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It’s All In The Signage: Equal Restroom Access

February 6, 2017 By Israel Samuels LLP Leave a Comment

There is a new law in California called the “The Equal Restroom Access Act”. We urge our business clients to read this carefully to make sure your business complies with the new requirements.

Under the Act a single-user restroom, which is a “toilet facility with no more than one water closet and one urinal with a locking mechanism controlled by the user” and, now, in businesses, government buildings, and places of public accommodation, it must be made available to everyone. By March 1, 2017, the signs on single-user restrooms must be updated to be “gender-neutral.”

The California Building Code provides for three types of restroom signs: 1. Geometric signs. The geometric designation for “gender-neutral” is a triangle on top of a circle; 2. Designation signs. These identify the room as a restroom and provide tactile signs that can be read by touch, such as raised lettering and Braille as well as pictograms which must be accompanied by a tactile sign; and 3. Directional and Information signs. These signs are those that be visually read.

California law requires a minimum of two signs to identify each restroom that is open to the public – a geometric sign and a designation tactile sign. Under the Equal Restroom Access Act all single-occupancy restrooms must now be identified by an equilateral triangle measuring 12 inches on each length within a circle with a 12 inch diameter. The color of the triangle must contrast with the color of the circle within which it is superimposed. The restroom sign must contrast in color with the surface on which it is mounted and each geometric sign must be ¼ of an inch thick and be mounted at a minimum of 58 inches and a maximum of 60 inches above the ground.

The designation tactile sign lettering must be 1/32 inches thick, in all uppercase, 5/8 inches to 2 inches in height, and may not be italic, oblique, script, highly decorative, or any other unusual style. Left-flush or centered 3/8 inches to 1/2 inches below the lettering must be a Braille duplication of the lettering. Tactile signs are also subject to certain mounting requirements, including the requirements that the sign be mounted on the latch side or on the right hand side of doorway without a door, and placed outside the swing of any door.

So get out there and change those signs or just make those single-user restrooms inoperable. Fortunately, right now, the Act does not create any penalties or a private right of action for non-compliance. However, inspectors, building officials, and local officials can inspect, and it is likely that municipalities will pass or revise ordinances in response to the Act so it is a good time to discuss your potty policy with your attorney.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.

Medical Update on Larry Israel

January 30, 2017 By Israel Samuels LLP Leave a Comment

Many of our readers were aware that Larry Israel, ret. (founder of Business Briefs; former managing partner of Israel & Samuels LLP; and previously owner of Larry Israel & Associates) was recently hospitalized with a heart condition. We are pleased to let everyone know that Larry is now home and recovering. We thank you all for your well wishes and Larry expresses his gratitude as well. We are sure that he would appreciate any direct communication from his loyal followers.

New California Employment Laws In The Works

January 23, 2017 By Israel Samuels LLP Leave a Comment

We are only one month into the new year but that hasn’t stopped California lawmakers from proposing massive, additional employment regulation laws.

We still must see what gets through the Legislature and is signed by the Governor. However, here is a sample of the bills that have been introduced:

The “Opportunity To Work” Act. This Assembly Bill is an effort to require employers to provide additional hours of work to part time employees. If passed as presently formulated, it will apply to employers with 10 or more employees in the state, and will require employers to offer additional hours of work to an existing employee before hiring any additional employees or subcontractors, including hiring an additional employee or subcontractor through the use of a temporary employment agency, staffing agency, or similar entity. The Assembly Committee on Labor and Employment is likely to hold hearings on the bill in mid-March or April. Stay tuned.
More Equal Pay Act Legislation. Assembly Bill 46 would make the recently enacted Equal Pay Act applicable to private and public sector employees. Assembly Bill 168 would prohibit an employer from seeking salary history information (including compensation and
benefits) about an applicant for employment. An almost identical bill was vetoed by the Governor last year.
More Family Leave Proposals. Senate Bill 62 seeks to extend the California Family Rights Act (“CFRA”) to cover leave for grandparents, grandchildren, siblings and parents-in-law. It would also remove existing age and dependency restrictions from the CFRA’s definition of child so that leave could be taken under the act to care for independent adult children.

As California attempts to respond to the Trump Administration’s legislative attempts to limit employee rights by providing employee rights at the State level expect to see much, much more employment legislation from the California State Legislature. The deadline for bills to be introduced is February 17, and the majority of bills are introduced in the last few days before that deadline. We recommend employers stay in contact with their California attorneys as this wave of employment legislation washes over the State.

