California Employment News

Navigate California's at-will employment landscape, ensuring professionalism and legality in employee termination. Nikki Mahmoudi and Tomiwa Aina of Weintraub Tobin's Labor and Employment Group discuss the complexities on this installment of California Employment News. Watch this episode on the Weintraub YouTube channel Show Notes: Nikki: Hi, everyone. Thank you for joining us for this installment of the "California Employment News," an informative video and podcast resource offered by the Labor and Employment Group here at Weintraub Tobin. My name is Nikki Mahmoudi, and I'm an associate in the group. I'm joined today by Tomiwa Aina, another associate in the group. If you were able to join us at our March seminar, you'll recall that we discussed general considerations to keep in mind with employee terminations. Today, Tomiwa and I are going to expand on that. As we discussed in our CEN episode on employee discipline, an employee's termination should not come as a surprise. The key really is documentation. You want to make sure you're documenting performance and attendance problems, performance evaluations and counseling, documenting behavioral problems, documenting policy violations, disciplinary actions, as well as inquiries and investigations into misconduct and/or policy violations. That way, if you need to terminate an employee, it's not something completely out of the blue for them. With that said, when it comes to terminating employees, some general things you want to keep in mind. The default rule in California is an employer or employee may terminate the employee relationship at any time with or without cause and with or without notice. We call this at will. You have at-will employment in California. Before terminating an employee, you want to be able to articulate and, better yet, document the legitimate business reason for the termination, even if your employee is at will. Having a legitimate, non-discriminatory, or retaliatory reason for the termination is really the focus of any termination. The reason must be unrelated to the employee's protected class or protected activity. So, when I'm talking about discrimination and retaliation, discrimination is when employment decisions are not based on skills, qualifications, and ability but rather on protected characteristics. That's going to include race, color, national origin, religion, sex, gender, age, etc, stuff like that. With retaliation, what happens is you have a protected activity. Let's say an employee spoke out about or opposed what reasonably appeared to be an unlawful activity, and then you have an adverse employment action. What happens is after engaging in that protected activity, the employee suffered some adverse employment action. There's going to be a causal connection between that protected activity and the adverse employee action. Oftentimes, it's a closeness in time. Again, the thing is when you have to terminate an employee, you want to be able to articulate that legitimate business's decision that's not discriminatory and not retaliatory. Tomi, are there any other general tips you have for terminating employees? Tomiwa: Yes. Thanks, Nikki. In the case where you have actually planned to terminate an employee, there are certain things you want to keep in mind. First, you should prepare your recommendation as to the appropriate course of action for that employee. You want to also review all your supporting documentation to ensure their accuracy and that they are complete. Next, make sure you take a look at your action plan and review all supporting documents with the other decision-makers in your company. For example, if you need to consult with legal, your in-house counsel, or human resources. Also, before terminating the employee, there are certain questions you want to ask yourself, and a couple of them include: will the termination violate any public policy? Is there an outstanding or settled worker's compensation clai...

Get an overview of AB 1228's intricacies and its impact on fast-food workers, from wage increases to exemptions. Tomiwa Aina and Nikki Mahmoudi continue the discussion on the fast-food minimum wage increase in this installment of California Employment News.Review our previous episode, "Top Developments in Wage and Hour Law for 2024" Watch this episode on the Weintraub YouTube channel Show Notes: Tomiwa: Hello, everyone. Thank you for joining us today for this installment of the “California Employment News”, an informative video and podcast resource that's offered by the Labor and Employment Group at Weintraub Tobin. My name is Tomiwa Aina, and I am an associate at Weintraub Tobin. And today, I am joined with Nikki Mahmoudi, also another associate at Weintraub Tobin. Now, a few weeks ago, we had a “California Employment News” episode on the top developments in wage and hour law for 2024. In that episode, Ryan Abernathy and Lucas Clarey briefly touched on the new legislation, AB 1228. That legislation increases the wages of fast food workers to $20 an hour, effective April 1, 2024. This legislation also creates the Fast Food Council, and since this law was announced, there has been quite a bit of confusion, and many employers are left wondering as to whether or not the law applies to them. We have gotten some clarification from the Department of Industrial Relations in a March 2024 Frequently Asked Questions that they published, as well as from the Fast Food Council meeting on March 15, 2024. So thank goodness for that. Today, we will discuss some of those clarifications with you, as well as a quick overview of the new law. Now, you can find a link to the FAQ in the text below. However, we'd like to note that today is just a brief overview of the subject, and it's important to check with your council if you have any questions as to whether or not the fast food increase applies to your workers. Also, as a word of caution, since the increase in the workers' wages just went into effect on April first, we anticipate that more clarification from the Department of Industrial Relations will follow, and also from the Fast Food Council. What we're discussing today, though, is based on what we know as of April 1, 2024. Now, Nikki, can you tell me a little bit more about the fast food wage increase and who it applies to? Nikki: Of course. Let's get into it. As I'm sure you're aware, the California minimum wage, effective January 1, 2024, is $16 an hour. But under AB 1228, as of April 1, 2024, the minimum wage for fast food restaurant employees is $20 an hour. This law also establishes a Fast Food Council who will meet regularly to develop new minimum employment standards specific to the fast food industry, including future minimum wage increases, as well as working hours and working conditions. So, who are fast food restaurant employees? A fast food restaurant is defined as a limited service restaurant in the state, so California, that is a party of a national fast food chain. What does that mean? We're going to break that down even more. A limited service restaurant is going to include an establishment within the North American Industry Classification System Code 722513. I'm probably not making this any more clear, but we'll break it down even more. This is consisting of establishments primarily engaged in providing food services where patrons generally order or select items and a day before eating. And food and drink at these restaurants can be soon on-premises, taken out, or delivered to the customer's location. Examples are going to include takeout sandwich shops, pizza delivery shops, and so on. Now, the Fast Food Council and the Department of Industrial Relations, or the DIR, as we call it, in their FAQs has clarified that other establishments could also fall under a limited service restaurant. That's going to include chain donut stores, ice cream shops, café selling coffee and tea, boba tea shops, and so on.

