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(323) 652-9451 - LARecognizing that many California businesses unwittingly employ non-citizens, and given the Trump Administration’s focus on Immigration Customs and Enforcement (ICE), we provide this update on anticipated ICE activities.
The administration suggests a higher chance of ICE worksite visits, usually based on civil or criminal warrants.
ICE’s Enforcement & Removal Operations (ERO) will likely prioritize non-citizens with serious criminal records or removal orders. The risk of untargeted workplace “raids” is low, but I-9 “audits” are expected to increase.
In an I-9 audit, ICE’s Homeland Security Investigations (HSI) issues a Notice of Inspection and collects I-9s. In California, employers must post the notice and notify any union.
Employers are liable for missing or erroneous I-9s but not for documents that seemed valid at hiring. ICE may now bypass the traditionally required Notice of Suspect Documents and arrive with a civil warrant for immediate arrests.
We know it is common to ask about transportation and driver’s licensure during the application process for many jobs. A new law addresses this.
Effective January 1, 2025, California Senate Bill 1100 (Gov. Code Sec. 12940), prohibits employers from requiring a driver’s license in job postings unless the prospective job meets a two-part test: (1) driving must be a job function, and (2) alternative transportation must be impractical in terms of cost or time.
This change aims to remove employment barriers for qualified candidates without licenses. Violations may result in injunctions, damages, legal fees, and costs..
To comply, employers should:
Determine if your existing or contemplated job posting (recruitment or hiring) practices require a driver’s license
Assess job roles to see if they meet the test
Update job descriptions and postings accordingly
Review handbooks and policies for necessary changes
Train hiring staff to avoid unnecessary license inquiries
Reminder: California employment laws change constantly. Your employment practices must be kept up to date and communicated to workers in an acknowledged handbook. This is an ideal time to update your employee handbook and confirm your policies comply with current law. We are pleased to assist. Contact us here.
Employers are now prohibited from requiring employees to attend meetings or participate in communications concerning the employer’s opinions on religious or political matters, including union organizing. This legislation aims to protect employees from coercion regarding personal beliefs.
The state minimum wage rose to $16.50 per hour for all employers regardless of size. Fast-food workers at chains with more than 60 locations nationwide will earn a minimum wage of $20 per hour, effective April 1, 2024.
Municipalities within the state can institute their own minimum wage. Incorporated areas of Los Angeles, for example, is $17.28. With the rise in the state minimum wage, the annual minimum salary for exempt employees has increased from $66,560 to $68,640 per year across California.
| Los Angeles County enacted a new Fair Chance Ordinance, set to take effect on September 3, 2024, which expands California’s existing “Ban the Box” law by introducing additional requirements for employers with five or more employees within unincorporated areas of Los Angeles County.
Under the Ordinance, employers must: · State that qualified applicants with arrest or conviction records will be considered for employment. · Specify any laws that restrict or prohibit hiring individuals with certain criminal histories. · Include a list of all material job duties for positions where a criminal background may directly and negatively impact employment, potentially leading to the withdrawal of a conditional job offer. Further, like the statewide Fair Chance Act, the LA Ordinance prohibits employers from asking about criminal convictions until after a conditional job offer has been made. If an employer plans to conduct a background check at this stage, it must first provide detailed written notice. The Ordinance prohibits employers from considering: (1) arrests not followed by conviction; (2) referrals or participation in a diversion or deferral of judgment program; (3) convictions that are sealed, dismissed, or expunged; (4) juvenile records; (5) non-felony convictions for possession of marijuana that are more than two years old; (6) any conviction more than seven years old; (7) infractions, with the exception of some driving infractions; and (8) convictions arising out of conduct that has been decriminalized since the conviction. An individualized assessment must be performed before rescinding a conditional job offer based on a criminal record. An employer intending to withdraw a conditional offer or take other adverse employment action must follow prescribed steps, and rejected candidates have the ability to challenge the decision. The Ordinance also contains certain notice and records retention requirements. It requires employers post a notice of the Ordinance at every worksite in unincorporated Los Angeles County and on Company webpages frequently visited by their employees or applicants. Employers with operations in unincorporated Los Angeles County should evaluate job listing and hiring practices to conform with the new Ordinance. |
| The California Private Attorneys General Act (PAGA) has done many things. Since its passage in 2016, it has resulted in an explosion of lawsuits, shuttered small businesses, put well over $100 million into the state’s coffers, and built substantial wealth for a huge band of gunslinging lawyers. What PAGA has not done is ensure uniform compliance with our state’s strict wage-hour laws. As a lawyer who frequently represents smaller employers, this is particularly disheartening.
