Benjamin J. Herold
Benjamin J. Herold
Associate, Los Angeles, CA
Formerly: Surf Instructor, Retail Wine Sales, Busser
Education
  • B.A., Philosophy, Hunter College, New York, NY;
  • J.D., Benjamin N. Cardozo School of Law, New York, NY.

I’m the younger of two brothers. That on its own is nothing exceptional, but it’s definitely why I pursued a career in the law. I grew up advocating. My career in advocacy began with an impassioned battle for the basic right to stay up as late as my brother. As I grew older, I advanced to advocating for the exoneration of the wrongfully imprisoned, fighting for people at the lowest points of their lives, and trying the unwinnable cases.

After eleven years in New York City, I returned to my home town of Los Angeles. In looking for a new firm, I was struck by Stokes Wagner’s passion for humanity I felt across all attorneys and staff here. I am proud to work with all the attorneys and staff here, representing employers in an industry dedicated to caring for all members of the human race.

Whether you need someone to talk through your frustrations, find the answer to a perplexing question, zealously advocate for your rights, or give you the name of the best slice spot in any one of NYC’s outer boroughs – I’m here to help.

Nevada’s SB 312, signed into law in June of this year, is set to take effect January 1, 2020. For the first time in the State’s history, this bill will legislatively mandate private employers to provide employees with up to 40 hours of paid leave per benefit year. This mandate will be enforced by the Nevada Labor Commission and will subject employers to fines of up to $5,000 per violation for non-compliance.

To whom does SB 312 apply? The law will apply to all private-sector employers who employ at least 50 workers. Exemptions from the bill are available for employers in the first two years of operation. Exemptions are also available where a contract, policy, or collective bargaining agreement provides employees with at least the same amount of paid leave as the law requires. Temporary, seasonal, and on-call workers are not entitled to the benefits of SB 312.

How does paid leave accrue under SB 312? Eligible employees must be provided with 0.01923 hours of paid leave for each hour worked. Employers may allow workers to accrue paid leave in one of two ways: 1) employees may accrue paid leave over time; or, 2) employees may be allowed to use the total number of expected hours to be accrued at any time during the benefit year. Employers who elect to allow accrual over time must permit employees to carry over up to 40 hours of unused paid leave into the following benefit year. Carryover is not required for employers who front-load paid leave.

How and how much do I pay employees on paid leave? Workers must receive the same rate of pay as they would have for hours worked. Hourly workers must be paid at 100% of their hourly rate of pay. If an employee is paid by salary, commission, piece rate, or any other method other than strictly hourly, then the rate of pay is equal to the employee’s total wages over the previous 90 days, divided by the number of hours worked over those 90 days. For purposes of this calculation, discretionary bonuses, holiday pay, overtime, hazardous duty pay, and tips are not included.

Employees must be compensated for any paid leave taken within the same time frame as they would be paid for hours worked (i.e., on the employee’s usual payday.)

Are there any limits on use? Yes. Employers may limit the use of paid leave to 40 total hours per benefit year and may prevent an employee from using any accrued paid leave until the employee reaches their 90th day of employment. Employers may also set minimum increments of paid leave which an employee may elect to use, so long as that limit does not exceed 4 hours.

Outside these specific conditions, though, employers may not: a) deny any employee the use of available paid leave; b) require an employee using paid leave to find a replacement worker; or, c) retaliate against or discipline an employee for using available paid leave.

Do I have to give employees notice? Yes. Employees must receive an accounting of their available paid leave every payday. This information can either be provided on the employee’s wage statement or in a separate document provided contemporaneously with a wage statement.

Employers must also post a bulletin informing its employees of these new requirements. The Labor Commissioner’s office provides these notices both in English and Spanish.

What should I do to get ready? Employers should make themselves fully aware of the requirements of SB 312, the full text of which can be found here. Employers unsure about how to implement such a policy, or wary about whether their current policy meets all the requirements of SB 312, should contact an attorney immediately.

For a printable PDF of this article, click here.


Today, on September 18, 2019, California Governor Newsom signed Assembly Bill 5 (AB-5), a landmark piece of legislation that codifies the ABC test and will significantly limit most employers’ use of independent contractors.

Last year, in April 2018, the California Supreme Court rocked the State’s labor and employment landscape with the decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles (“Dynamex”). The court’s decision changed the way employers classified independent contractors from the longstanding Borello test (an eleven-factor test with no single factor being determinative of a workers’ classification) to a much stricter “ABC” test.

