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CHANGES IN THE NEW YEAR

The following is a brief overview of some of the changes in employment law (limited to changes in California state law or the City of Los Angeles) which may affect you as an employer as 2017 begins:

Minimum Wage - California minimum wage increases to $10.50 per hour on January 1, 2017 if you have 25 or more employees. [This increase will apply to smaller employers next year.]

Marijuana Use – Even with the passage of Proposition 64 which legalizes use of marijuana in California employers may continue to prohibit use, possession or having marijuana in the employee’s system at any time while working. Drug testing can continue to include testing for marijuana. There is no requirement for the employer to allow marijuana use, even medical marijuana. It is suggested that policies prohibit all drugs for which use is prohibited or restricted under state or federal law since marijuana continues to be an illegal drug under federal law.

Job Applications – With a few exceptions, inquiries related to juvenile court adjudications are prohibited. Additionally, employers in the City of Los Angeles are now prohibited from asking about criminal history on a job application. No inquiries of any kind about criminal history are allowed unless a conditional offer has been made to the applicant and then there must be an assessment (written) of the history as it relates to the employee’s job duties and position. Before adverse action is taken the individual must be allowed to respond to the assessment with additional information or documentation. Penalties under this ordinance will not be imposed until July 1, 2017.

DOL Exempt Salary Requirement – The DOL final rule that would significantly raise the federal exempt salary requirement, even above the current California level, has been stayed pending further action by the Texas District Court. However, based on the increase in minimum wage in California, the California required salary will increase to $43,480 per year or $3640 per month.

Cell Phones and Driving – In addition to prohibiting use of the phone or texting, California now prohibits any holding or use of a cell phone or other wireless communication device. Any use of such devices must be “hands free.”

Paid Sick Leave – The Los Angeles City Ordinance will apply to employers with 25 or fewer employees as of July 1, 2017. [Other City Ordinances (or changes in their Ordinances) related to Paid Sick Leave go into effect in 2017.]

Employer Notices – An employer must provide new employees (and current employees on request) with information on their rights regarding discrimination against victims of domestic violence, sexual assault, and stalking. However, the notice is not required until the Labor Commissioner provides a model notice which must be available by July 1, 2017. Employers also must notify employees that they may be eligible for the California (in addition to the federal) Earned Income Tax Credit.

Rest Periods – The California Supreme Court has issued a decision that on-call rest periods are not allowed. Rest periods must be uninterrupted. Therefore, an employee cannot be expected to be available to return to work during a rest period. The employer must relinquish all control over the employee during break time. This will be problematic for employers who have single employees at the worksite – e.g., security guards, sole clerk at a retail store or gas station, etc.

Restroom Accommodation – Single user toilet facilities must be identified as all-gender toilet facilities.

What this means for you - All employers should review their wage rates, benefits, and other policies and practices to ensure compliance with the above changes.

If you have any questions or require additional assistance please contact GMK employment law attorney Jeanne Flaherty at 818-755-0444 or jflaherty@gmklaw.com.

Happy Holidays!

To All of our Clients:

Thank you for your business in 2016. We appreciate your loyalty and support of GMK. Happy Holidays from all of us at GMK. We wish you a happy, healthy and prosperous New Year.

Your friends at Goldman, Magdalin & Krikes, LLP

NEW DOL EXEMPT EMPLOYEE SALARY RULE

The U.S. Department of Labor (DOL) has adopted a final rule which changes the salary requirement for exempt employees. Previously under federal law an employee who otherwise meets the duties requirements for exempt status had to be paid an annual salary of at least $23,660. The new rule requires an annual salary of at least $47,892. Based on this new rule employers will need to ensure that all exempt employees meet this minimum salary requirement.

Under the federal requirement employers can add nondiscretionary bonuses to meet the required salary level but only up to 10% of the salary. This rule was expected to go into effect on December 1, 2016.

On November 22, 2016, a Texas district court issued a preliminary (temporary) injunction which enjoins DOL from implementing or enforcing this rule on a nationwide basis pending a further decision by the court. Thus, the new salary requirement cannot currently be enforced by the DOL.

