Legal Updates

Interview With New Judge Leonard Marquez


Interview With New Judge Leonard Marquez

On February 27, 2018, California Governor Edmund G. Brown, Jr. announced the appointment of 25 California Superior Court Judges, including one in Contra Costa County: Leonard E. Marquez.  On April 5, 2018, Contra Costa County Superior Court Judge Jill Fannin administered the oath to Judge Leonard Marquez.  Immediately, our newest Judge began his assignment in Department 34 in the Pittsburg Courthouse. Judge Marquez is the second new judge in 2018.

Judge Marquez was an extremely active member of the Contra Costa County Bar Association and was Section Leader of the Litigation Section. In true CCCBA spirit, Judge Marquez was happy to share some of his background and advice for the May 2018 edition of my President’s Message in the Contra Costa Lawyer Magazine: An Interview With Our Newest Judge, Hon. Leonard Marquez.

New FAQs and Notice Form to Comply with California Immigrant Worker Protection Act


New FAQs and Notice Form to Comply with California Immigrant Worker Protection Act

Recently, the Labor Commissioner’s Office published FAQs and a template notice form to help employers comply with the new California Immigrant Worker Protection Act (AB 450).  The new law went into effect on January 1, 2018, and is codified as California Labor Code section 90.2.

In essence, per the Labor Commissioner, the “law sets forth certain prohibitions on employer conduct if an immigration enforcement agent seeks to enter the employer’s place of business or requests employee records, subject to certain specified exceptions.  It also mandates that employers comply with specific notice requirements to employees if the employer receives notice from an immigration agency of an upcoming inspection of I-9 Employment Eligibility Verification Forms or other employment records.  Finally, it prohibits employers from reverifying employment eligibility of any current employee at a time or in a manner not required by federal immigration law.”

What Does the California Immigration Worker Protection Act Mean For Employers?

First, California employers must notify their employees within 72 hours of any immigration law compliance inspection or audit initiated by federal agencies, for example the U.S. Immigration and Customs Enforcement (ICE) agency.  Employers can provide notice by using the template form published by the Labor Commissioner and available here:  Labor Code Section 90.2 Notice to Employee.  The form is also available in Spanish here.  Employers must provide the completed Notice to employees within 72 hours of the agency’s request.  A copy of the agency’s inspection request, and any accompanying documents, must also be provided to employees with the Notice.

Second, California employers must “provide to each current affected employee, and to the employee’s authorized representative, if any, a copy of the written immigration agency notice that provides the results of the inspection of I-9 Employment Eligibility Verification forms or other employment records within 72 hours of its receipt of the notice. Within 72 hours of its receipt of this notice, the employer shall also provide to each affected employee, and to the affected employee’s authorized representative, if any, written notice of the obligations of the employer and the affected employee arising from the results of the inspection of I-9 Employment Eligibility Verification forms or other employment records. The notice shall relate to the affected employee only and shall be delivered by hand at the workplace if possible and, if hand delivery is not possible, by mail and email, if the email address of the employee is known, and to the employee’s authorized representative. The notice shall contain the following information:

  1. A description of any and all deficiencies or other items identified in the written immigration inspection results notice related to the affected employee.
  2. The time period for correcting any potential deficiencies identified by the immigration agency.
  3. The time and date of any meeting with the employer to correct any identified deficiencies.
  4. Notice that the employee has the right to representation during any meeting scheduled with the employer.”

Third, California employers are prohibited, with some exceptions, from “providing voluntary consent” to allow immigration agents to enter “nonpublic areas of a place of labor” without a judicial warrant.  Similarly, California employers are prohibited from “providing voluntary consent” to allow an agent to access, review, or obtain employee records without a subpoena or court order.  Note, however, that government immigration agencies (like ICE) may still request an employer’s I-9 verification records by serving a Notice of Inspection to the employer.

New Penalties For Violations of Labor Code 90.2

The Labor Commissioner and California’s Attorney General have the responsibility and power to enforce the provisions of the new Labor code.  Employers that violate provisions of Labor Code 90.2 can face civil penalties between $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation.

For More Information:

The California Labor Commissioner and California Attorney General have published FAQs regarding this new law, which can be found here:  The Immigrant Worker Protection Act (Assembly Bill 450) Frequently Asked Questions.  Our office also partners with excellent attorneys who specialize in Immigration for Employers who can provide further information on these developing laws and issues.

For over 21 years, James has provided day-to-day counseling and advice to employers regarding compliance with employment laws, and reducing risks of employment-related claims and lawsuits. He also provides vigorous and strategic litigation defense when claims and lawsuits do arise.  In 2018, James is serving as the President of the Contra Costa County Bar Association, and has been on the Board for many years.

DISCLAIMER: Information provided on this website is not legal advice. It does not create an attorney-client relationship. Nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.

Top 4 New California Laws and Top 5 Tips for California Employers in 2018


Top 4 New California Laws and Top 5 Tips for California Employers in 2018

This year, the California Legislature introduced a whopping 2,495 bills – and hundreds of these had to do with labor and employment issues.  Governor Brown signed many into law on October 15, 2017. Here are the top 4 new laws for 2018:

“BAN THE BOX” – Criminal Conviction History 

Los Angeles and San Francisco already had local ordinances prohibiting employers for asking about criminal histories before a job is offered to an applicant. This new law (AB 1008) applies similar requirements upon employers statewide.