Having a fair and meaningful disciplinary process can be a helpful tool for employers to improve employee performance. In this episode of California Employment News, employment attorneys Meagan Bainbridge and Nikki Mahmoudi share their best practices for implementing effective disciplinary procedures in the workplace. Watch this episode on the Weintraub YouTube channel. Show Notes: Meagan:Hello, everyone. Thank you for joining us for this installment of “California Employment News,” an informative video podcast resource offered by the Labor and Employment Group at Weintraub Tobin. My name is Megan Bainbridge, and I'm a shareholder in the firm's labor and employment group. And today, I'm joined by my associate, Nikki Mahmoudi. If you will join us at our seminar last week, you will recall that we discussed some of our best tips for addressing and improving employee performance. Today, Nikki and I are going to expand on that and specifically discuss and address implementing effective disciplinary procedures and policies. Nikki, can you start by telling us a few tips for ensuring a fair and meaningful disciplinary process? Nikki:Of course. When it comes to employee discipline, it's important to remember why you're doing it. The whole purpose of disciplinary action is to correct, not punish. That creates a better work staff and boosts employee morale. For a fair disciplinary process, you want to make sure to; one, notify employees of expectations that can be through your policies, job descriptions, etc. Two, you want to make sure to not avoid issues until they grow. You want to address those issues head-on. You don't want to be in a situation where you have an employee who wasn't performing so well, but you've been giving them glowing reviews, and suddenly you want to terminate them, but you have nothing to show for it. So, address those issues head-on. Three, you want to make sure to provide training where appropriate, and four, make sure the punishment fits the crime. And when we're talking about that, in choosing your form of discipline, you want to make sure to ask yourself a few questions. What corrective action or improvement do you want to see from the employee? Is it a big or small issue? What's the appropriate form of disciplinary action in this case? Think about if an employee has been late one day versus six times and how that could be different and how you interact or discuss that with them. You want to think about what are your company policies? Have employees in similar situations been disciplined? Is the employer's situation capable of rehabilitation? And is the employee's conduct placing the employer, you, at risk of legal liability? Discipline and Employee. Megan, can you talk a little bit about other considerations when disciplining an employee? Meagan:Yeah. Well, generally, disciplinary actions should be consistent, they should be timely, and they should be objective. There are a number of considerations to be made when disciplining an employee. First, what's the nature of the problem? Is it a performance deficiency, misconduct, policy violation? What's the issue at hand? Because different issues are going to mandate different actions. You're obviously going to take a different action against someone who was tardy than someone who was caught embezzling money. Those are pretty extreme, but I think you understand what I'm trying to say. Second, what are the implications? In other words, is this the first in a long line of dominoes of some actions taken? You're also going to want to consider whether the employee has a prior record regarding the same or similar issue. An employee with no previous issues is likely to be treated differently than an employee with repeated issues. This is okay, but we just have to be able to explain why we are taking different actions. Could the issue be caused by a protected classification or a protected activity of an employee? Is there a disability possibly at play,

From minimum wage laws to confidentiality agreements, there have been several legal updates over the past year that apply to most CA employers. Lukas Clary and Ryan Abernethy break down five top developments in wage and hour law for 2024 in this special 50th edition of California Employment News. Watch this episode on the Weintraub YouTube channel here. Show Notes: Ryan: Hi, everyone. Welcome to the latest installment of “California Employment News.” I'm Ryan Abernathy, and I'm here with Lukas Clary, and we're both shareholders here at Weintraub Tobin’s Labor and Employment Practice Group. Today we're going to be going over and talking with you some things about five top developments in wage and our law this past year that should apply to most California employers. So, Lukas, why don't you start us off by sharing some of the developments you found for us? Lukas: Yeah. Thanks, Ryan. So, I think the first place I want to start is to remind everyone of changes around the minimum wage laws here in California. So, just a real quick recap: for about the past decade or so, we've been on what I call the march to $15, which was the march to get to $15 an hour as the minimum wage. It's kind of crazy to think about now, but as recently as just a decade ago, roughly the minimum wage was only $8 an hour. And then we slowly went up in small increments until getting to $15 within the last couple of years, depending on the size of your workforce. And many thought we were done once we got to $15, but it wasn't that simple. The bill actually required or implemented an instrument for periodic additional increases tied to inflation, and that recently got us to $15.50 as the statewide minimum wage last year. And now, beginning January 1 of this year, we are at $16 an hour as the statewide minimum wage. That is the rate regardless of employer size at this point. Then, beyond that statewide total, we also have to keep in account of local minimum wages that many employers need to be aware of. While no cities or counties can reduce the statewide $16 an-hour minimum wage, they are permitted to set higher minimum wages. And several cities, mostly around the Bay Area and parts of southern California, have done just that. We have local minimum wages in several cities that are upwards of $17, $18, and even, in some places, $19 an hour. So, employers in those areas need to be sure to check local minimum wages as well. Finally, this year, we have a few specific industries that now have higher minimum wages than even the statewide requirement. First, there's a new law that requires fast food employers, basically, those restaurants that offer primarily counter service, in chains with 60 or more nationwide locations, so think about your McDonald's, Subway, and Taco Bell-type places. They now have to pay a minimum wage of at least $20 an hour beginning this coming April 1. Then there's another bill that requires healthcare workers to earn minimum wages of anywhere from $18 to $23 per hour, depending on the size of the employer and the type of worker. So, employers in those industries should consult with their legal counsel to make sure they are paying the proper rate that applies to any one of their given employees. For all other employers, $16 is the local minimum now, but they should be aware of those minimum wages specific to the healthcare and fast-food industries because you should know your employees now have that out there if they want to make minimum wage in those fields. So, Ryan, beyond minimum wage, what other new wage and hour updates should employers be aware of? Ryan: Yeah, so this past year, we actually saw some big changes in the way that PAGA claims are treated here in California. So, just to remind everyone, the Private Attorney General Act, or the PAGA, it authorizes employees to file lawsuits to recover penalties from their employers on behalf of themselves, other employees, and the state of California for labor code violatio...