Starting on January 1, 2020, the ABC test becomes state law. California will consider a person providing labor to be an employee of a hiring entity unless:

  1. The person is free from the control and direction of the hiring entity both under the contract and in fact;
  2. The person performs work outside the usual course of the hiring entity’s business; and,
  3. The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

While Dynamex applied only to misclassification claims brought under California’s IWC wage orders, AB-5 will apply the same test to claims brought under all provisions of California’s Labor Code and Unemployment Insurance Code.

Specific industries and professions are exempted from this new legislation, including doctors, dentists, lawyers, architects, accountants, engineers, insurance agents, graphic designers, investment advisers, persons engaged in direct sales, travel agents, real estate agents, financial advisers, fine artists, hairstylists who rent booths at barbershops and salons, and persons with working with advanced degrees in marketing or human resources administration. Those exempted will be subject to classification under the former Borello factors.

If you are concerned about how this might affect your business, contact Stokes Wagner or other counsel immediately. Application of the three prongs of the ABC test are still subject to challenge in the court and may be expanded upon or limited at any time. Misclassification claims can be costly, so regular guidance will be essential in any dealings with contract workers.

For the full text of the opinion, click here. A printable PDF of this article is available here.


Are you familiar with PAGA? Do you have a PAGA claim for unpaid wages filed against you right now? If yes, this recent California Supreme Court case may apply to you. (ZB, N.A. v. Superior Court).

What is PAGA?

In a nutshell, the Private Attorney General’s Act (“PAGA”), is a California state statutory scheme within the Labor Code that allows aggrieved employees to step into the shoes of the State and enforce California’s Labor Code provisions by filing lawsuits against their employer to recover civil penalties. PAGA is considered a representative action, as an aggrieved employee is suing on behalf of both themselves and their similarly situated colleagues. PAGA claims may not be arbitrated even if an employee signs an arbitration agreement. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348).

What is Labor Code section 558?

Labor Code section 558 authorizes the Labor Commissioner to seek civil penalties against employers for violations of California’s overtime laws. The penalties are as follows:

a) For a first violation, fifty dollars ($50) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages.

b) For each subsequent violation, one hundred dollars ($100) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages.

Why can’t employees bring PAGA claims for unpaid wages under section 558?

In reaching its decision, the Court broke down section 558’s provisions into two separate and distinct remedies. The fixed dollar amounts of $50 and $100 the court were determined to be true civil penalties. The provision for an amount sufficient to recover underpaid wages, on the other hand, the Court determined to be compensatory damages.

California enacted PAGA to be an enforcement mechanism; to allow aggrieved employees, who formerly had no private right of action to fight for the enforcement of certain Labor Code laws, to act in the public interest. It allows parties to seek civil penalties against their employers, not personal recompense. As such, a plaintiff may not seek to recover underpaid wages as part of its PAGA claim but instead must seek those wages as damages in a private action.

What does this decision mean?

A class action waiver, as stated previously, is ineffective against an employee PAGA claim. The Court today has made clear that an employee may not circumvent a well-drafted arbitration and class-action waiver agreement by pursuing a PAGA claim seeking compensatory damages.

For the full text of the opinion, click here.


Last month, the United States Court of Appeals for the Ninth Circuit certified two questions of state law to the California Supreme Court:

  1. Does the absence of a formal policy regarding meal and rest breaks violate California law?
  2. Does an employer’s failure to keep records for meal and rest breaks taken by its employees create a rebuttable presumption that the meal and rest breaks were not provided?

The answers to these questions could profoundly affect the way employers in the state notify employees and keep records of meal and rest breaks.

These questions arose in the case Cole v. CRST Van Expedited (9th Cir. No. 17-55606) where the plaintiff challenged the employer’s meal and rest break policy under California law. The Court granted summary judgment for the employer, finding that the employer did not violate California’s meal and rest break laws because: 1) Mr. Cole was verbally instructed upon hire not to work for more than five hours without taking a meal break, and to take a rest break whenever he deemed appropriate; and, 2) Mr. Cole failed to identify even a single instance where he was forced to skip a break due to business needs.

Mr. Cole timely appealed to the Ninth Circuit. The Ninth Circuit did not find the issues so clearly resolved. In its preliminary analysis, the Circuit Court noted certain blind spots in state Supreme Court precedent, specifically concerning the Court’s opinion issued in Brinker Restaurant Corp. v. Superior Court (2012) 53 CAL.4TH 1004.