The law prohibits employers with five (5) or more employees from considering criminal history until a conditional offer of employment has been made.  If an employer decides to deny employment based on the criminal history, it must make an individualized assessment as to the 1) nature and gravity of the offense or conduct, 2) the time that has passed since the offense or conduct and completion of the sentence, and 3) the nature of the job held or sought.

If the employer determines not to hire the applicant, it must provide notice to the employee of 1) the disqualifying conviction that is a basis for the decision, 2) a copy of the conviction history, and 3) an explanation of the applicant’s right to respond before the decision becomes final and the deadline by which to respond (at least five business days).

If employer makes a final decision to deny employment, it must provide another written notice containing 1) the final denial or disqualification, 2) any existing procedure the employer has for the applicant to challenge the decision or request reconsideration, and 3) the right to file a complaint with the Department of Fair Employment and Housing (DFEH).

BAN OF SALARY HISTORY INQUIRIES

This new law (AB 168) prohibits employers from inquiring about an applicant’s salary history, including compensation and benefits. Employers also cannot rely on salary history information of an applicant as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant. Applicants, however, can “voluntarily and without prompting” disclose salary history information, and if so, then the employer can rely or consider such information in determining salary for that applicant.

Also, employers must provide, upon reasonable request, the pay scale for the position.

JOB-PROTECTED PARENTAL LEAVE FOR SMALLER EMPLOYERS

Currently, employers with 50 or more employees are required to comply with the California Family Rights Act and provide parental leave of up to 12 weeks to bond with a new child (birth, adoption, foster care placement) within one year. This new law (SB 63) lowers the number of employees for covered businesses to 20 employees in a 75-mile radius. The law also prohibits an employer from refusing to maintain and pay for coverage under a group health plan for an employee who takes this leave. The employer must provide the employee with a guarantee of employment in the same or comparable position following the leave.

The employee must also meet certain eligibility requirements like those under the CFRA and federal Family Medical Leave Act. The leave is unpaid, however, the employee can use accrued vacation pay, paid sick time, or other accrued paid time off.

JOINT LIABILITY FOR GENERAL CONTRACTORS ON PRIVATE CONSTRUCTION PROJECTS

Under the new law (AB 1701), General Contractors on a private construction project can be liable for wage and benefit liabilities incurred by subcontractors at any tier of the project. This would include items like unpaid/underpaid wages, unpaid overtime and related wage violations. General Contractors can request from subcontractors the payroll records.

*         *         *         *

Top Tips for Employers:

  1. Get those Employee Handbooks updated, and start training Managers and Supervisors on these new laws.
  2. Edit applications so that they do not contain “taboo” questions regarding salary history and criminal backgrounds.
  3. Edit job postings (“help wanted ads”) so that they do not ask applicants to send in salary history information when applying.
  4. Pre-determine pay scales for jobs, and create a process to respond to reasonable inquiries regarding those pay scales.
  5. Stay informed! There are several other important new employment laws as well, including those involving anti-harassment training, immigration, human trafficking, and retaliation and whistleblowing.

For over 21 years, James has provided day-to-day counseling and advice to employers regarding compliance with employment laws, and reducing risks of employment-related claims and lawsuits. He also provides vigorous and strategic litigation defense when claims and lawsuits do arise.  In 2018, James will serve as the President of the Contra Costa County Bar Association, and has been on the Board for many years.

DISCLAIMER: Information provided on this website is not legal advice. It does not create an attorney-client relationship. Nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.

Egg-Freezing: Will It Help Women at Work?


Egg-Freezing: Will It Help Women at Work?

Apple, Facebook, and other employers have often struggled to recruit and retain female employees in a male-dominated industry. Recently, these companies – as well as others including law and financial services firms – have been adding new employee benefits to attract high-quality, professional women to keep on their payroll.

One of the newest benefits offered is cryo-preservation, also known as egg-freezing. Some believe this new benefit is great for women who want to have a career and delay raising children, and for those women who have not yet found the right partner with whom to start a family. Others see this “benefit” as another way of forcing women to choose career over family, insinuating that women cannot have both a career and family simultaneously.

In my article titled “Egg-Freezing: Is it Truly an Employee Benefit,” co-author Claudia Castillo and I examine some of the social, economic, and legal issues surrounding this new employee benefit. We encourage you to read the article published in the Contra Costa Lawyer magazine and add your own comments to the conversation.

Six Million Likes Lead To A Lawsuit


Six Million Likes Lead To A Lawsuit

Employers often want their employees and/or contractors to promote their business via social media. Harnessing the power of a “share” and a “like” can be one of the best ways to raise the profile of any business. Perhaps because of the value of a “like,” an employer was recently sued by a former employee regarding the property interest in over six million “likes” on a Fan Page.

In my article titled “Employee Sues Employer Over Ownership of Six Million Likes” published by Maximize Social Business, I summarize and analyze the case of Mattocks v. Black Entertainment Television, LLC. and offer tips for employers to prevent a costly lawsuit regarding the ownership of “likes”, as well as employee-maintained social media sites.

One tip is to work with an employment law attorney as well as a social media strategist. My clients know that I take a holistic view of the employer’s health, and I will not hesitate to provide a referral to an excellent social media strategist (and other top-notch professionals), as needed. Let’s talk!