There are a number of statutes in California that grant eligible employees the right to take a leave of absence for various reasons. SB848 creates a new leave of absence entitlement under CA law regarding reproductive loss. Lizbeth “Beth” West and Shauna Correia review this new protected leave in this episode of California Employment News. Watch this episode on the Weintraub YouTube channel here. Show Notes: Beth: Hello. Thank you for joining us for this installment of California Employment News, an informative video and podcast series brought to you by the labor and employment group at Weintraub Tobin. My name is Beth West, and I'm a shareholder here at Weintraub Tobin and chair of the labor and employment department. I'm joined today by my partner, Shauna Correa. As you likely know, there are a number of statutes in California that grant eligible employees the right to take a leave of absence for various reasons. Today, we're going to discuss Senate Bill 848, which creates a new leave of absence entitlement under California law. Shauna, why don't you start us off and explain what types of leave SB848 provides for? Shauna: So, this is a new law that passed to provide up to five days of unpaid leave for employees who suffer a reproductive loss event. And this law fills a bit of a gap that was left by the bereavement law passed and took effect in 2023. This new law applies to any employer who has five or more employees. So, what is a reproductive loss event? A reproductive loss event is the day of, or in the case of a multiple-day situation, the final day of a failed adoption, a failed surrogacy, a miscarriage, a stillbirth, or an unsuccessful assisted reproduction. This includes, like I said, failed surrogacy and failed adoptions. Well, what does that mean? A failed adoption means that there was a dissolution or a breach of the agreement with the birth mother or legal guardian of the child to adopt the child so that the adoption does not take place or the adoption isn't finalized because some other party contests the adoption. So, who can take leave if there is a failed adoption? Any person who would have been the parent of the adoptee, meaning the child, if the adoption had been completed. Any of those people can take leave after a failed adoption. A failed surrogacy means that there was a dissolution or breach of the surrogacy agreement with the person that was going to carry the embryo or the embryo transfer was unsuccessful and it didn't transfer successfully to the surrogate. And so, if there is a failed surrogacy, the people who would have been the parents of the child can take leave because the surrogacy failed. This may seem to leave a little bit of a gap for the person who acted as a surrogate, who herself may have suffered a loss of the failed embryo transfer, but that person would be covered if they suffered an unsuccessful reproduction. Well, what does that mean? An unsuccessful reproduction is an unsuccessful round of either inner uterine insemination, embryo transfer, or other assisted reproductive technology procedure could involve a surrogate, or it could just involve the woman who is going to become the parent of the child. And likewise, if there is a miscarriage, stillbirth, or unsuccessful reproduction, rather, unsuccessful assisted reproduction, then the people who can take the leave are the person who is pregnant, or that person's current spouse or, domestic partner, or another individual. If that person would have been the parent of a child born as a result of the surrogacy. So, the example there would be the parent of a child being carried by a surrogate who may have had a stillbirth or miscarriage. This statute does not provide time off, however, to get an IVF procedure done or, to obtain medications, or deal with complications with these procedures. They just deal with the loss of the child to be or the failure of an adoption or failure of a surrogacy.

New laws in 2024 expand workplace protections for employees regarding their current and past cannabis use. Nikki Mahmoudi and Tomiwa Aina review these changes, previewed in our 2024 Employment Law Update seminars, in this episode of California Employment News. Watch this episode on the Weintraub YouTube channel here. Show Notes: Nikki: Hi, everyone. Thank you for joining us for this installment of California Employment News, an informative video resource offered by the Labor and Employment Group at Weintraub Tobin. My name is Nikki Mahmoudi, and I'm an associate in the group. I'm joined today by Tomiwa Aina, an associate in the group. Today we're going to be discussing some new laws in 2024 are expanding workplace protections regarding current and past cannabis use. If you attended the second session of our employment law update, you may have heard us talk about this. Tomiwa, why don't you start us off? Tomiwa: Thanks, Nikki. So one of the laws we discussed that went into, in fact, this year is AB2180. And according to this law, California employers are prohibited from discriminating against their applicants or employees in the hiring, termination, or in the terms and conditions of their employment based on their off-duty cannabis use or the results of an employer-required drug screening that detected non-psychoactive cannabis in their hair, blood, or urine or other bodily fluids. Now, one thing that's important to note about is law is that an employer can still choose to not hire or can choose to penalize a person based on a scientifically valid pre-employment drug screening that was conducted through methods that don't screen for non-psychoactive cannabis metabolites. The legislator noted that employers now have access to multiple types of tests that do not rely on the presence of non-psychoactive cannabis metabolites. THC is the chemical compound in cannabis that can indicate impairment and cause psychoactive effects. Now, after THC is metabolized, it's stored in the body as a non-psychoactive cannabis metabolites. Now, these non-psychoactive metabolites don't indicate impairment, only that an individual has consumed cannabis in the last few weeks. And this test for non-psychoactive metabolites is what most employers have been using until recently. Now, this new law, AB 2180, exempts certain applicants and employees from the build provisions, and such employees are the ones that are in the building and construction trades and the individuals in positions requiring a federal background investigation or clearance. The law also doesn't preempt state or Federal laws requiring applicants or employees to be tested for controlled substances as a condition of receiving federal funding or federal licensing related benefits or entering into a federal contract. So if you're an employer that falls into one of these categories, you can still use the tests you've been using. To test for non-psychoactive cannabis metabolids, or you can use impairment tests. Now, lastly, AB2180 also provides workplace protection for recreational and medical marijuana users, but it still allows employers to restrict cannabis use on the job. The law doesn't allow employees to possess, to be impaired by, or to use cannabis on the job. Now, Nikki is going to speak a little bit about another law that expands workplace protections for cannabis users. Nikki: So I'll be talking about SB700, which was effective January 1, 2024. And what SB700 did is it also provides workplace protections for marijuana users. It amends government code section 12954 to also make it unlawful for an employer to request information from a job applicant relating to the applicant's prior use of cannabis unless otherwise required by state or federal law. So what this means is that an employer cannot discriminate against an employee or an applicant based on information regarding prior use of cannabis. That's learned from a criminal history report unless otherwi...