While Brinker spoke definitively regarding a California employer’s obligations in relieving employee for meal and rest breaks, the Court intentionally avoided the question of whether California law requires an employer to publish a uniform policy regarding said breaks to its employees. The Brinker court also left the Circuit confused as to who bears the burden of proving whether an employee received their meal or rest breaks for a given period. In a concurring opinion in Brinker, Justice Werdegar indicated that an employer’s failure to keep records of meal and rest breaks should create a rebuttable presumption that no break was provided. However, the California Court of Appeal has declined to apply this presumption as it was articulated in the Brinker concurrence only.

While there is no expected timeframe for the Supreme Court’s response to these questions, employers should take note; an answer in the affirmative to either of these questions could create significant compliance issues for employers requiring immediate attention.

Regardless of the answers to these questions, maintaining clearly written, published policies and tracking employee breaks are two best practices to help protect your business from costly litigation.

For a printable PDF of this article, click here.


On August 27, 2019, the Santa Monica City Council voted unanimously to pass an ordinance providing certain protections for hotel workers, with particular focus on Room Attendants, working in the city of Santa Monica. The City Council heard lengthy public comment on both sides of the proposed ordinance, with Unite Here’s Local 11 being both the most numerous and the most outspoken in favor of the ordinance.

At the close of public comment, changes were made to the ordinance as initially proposed. These changes, in large part, only made the ordinance more restrictive on hotel employers. The following is a summary of the ordinance’s requirements. All the following requirements will become effective on January 1, 2020, unless otherwise specified.

Panic Buttons
Effective 1/1/2020
All Santa Monica hotels, regardless of the number of rooms, will be required to provide a personal security device to any hotel worker assigned to work unaccompanied in a guest room or restroom facility.

Employers will be forbidden from retaliating against a worker who uses their panic button unless the employer can show that the worker knowingly and intentionally used the button to signal a false emergency.

All hotel workers must be trained on the use and maintenance of the personal security devices and the hotel’s protocol for responding to calls from these devices by January 1, 2020, or within one month of hire thereafter.

Protections for Victims of Guest-Initiated Violence
Effective 1/1/2020
Any hotel worker who reports violent or threatening conduct by a hotel guest must be given paid time off to report the conduct to law enforcement and to consult with a counselor or advisor of their choosing. Employers will be required, upon request, to provide reasonable accommodations to the employee-victim due to the incident.

Hotel employers may not prevent or attempt to prevent an employee from reporting such an incident, nor retaliate against a worker if that worker decides not to report such an incident.

All hotel workers must be trained on these rights and obligations by January 1, 2020, or within one month of hire thereafter.

Updated Door Notices
Effective 1/1/2020
Signage on the back of the entrance door to guest rooms and restroom facilities will be required to include, in at least 18-point font:

  1. The following language: “The Law Protects Hotel Workers From Threatening Behavior”;
  2. Notification that hotel workers are equipped with personal security devices; and,
  3. A citation to the ordinance.

Square Footage Caps for Room Attendants
Effective 1/1/2020
Hotel employees cleaning guest or meeting rooms, regardless of title, will be limited to cleaning no more than a specific square footage depending on hotel size based upon the length of their scheduled shift.

For hotels with 40 or fewer rooms, employees may not be required to clean more than 4,000 square feet of floor space, regardless of furniture, equipment, or amenities, in one eight-hour workday.

For hotels with 41 or more rooms, employees may not be required to clean more than 3,500 square feet of floor space, regardless of furniture, equipment, or amenities, in one eight-hour workday.

For hotel employers interested in modeling how such a change may affect their current workforce and scheduling, the following should be noted:

  1. If an employee is scheduled to work greater or fewer than eight hours in one workday, the square footage cap prorates to a greater or lesser amount, respectively.

  2. “Floor space” is not limited to guest rooms, but encompasses any combination of spaces within the property, including meeting rooms and ballrooms. If you have a large ballroom, for instance, assigning an employee to clean said ballroom alone (even to vacuum the floors) could massively cut into their daily square footage total.

  3. If an employee is assigned to clean seven or more “checkout rooms” or rooms with additional beds (i.e., cots or rollaways), these rooms must be counted as 500 square feet against the total, regardless of the actual square footage of the room.

