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Rose Mediation's ADR Newsletter - November/December 2013

Ken Rose is the founder and President of Rose Mediation []. Through Rose Mediation, Ken serves as mediator of legal disputes throughout California and adjoining States, most particularly employment law matters, including wrongful termination, wage and hour, class actions, breach of contract, discrimination, harassment, retaliation, and misappropriation of trade secrets/unfair competition cases. Ken Rose

Best wishes for the upcoming Holidays. Our year-end Newsletter provides a summary of new California employment legislation that takes effect in 2014. Contact me to discuss any cases you believe can be resolved through mediation or arbitration. I handle matters throughout California and adjoining States.

Ken Rose's Signature


Businesses with operations in California become subject to an array of new employment-related legislation that goes into effect in 2014. Unless otherwise noted, these bills take effect on January 1, 2014.


1. SB 292: Sexual Harassment Definition Clarified-- Sexual Desire Not Required
The definition of sexual harassment under the California Fair Employment and Housing Act (FEHA) now specifically provides that employees who assert claims of sexual harassment need not show the harassment is motivated by sexual desire. SB 292 is in response to the California Court of Appeal’s decision in Kelley v. Conco Companies, 196 Cal. App. 4th 191 (2011). In Kelley, the Court held that a male worker failed to establish a hostile work environment sexual harassment claim because he did not show that the harasser, also male, was a homosexual or was motivated by sexual desire.

2. AB 556: Military and Veteran Status Now a Protected Category Under FEHA
An amendment to the FEHA adds "military or veteran status" as a class protected from employment discrimination. "Military or veteran status" is defined to cover "a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard." The law allows employers to inquire regarding an applicant’s or employee’s military or veteran status for the purpose of awarding a veteran’s preference as permitted by law.


3. AB 241: Domestic Workers Now Eligible for Overtime Pay
This bill, entitled the "Domestic Workers Bill of Rights," mandates overtime pay for domestic employees, including childcare providers (e.g. nannies), caregivers for the disabled or elderly, house cleaners and personal attendants. Private individuals employing domestic workers must pay such employees overtime at a rate of time-and-a-half for all hours worked in excess of 9 in one day or more than 45 hours in one week. "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. Although the new requirements apply to "childcare providers," the statute specifically exempts "babysitters" who are either minors or are "casual babysitters" employed on an irregular and intermittent basis, as long as they do not perform a "significant amount of work" other than supervising, feeding and dressing children. Also exempted from this new requirement are workers who are close relatives (a parent, grandparent, spouse, sibling or child) of the employer, and employees who are employed under various State health and welfare programs or work for certain licensed facilities.

4. SB 462: Limit on Prevailing Employer’s Right to Attorneys’ Fees in Wage Suits
California Labor Code Section 218.5 was amended to limit employers’ ability to recover their attorney’s fees and costs as the prevailing party in actions for nonpayment of wages. Under the amendment, prevailing employers can recover their attorney’s fees costs only if they prove that the employee brought the wage law action in "bad faith."

5. AB 10: CA Minimum Wage Increase Effective July 1, 2014
On July 1, 2014, the hourly minimum wage rate for non-exempt employees will increase by $1.00, to $9.00. Effective January 1, 2016, the minimum wage will increase to $10.00 per hour.

6. AB 442: Labor Commissioner Can Award 2x Damages for Minimum Wage Violations
Authorizes the California Labor Commissioner to award liquidated damages to employees in an amount equal to the unpaid wages, plus interest, when the employer violates California’s minimum wage law. Employers can defend against such awards by demonstrating that they acted in good faith and had reasonable grounds for believing they were in compliance with the minimum wage requirements.