Last week, Governor Newsom, working with state lawmakers and labor and pro-business groups, hammered out a deal to reform key aspects of PAGA. The reforms, if passed by the California Legislature and signed by the Governor by June 27th, will result in removal of a pending PAGA reform measure from the November ballot. The reforms are calculated to: · Encourage prompt compliance with wage-hour laws by capping penalties for employers who act quickly to fix policies and practices, and make workers whole, after receiving a PAGA notice. · Create new, higher penalties for employers who act maliciously, fraudulently, or oppressively in violating labor laws. · Increase percentage of penalties that go to employees from 25% to 35%. · Expand the number of Labor Code sections that can be cured to reduce the need for litigation. · Help to reduce the impact on small employers by providing a more robust right-to-cure process. · Allow courts to provide injunctive relief to compel businesses to implement changes in the workplace to remedy labor law violations. · Require employee(s) who sue to personally experience the alleged violations brought in a claim. We will continue to monitor these developments. Regardless of reforms, it is clear PAGA is not going anywhere. The very best way to avoid these potentially disastrous lawsuits is to ensure full compliance with California’s wage-hour laws. We encourage employers to audit their timekeeping, overtime, meal and rest break and reimbursement practices, as these are the most common PAGA violations. Additionally, if the reforms become law, on receiving notice of a PAGA claim, in the form of a letter to the Labor Workforce Development Agency (LWDA), employers should immediately act to “cure” violations to reduce penalties. We can assist with each of these efforts. Please contact us for help. |
If you required an employee to sign a contract with a non-compete clause, you may be required to give notice to current and former employees.
Gov. Newsom signed Assembly Bill (AB) 1076 last fall, which was codified at Bus. & Prof. Code § 16600.1, and requires employers, prior to February 14, 2024, to notify all current employees and former employees employed after January 1, 2022, whose employment contracts contain a noncompete clause that does not satisfy one of the limited exceptions, that the noncompete clause or noncompete agreement is void.
The notice must be in a written individualized communication to the particular employee(s) and delivered to the last known address and email address of the current or former employee. A violation constitutes an act of unfair competition under Bus. & Prof. Code §§17200, et seq. We can help you determine if you must give notice and complete the process, but don’t delay.
| Senate Bill (SB) 553, signed into law last fall, requires employers to implement a written Workplace Violence Prevention Plan (WVPP) on or before July 1, 2024. In addition to the WVPP, employers also must train employees on workplace violence hazards, maintain a violent incident log, and conduct periodic reviews of the WVPP. The new law will be enforced by California’s Division of Occupational Safety and Health (Cal/OSHA).
Codified at Labor Code Sec. 6401.9, the new law applies to most California employers, with exceptions for employers already covered by the Workplace Violence Prevention in Healthcare standard, employees teleworking from somewhere they choose that is not under the control of the employer, or workplaces inaccessible to the public and have less than 10 employees working at any given time. The new law mandates that employers establish, implement, and maintain a WVPP with specific required elements and procedures. The WVPP must be in writing and available to employees and authorized employee representatives at all times. The WVPP may appear as a stand-alone section in the employer’s existing Injury and Illness Prevention Program (IIPP) or as a separate document. In light of the extensive requirements under Section 6401.9, California employers should begin to take active steps to ensure compliance by July 1, 2024. These include: · Identify who will implement and administer the WVPP; · Assess potential workplace violence hazards; · Draft the WVPP; and · Prepare and conduct required training for supervisors and employees. We are here to guide employers through these new requirements. |
Effective January 1, 2024, two new California laws enhance protections for employees who use cannabis away from the workplace. SB 700 expressly prohibits employers from requesting information from job applicants relating to prior cannabis use. Assembly Bill (AB) 2188 prohibits employers from penalizing employees or applicants for off-duty cannabis use if it does not impair them at the workplace.
In AB 2188, the Legislature noted that the psychoactive chemical compound found in cannabis, may be stored in the body for as long as a month as a non-psychoactive cannabis metabolite after it is metabolized. The metabolites do not indicate that the individual is currently under the influence of cannabis, but only that s/he recently consumed cannabis. Because drug tests are intended to identify employees who may be impaired, the Legislature declared that tests that detect the amount of non-psychoactive metabolites in the blood do not accomplish that goal as they do not correlate to impairment on the job. In addition, alternative drug testing devices that do not rely on the presence of non-psychoactive cannabis metabolites, but which can identify the presence of THC in an individual’s bodily fluids, are more readily available and better indicators of impairment.
SB 700 expands AB 2188’s protections by prohibiting employers from requesting that applicants provide information about their prior cannabis use. However, SB 700 does not prohibit employers from inquiring about an applicant’s criminal history if doing so is otherwise permitted by law, such as from a legally obtained criminal history report, and if such information is otherwise lawful for an employer to consider in making employment decisions.
In the wake of SB 700, California employers should review their application process and any pre-employment drug screening protocols, as well as their policies and practices relating to drug screening in connection with hiring, discipline, and termination to ensure they will comply with the new law. We can assist with this process.
| Effective January 1, 2024, California Senate Bill (SB) 616 amends the Healthy Workplaces, Healthy Families Act of 2014, increasing the number of paid sick days (or hours) to which California employees are entitled each year from three days (or 24 hours) to five days (or 40 hours). Employers continue to have the option to provide paid sick leave by the accrual or lump sum (front load) methodologies.
Under the accrual method, the amended law now requires employers who use this method to ensure an employee will accrue no less than five days (or 40 hours) of accrued sick leave by the 200th calendar day of employment or each calendar year, or in each 12-month period. Additionally, for employers using the accrual method, the new law increases the accrual and carryover cap to 10 days or 80 hours. There is no carryover required for employers using the lump sum method. Employers are not required to pay out an employee for accrued but unused paid sick days at the end of employment, although employers must reinstate unused paid sick days if an employee is rehired within one year. They must also provide employees with written notice that lists the amount of paid sick leave available either on the wage statement or in a separate writing provided on the pay date. Employers should revise their handbooks and policies to reflect this important change in the law. We can help with this. |