If a Room Attendant is assigned work over the square footage cap during their workday, an employer must compensate them at twice their regular rate of pay for all hours worked – not just those hours worked on space beyond the square footage cap.

Elimination of Mandatory Overtime Past Ten Hours
Effective 1/1/2020
Hotel employers will be prohibited from requiring hotel workers to work more than 10 hours in a workday without written consent.

Hotel employers will be required to provide written notice to all hotel workers informing them that they are allowed to decline to work more than 10 hours in a workday and that the Hotel cannot take any adverse action against them for doing so.

Changes in Control: Notice and Employee Retention
Effective immediately on the effective date of the ordinance – projected October 2019
In the event of a change in control of a hotel property, the successor employer will be required to post written notice of the change in control in a conspicuous area.

Successor employers will also be required to offer continuing employment to eligible hotel workers for a period of not less than 90 days. Hotel workers are eligible for continuing employment if they were employed for at least two months prior to the change in control. Exceptions are provided where an eligible employee has prior performance or conduct issues, or where the successor determines it requires fewer employees than the predecessor.

During the 90 days, employees may only be terminated for cause. All employees must receive written performance reviews at the close of their 90-day period.

Mandatory Third-Party Training
Effective 1/1/2021
By January 1, 2021, the city will be responsible for certifying and naming a “Public Housekeeper Training Organization.” This organization will offer a training program called the “Public Housekeeper Training Program.” The program will be a six-hour training, and include training on:

  1. Hotel workers rights and hotel employer responsibilities;
  2. Identifying and responding to human trafficking, domestic violence, or threatening conduct;
  3. Effective cleaning techniques to prevent the spread of disease;
  4. Identifying and avoiding insect or vermin infestation; and,
  5. Identifying and responding to potential criminal activity.

At the close of training, attendees will be required to submit to an examination. Passing the examination will result in the issuance of a Public Housekeeping Certificate, which will remain valid for five years. No room attendant may be employed for more than 120 days without a valid Certificate.

Hotels will be required to contract with the Public Housekeeper Training Organization annually to provide this training and administer the examination.

Notice of New Rights and Obligations
Effective 1/1/2020
Written notice of the rights and obligations outlined in the ordinance must be provided to all employees by the ordinance’s effective date, or at the time of hire (whichever is later). Notices must be provided in English, Spanish, and any other language spoken by 5% or more of the hotel workers employed.

CBA Waiver
The ordinance’s provisions regarding square footage caps, written consent to overtime over 10 hours, and change in control are all waivable pursuant to a collective bargaining agreement.

Liability for Violation
Violations of the obligations noted above will expose employers to damages up to $100 per aggrieved person per day. Treble damages may be awarded for willful violations.

Attorney’s fees and costs are awarded similarly to FEHA. A prevailing defendant will not be entitled to attorney’s fees or costs unless they can show the action was frivolous, unreasonable, or groundless. Prevailing plaintiffs will be entitled to recover reasonable attorney’s fees and costs. Courts will not have the discretion to deny fees or costs to prevailing plaintiffs, as they do under the FEHA structure.

This ordinance is a sea change for Santa Monica hoteliers. These requirements will, in most cases, create a need for massive operational changes in a very short amount of time. Hotel employers are encouraged to work with an attorney or firm that can help ensure compliance from day one.

For a printable PDF of this article, click here.


Ig.post.ca.ccpa.exemptions

The California Consumer Privacy Act (“CCPA”) is set to take effect January 1, 2020. Since the announcement, employers have been raising concerns about whether the provisions of the act will include personal data collected from job applicants and employees. In May of 2019, the Assembly passed Assembly Bill 25 (“AB 25”), which explicitly narrowed the definition of “consumer” to exempt a business’ applicants and employees, among others. Just this week, the Senate significantly amended AB 25 by sunsetting the employee exemption on January 1, 2021.

As background, the CCPA will apply to companies doing business in California that either: a) have annual revenues in excess of $25 million; b) annually buy, receive for commercial purposes, sell, or share consumer personal information of 50,000 or more consumers; or c) derive more 50% or more of its annual revenue from selling consumer personal information. Businesses subject to the CCPA will face certain requirements regarding the disclosure of categories of personal information it collects, consumer access to collected information, and deletion of collected information.