7. AB 263: Expansion of Protections for Exercising Rights Under Labor Code
Amends Labor Code Section 98.6, which protects employees who assert their rights under the Labor Code. AB 263 prohibits retaliation or adverse action against employees for exercising their rights under the Labor Code (current law only explicitly prohibits discharge and discrimination). AB 263 also expands protected conduct under Labor Code Section 98.6 to specifically include a written or oral complaint by an employee that he/she is owed unpaid wages, and adds a civil penalty of up to $10,000 per employee for each violation. (AB 263 also provides expanded rights to employees based on immigration status. See, Section 12 below.)

8. AB 1386: Labor Commissioner’s Authority to Place Lien on Employer’s Property
This bill adds a new wrinkle to the California Labor Commissioner’s authority to hear employee complaints regarding the payment of wages and other employment-related issues. The bill provides that once a Labor Commissioner order, decision, or award resulting from a hearing becomes the final order for the action, a lien is created and the Labor Commissioner may record a certificate of lien with the recorder of any county in which the employer’s real property is located. The lien would continue on the employer’s real property until satisfied or released, or for 10 years.


9. SB 400: Time Off for Victims of Stalking; Accommodation for Victims of Domestic Violence, Sexual Assault and Stalking
California Labor Code sections 230 and 230.1 are amended to prohibit discharging, discriminating against, or retaliating against employees who are known or suspected victims of stalking. SB 400 also adds a provision to Labor Code section 230 that requires employers to provide reasonable accommodations to victims of domestic violence, sexual assault, and stalking. After an employer becomes aware of an employee’s "status" as a victim of domestic violence, sexual assault, or stalking, and the employee requests a reasonable accommodation to ensure his or her safety at work, the employer must engage in a "timely, good faith, and interactive process with the employee to determine the effective reasonable accommodations."

10. SB 288: Employment Protections for Crime Victims
Prohibits employers from discharging, discriminating or retaliating against employees for taking time off from work to appear in any court proceeding in which the employee’s rights as a victim of a crime are in issue. Employees who are discharged or otherwise discriminated against because they have taken such time off may file a complaint with the California Division of Labor Standards Enforcement and are entitled to reinstatement and reimbursement for lost wages and benefits for violations.

11. SB 770: Paid Family Leave Benefits
Expands the scope of California’s Paid Family Leave benefits to include time off to care for a seriously ill grandparent, grandchild, sibling or parent-in-law. This bill takes effect on July 1, 2014.


12. AB 263: Employment retaliation: immigration-related practices
Prohibits an employer from engaging in "unfair immigration-related practices" when an employee asserts protected rights under the Labor Code. An employer may not threaten to contact, or contact, immigration authorities because an employee complained that he/she was paid less than the minimum wage.

13. SB 666: Retaliation Based on Immigration/Citizenship Status
An employer’s business license may be suspended or revoked if the California Labor Commissioner or a court finds that the employer has retaliated against a complaining worker by making a report or threatening to report the citizenship or immigration status of a worker or the worker’s family member. Employers are not subject to the suspension or revocation of a business license for requiring a worker to verify eligibility for employment under the Form I-9.

14. AB 524: Criminal Extortion for Threatening to Report Immigration Status
Provides that a person may be guilty of criminal extortion if he/she threatens to report the immigration status or suspected immigration status of an individual, or his/her relative or a member of his/her family.


15. SB 530: Additional Limits on Criminal Background Checks
California Labor Code section 432.7 prohibits employers from asking employees or applicants about arrests that did not result in conviction (except for those arrests for which the individual is still awaiting trial), or about participation in a pretrial or post trial diversion program. This bill expands Labor Code section 432.7 to also prohibit most employers from asking applicants to disclose, or using as a factor in employment decisions, any information concerning a conviction that has been judicially dismissed or ordered sealed.

16. SB 496: Whistleblower Protections
Expands whistleblower protections under California Labor Code section 1102.5 to prohibit an employer from making, adopting, or enforcing any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, if the employee has reasonable cause to believe that the information discloses a violation of or noncompliance with a local rule or regulation. The bill also 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, 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. |  Mediator Ken Rose |  Mediation Services |  Other ADR Services
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