What this means for you:

1) While the change in the federal salary requirement will not go into effect immediately, this could change if the further order of the court upholds the DOL final rule. While it is unlikely that this ruling is imminent, it is possible that the court could uphold the final rule and make it retroactively effective as of December 1, 2016. Alternatively, if the court does not uphold the final rule employers will not need to make any changes in salary based on a new federal requirement. Given the court’s language in the current decision it appears that the court may find that the DOL exceeded its statutory authority in setting the salary requirement and subjecting it to automatic updates.

2) Contrarily, California employers presently must meet the salary requirement under state law which is twice the state minimum wage. Thus, the current California annual salary requirement is $41,600 but this will increase to $43,680 when the new statewide minimum wage ($10.50 per hour for employers with more than 25 employees) goes into effect on January 1, 2017. Furthermore, under California law bonuses may not be included in determining the salary for the exempt employee.

If you have any questions or require additional assistance please contact GMK employment law attorney Jeanne Flaherty at 818-755-0444 or jflaherty@gmklaw.com.

The Statute of Limitations is Alive and Well: The WCAB Has Rejected the Applicant’s Petition for Reconsideration of A “Take Nothing” Obtained by GMK

The WCAB has recently affirmed a “Take Nothing” issued by the San Diego Presiding Judge where the Statute of Limitations was asserted as an affirmative defense.

The Applicant, ironically a workers’ compensation defense attorney, initially mentioned to her employer that she was having back complaints but also that she had no intention of filing a workers’ compensation claim. A couple of months later, however, she informed her employer that she would like to “designate” a treating physician.

The employer immediately provided the Applicant with a Claim Form. The Applicant did not sign or return the Claim Form to the employer. However, the employer reported the potential claim to its workers’ compensation carrier which conducted an inquiry and promptly issued a denial letter.

Following her departure from that employment and then after working for another law firm as a defense attorney for another year the applicant chose to litigate a claim against her first employer and filed an Application for Adjudication nearly 1½ years after the DWC-1 had been provided to her and her claim was denied.

The Defendant raised the Statute of Limitations (Labor Code §5405) which gives the employee one year from the date of injury within which to file the Application. The Applicant argued that the Statute of Limitations should be tolled for the period that the Applicant treated through her private health insurance. The Applicant was pursuing two years of Temporary Disability and was requesting back surgery.

The Trial Judge indicated in his Opinion that the Applicant had “carefully weighed the pros and cons and made an informed decision not to assert a legal claim” which could have been done so timely. The Judge further concluded that a timely-filed claim would have provided an “incentive and opportunity” for a full investigation, and that her waiting until nearly 1½ years later to pursue the claim resulted in “more complex legal and factual issues for discovery and for medical/legal determination.”

The Judge also added that “[t]he law favors the prompt reporting of work injuries by employees (Labor Code §5400), and the prompt investigation of work injury claims by the employer (Labor Code §§5401, 5402). When the employer provided [the Applicant] with a claim form, and [the insurer] provided notice of her rights, the statute of limitations to file a legal claim was triggered. Having met its statutory obligations, the employer is entitled to the finality the statute of limitations is intended to provide.”

Upon Reconsideration the Board adopted and incorporated the ruling of the Trial Judge in denying the applicant’s appeal.

What This Means For You:

It is important to keep in mind that an Applicant is responsible for timely pursuing a workers’ compensation claim. Here, the untimely filing of an Application for Adjudication of Claim following the employer’s timely denial of liability proved to be fatal to her ability to pursue benefits before the WCAB.

This matter was litigated by Terence Tungseth, a Senior Associate Attorney in GMK’s Brea Office who has been with the firm for nearly fifteen years.

NEW MANAGING ATTORNEY IN SACRAMENTO OFFICE

Marc Borenstein, Associate in GMK’s Los Angeles Office has been appointed Managing Attorney of GMK’s Sacramento Office.

Marc graduated from Yeshiva University in 2005 with a Bachelor of Arts degree, and received his Juris Doctor degree from Loyola Law School, Los Angeles in 2009. Marc began his career at Goldman, Magdalin & Krikes, LLP in 2010 in our Los Angeles Office. He currently represents employers, self-insureds and insurance carriers in all aspects of Workers’ Compensation defense.

Marc is a frequent speaker at GMK’s Annual Seminar and will participate at both the Claremont and San Diego Seminars this year.

We congratulate Marc on his move to the Sacramento Office and this exciting opportunity for Marc and GMK.

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