The CCPA currently defines a consumer as “a natural person who is a California Resident.” AB 25 was submitted to narrow this extremely broad definition to exempt, amongst others, “a natural person whose personal information has been collected by a business in the course of a person acting as a job applicant to {or} an employee of {…} the business {…} to the extent that the natural person’s personal information is collected and used by the business solely within the context of the natural person’s role or former role as a job applicant to {or} an employee of {…} that business.” This exemption would eliminate otherwise significant obligations and burdens on employers once the CCPA takes effect. As amended by the Senate, though, the bill would only stand as a temporary relief.

The current draft has been sent to the Committee on Appropriations. A vote from that body will be coming next month followed by a full Senate vote which must take place no later than September 13, 2019. Employers should stay up to date on any developments; further amendment or passage of AB 25 could have a dramatic effect on the handling of employee data in the coming year.

For a printable PDF of this article, click here.


On July 3, 2019, Governor Gavin Newsome signed into law the CROWN Act (Creating a Respectful and Open Workplace for Natural Hair.) While New York City recently became the first locality to enact such legislation, California is the first to ban natural hair discrimination statewide.

The move comes amidst a long and ongoing era of awakening regarding institutionalized discrimination against black and brown people. Hairstyle guidelines in schools and workplaces disproportionately affect persons from minority racial, ethnic, and/or cultural groups. The consequences of such discriminatory policies can be both psychological and physical. Members of the black community, for instance, are far more likely to suffer from severe skin, hair, and scalp damage due to repeated exposure to manipulation and chemical treatment of their hair.

With this in mind, the CROWN Act amends the definition of “race” in California’s Education Code and the Fair Housing and Employment Act (FEHA) to include, “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” Protective hairstyles include those such as braids, locks, and twists. Employers or schools who maintain grooming or appearance standards which prohibit such hairstyles will heretofore be subject to liability.

If you are an employer in California, you should contact your attorney to carefully review your grooming and/or appearance standards policies to ensure you comply. If you are an employer outside California, consider doing the same. Though your state or city may not have a law in place, restricting employees from wearing their hair in a manner traditionally associated with their race or ethnicity is simply bad practice. Operate your business above the line. It’s not just about what is legal; it’s about what’s right.

The full text of the CROWN Act can be found here. For a printable PDF of this article, click here.


On April 30, 2018, the California courts rocked the State’s labor and employment landscape with the decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles (“Dynamex”). The court’s decision changed the way employers classified independent contractors from the longstanding Borello test (an eleven-factor test with no single factor being determinative of a workers’ classification) to the much stricter “ABC” test. Under this test, California will consider a person providing labor to be an employee of a hiring entity unless:

A. The person is free from the control and direction of the hiring entity both under the contract and in fact;

B. The person performs work outside the usual course of the hiring entity’s business; and

C. The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

On May 29, 2019, just over a year after this historic decision, the State Assembly voted 59-19 to pass Assembly Bill 5 (AB-5) which seeks to codify Dynamex. The bill will not only write the ABC test into law but will expand the reach of the ABC test beyond California’s wage and hour laws, which were the subject of Dynamex, to make it the test for all provisions of the California Labor Code and the Unemployment Insurance code.

Specific industries and professions have already been exempted from this new legislation, including doctors, dentists, lawyers, architects, accountants, engineers, insurance agents, investment advisers, persons engaged in direct sales, real estate agents, financial advisers, hairstylists who rent booths at barbershops and salons, and persons with working with advanced degrees in marketing or human resources administration. Industries are currently lobbying for a longer list of exemptions now that the bill is subject to revision in the Senate. Those exempted from the final draft of this bill will be subject to classification under the former Borello factors.

If you are concerned about how this might affect your business, contact an attorney immediately. AB-5 has not passed the Senate yet and remains subject to revision, but you should be prepared in advance. Applications of the three prongs of the ABC test are still subject to challenge in the court and may be expanded upon or limited at any time. Misclassification claims can be costly, so regular guidance is essential.

For a printable PDF of this article, click here.


In January 2019, Governor Gavin Newsom announced that California would soon be expanding its Paid Family Leave (PFL) program. That promise has come to fruition in the May revisions to Governor Newsom’s budget released earlier this month.

PFL is a component of the State’s Disability Insurance (SDI) program—a state-sponsored program administered by the Employment Development Department (EDD). The purpose of PFL is to provide partial wage replacement to employees requiring time off from work to care for a seriously ill or injured family member or to bond with a minor child within one year of either birth, adoption, or placement in foster care.