California recently amended its sick leave law, the Healthy Families Healthy Workplace Act, by increasing paid sick leave accrual mandates and sick time cap amounts. Lizbeth ("Beth") West and Shauna Correia discuss these changes on this episode of California Employment News. Watch this episode on the Weintraub YouTube channel here. Show Notes: Shauna: Hello. Thank you for joining us for this installment of the California Employment News. My name is Shauna Correia, and I'm a shareholder here at Weintraub Tobin in the Labor and Employment department. And I'm joined by my partner, Beth West. As you probably know, California has had a paid sick leave law in effect since 2015, and that law has been amended effective as of January 1, 2024. So today we're going to discuss Senate Bill 6116, which amended the Healthy Workplace Healthy Families Act. And, Beth, would you be so kind as to summarize the law for us? Sure. Beth: Thanks, Shauna. So, under the Healthy Workplace Healthy Families Act, most full-time, part-time, and even temporary employees are entitled to earn paid sick leave, often referred to as PSL. If the employee works for the same employer in California for at least 30 days within a year. PSL can be used by an eligible employee for themselves or a family member for various reasons, such as preventative care or diagnosis, care for treatment for an existing health condition, or for specific purposes for things like victims of domestic violence, sexual assault, and stalking. As stated in the statute, there are different methods that the employer can use to provide PSL to employees. One is the statutory accrual method. Under this statutory accrual method, an employee earns 1 hour of PSL for every 30 hours worked upon commencement of employment. There's an alternative accrual method that's permitted that allows the employer to provide PSL under a company policy, either sick leave or PTO policy, provided certain conditions are met, and Shauna will explain in more detail based on SB 1616, excuse me, what those conditions are. There's also a provision in the statute for grandfathered policies. In some cases, if an employer had a policy in place before the law went into effect in 2015, the employer can continue to use that policy to meet its obligations under the law, provided the policy meets the conditions outlined in the statute. And again, Shauna will explain what those are because they were modified by SB 616. There's also a nonaccrual method, an alternative to providing PSL, often referred to as the lump sum or front-loaded method, and that allows the employer to provide employees with the required amount of PSL at the beginning of a year-long period. And Shauna will explain what SB 1616 states is required to be provided to employees under that method. If an employer is using an accrual method, the law allows the employer to place a cap on the total amount of paid sick leave an employee can accrue, provided the cap is no less than the cap stated in the statute. Also, the law permits an employer to limit the total amount of paid sick leave an employee can use in a given year, again, provided that the limit is no less than that stated in the statute. Under the law, the employer gets to determine the applicable twelve-month measurement period in which paid sick leave is earned and used, for example, a calendar year or the employee's anniversary year. And then finally, while accrual of paid sick leave begins upon higher or is earned all at once if the employer is using the front load method, an employer may choose to implement a 90-day waiting period before an eligible employee can use earned paid sick leave. Shauna, why don't you now explain SB 616 and the changes it made to the sick leave law? Shauna: Sure. So, SB 616 amended the Healthy Workplace Healthy Families law in a few key ways. I'll go through the major changes, which are minimum accrual use, minimum leave carried over the alternative accrual...

New legislation coming into effect in 2024 could have CA employers facing greater risks when it comes to using and enforcing non-compete agreements. Ryan Abernethy and Nikki Mahmoudi discuss the enforceability of non-compete agreements in this installment of California Employment News. Watch this episode on the Weintraub YouTube channel here. Show Notes: Ryan: Hi, everyone. Thank you for joining us for this installment of California Employment News, an informative video resource offered by the Labor and Employment Group here at Weintraub Tobin. My name is Ryan Abernethy, a senior attorney here in the group. And I'm joined today by Nikki Mahmoudi, an associate in the group. And today we're going to be discussing non-compete agreements in California. Nikki, can you tell me a bit about non-compete agreements here in the state? Nikki: Of course. So, first I'll start explaining what a non-compete agreement is. So, in the employment context, a non-compete agreement is a contract where an employee agrees not to compete with their employer, for instance, for working for a competitor for a specified period of time if the employee quits or is terminated. So, in California, under Business and Professions Code Section 16 600, noncompete agreements are not generally enforceable. But there are some limited statutory exceptions, and those include against existing employees or against the seller of a business. So it's nothing new that non-compete agreements are generally not enforceable in California. But in September of this year, Governor Newsom signed SB 699 into law, which will bolster California's prohibition of non-compete agreements. Ryan, can you tell me a little bit about SB 699? Ryan: Sure. So, SB 699 is brand new law. It's going to go into effect on January 1, 2024. It's going to be codified into the business and professionals code section. And essentially, what it does, it codifies some existing law and also extends the reach of California's restriction on non-compete agreements in several substantial ways. So, first, the new law provides that any contract that would be void under Business and Professions Code 1600, which is the old law that that is unenforceable even if the agreement was signed out of state under SB 699. In addition, it also prohibits employers and former employers from attempting to enforce a contract that is void regardless of whether the contract was signed and the employment was maintained outside of California. In addition, SB 699 prohibits employers from entering into a contract with a job applicant or employee that includes a provision that is unenforceable under section 16 600. And finally, and perhaps most significantly, in addition to the fact this is now reaching out of state, SB 699 creates a private right of action for employees, former employees, prospective employees, to sue their employers and any employer who violates the statute. And should they prevail, they can recover their actual damages, they can obtain injunctive relief, they can obtain attorney’s fees. So while employers primary risk used to be that their non competes wouldn't be enforceable under SB 699, this creates the additional liability for employers for merely entering into the unenforceable non-compete agreement in the first place. So, Nikki, are there any other takeaways that employers should be aware of? Nikki: Yeah. So with SB 699 coming into effect in 2024, California employers face greater risks when having employees sign these non-compete agreements or seeking to enforce such agreements. So employers should really make sure to review their employee contracts and practices and ensure they comply with this business and profession. Code section 1616 600.5. Of course, if faced with any questions, it's always a good idea to contact Council. Ryan: Thanks so much, Nikki. And thank you all joining us today. That does it for this presentation. And you can continue to find California employment news on our ...

