Monthly Archives

February 2017

Bathroom Signage Requirement 3/1/17 – CA

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This is a reminder that a new laws goes into effect on March 1, 2017 that requires restroom signage changes if you have single use restroom that locks.  The signage must indicate that it is a unisex or all gender bathroom.

This law does not require the modification or addition of a restroom.  It only requires new signage if you have individual use restrooms.

The top 10 employment charges handled by EEOC in 2016, in descending order, were:

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The top 10 employment charges handled by EEOC in 2016, in descending order, were:

  • Retaliation: 42,018 (45.9 percent of all charges filed)
  • Race: 32,309 (35.3 percent)
  • Disability: 28,073 (30.7 percent)
  • Sex: 26,934 (29.4 percent)
  • Age: 20,857 (22.8 percent)
  • National Origin: 9,840 (10.8 percent)
  • Religion: 3,825 (4.2 percent)
  • Color: 3,102 (3.4 percent)
  • Equal Pay Act: 1,075 (1.2 percent)
  • Genetic Information Non-Discrimination Act: 238 (.3 percent)

If you should have any questions, please contact your HR representative at 925-556-4404.

New I-9 Handbook for Employers

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USCIS’s new M-274 “Handbook for Employers with Guidance for Completing Form I-9” is now available.  In addition to detailed I-9 completion instructions, the Handbook contains guidance on Photocopying and Retention, Unlawful Discrimination and Penalties, E-Verify. It also contains FAQs as well as images of sample documents.

The new I-9 Form went into effect on January 22, 2017.  Electronic copies of the English and Spanish versions of Form I-9 are available on the USCIS website or contact your HR Ideas Specialist at 925-556-4404.

Labor Commissioner’s Restaurant Wage Theft Case Results in Landmark Criminal Conviction

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A news release from the California Department of Industrial Relations (Labor Department) as follows:

San Diego restaurant owner sentenced to two years’ jail time for egregious wage abuses San Diego

California Labor Commissioner Julie A. Su announced that a San Diego restaurant wage theft investigation resulted in the owner’s conviction and sentencing to two years’ jail time for grand theft and labor violations. San Diego County Superior Court further requires the owner to repay $20,000 in stolen wages and tips to six of the restaurant workers. Evidence presented revealed that Zihan Zhang, owner of Antique Thai Cuisine in San Diego, targeted immigrant workers who were promised wages but then often paid only in tips. Some of the kitchen staff was paid as little as $4 an hour and forced to work during breaks and meal periods. The owner further collected a portion of the tips from the unpaid workers, and charged them $5 a shift for “glass breakage” to offset her operating costs. “Our investigation uncovered egregious wage theft and worker abuse – our collaboration with the San Diego District Attorney has resulted in the first criminal conviction of its kind in our state,” said Labor Commissioner Julie A. Su. “California will continue to hold the line in ensuring that workers’ rights are protected.” The Labor Commissioner’s Office referred the case in August 2014, and worked with the San Diego District Attorney’s Office to bring the case to trial. It is the first criminal jury trial conviction in California for felony grand wage theft by false pretenses. Zhang was convicted of two felony counts of grand theft of labor for failing to pay workers as promised, one felony count of grand theft of tips and six misdemeanor charges, including two for refusing to pay wages when she had the ability to do so and four counts for failing to provide itemized wage statements. “With the Labor Commissioner’s assistance, we delivered justice for workers who were repeatedly abused by a dishonest employer,” said San Diego County District Attorney Department of Industrial Relations Release No.2016-113

“Prosecuting these types of cases helps ensure a level playing field for honest employers to fairly compete in the marketplace.” The trial included testimony from one worker who worked 12 days in a row, including double shifts, and was not paid her hourly wage. Video footage showed the worker asking Zhang about payments she was owed when Zhang fired her. Zhang also charged another server for customers’ meals when they left before the food was served. The wage theft came to light in 2014 after some of the workers filed wage claims with the Labor Commissioner’s Office. The Labor Commissioner’s Office cited Antique Thai $36,617 in July of 2014, including assessments of $14,567 for rest and meal period premiums, wages, overtime and liquidated damages, and civil penalties of $22,050 for failure to provide itemized wage statements as well as overtime, minimum wage, rest and meal period requirements.

If you should have any questions, please contact your HR Ideas Specialist at 925-556-4404.

An Employee Fails to Return from Leave As Originally Scheduled—Has That Employee “Voluntarily Resigned”?

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What are employers to do if an employee has not provided a doctor’s note to continue his or her leave and the initial end date for that leave has passed? When can employers deem such an employee to have “voluntarily resigned”? Court cases reminds employers that they must scrutinize what communications they have received from such employees about their leaves and their own attempts at follow-up before considering an employee to be, “voluntarily resigned.”

On January 13, 2017, the California Court of Appeal for the Fourth Appellate District reversed the superior court’s grant of summary judgment in favor of the San Diego Community College District (the “College”) on the Plaintiff’s sole cause of action for retaliation in violation of the California Family Rights Act (“CFRA”).

Plaintiff had a history of being disciplined by the College for performance issues.  In early 2013, Plaintiff was disciplined again with a three-day suspension from work with no pay.  On the date Plaintiff was scheduled to return to work, Plaintiff notified the College of her need to take medical leave and provided a supporting doctor’s note.

On the date her original leave was set to expire, a Friday, Plaintiff emailed the College a second doctor’s note extending her leave an additional week. The College strongly denied ever receiving that email.  On that same date, the Plaintiff sent the College another email – which was received – stating that she was out on a medical leave and would notify all concerned of her return but provided no further detail of her return date or supporting documentation from her doctor.

Plaintiff continued to be absent from work the following work week (the “disputed week”). As a result, at the end of the disputed week, the College mailed Plaintiff a letter to inform her that her five consecutive unauthorized absences constituted a voluntary resignation.  As soon as the Plaintiff received the College’s letter, she immediately attempted to contact the College and provided the College with medical documentation supporting the medical necessity of her absences, but the College refused to reconsider.

The Court held that Plaintiff’s communications could be deemed to be a reasonable request for additional leave. The Court found that even if the second doctor’s note was not received, Plaintiff sent other communications which put the College on notice that she required further leave and was not, “voluntarily resigning” her employment.

This case serves as a cautionary tale to those employers who are tempted to declare an employee as having “voluntarily resigned” after that employee’s initial request for leave has expired. This decision provides employers with a good reminder that they should tread carefully when an employee is out on protected medical leave and take affirmative steps to determine the employee’s medical leave status if there is an apparent lack of certification for a certain time period.