Until now, PFL has provided this partial wage replacement for a maximum of six weeks per claimant. The Administration is proposing to expand the maximum from six weeks to eight weeks for all baby bonding and care-giving claims, with an additional month available for two-parent families, effective July 1, 2020. The Administration intends to cover the costs of these extended benefits by reducing the minimum reserve in the Disability Insurance Fund by fifteen percent, effective July 1, 2019. As such, employers should not expect to see a significant increase in the contribution rate.

For employers, this proposal does not require any immediate action. Employers’ only obligations regarding PFL are: 1) to inform employees about the existence of the program; 2) to instruct employees how to apply; and 3) to withhold employee contributions to SDI. San Francisco employers with more than 20 employees are also required to comply with the city’s Paid Parental Leave Ordinance (PPLO). More information on PPLO can be found here. Employers are simply encouraged to remain aware of the dates that these changes go into effect, so they can be prepared to update any pamphlets or information they provide to employees regarding PFL benefits.

Click here for a summary of the new budget proposal regarding PFL, and here for printable PDF of this article.


Last month, the New York City Commission on Human Rights released new guidelines (available here) that explicitly protect “the rights of New Yorkers to maintain natural hairstyles that are closely associated with their racial, ethnic, or cultural identities.” Penalties for employers include fines up to $250,000 per infraction with unlimited civil damages.

The Commission is not creating a new protected trait in protecting an individual’s right to wear their hair a certain way. Rather, the commission is acknowledging that current standards of formal and professional appearance, formed over the preceding centuries, favor a typically Anglo-American standard of appearance: shaved faces, and close-cut, combed-straight hairstyles. As a result of this inherently biased preference, employees of color have long suffered significant physical and psychological harm resulting from the forced choice between their continued employment and their cultural identity. As noted by the Commission on Human Rights, members of the Black community, for instance, are far more likely to suffer from severe skin, hair, and scalp damage due to repeated exposure to manipulation and chemical treatment of their hair in efforts to conform to traditionally White standards of appearance.

While these guidelines only apply to employers within the five boroughs of New York City, the new guidelines should be taken to heart by employers nationwide. Employers must be watchful to ensure that such a policy is not being applied in a manner which targets grooming practices, hair textures, or styles associated with a particular racial group, as such disparate treatment could lead to legal liability.

Stokes Wagner encourages all employers and human beings alike to be aware of the blind spots of inherent bias in their actions, employment practices, and policies. As such, while taking the time to re-evaluate company grooming policies as a result of this article, think about the other policies and practices in place and consider each’s potential for disparate impact on employees in protected classes. Taking the time to understand these inherent biases is not only important to avoid liability for discrimination; it makes us all better global and corporate citizens.

For a printable PDF of this article, click here.


Senate Bill 970, signed into law by Governor Jerry Brown on September 27, 2018, will require employers in the hotel and/or motel industry to educate their employees on human trafficking awareness.

The state of California has seen extremely high rates of human trafficking complaints since 2017. The data on can be found on the National Human Trafficking Hotline (“NHTH”) website. In fact, California has the highest recorded number of human trafficking cases by state. The second-most, Texas, comes in at nearly half the California number.

Notably, according to the NHTH, of all human trafficking complaints received, hotels and motels are the third most common venue from which complaints arise, following only illicit massage fronts and residentially-based operations. The NHTH believes that hotels and motels are commonly utilized channels for sex-trafficking due to the ease with which they are accessed and based upon a trafficker’s ability to maintain financial secrecy though cash payments.

With this context in mind, California will now require all employers in the hotel/motel industry to provide at least twenty (20) minutes of training and education in human trafficking awareness to employees who are likely to interact and/or come into contact with potential victims. This training should include but not be limited to: (1) the definition of human trafficking; (2) identification of at-risk individuals; (3) sex trafficking within the hotel industry; and, (4) the role of hospitality employees in reporting and responding to suspected human trafficking.

SB 970 goes into effect January 1, 2019. Relevant employees hired after January 1, 2019 must be given this training within six (6) months of their employment. All covered employees, regardless of hire date, must receive this training by January 1, 2020. Additional trainings will also be required once every two (2) years subsequent to January 1, 2020.

The full text of the Bill can be found here. For a printable PDF version of this article, click here.