Don’t Put A Liability Waiver On A Background Check Form

January 16, 2017 By Israel Samuels LLP Leave a Comment

The Ninth Circuit Court of Appeals has held that an employer willfully violates the Fair Credit Reporting Act (“FCRA”) by including a liability waiver on a background check disclosure and consent form that it provides to prospective employees.

In Syed v. M-I, LLC the Court concluded, based on the express language of FCRA an employer must disclose its intent to secure a consumer report for employment purposes and inform the consumer of his or her FCRA rights. The information must be in writing in a document “consisting solely of the disclosure” but can also include the consumer’s authorization to procure the report in the same document as the disclosure.

In Syed, the employer also included that stated the applicant by signing the form agreed to release the employer from liability stemming from the employer’s reliance on information derived from the consumer report. The Ninth Circuit determined that the inclusion of this
language violated FCRA and that the violation was “objectively unreasonable” and “willful.” The employer, thus, faces liability for statutory and punitive damages.

If you use background checks in your employee applicant vetting contact your attorney to ensure your forms do not improperly include “extraneous” information and do comply with FCRA.

Tax Time! Pay Those State Taxes Or Else . . .

January 9, 2017 By Israel Samuels LLP Leave a Comment

Hate paying taxes? Want to put it off?

Don’t!

The Fourth Appellate District of the California Court of Appeals in a split decision ruled that you could be prosecuted for felony tax evasion if you did not file tax returns for three consecutive years.

In Hudson v. Superior Court the Appellate Court held evidence of failing to file was sufficient for felony charges. It reasoned that the failure to act was tantamount to the intent to evade taxes. The panel refused to interpret state law to be consistent with federal law that requires proof of affirmative acts of tax evasion.

Thus, in California, failure to file state tax returns can result in felony criminal prosecutions.

Play it safe. Get those California State tax returns in on time, every time, or risk living behind bars.

New California Commercial Lease Requirement For Access Investigations Disclosure

January 2, 2017 By Israel Samuels LLP Leave a Comment

A new California law now requires that certain accessibility investigation be disclosed by landlords. The disclosure requirements apply to every commercial lease executed after January 1, 2017.

The leases must disclose whether the property has been inspected by a Certified Access Specialist (CASp) and, if so, must state whether it has been determined that the property meets the applicable accessibility standards. The law requires that the landlord provide prospective tenants with a copy of the CASp inspection report, if one has been prepared.

If there has been a CASp inspection but, to the best of the property owner or landlord’s knowledge, there have been no modifications or alterations completed or commenced before the date of the lease, the landlord must still provide to prospective tenants a copy of the CASp inspection report. The prospective tenants, must agree that the information in the report shall remain confidential. If the report is not provided at least 48 hours prior to the execution of the lease, the prospective tenant has 72 hours to rescind the lease based on information in the report.

If there are violations of construction related accessibility standards identified in the CASp report, repairs and/or modifications to correct those violations are the responsibility of the owner/landlord, absent a contrary agreement between the owner/landlord and tenant.

If the report shows that the property meets all construction-related accessibility standards, the owner/landlord must provide a copy of the current disability access inspection certificate and any other inspection reports not already provided to the tenant within seven days of the lease execution date.

If the space to be leased has not received a disability access inspection certificate, due to no CASp inspection or because repairs/modifications are still necessary, the lease must contain specific statutory notice to the tenant.

Please be aware that there are plaintiffs’ lawyers whose sole business is accessibility claims. If you are a commercial landlord it is imperative that you comply with this new statute to avoid problems that could land you in Federal or State Court well after you have a signed lease. Contact your attorney well before you lease commercial space to make sure you get this new requirement right.

Happy Holidays and Here’s to a Prosperous 2017!

December 26, 2016 By Israel Samuels LLP Leave a Comment

Israel & Samuels LLP wish all of our readers, families and friends a joyous and wonderful holiday season and a successful 2017! We truly appreciate all of you and we look forward to providing dedicated legal services to our clients in 2017 and beyond. We also will continue to provide great tips and tools as our publication of Business Briefs rolls on.

Happy New Year to All!

Employees Cannot Be “On-Call” During Rest Periods

December 26, 2016 By Israel Samuels LLP Leave a Comment

The California Supreme Court in Augustus v. ABM Security Services, Inc. has ruled Industrial Welfare Commission wage orders and the Labor Code prohibit employers from placing employees “on-call” or “on-duty” during required rest periods. The case arose from ABM Security Services’ requirement that its guards keep their radios and pagers on, remain vigilant, and respond when needs arose, such as escorting tenants to parking lots, notifying building managers of mechanical problems, and responding to emergency situations, during their rest periods.