The use of AI in the workplace can help streamline many tasks, but it can also come with potential discrimination concerns for employers. Meagan Bainbridge and Lukas Clary review some of these concerns and share best practices for employers in this episode of California Employment News. Watch this episode on the Weintraub YouTube channel here. Find part one of this two-part series here. Show Notes: Meagan: Hello, everyone. Thank you for joining us for this installment of the California Employment News, an informative video and podcast resource offered by the Labor and Employment Group at Weintraub Tobin. My name is Meagan Bainbridge, and I'm a shareholder in the firm's Labor and Employment group. Today, I am joined by my colleague and partner, Lukas Clary, for the second episode in our two-part series regarding artificial intelligence in the workplace. The first episode concentrated on what employers need to understand regarding AI’s implication on privacy and intellectual property. Today, we're going to focus on the potential discrimination concerns that can come out of the use of AI. Lukas, over the past few years, the EEOC has really led the charge for developing guidance with respect to the use of AI in the workplace. Why does the EEOC care so much? Lukas: Thanks, Meagan. Good question. Well, when we think about what the EEOC is, at its core, it's the federal agency tasked with enforcing Title VII. And Title VII generally prohibits employment discrimination based on a person's race, color, religion, sex, or national origin. So how does that relate to the use of AI in the workplace? Well, Title VII not only prohibits intentional discrimination, but also what we call in the legal world, disparate impact discrimination. Disparate impact occurs when an employer policy or practice that is neutral on its face has the effect of disproportionately excluding persons based on their race, color, religion, sex, or national origin, or other protected characteristic that will be unlawful disparate impact discrimination unless the policy or practice is job related and consistent with a business necessity. Examples of how that might come about in AI is by use of tests or selection procedures to aid in hiring, compensation decisions, or promotion decisions. If use of an algorithmic decision-making tool has an adverse impact on individuals of a particular protected class, then use of the tool will violate Title VII unless the employer can show that such use is both job-related and consistent with the business necessity. And then, even if it makes that showing, the employer will also need to show that there is not a less discriminatory alternative available. So, Meagan, how might this type of discrimination arise when employers use AI for decision-making? Meagan: Well, yeah. So potential discrimination in automated systems may come from various sources, including problems with the data themselves or those data sets, transparency, or the simple fact that developers who are making this computer software and applications do not understand the context to which a particular program will be used. All of this can lead to unintended consequences and possible discrimination. For instance, AI can be biased, creating concerns of illegal discrimination depending on how the technology and data are used. In a well-reported case several years ago, Amazon developed and utilized a tool to review job applicants' resumes. The company realized after implementing this tool that the system was not rating candidates for a software developer jobs and other such technical posts in a gender-neutral way. It found that the computer models were trained to vet applicants by observing patterns and resumes submitted from the company over a ten-year period, and historically, most of those came from men. As a result, women were unintentionally being screened out by the software. Obviously, that's a problem.

While AI has been a revolutionary development that can streamline and improve many workplace tasks, it also comes with legal hurdles that need to be carefully navigated. Meagan Bainbridge and Lukas Clary review some of the potential intellectual property and privacy concerns that can come about when employees use AI for work purposes in this episode of California Employment News. Watch this episode on the Weintraub YouTube channel here. Find part two of this two-part series here. Show Notes: Lukas: Hello, everyone. Thank you for joining us for this installment of the California Employment News, an informative video and podcast resource offered by the Labor and Employment Group at Weintraub Tobin. My name is Lukas Clary. I'm a shareholder in the firm's Labor and Employment Group. I am joined today by my partner, Meagan Bainbridge, who is also a partner in the Labor and Employment Group, for the first episode of our two-part series regarding artificial intelligence in the workplace. While AI has been a revolutionary development that can streamline and improve many workplace tasks, it also comes with some legal hurdles that need to be carefully navigated. Today, we're going to focus on a couple of those potential intellectual property and privacy concerns that can come about when employees use AI for work purposes. Meagan, before we dive too far into that, I think it would help to start with just a brief overview of the various ways employers can use AI. Meagan: Yeah, that would be helpful. And we should actually first explore what is actually considered AI. Congress defined AI to mean a machine-based system that can, for a given set of human defined objectives, make predictions, recommendations, or decisions influence real or virtual environments. That's just a lot of words to essentially mean in the employment context. Using AI has typically meant that a developer relies partly on the computer's own analysis of data to determine what criteria to use when making decisions. One of the ways employers have begun to utilize AI the most is with recruiting and hiring decisions. For instance, there are virtual assistants or chat bots that ask job candidates about their qualifications and reject those who do not meet predefined requirements. There's video interviewing software that can evaluate candidates based on facial expressions and speech patterns. And there's testing software that provides job fit scores for applicants or employees regarding their personalities, aptitudes, cognitive skills, or perceived cultural fit based on their performance on a game or a more traditional test. There's also computer software and apps to use AI with to help performance management, aid employers with learning and developing development, tracking efficiency, determining pay scales, and monitoring employee satisfaction. In many ways, AI can make employers' lives easier, as there are automated methods that can take place of work previously done by humans. But with the good often comes the not so good. Lukas, can you tell us a little bit about some of the concerns employers should have using AI in the workplace as it relates to privacy and intellectual property issues? Lukas: Right. Well, I think both privacy and intellectual property concerns start from similar places. So the first issue we have to think about is what information are employees putting into the AI platforms they are using? So AI relies on access to a vast amount of information for it to function properly, and employees may be uploading information to these platforms that will aid them in carrying out certain tasks. So, for example, employees might provide the platform with voluminous material and ask AI to summarize that material. Or employees might provide some type of source code or confidential code or some other confidential material and ask AI to do things like use that information, repair something, or improve the product.