On September 30, 2018, Governor Jerry Brown signed a number of bills that will have a major impact on businesses operating in California. All of the following will take effect January 1, 2019, with the exception of Senate Bills 1123 and 1343 (described in further detail below)

ALTERING THE LANDSCAPE OF SEXUAL HARASSMENT CLAIMS IN THE WORKPLACE

Lowering the Bar for Plaintiffs to Bring Harassment Claims (SB 1130): The Fair Employment and Housing Act (FEHA) establishes employer liability for harassment in three general situations: 1) where the employer itself is alleged to have perpetrated acts of harassment against an employee; 2) where the employer is aware of acts of harassment by one employee against another and fails to take corrective action; and, 3) where the employer is aware of sexual harassment perpetuated by a non-employee against an employee and fails to take corrective action. This bill would expand employer liability with regard to acts by non-employees to cover any act of harassment (rather than only acts of sexual harassment) the employer is made aware of and fails to address with the appropriate corrective action

The bill will also prohibit employers from making raises, bonuses or promotions contingent upon the execution of a release of a claim of right or a non-disparagement agreement. Any such provisions entered into subsequent to the effective date of this Bill will be void as contrary to public policy.

Finally, the bill eliminates a prevailing Defendant’s entitlement to attorney’s fees and court costs absent a showing that the action was frivolous and significantly raises the bar on motions for summary judgment regarding claims of hostile work environment.

Mandatory Sexual Harassment Training Coming Soon to Many More Employers (SB 1343) – effective January 1, 2020: The FEHA has previously mandated employers with fifty or more employees to provide at least two hours of training regarding sexual harassment, gender harassment and abusive conduct to all supervisory employees within six months of their assumption of the position and again once every two years.

This bill will expand these requirements to any employer with five or more employees. As a cost-saving measure for small businesses, the bill will also mandate that the Department of Fair Employment and Housing provide a web-based training course to assist employers in satisfying this requirement.

New Rule Expanding Privileges Against Defamation Claims (Assembly Bill 2770): It is long settled that an employee or employer who makes a good-faith claim related to a colleague’s job performance or qualifications (whether true or false) shall be shielded from any subsequent defamation claim.

This new bill explicitly expands the existing privilege to the arena of sexual harassment claims. The new bill will shield employees from defamation liability for good-faith complaints made to their employer related to sexual harassment in the workplace. The bill will also allow former employers to answer whether or not they would re-hire a former employee and, importantly, whether the decision to not rehire is based on a determination that the former employee engaged in sexual harassment.

Expanding the Prohibition on “Secret Settlements” (SB 820): California law prohibits confidentiality clauses in settlement agreements regarding certain enumerated sex offenses. Expanding on the existing law, this new bill will explicitly prohibit a court from entering any civil settlement agreement containing a confidentiality clause intended to prevent the disclosure of factual information regarding claims of sexual harassment, sexual assault, or sex discrimination.

EXPANDING ACCOMMODATIONS

Amending the Rule for Accommodating Lactation (Assembly Bill 1976): Until now, employers were required to provide “the use of a room or other location, other than a toilet stall,” within which an employee could express milk in private. The new bill requires employers to not only provide a dedicated space, but to ensure that such a space is, “private and free from intrusion,” and is, “only used for lactation purposes while an employee expresses milk.” Notably, the bill expressly disqualifies bathrooms as locations to accommodate lactation.

Expanded Coverage for Paid Family Leave (SB 1123) – effective January 1, 2021: This bill will expand the scope of paid family leave to cover employees who take time off to participate in a “qualifying exigency” related to covered military active duty. “Qualifying exigencies” will be defined to include: official ceremonies; financial, legal and child care arrangements; and accompaniment of a spouse, domestic partner, child or parent on their period of rest and recuperation.

ONE CLARIFICATION

Clarification of a Rule for Requesting Salary History Information (Assemble Bill 2282): The purpose of this bill is to clarify some confusion resulting from a recent ban on inquiring into the salary history of prospective employees. The amended section of the Labor Code will now specify that employers are entitled to inquire into a prospective employee’s salary expectations. The bill also clarifies that a prospective employee is entitled to review the employer’s pay scale (salary or hourly wage range) upon request following the completion of an initial interview.

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The Social Security Administration (“SSA”) has announced, effective January 2019, it will begin enforcing penalties against employers who file Form W-2s with inaccurate employee information.

These penalties are not excessive in the micro context ($270 per form), but they can add up quickly and are only capped at an annual maximum penalty of $3,282,500.