ABM security guards sued ABM and were granted summary judgment for over $90 million in damages for this practice. ABM appealed and the Court of Appeal reversed. Plaintiffs then appealed to the California Supreme Court. The California Supreme reversed and reinstated the award. It held employers must “relinquish any control over how employees spend their break time, and relieve their employees of all duties –– including the obligation that an employee remain on call.”

In light of this case, it is imperative employers contact legal counsel to assist them in revamping their rest period and “on-call” policies.

California Employees: Work Here, Live Here, Litigate Here

December 19, 2016 By Israel Samuels LLP Leave a Comment

Starting January 1, 2017, it will be much more difficult for employers to bind California employees to non-competition agreements by choosing the law of another State to apply to the agreement. New California Labor Code section 925 prohibits employers from requiring California-based workers as a condition of employment to litigate their claims outside of California or under another state’s laws.

While it has long been the public policy of California to void employee noncompetition provisions under state law, other states do not have the same policy. Some employers thus chose a state other than California for interpretation and enforcement of such contracts for their California-based employees. Other employers used forum selection clauses to place any litigation with an employee in a more favorable foreign forum.

Under the new law an employer cannot require an employee who primarily resides and works in California to adjudicate outside of California claims arising in California or deny the employee the substantive protection of California law with respect to a controversy arising in California. Such contractual provisions are made “voidable by the employee.”

Thus, an employee may opt to proceed under another state’s law, but cannot be forced to do so by the employer; and may void a provision which runs afoul of the new law and require the matter to be tried in California. whether through litigation or
arbitration. This effectively removes the use of forum selection clauses and choice-of-law provisions to provide California employees the protections of California law.

There is one large exception provided in the new law. It does not apply to employment contracts where a party is represented by counsel in the negotiation of an agreement. This occurs frequently with high level executives and senior management.

There are several questions that have yet to be answered about how the new law will be interpreted and applied. For example, what is meant in the statute by “as a condition of employment”? Does the statute also apply to confidentiality agreements that by their terms do not state that the agreement is a condition of employment? Will the statute apply in arbitrations governed by the Federal Arbitration Act, which courts often hold preempts contrary state law? What constitutes an employee “represented by legal counsel in negotiating the terms” of an agreement? Does that include Unions or any employee who hires counsel?

In light of the new law, employers should seek counsel to review and amend their employment agreements to assure they comply and to determine the best strategy for management of their work force.

Compliance with San Jose’s New “Opportunity to Work” Law

December 15, 2016 By Israel Samuels LLP Leave a Comment

Do you have employees in San Jose? If so, have you taken steps to comply with San Jose’s new “Opportunity to Work Ordinance”? Effective March 8, 2017 employers in San Jose will be required to offer part-time employees additional hours before they hire any new or temporary employees.

The ordinance applies to employers that employ more than 35 employees and are subject to San Jose’s business tax. Employers can be covered even if they have 35 or fewer employees in San Jose since the ordinance counts every employee of a chain business whether or not located in San Jose. The ordinance also counts all employees of a franchisee, without regard for where the employees work. The ordinance covers employees who have worked two hours within the last calendar week or are entitled to California’s minimum wage.

Compliance with the ordinance is not entirely clear but requires:

employers to offer qualifying employees the extra hours before looking to temporary labor solutions;
employers to post notice to their employees about their rights under the new ordinance;
employers to “use a transparent and non-discriminatory processes” to distribute hours among existing employees;
employers to offer additional hours only to employees who “in the employer’s good faith and reasonable judgment, have the skills and experience to perform the work.”

The ordinance does not require employers to pay existing employees overtime and employers need not offer additional hours to employees if those hours would entitle the employee to a premium rate of pay.

The ordinance puts a substantial record retention burden on employers who must retain records for new hires that identify the employer’s efforts to first offer the additional work to existing part-time employees; preserve employee work schedules and “any other records the City requires for employers to demonstrate compliance with the ordinance” for four years. A failure to comply will result in a presumption that the employee’s account as to scheduling practices is accurate. The ordinance requires employers to display a poster outlining the rights created by the ordinance that the City’s Office of Equality Assurance has yet to publish.

The ordinance exempts an employer’s first violation, but, authorizes the City to issue administrative fines up to $50 per violation and to seek civil penalties in court for noncompliance. In addition, the ordinance authorizes a private right of action for any person not offered work under the ordinance and provides for such person’s right to recover lost wages, penalties and attorney’s fees, and provides for a rebuttable presumption of retaliation to an Employee who claims he or she suffered an adverse employment action within 90 days of complaining about a violation of the ordinance.

Compliance with this new ordinance is nuanced. If you have employees in San Jose seek the help of legal counsel to map out ways to assure compliance with this new, local law.