California will see an increase to minimum wage in January 2024 and has already seen some minimum wage increases in individual jurisdictions earlier this year. Nikki Mahmoudi and Tomiwa Aina review these changes in this episode of California Employment News. Watch this episode on the Weintraub YouTube channel here. Show Notes: Nikki: Hi everyone. Thank you for joining us for this installment of California Employment News, an informative video resource offered by the Labor and Employment Group here at Weintraub Tobin. My name is Nikki Mahmoudi, and I'm an associate in the group. I'm joined today by Tomiwa Aina, another associate in the group. Today we will be discussing the increases in California minimum wages. So, beginning in 2024, California's minimum wage will increase from $15.50 to $16. And the reason that this is happening is the California Department of Finance explained that the minimum wage needed to rise to account for inflation. However, since local jurisdiction minimum wages are often higher than the state minimum wage, we want to go with that higher number. In fact, on July 1, 2023, there were increases in the minimum wages in various jurisdictions. Tomiwa, could you tell me more about this? Tomiwa: Sure, Nikki. So, some examples of adjustments of the minimum wage rates in certain jurisdictions include Alameda County, where the minimum wage increased from $15.75 to $16.52. In the city of Los Angeles, the minimum wage increased from $16.04 to $16.78. And in Los Angeles County itself, the minimum wage increased from $15.96 to $16.92. In San Francisco, the minimum wage also increased from $16.99 to $18.07. For more information on updates to minimum wage laws by jurisdictions, please see our Labor and Employment Blog posted on June 7, 2023, which can be found at thelelawblog.com. And now this is just a reminder. If your employee's rate of pay is based on the minimum wage, these rates will impact any potential meal break or rest break premiums that your employees could be entitled to. So please make sure that your workplace posters relating to California's minimum wage are updated. Nikki: Thank you. That does it for today. You can continue to find California Employment News on our blog at thelelawblog.com and wherever you listen to your favorite podcast. We'll see you next time.

When starting a business, there are many common employment issues to consider. Join Weintraub attorneys Meagan Bainbridge and Ryan Abernethy in Part Two of their Employment Start-Up Kit for Start-Ups series for California Employment News, where they cover employee payroll, HR, and other important things for new businesses to consider to limit liability. Listen to Part One of this Two-Part Series here. Watch this episode on the Weintraub YouTube channel here. Show Notes: Meagan: Hello, everyone. Thank you for joining us for this installment of California Employment News, an informative video podcast resource offered by the Labor and Employment Group at Weintraub Tobin. My name is Meagan Bainbridge, and I'm a shareholder in the firm's labor and employment group. And today I'm joined by my colleague Ryan Abernethy for the second episode of our two-part series regarding employment policies for startups. The first episode concentrated on the importance of properly determining employee classifications to avoid future liability. Today we're going to focus on the nuts and bolts of employing your very first employees. Ryan, what should startups know about paying its employees? Ryan: Thanks, Meagan. The very first thing that a startup would need to do is to obtain what's called the Employer Identification Number, or the Ein number. It's also known as the Federal Tax Identification Number. And what an Ein does is it's needed to pay employment taxes to hire employees, to open a bank account, to apply for business licenses and permits and all those things. It's kind of a first step in the process here. The next step that's highly recommended is that the startup consider retaining what's called a payroll service company. And there's a lot of options out there in the marketplace. But payroll service companies, they assist with payroll processing and management services, such as everything from tracking employee attendance to collecting wage and time information, calculating wages and payroll taxes, keeping electronic payroll records, setting and making direct deposits all the way to actually mailing out the tax information to the employees as well as their paychecks. A lot of things that would be very foreign to a startup that specialize in particular business but wants to be able to outsource some of these HR type work. But it's important that the startup is aware that these service companies, they're not your attorneys, and ultimately their problems and any issues that could be imputed to you in the form of liability. We'll share a quick war story here. Sometimes employers in California, they round employee time and clock in and clock out times to the nearest five-minute increment, for example. In most cases, that's no longer lawful in California. But many payroll companies continue to list rounding as an option that they can select when they're selecting the payroll services. And so this error alone can lead to hundreds of thousands of dollars in liability depending on the size of the company and how long it's been in place. So again, that's just one example of many as to why it's still important to make sure that those errors, there are no errors at the onset and that you're ready to go. And so it's good to have maybe attorney review some of those things. Another thing that startups need to consider as maybe a third step, is to make sure their timekeeping system is in place. This is something that payroll services can often assist with and provide compliant meal and rest breaks. That's a new universe for a lot of people. We have other episodes you can go back where we talk about the specific requirements. I won't belabor this video with those, but feel free to go back and review those. But essentially it's a 30 minutes break for every 5 hours worked, and then ten minute rest break for every 4 hours worked, and then the minimum wage is another issue that startups need to consider quite right off the bat.

