Overtime Pay

The Obama Administration spearheaded an effort that led to a new Labor Department rule that is expected to impact overtime pay for approximately 4.2 million salaried workers. Many of our readers may be under the impression that any employee is salaried is exempt from overtime pay, but that is not the case. The new Labor Department rule, which takes effect December 1, will raise the salary threshold at which white-collar workers are exempt from overtime pay from $23,660 to $47,476. Put another way, any non-hourly employee who earns less than $47,476 annually must receive overtime pay.

Of course, all salaried employees who are misclassified as exempt are eligible for overtime (misclassification of an employee can be a very costly mistake), but the new rule mandates that every employee who earns less than $47,476 annually is eligible for overtime, regardless of their classification.

To ensure that you do not deny overtime to employees, you can begin tracking the hours for salaried employees who earn less than $47,476 annually. You can also choose to keep the workers on a salary, but it is the employer’s obligation to track employee hours and pay overtime when necessary. It also might be a good time to re-check the classification of exempt employees to ensure that overtime pay is not being improperly withheld.

 

Additional Funding for Tobacco Use Programs Now Available to Charter Schools

On June 9, 2016, AB X2-9 will amend Sections 104420 and 104466 of the Health and Safety Code to a) expand eligibility for funding for tobacco use prevention programs to include charter schools, and b) require “[s]chool districts, charter schools, and county offices of education [t]o prominently display signs at all entrances to school property stating ‘Tobacco use is prohibited.’”

This is one of a series of laws that Governor Brown recently signed to combat smoking among Californians, including increasing the legal smoking age to 21 and erasing any distinction between e-cigarettes and traditional cigarettes when it comes to banning them from public locations.

Use of Megan’s Law Database

We have had questions from several clients about the use of the Megan’s Law database for pre-employment screening. If you withdraw an offer of employment on the basis of information obtained from Megan’s List, you could violate the law.

Megan’s List was designed to be used by parents to alert them to home addresses in their neighborhood where registered sex offenders resided. It never was intended for, nor should it be used by, employers for employment purposes.

There are both criminal and civil penalties that can arise from misuse of the Megan’s Law database for employment purposes.

How does this information reconcile with a school’s duties pursuant to Education Code sections 44237 and 45125? Recall that these sections prohibit employment for any person convicted of a violent or serious felony. A violent felony is any felony listed Penal Code section 667.5(c), and a serious felony is any felony listed in Penal Code section 1192.7(c). The good news is that any of the enumerated crimes in these two Penal Code sections will generally encompass a violation of the law that leads to inclusion in the Megan’s Law database. Just remember that the OCRI record is the record you can rely on – not the Megan’s Law database.

Amended FEHA Discrimination & Harassment Regulations

On April 1, 2016, new amended regulations promulgated under the California Fair Employment and Housing Act (FEHA) will take effect, and they cover a range of topics. Some of the key provisions include:

• new requirements for the content and dissemination of mandatory discrimination, harassment and retaliation prevention policies and complaint reporting processes;
• new or revised definitions of employee characteristics protected under FEHA;
• expanded national origin protections; and
• a new rule allowing the California Department of Fair Employment and Housing (DFEH) to obtain “non-monetary preventative remedies” against an employer for failure to prevent and correct discriminatory and harassing conduct.

New Policy Requirements

The new FEHA regulations mandate that every California employer employing five or more total employees (regardless of location) must develop detailed written discrimination, harassment and retaliation prevention policies that:

• list all current protected characteristics under FEHA;
• specify that FEHA’s protections apply to unlawful conduct by supervisors, co-workers and third parties;
• instruct supervisors to report complaints of misconduct to designated personnel;
• contain complaint reporting procedures that, among other things, provide a mechanism for employees to report complaints to someone other than a direct supervisor and ensures timely investigations and responses for all complaints;
• provide for confidentiality throughout the investigation process to the extent possible;
• indicate that remedial measures will be taken following an investigation, if appropriate;
• specify that retaliation for making a complaint or participating in an investigation is prohibited.
• are disseminated to all employees through various approved methods and translated into other languages if the “spoken language” of at least 10 percent of the workforce is a language other than English.

New Gender-Related Definitions

The new FEHA regulations define several new employee characteristics protected under the Act and/or revise the definition of existing terms, including “Gender Expression,” “Gender Identity,” “Sex Stereotype,” and “Transgender.”

Expanded National-Origin Protections

The new FEHA regulations also prohibit discrimination against a non-citizen applicant or employee who holds a driver’s license issued under Section 12801.9 of the California Vehicle Code. Specifically, the regulations now allow employers to require an applicant or employee to hold or present a driver’s license as part of employment only if to do so is required by: (a) state or federal law, or (b) the employer’s policies for a legitimate business purpose (and permitted by applicable law). Inconsistent application of or lack of a legitimate business purpose for an employer’s policy may be deemed a violation of FEHA.

New Non-Monetary Preventative Remedies

The amended FEHA regulations will permit the DFEH to independently seek “non-monetary preventative remedies” against an employer for failure to prevent and correct discriminatory, harassing and retaliatory conduct, notably without having to prove any underlying prohibited act. This could include enjoining certain prohibited conduct or requiring specific actions to comply with the FEHA regulations.

Support for Dyslexia Identification Coming Soon

AB 1369 adds sections 56334 and 56335 to the Education Code, relating to special education and the identification of “dyslexia.”

A student who is assessed with dyslexic and meets certain eligibility criteria for the IDEA is already entitled to special education and related services because a “specific learning disability” is defined as a disorder in one or more of the basic psychological processes involved in understanding or in using language. AB 1369 would require the Superintendent of Public Instruction to complete program guidelines for dyslexia for use in the 2017–18 school. These guidelines are meant to assist regular education teachers, special education teachers, and parents to identify and assess pupils with dyslexia, and to plan, provide, evaluate, and improve educational services, as defined, to pupils with dyslexia. The Superintendent must provide the guidelines through the CDE’s web site and provide technical assistance regarding their use and implementation.

Student Interrogations Without Parental Consent Issue Deemed Moot

We often receive questions from clients asking if school officials or law enforcement officials can interrogate students without parental consent. This question raises important Fourth Amendment issues that were recently before the Supreme Court in Alford v. Greene. Nearly a decade ago, a state child protective services worker and a county deputy sheriff interviewed a 9-year-old student at her Oregon elementary school about allegations that her father had sexually abused her. The officials did not have a warrant or parental consent to condu

ct the interview. The student’s mother subsequently sued the officials on her daughter’s behalf for damages under 42 U.S.C. § 1983, alleging that the in-school interview breached the Fourth Amendment’s proscription on unreasonable seizures. The Supreme Court deemed the critical issue of whether such interrogations violate the Fourth Amendment moot and did not rule on this point given that the mother brought the claim after almost 10 years, and her daughter was just about to graduate from high school. Still, the case highlights an important question that may be raised again in another case.