What should you do? Keep an eye on your incoming mail from the SSA. Effective as of August 2018, the SSA is mailing letters to employers concerning each employee who has already been found to have an inaccurate Form W-2. If you receive one of these letters, be sure to re-submit an accurate Form as soon as possible before the end of the 2018.

You should not assume, however, that if you do not receive a letter from SSA that you are in the clear. In order to ensure full compliance, we recommend all employer’s take steps to ensure that employee information is accurate prior to the end of 2018. The SSA provides a number of free tools and suggestions to assist employers in getting their W-2s updated. With these tools, checking and updating your W-2s should be a quick and easy process that could save you from potentially serious penalties in the future.

A sample of the letter the SSA will be sending to employers in 2018 can be found here.

The SSA’s recommended guidelines for checking Forms W-2 for accuracy can be found here.

For a PDF version of this update, click here.


The California Employment Development Department (EDD) recently updated its Notice to Employees poster (DE 1857A) and its pamphlet, For Your Benefit: California’s Program for the Unemployed (DE 2320).

Employers are not required to post the new version of the poster or provide the updated version of the pamphlet until January 1, 2019, but Stokes Wagner encourages all California employers reading this article to be proactive and bring their literature into compliance as soon as possible. Both of these changes are quick and easy compliance updates that could save you a costly headache.

The updated poster can be found online, here in English and here in Spanish. The poster provides workers with information regarding unemployment insurance, state disability insurance and paid family leave. Remember to place all posters in conspicuous locations where your employees will be likely to read them.

The updated pamphlet can be found online, here. This pamphlet provides information on California’s unemployment benefits and is to be provided to every employee upon termination, or where an employee is laid off or takes a leave of absence.

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If you are considering settling your employee’s workers’ compensation claim and hoping to avoid further litigation, be aware of the Adrian Camacho v. Target Corporation decision by California’s Fourth District Court of Appeal.

Plaintiff Adrian Camacho, a Target employee, filed a workers’ compensation claim due to injuries he suffered as a result of workplace harassment. Target settled the claim with a standard Compromise and Release (“CR”). This form contains a clause which makes clear that execution will have, “no effect on claims that are not within the scope of the workers’ compensation (…) unless otherwise expressly stated.” (emphasis added) This final clause became the central issue of Camacho.

As a condition of settlement, Target included the following Addendum to this standard form CR which they believed would discharge them of all future liability:

“E. SETTLEMENT ACCURALS (sic)(:) The amount in paragraph #7, page 6, includes consideration for the settlement by this Compromise and Release of any claimed, accrued medical temporary disability, vocational rehabilitation, temporary disability, mileage, penalties and interest, reinstatement, lost wages, attorney fees, costs, or any other claims for reimbursement, benefits, damages, or relief of whatever nature, include [sic]{:target=”blank”} Labor Code §132(a) (Discrimination for filing a work injury) or Labor Code 11 §4553 (for serious and willful misconduct by the employer) claims filed, threatened, or contemplated, through the date of the Order Approving Compromise and Release.”

Shortly thereafter, the plaintiff filed a civil complaint against Target for multiple causes of action related to the same harassment allegations. The court summarily dismissed the plaintiff’s claim, agreeing with Target that the Addendum was sufficient to release the employer from civil liability.

However, the Fourth District Court of Appeal for California found this decision to be in error. The Court reasoned that the context of the general release clause in the Addendum was problematic, buried under multiple lines of technical language. The Court held the release to be insufficiently clear to put a claimant on notice that they were executing a general release of all liability and that the plaintiff could continue on his civil claim.

What does this mean for you?

The Court’s reasoning was based heavily on the nature of workers’ compensation proceedings. Claimants are not required to appear with an attorney, and regularly do not. The threat of imbalance in party representation make it imperative to keep safeguards in place to avoid employees improvidently waiving their rights or releasing their employer from liability without careful consideration. Thus, a court will require any release to be in “clear and non-technical language.”

Err on the side of caution in negotiating a settlement of a workers’ compensation claim. Clearly offset a general release in its own section on both the standard CR and in a separate addendum. Make clear the intent to specifically release the employer from all future claims and causes of action, explicitly including any unknown or unanticipated claims pursuant to Civil Code § 1542.

Less is not always more. In settlements like these, you can never be too careful.

For a printable PDF version of this article, click here.