There are many common employment issues that start-ups might face. Weintraub attorneys Meagan Bainbridge and Ryan Abernethy help review these issues in a two-part series for California Employment News. Join them in part one, which covers independent contractor classification and employment exemptions. Watch this episode on the Weintraub YouTube channel here. Show Notes: Ryan: Welcome to the latest episode of California Employment News, a video podcast series from Weintraub Tobin's Labor and Employment Group. I'm Ryan Abernethy, an employment attorney here at Weintraub Tobin, and joining me today is my colleague and shareholder here at Weintraub, Meagan Bainbridge. So this is the first episode of a two-part series that we've put together for startup companies, where we'll be delving into some of the most common employment issues that California startups face. So in this episode, we'll be going over independent contractor classifications and employment exemption issues, which are kind of the first steps that a startup faces. And then in the next episode, we'll cover the obligations that apply to employees in California and some best practices for startups to comply with those laws in order to avoid lawsuits. So, Meagan, can you tell us a bit about how to distinguish between independent contractors and employees? Meagan: Yes, of course. Thanks, Ryan. Before hiring anyone, the first thing a startup must do is determine whether they are hiring employees or independent contractors. The key difference between an employee and an independent contractor for purposes of today's discussion, is how that worker is paid. In the case of an employee, the employer issues form W2 and is required to withhold federal and California employment taxes on the wages independent contractors are paid subject to various other laws. In the many years that Ryan and I have been doing this, I think we've both seen a tendency from startups to label its initial workers as independent contractors as they work to start up the business. While certainly we understand this logic, it's important for all new employers to understand that, well, at least in California, the assumption is that all individuals who do work for an employer should be classified as employees. In recent years, the state has taken a strong stand against the independent contractor classification, and in doing so has passed new laws making it increasingly difficult to classify any person as an independent contractor. In fact, it doesn't matter if both the company and the employee desire to classify an individual as an independent contractor. The only thing that matters is whether the ABC test can be met. This means that under the current law, any worker who meets the following criteria is presumed under California law to be an employee. First, that the worker is free from control and direction of the company and performing their work. This means that a business doesn't control the precise manner or details of the work being completed, and that the individual is largely dictated or largely dictates how the work is performed. Number two, the worker performs a function that is not within the company's typical business. Typically, we find this is the most difficult element to establish, in that proving that the worker is not performing a function inside the company's typical business. A common example of where services are not considered to be part of the hiring entity's usual course of business would be an example, such as where a retail store hires an outside plumber to fix a leak in the bathroom. That work that the plumber is performing is outside the scope of that retail store. On the other hand, if a clothing manufacturer hires a seamstress to work from home making designs to then sell in the retail store, then that likely would be work performed within the scope of that company's typical business. In number three, the worker frequently engages in that same function indepen...

While some pay exemptions are fairly well-known, there are some, such as the Computer Professional and Sales exemptions, that are not as common. Meagan Bainbridge and Lukas Clary close out the pay exemptions series on California Employment News with this episode reviewing these two lesser known pay exemptions. Watch this episode on the Weintraub YouTube channel here. Show Notes: Lukas: Hello, everyone. Thank you for joining us for this installment of the California Employment News, an informative video and podcast resource offered by the Labor and Employment Group at Weintraub Tobin. My name is Lukas Clary. I'm a shareholder in the firm's labor and employment group. I'm joined today by my partner, Meagan Bainbridge, and we are today concluding our series on exemptions by discussing a couple of the lesser known exemptions from federal and state overtime, meal and rest, break and minimum wage laws. Specifically, the computer professional exemption and the sales exemptions. Meagan, let's start with the computer professional exemption. What can you tell our listeners about that one? Meagan: Well, to start, exempt computer professionals must work on or with computers as their primary duty. This extends beyond the use of a computer as a daily function and refers to those who are directly working with, creating or altering computer technologies, such as operating systems and software. In order to meet this exemption, the employee must meet both the salary test and the job duties test. As we've discussed in previous episodes, to meet the salary test in 2023, California employers must compensate their employees a certain salary. For computer professional employees, this annual salary is $112,065.20. This equals no less than $53.80 an hour. If you'll recall, this is substantially more than the other exemptions we've been discussing. If the salary test can be met, the employee then must meet the job duties test. Part one of the test says that the worker qualifies as a computer professional if the worker is, one, primarily engaged in the intellectual or creative work that requires the exercise of discretion and independent judgment, and two, is highly skilled and is highly proficient in the theoretical and practical application of highly specialized information to computer systems analysis, computer software programs, or software engineering. And then part two of the duties test says that the worker is exempt if the primary duties consist of one or more of the following: the application of systems analysis, techniques, and procedures; the design, development, testing or modification of computer systems or programs; and three the documentation, creation, or modification of computer programs related to the design software or computer hardware or related equipment for computer and machines operating systems. The employee must pass both these part one and part two of the job duties test for the employee to be labeled a computer professional. What this really means is that an employee involved in general It support, such as installing software, configuring hard drives and troubleshooting issues, likely is not going to meet the exemptions test. On the other hand, an employee who develops the software or is responsible for evaluating the entire It system and make recommendations based upon that examination, they may very well be able to meet the exemption. So that's the computer professional exemption. Let's move on to the sales exemptions. Lukas, what can you tell us about the outside sales exemption? Lukas: Thanks, Meagan. So the outside sales exemption, like the name implies, is one that applies to certain employees in sales. Now, this exemption, unlike several of the others that we've discussed, does not have a salary requirement component to it. Instead, to meet this exemption, it's pretty straightforward. Two things have to apply. One, the employee must be at least 18 years old,

