that a
meal or rest period is not provided also applies to work days that a "recovery period" is not
provided.
4. Provides that these provisions do not apply to an employee who is exempt from meal or rest or
recovery period requirements pursuant to other state laws.
Note: CA employers who have employees that work in hot conditions should be familiar with Cal/OSHA
Heat Illness Standards http://www.dir.ca.gov/dosh/heatillnessinfo.html
SB 462 (Attorney’s Fees in Wage Claims) – In any action brought for the nonpayment of wages, fringe
benefits, or health and welfare or pension fund contributions, existing law generally requires a court to
award reasonable attorney’s fees and costs to the prevailing party if any party to the action so requests.
SB 462 changes this by providing that where the employer is the prevailing party, the court can award
attorney’s fees and costs only if it finds that the employee brought the court action in bad faith.
SB 496 (Expanded Whistleblower Protections) – Significantly this bill prohibits an employer from
retaliating against an employee because the employer believes that the employee disclosed or may
disclose information to a government or law enforcement agency, or to a person with authority over the
employee or another employee who has the authority to investigate, discover, or correct the violation or
noncompliance, if the employee has reasonable cause to believe that the information discloses a violation
of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or
regulation, regardless of whether disclosing the information is part of the employee's job duties.
It also prohibits an employer from retaliating against an employee for disclosing, or refusing to participate
in an activity that would result in, a violation of or noncompliance with a local rule or regulation.
-9-
SB 530 (Criminal Background Checks) – This bill intends to close some loopholes and provide
additional tools and changes to existing law to make effective the existing state policy to remove
employment barriers to those who have committed crimes that have been expunged by the courts.:
1. Provides that an employer may not ask about or use as a factor in determining condition of
employment the fact that the person has a conviction that has been judicially dismissed or ordered
sealed.
2. Provides that an employer is not prohibited from asking an applicant about a criminal conviction
or seeking from any source information regarding a criminal conviction of, or entry into a pretrial
diversion, or similar program by the applicant if because of any state or federal law any of the
following apply:
A. The employer is required by law to obtain information regarding a conviction of an
applicant.
B. The applicant will be required to possess or use a firearm in the course of his/her
employment.
C. An individual who has been convicted of a crime is prohibited by law from holding the
position sought by the applicant, regardless of whether that conviction has been
expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed
following probation.
D. The employer is prohibited by law from hiring an applicant who has been convicted of a
crime.
SB 666 (Wage Protection for Immigrants) – Suspends or revokes an employer’s business license for
retaliation against employees and others on the basis of citizenship and immigration status, and
establishes a civil penalty of up to $10,000 per violation. Yes, you can still require employees to complete
an I-9 form.
SB 770 (Expansion of Paid Family Leave Program) – SB 770 expands the scope of the family
temporary disability program (aka Paid Family Leave or PFL) to include time off to care for a seriously ill
sibling, grandparent, grandchild, or parent-in-law, as defined. It also makes conforming and clarifying
changes in provisions relating to family temporary disability compensation. Effective July 1, 2014.
-10-
California Cases of Note in 2013
Gonzalez v. Downtown LA Motors 215 Cal. App. 4th 36 (2013) – Employer must pay piece-rate workers
for all hours worked. Employers must pay for all hours worked and may not average paid, productive
hours with non-paid, non-productive hours. This applies equally to employees paid on a piece-rate basis.
Westdorf v. West Coast Contractors 712 F. 3rd 417 (9th Circuit) – In this case, a project manager
assistant claimed sexual harassment and retaliatory discharge. The 9 th Circuit affirmed the dismissal of the
sexual harassment claim on the ground that 4 or 5 crude and offensive remarks were not so severe or
pervasive to create a hostile or abusive work environment. However, they did state that she may have a
retaliatory discharge claims on the grounds there was enough evidence to raise a question of fact whether
complaints about those remarks were the but-for cause of her termination.
Ignat v. YUM! Brands 214 Cal. App. 4th 808 (2013) – In this case the court said an employee can proceed
with an invasion of privacy claim after her manager related to fellow employees that Ms. Ignat’s absence
was related to her bipolar disorder. As a result, when she returned to work her co-workers avoided and
shunned her and one even asked a supervisor if she was likely to “go postal” at work.
Sanchez v. Swissport 213 Cal. App. 14th 31 (2013) – In this case the court ruled that an employee who
had exhausted four months of pregnancy leave was then entitled to additional disability leave under
FEHA.
Ventura v. ABM Industries 212 Cal.App.4th 258 (2012) – Court approves a claim under Civil Code
В§51.7 (Freedom from Violence) based on a history of alleged harassment and an act of violence from her
supervisor.
Harris v Santa Monica 56 Cal.4th 203 (2013) – in this case the California Supreme Court approved aof a
“mixed motive” instruction. It basically means that an employee can bring a lawsuit if discrimination was
a factor in a decision to terminate an employee, even where performance issues existed that warranted
termination. Only good news is that there damages will be limited. Per the Court:
We conclude that the Court of Appeal was correct in part. We hold that under the FEHA, when a
jury finds that unlawful discrimination was a substantial factor motivating a termination of
employment, and when the employer proves it would have made the same decision absent such
discrimination, a court may not award damages, backpay, or an order of reinstatement. But the
employer does not escape liability. In light of the FEHA's express purpose of not only redressing
but also preventing and deterring unlawful discrimination in the workplace, the plaintiff in this
circumstance could still be awarded, where appropriate, declaratory relief or injunctive relief to
stop discriminatory practices. In addition, the plaintiff may be eligible for reasonable attorney's
fees and costs. Therefore, we affirm the Court of Appeal's judgment overturning the damages
verdict in this case and remand for further proceedings in accordance with the instructions set
forth below.
В© 2014 www.hrthatworks.com
Документ
Категория
Без категории
Просмотров
21
Размер файла
797 Кб
Теги
1/--страниц
Пожаловаться на содержимое документа