Two of the most common pay exemptions from federal and state overtime, meal and rest break, and minimum wage laws are the Professional and Administrative exemptions. Meagan Bainbridge and Lukas Clary detail how these two exemptions work in this episode of California Employment News. Watch this episode on the Weintraub YouTube channel here. Show Notes: LUKAS: Hello, everyone. Thank you for joining us for this installment of the California Employment News, an informative video and podcast resource offered by the labor and Employment Group at Weintraub Tobin. My name is Lukas Clary, and I'm a shareholder in the firm's labor and employment group. I am joined today by my partner, Meagan Bainbridge. Today we are going to continue our series on exemptions, and we'll be discussing a couple of the most common ones from federal and state overtime, meal and rest break and minimum wage laws. Those are the professional and administrative exemptions. Meagan, let's start with the administrative exemption. What can you tell us about that? MEAGAN: Thanks, Lukas. The administrative exemption is one of the so-called white-collar exemptions. To qualify for the administrative exemption, a California employer must show that the employee's primary duty is office or non-manual work. And this generally doesn't mean clerical work that they directly relate to the management and general business operations of the employer or the employer's customers, and includes the exercise of discretion and independent judgment with respect to matters of significance. In addition to these requirements, an exempt administrative employee must be primarily engaged in, which means more than 50% of the time, one of the following duties that could be regularly and directly assisting a proprietor or an employee who is employed in a bona fide executive or administrative capacity performing specialized or technical work under only general supervision. That require special training or experience or knowledge or three, executing special assignments or tasks under only general supervision. Often, these types of roles are going to be related to human resources, accounting, quality control, maybe payroll or benefits management, and possibly even marketing positions. Lukas, what can you tell us about the professional exemption? LUKAS: Right, so, the professional exemption can apply to employees who meet all of these requirements. First, they either must be licensed or certified by the State of California and primarily engaged in the practice of one of the following professions law, medicine, dentistry, optometry architecture, engineering, teaching, or accounting. Or in the absence of that, they must be primarily engaged in a quote, learned or artistic profession. This means they are performing work that either requires knowledge of an advanced type in a field of science or learning customarily acquired through prolonged and specialized study. So think master's and doctorate degree level stuff, rather than skill gained through general education or training in the performance of routine processes. Or a third way, they must be performing work that is original and creative in character in a recognized field of artistic endeavor, the result of which primarily depends on invention, imagination, or talent of the employee. For the artistic professional exemption to apply, the work being performed must also be predominantly intellectual and varied in character. Think something that cannot be easily replicated in a short period of time, something that takes time and talent. Now, whether someone is a licensed, learned, or artistic professional, some other criteria must be met for all three. So first, they must also earn a minimum salary of at least $1,240 per week, which translates to $64,480 per year. And that number is determined based on being double the minimum wage for a full-time employee, so it could go up at minimum wage increases in future years. Second,

The executive pay exemption is one of three so-called “white-collar” pay exemptions that exempts certain employees from state and/or federal overtime, minimum wage, and meal and rest break requirements. Meagan Bainbridge and Lukas Clary review this exemption in part 2 of this 4-part pay exemption series on California Employment News. Watch this episode on the Weintraub YouTube channel here. Show Notes: Meagan: Hello, everyone. Thank you for joining us for this installment of California Employment News, an informative video and podcast resource offered by the labor and Employment Group at Weintraub Tobin. My name is Meagan Bainbridge, and I'm a shareholder in the Firm's labor and employment group. Today, I'm joined by my partner, Lukas Clary, and we will be discussing the executive exemption and a new case out of the United States Supreme Court. Lukas, let's start at the beginning. What is the executive exemption? Lukas: Thanks, Meagan. So, the executive exemption is one of the three so-called white collar exemptions. These are exemptions from federal and state laws entitling employees to, for example, overtime, minimum wage, and, in California, meal and rest breaks. Certain employees are exempt from those requirements if they meet the applicable test for the exemption. Now, the executive exemption applies to certain managing employees whose job entails running the company or at least a customarily recognized subdivision of the company. There are criteria that must be met for the exemption to apply. While those criteria vary in nuanced ways, depending on whether you're applying federal or California law, some aspects are common of both. For example, the executive must customarily direct the work of at least two or more full time employees. They must have the authority to hire and fire, or at least make recommendations on hiring and firing that are afforded significant weight. They must also be paid on a salary basis, and depending on federal or state law, that salary must be a minimum amount. It is that last point, the salary basis, that has been scrutinized in a recent Supreme Court opinion. Meagan, can you tell us about that? Meagan: Yeah. So, in Helix Energy Solutions Group, Inc. vs. Hewitt, the Supreme Court clarified that employees who are paid a daily rate likely do not qualify for the executive exemption. Under the FLSA, Mr. Hewitt worked for Helix as a tool pusher on an offshore oil rig. He typically worked more than 80 hours a week. For this work. He earned over $200,000 a year. But he was paid a set daily rate with no overtime compensation. Mr. Hewitt argued that because the daily rate did not offer him a minimum guaranteed weekly pay, rather he was paid just for the days he worked, the salary basis test could not be met. The majority of the court agreed with him that the daily rate employee does not meet the salary basis test found in the language of the FLSA, where there's no weekly minimum guaranteed pay. So, Lukas, what does this mean for employers? Lukas: So, for starters, it means that employers must pay management employees at least a weekly set salary if they're going to be classified as exempt. A daily rate will not work. Now, that salary also has to be above a certain minimum, as I mentioned earlier. And this is one area where California and federal law differ. So, in California, that minimum salary must be equivalent to double the minimum wage earned by a full-time employee, which is someone who works 40 hours per week. So, given California's current minimum wage of $15.50 per hour, this means an employee must earn at least $1,240 per week, which is $31 an hour times 40 hours, to be eligible for the executive exemption. Another key distinction between California and federal law on this topic is that California utilizes a quantitative rather than qualitative analysis. In other words, whereas the FLSA federal law test asks whether the employee's primary duty is to manage the enterpri...

Certain employees can be exempt from overtime pay and meal and rest breaks under both the FLSA and California Labor Law. Meagan Bainbridge and Lukas Clary break down the basics of pay exemptions in part 1 of this 4-part series for California Employment News. Watch this episode on the Weintraub YouTube channel here.

The U.S. Department of Labor issued guidance earlier this year that reminds employers of the current rights of teleworking employees under both the FLSA and FMLA. The Labor & Employment practice group reviews this guidance in this episode of California Employment News. Watch this episode on the Weintraub YouTube channel here.

The recent 9th Circuit opinion in US Chamber of Commerce v. Bonta struck down AB 51, determining that it was preempted by the Federal Arbitration Act. Meagan Bainbridge and Lukas Clary review how this decision impacts the use of mandatory arbitration agreements for California employers in this episode of California Employment News. Watch this episode on the Weintraub YouTube channel here.

As temperatures rise, California law requires employers with outdoor employees to take steps to protect workers from heat illness. Shauna Correia reviews Cal/OSHA’s ‘Heat Illness Prevention Standards” for outdoor worksites in this episode of California Employment News. Watch this episode on the Weintraub YouTube channel here.